Opinion
98 Civ. No. 7943 (GEL)
January 30, 2001
David Kelly, pro se, for Petitioner David Kelly.
Robert T. Johnson, District Attorney for Bronx County, Bronx, New York (Rafael Curbelo, Assistant District Attorney, Bronx, NY, of counsel), for Respondent Christopher Artuz.
OPINION AND ORDER
Petitioner David Kelly seeks habeas corpus relief from his conviction for murder and other charges in the courts of New York. The Honorable Kevin Nathaniel Fox, United States Magistrate Judge, issued a Report and Recommendation ("Report") that the petition be dismissed. In a timely objection to the Report, Kelly does not dispute Judge Fox's analysis of his claims in any way, arguing only that his petition should be dismissed without prejudice, to permit him to pursue in the state courts "an obvious meritorious issue of ineffective assistance of counsel." For the reasons stated below, the objection is without merit.
Discussion
The facts of the case, and its procedural history, are accurately and thoroughly described in the Magistrate Judge's Report, which, to the extent specified below, is adopted after careful de novo review as the opinion of this Court. Those facts therefore will not be repeated here. I write primarily to address petitioner's objection, which raises a new claim not presented in his petition, and thus not addressed by Judge Fox.
Petitioner's objection is premised on the claim that his appellate counsel "did not follow the rules of . . . the Court of Appeals, to insure that [his] appealable issues were properly put before the Court." Judge Fox's opinion describes how Kelly's counsel, in seeking leave to appeal to the Court of Appeals the Appellate Division's affirmance of his conviction, did not set forth with particularity the arguments that might merit further review in the state's highest court. Rather, counsel simply "enclosed [with the application for leave] copies of the briefs filed in the Appellate Division. Kelly's attorney chose to rely on those briefs and did not submit a follow-up letter once a judge of the New York Court of Appeals was designated to decide his application." (Report at 8.) Taking this rather casual approach to advocacy, Judge Fox concluded, did not fairly present the claims contained in the attached briefs to the Court of Appeals, and he therefore recommended that those claims should be treated as "procedurally barred." (Report at 13, citing Grey v. Hoke, 933 F.2d 117 (2d Cir. 1991)). Petitioner now contends that counsel therefore rendered constitutionally ineffective assistance in the Court of Appeals.
The objection is without merit. At the outset, there is a significant question whether the objection is properly raised. The procedural warren of habeas corpus litigation is difficult to navigate, and perilous forpro se petitioner and judge alike. Thus, it is always necessary to trace carefully whether a claim made by petitioner can be considered at all by a federal court, and what disposition should be made of the case if petitioner has fouled one of the many procedural hurdles in his path.
In this case, petitioner essentially presented three constitutional challenges to his conviction: (1) that statements made to the police and received in evidence against him were involuntary; (2) that he was not present at a sidebar conference discussing a challenge for cause to a potential juror; and (3) that the trial judge unfairly marshaled the evidence during a supplementary instruction to the jury. If those claims are, as Judge Fox concluded, both procedurally defaulted and meritless, the correct disposition of the petition is to deny it on the merits. Kelly does not dispute this, but instead suggests that yet another claim, that he has never before raised in any forum, would justify grant of the writ. He argues that since that claim has not been presented to the state courts, his petition should be dismissed without prejudice, to permit him to exhaust state remedies before returning to federal court.
Kelly articulated the first of these arguments as two separate claims: that the police violated his Fifth Amendment rights by coercing his confession, and that the state court erroneously found them voluntary. Consistent with Kelly's presentation, Judge Fox refers to the two aspects of his involuntary confession argument as "Ground One" and "Ground Two" in the Report. These two grounds in fact state only a single alleged constitutional error in Kelly's trial, and in discussing the merits of the claim, Judge Fox correctly addressed them together. (Report at 14-16.)
