Opinion
05 Civ. 8160 (BSJ) (RLE).
August 29, 2006
REPORT AND RECOMMENDATION
I. INTRODUCTION
Pro se petitioner, Kenneth Lewis ("Lewis"), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction on July 27, 2000, in New York State Supreme Court, Bronx County. Lewis was convicted of two counts of burglary in the second degree, one count of criminal trespass in the second degree, and two counts criminal possession of stolen property in the fifth degree, and sentenced to twenty-one years to life on each burglary count and one year on each remaining count, all to run concurrently. He is currently incarcerated at the Eastern Correctional Facility in Napanoch, New York.
Lewis challenges his conviction on the grounds that he received ineffective assistance of counsel. More specifically, he asserts that 1) his appellate counsel was ineffective because she did not argue that charges in his indictment were defective; and 2) his trial counsel was ineffective in (a) failing to argue that charges in his indictment were defective, (b) failing to investigate and properly challenge the state's evidence supporting his status as a persistent violent felony offender, (c) making inconsistent arguments during voir dire, and (d) failing to make a motion to dismiss because of insufficient evidence. For the reasons set forth below, I recommend that Lewis's writ of habeas corpus be DENIED.
II. BACKGROUND
A. Factual BackgroundOn November 11, 1998, a superintendent found Lewis and his partner, Reneise Pope ("Pope"), sleeping in a vacant apartment in a building on Palisades Avenue in the Bronx, where burglaries had recently occurred. Feb. 9 Tr. at 44-45, 56-57. Lewis and Pope were arrested after leaving the building. Id. at 494-98. At the time of the arrest, the police found that they were carrying property that had been reported stolen and pawn shop receipts which led to other stolen property. Id. at 508-11.
The record contains multiple transcripts, each separately paginated. Each volume will be designated herein by the date on the first page, which corresponds to the date of the proceeding. The cited portions all took place in 2000.
Lewis and Pope were charged with unlawfully entering three homes: two on November 5, 1998, and one on November 11, 1998. They were also charged with two counts of possession of stolen property. There were no witnesses to the alleged burglaries and no fingerprint evidence. Lewis, however, wrote numerous letters to Pope which contained incriminating statements. Id. at 321-50. At trial, Pope testified, under a favorable agreement with the State, that Lewis gave her property to pawn and that she did not know where he obtained the property. Id. at 266, 275-77, 281-90.
B. Procedural History
On February 17, 2000, Lewis was convicted of two counts of burglary in the second degree, criminal trespass in the second degree, and two counts criminal possession of stolen property in the fifth degree. Feb. 17 Tr. at 802-04. The court held a hearing on June 28, 2000 ("June 28 Hearing"), to determine whether Lewis should be adjudicated a persistent violent felony offender. At the hearing, Lewis filed a pro se motion with the court to set aside the verdict arguing that defense counsel had not provided him with effective representation. June 28 Tr. at 2. The trial court denied the motion, finding that counsel's representation was highly skilled. Id. at 3. That same day, Lewis's trial counsel moved to set aside the verdict, arguing that the evidence was legally insufficient to support the burglary charges. Id. at 4. The motion was denied, id. at 5-6, and Lewis was sentenced, as a persistent violent felony offender. July 27 Tr. at 2-5, 19-20.
On December 23, 2002, appellate counsel for Lewis filed a brief with the Appellate Division, First Department, arguing that 1) the conviction was against the weight of the evidence, and 2) the sentence was excessive. On December 31, Lewis filed a pro se application to supplement counsel's brief arguing that his rights under New York Criminal Procedure Law ("N.Y.C.P.L.") §§ 60.22, 70.10, and 190.65, and the Fifth, Sixth, and Fourteenth Amendments had been violated. On February 6, 2003, the court denied Lewis's application for leave to file a pro se supplemental brief. On January 24, 2004, the court found that Lewis's conviction was supported by Pope's testimony, the physical evidence recovered during the arrest, and letters with incriminating statements. People v. Lewis , 770 N.Y.S.2d 616 (App. Div. 1st Dep't 2004). The court also found that Lewis's sentence was not excessive because he had properly been adjudicated a persistent violent felony offender. On February 27, 2004, Lewis's application for leave to appeal to the New York State Court of Appeals was denied. People v. Lewis , 1 N.Y.2d 28 (2004).
On July 20, 2004, Lewis filed a pro se application in the Appellate Division for a writ of error coram nobis arguing that his appellate counsel was ineffective. On February 1, 2005, the court denied this motion. On June 15, 2005, Lewis's application for leave to appeal to the New York State Court of Appeals was denied. On August 31, Lewis filed the instant habeas petition raising the same claims he raised in his application for a writ of error coram nobis.
III. DISCUSSION
A. TimelinessA petitioner must file an application for a writ of habeas corpus within one year of his conviction becoming final. See 28 U.S.C. § 2244(d)(1). A conviction becomes final when the "time to seek direct review in the United States Supreme Court by writ of certiorari expire[s]," that is, ninety days after the final determination by the state court. Williams v. Artuz , 237 F.3d 147, 150 (2d Cir. 2001) (quoting Ross v. Artuz , 150 F.3d 97, 98 (2d Cir. 1998). The New York State Court of Appeals denied Lewis's application for leave to appeal on June 15, 2005. His petition, filed on August 31, 2005, is timely.
B. Exhaustion of Claims
Pursuant to 28 U.S.C. § 2254(b), as amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), the Court may not consider Lewis's petition for habeas corpus unless he has exhausted all state judicial remedies. 28 U.S.C. § 2254(b)(1)(A); Picard v. Connor , 404 U.S. 270, 275 (1971); Dorsey v. Kelly , 112 F.3d 50, 52 (2d Cir. 1997). This requirement of exhaustion is "based on considerations of comity between federal and state courts, ensuring that the state courts have an opportunity to consider and correct any violations of their prisoners' federal constitutional rights." Warren v. McClellan , 942 F. Supp. 168, 170 (S.D.N.Y. 1996) (citing Picard , 404 U.S. at 275). In order to satisfy substantive exhaustion, Lewis's claim before the state courts must have been federal or constitutional in nature. Although not an exacting standard, Lewis must have informed the state courts of "both the factual and the legal premises of the claim [he] asserts in federal court." Lewis v. Vacco , 126 F.3d 408, 413 (2d Cir. 1997) (quoting Daye v. Attorney General , 696 F.2d 186, 191 (2d Cir. 1982) (en banc)). He may meet this requirement by:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claims in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye , 696 F.2d at 194. Procedurally, Lewis must have utilized all avenues of appellate review within the state court system before proceeding to federal court. See Bossett v. Walker , 41 F.3d 825, 828 (2d Cir. 1994). He must have raised a federal claim at each level of the state court system, "present[ing] the substance of his federal claims `to the highest court of the pertinent state.'" Id. (quoting Pesina v. Johnson , 913 F.2d 53, 54 (2d Cir. 1990). Lewis properly raised his claims in both his motion for a writ of error coram nobis to the Appellate Division and his application for leave to appeal to the New York State Court of Appeals. His claims are exhausted and reviewable by this Court.
C. Review on the Merits
1. The Legal Standard
Pursuant to 28 U.S.C. § 2254(d), as amended by AEDPA, this Court should grant a writ of habeas corpus only if one of two conditions is satisfied: the state court adjudication (1) resulted in a decision that was contrary to clearly established federal law, as determined by the Supreme Court of the United States, or (2) involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States. Williams v. Taylor , 529 U.S. 362, 412 (2000); see also Shabazz v. Artuz , 336 F.3d 154, 160-61 (2d Cir. 2003). A state court decision is contrary to federal law if the state court applies "a conclusion opposite to that reached by [the] Supreme Court on a question of law" or if it "decides a case differently than [the] Supreme Court has on a set of materially indistinguishable facts." Williams , 529 U.S. at 413. A state court decision involves an "unreasonable application" of Supreme Court precedent "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id . "Clearly established federal law" refers only to Supreme Court "holdings, as opposed to the dicta, of its decisions as of the time of the relevant state court decision." Id. at 412.