There is a serious threshold question whether the Court should even entertain such an argument. Recent congressional modifications to habeas corpus procedure, such as restricting successive petitions, see 28 U.S.C. § 2244(b), and instituting a statute of limitations on habeas applications, see 28 U.S.C. § 2244(d), are designed to prevent extended habeas litigation. The clear intention and effect of these changes is to require habeas petitioners to combine their arguments into a single application, exhaust their state remedies as to all claims that they intend to present in federal court, and then promptly file one single habeas petition. If a prisoner were permitted to file a petition, and then, when it was about to be denied after full judicial consideration, fall back on secondary, unexhausted claims, thus obtaining an opportunity to return to state court and then make a second trip to federal court, the intention of Congress would be thwarted.
At the same time, however, a court must be cautious about summarily rejecting an effort to raise potentially meritorious constitutional claims. In this case, petitioner's maneuver is not necessarily an example of gamesmanship; the allegation of ineffective assistance does not appear to be a claim held in reserve to extend this litigation, but rather a response to Judge Fox's analysis of the state procedural record, which concluded that counsel's actions had failed to preserve certain claims for habeas review. In any event, under the present circumstances, it is not necessary to decide whether the disposition sought by Kelly is absolutely prohibited by the statutory scheme. Since Kelly's claim of ineffective assistance is without merit in any case, there is no occasion here to decide under what circumstances, if any, the belated assertion of a potentially meritorious claim during the pendency of an otherwise meritless habeas petition would warrant an opportunity to exhaust the new claim in the state courts.
The essence of Kelly's claim of ineffectiveness is that appellate counsel failed to present his claims properly to the New York Court of Appeals in his application for leave to appeal. But this claim fails at the threshold: The Supreme Court has held that since "a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals [beyond the first appeal as of right]"Wainwright v. Torna, 455 U.S. 586, 587 (1982) (citing Ross v. Moffitt, 417 U.S. 600, 610-15 (1974)), a defendant "could not be deprived of the effective assistance of counsel by his retained counsel's failure to [perform effectively in seeking such review]." Id. at 587-88. See also Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (because the "right to appointed counsel extends to the first appeal of right and no further" there is no right to counsel on collateral review); cf Evitts v. Lucey, 469 U.S. 387, 396-97 (1985) (because defendant has constitutional right to counsel on appeal as of right, ineffective assistance of appellate counsel violates Sixth Amendment).
Moreover, even if a right to effective assistance of counsel at the leave to appeal stage existed, in order to establish a deprivation of the right it would be necessary for Kelly to meet the two-part test established in Strickland v. Washington, 466 U.S. 668, 687 (1984): "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense." Whether or not counsel's performance was constitutionally deficient, on this record Kelly cannot establish any prejudice resulting from counsel's strategy.
In determining prejudice, the question is "whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. As Judge Fox amply documents, the constitutional arguments raised by Kelly are without merit. Therefore, counsel's manner of presenting them to the Court of Appeals can have made no difference to Kelly, for no matter how presented, the arguments could not have led to reversal of his conviction.
Kelly also included two state law claims, which were equally unlikely candidates for review by the Court of Appeals.
And that is the true crux of the matter. When all is said and done, the convoluted procedural issues should not cause us to lose sight of the underlying merits of the case. Kelly does not even attempt to dispute Judge Fox's meticulous and conclusive discussion of the merits of his constitutional claims. As Judge Fox explains in his Report, there is no reason to disturb the state trial court's finding that his statements were voluntary and not coerced, Kelly's absence from the sidebar conference during voir dire violated no constitutional provision, and the trial court's response to the jurors' question was entirely proper. (Report at 14-20.) Kelly was convicted of serious crimes, and he has shown no departure from the strictest observance of his constitutional rights. Whether or not he or his prior counsel complied with every particular of the increasingly demanding procedural requirements to preserve his claims of error for review on habeas corpus, the fundamental point is that those claims are entirely without merit.
Conclusion
The petition for habeas corpus is denied. Parts I, II, IIIA, IIIC and IIID), and the discussion of the merits of the coerced confession claim from pp. 14-16 of Part IIIB, of the Report and Recommendation, are adopted as the opinion of this Court. Petitioner's objection is overruled. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Division of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000). The Clerk of Court is respectfully directed to close this case.
SO ORDERED