An adjudication on the merits occurs when a state court: "(1) disposes of the claims `on the merits;' and (2) reduces its disposition to judgment." Sellan v. Kuhlman , 261 F.3d 303, 312. State courts are not required to explain their reasoning process in order to adjudicate on the merits. Id. at 311. Since Lewis's claim was adjudicated on the merits in the appellate court, this Court must review it under the standard of deference set forth in 28 U.S.C. § 2254(d)(1).
2. The Sixth Amendment Right to Effective Assistance of Counsel
Lewis has a Sixth Amendment right to the effective assistance of counsel. See Strickland v. Washington , 466 U.S. 668, 686 (1984). To establish a violation of that right, Lewis must show that 1) counsel's errors were "so serious that he was not functioning as counsel" guaranteed by the Sixth Amendment; and that 2) he suffered prejudice as a result of counsel's deficient representation. See id , 466 U.S. at 687. Furthermore, Lewis must prove that counsel's conduct so undermined the adversarial process that it cannot be relied upon as having produced a just result. Id. at 686. In reviewing ineffective assistance of counsel claims, the Court "strongly presume[s]" that counsel rendered adequate assistance in making significant decisions in the exercise of reasonable professional judgment. Id. at 689; United States v. Cronic, 466 U.S. 648, 658 (1984).
The Strickland standard applies both to trial and appellate counsel. Smith v. Robins , 528 U.S. 259, 285 (2000); Smith v. Murray , 477 U.S. 527, 535-36 (1986). In the appellate context it is not enough to show that "counsel omitted a nonfrivolous argument" on appeal; the petitioner must show that "counsel omitted significant and obvious issues," and this resulted in some prejudice. Mayo v. Henderson , 13 F.3d 528, 533 (2d Cir. 1994). Prejudice can be established if the petitioner "demonstrate[s] that there was a reasonable probability that his claim would have been successful before the state's highest court." Id. at 534 (citation omitted).
"For AEDPA purposes, a petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also clearly established." Aparicio v. Artuz , 269 F.3d 78, 95, n. 8 (2d Cir. 2001) (citation omitted). However, Lewis "must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly." Bell v. Cone , 535 U.S. 685, 698-99 (2002). Instead, "he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner." Id. at 99.
3. The Indictment
Lewis was originally charged with possessing stolen property with a value in excess of $1,000. The state produced sufficient evidence to charge him with possession of stolen property, but did not established that the value of the property was in excess of $1,000. The indictment was changed to reflect this reduction. Lewis argues that the state initially indicated that it would present the reduced counts to a grand jury. The state appears to have failed to present the reduced charges to a grand jury. Lewis contends that this bars the state from proceeding on the charges, and that the indictment was, therefore, defective.
Lewis maintains that he was denied effective assistance of counsel because his appellate counsel did not argue that 1) charges in his indictment were defective, and 2) his trial counsel was ineffective in failing to argue that the charges were defective. Contrary to Lewis's assertion, the record indicates that trial counsel moved to dismiss the indictment at the end of jury selection. Feb. 7, 8, and 9 Tr. at 281-87. The court, however, found that the state could file the reduced indictment without any formal action by the grand jury, and that the reduced charges did not change the theory of the prosecution as reflected in the evidence before the grand jury and were not intended to cure a legal insufficiency of factual allegations. Id. at 287; see also People v. Jackson , 87 N.Y.2d at 789; N.Y.C.P.L. §§ 200.70(2)(b) and 210.20. Lewis's claims that trial counsel failed to adequately challenge his indictment are, therefore, meritless, and cannot demonstrate any prejudice. Strickland , 466 U.S. at 687. Similarly, Lewis's claim that his appellate counsel was ineffective for not raising this claim is also without merit.
4. Lewis's Status as Persistent Violent Felony Offender
Lewis maintains that he was denied effective assistance of counsel because his attorney failed to adequately investigate and properly challenge the state's evidence supporting his status as a persistent violent felony offender. Contrary to Lewis's claim, both his trial and appellate counsel did, in fact, contest his status as a persistent violent felony offender. At trial, the state requested time to investigate the nature of Lewis's prior convictions because its criminal records were incomplete. Feb. 9 Tr. at 805. The court subsequently held a hearing to determine whether Lewis was a persistent violent felony offender. At the hearing, the State produced a copy of a Bronx County Indictment, and minutes of his 1986 plea and sentence. Lewis's trial counsel challenged the State's contention. June 28 Tr. at 6. The court nevertheless found that the State had established Lewis's status as a persistent violent felony offender beyond a reasonable doubt. July 27 Tr. at 1-5.
On appeal to the Appellate Division, appellate counsel argued that since the States's criminal records failed to comply with mandatory statutory requirements, Lewis's case should be remanded for re-sentencing. Jillian E. Wieder's Affidavit in Opposition to Petition for Habeas Corpus ("Jillian Aff."), Exh. 1 at 28. Appellate counsel argued that the trial court adjudicated Lewis as a persistent violent felony offender based on a 1986 conviction, even though the state's criminal records did not contain sufficient information for purposes of calculating whether the conviction was imposed more than ten years before the commission of the present crime. Id. at 31. More specifically, counsel argued that, under N.Y.P.L. §§ 70.04(1)(b)(iv) and 70.08(1)(b), Lewis's 1986 conviction should not have been used to adjudicate him as a persistent violent felony offender because the conviction was imposed more than ten years before the commission of the present crime. Counsel further maintained that the State's criminal records did not contain sufficient information concerning the dates of commencement and termination of his incarceration and place of imprisonment. Id. The Appellate Division affirmed the trial court's ruling, finding that the State's criminal records sufficiently complied with the statutory requirements. People v. Lewis , 770 N.Y.S.2d 616 (App.Div. 1st Dep't 2004). That counsel was not able to win a reversal for Lewis does not show ineffective assistance. Lewis's claim that trial or appellate counsel failed to adequately challenge his persistent violent felony offender status is, therefore, meritless, and he cannot demonstrate any prejudice. Strickland , 466 U.S. at 687.
5. Trial Counsel's Statements During Voir Dire
Lewis maintains that his appellate counsel was ineffective for failing to assert that trial counsel was ineffective for admitting during voir dire that Lewis was guilty. During voir dire, trial counsel asked the potential jurors whether they would have any feelings about an accomplice cooperating with the government and testifying in this case, Feb. 7, 8, and 9 Tr. 193-94, or whether they had ever found "anything that didn't belong to them." Id. at 215. Lewis argues that these statements were counterproductive and confused the jury. However, the jury was instructed by the trial court that statements, arguments, and questions by lawyers are not evidence. Feb. 9 Tr. at 296. The jury is presumed to have followed the instructions. Allaway v. McGinnis , 301 F. Supp. 2d 297, 300 (S.D.N.Y. 2004). Trial counsel's statements during voir dire, therefore, do not amount to ineffective assistance of counsel. "Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland , 466 U.S. at 690. Contrary to Lewis's assertions, the record indicates that trial counsel argued that the possession of stolen property did not necessarily mean that he had stolen any property. Feb. 9 Tr. at 698.
6. Trial Counsel's Failure to Move to Dismiss for Insufficient Evidence
At the beginning of the June 28 Hearing, Lewis submitted a pro se motion to set aside the verdict on grounds of ineffective assistance of counsel. The court denied this motion, finding that "[trial counsel's] representation was more than adequate. And in fact [trial counsel] did a highly skilled job in representing [Lewis] and in a fashion that does not comport with [Lewis's] assessment. . . ." June 28 Tr. at 2-4. Since trial counsel was not ineffective, it follows that appellate counsel was not ineffective for failing to raise this meritless claim. In fact, the record does not show that Lewis's appellate counsel was ineffective. On appeal, appellate counsel filed a thirty-five page brief raising numerous claims. Jillian Aff. at Exh. 1. Lewis's claims are, therefore, meritless, and he cannot demonstrate any prejudice. Strickland , 466 U.S. at 687.
IV. CONCLUSION
For the foregoing reasons, I recommend that Lewis's petition for a writ of habeas corpus be DENIED. Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Barbara S. Jones, 500 Pearl Street, Room 620, and to the chambers of the undersigned, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn , 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services , 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); 28 U.S.C. § 636(b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).