Opinion
No. 03 Civ. 8580 (DLC)(KNF).
January 31, 2005
REPORT AND RECOMMENDATION
TO THE HONORABLE DENISE L. COTE, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Darren Miller ("Miller") has made an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Miller contends that his confinement by the state of New York is unlawful because: (1) the trial court's initial instruction to the jury concerning accessorial liability was incomplete and misleading and, therefore, it deprived Miller of a fair trial; (2) the trial court's determination to reread its instruction concerning accessorial liability to the jury, in response to a query from the jury while it was deliberating, was erroneous and deprived Miller of a fair trial; (3) the prosecutor made improper comments during his closing argument to the jury, which deprived Miller of his right to a fair trial; and (4) the assistance rendered to Miller by his trial counsel was ineffective and, thereby, violated Miller's rights under the Sixth Amendment.
The respondent opposes Miller's application for a writ of habeas corpus. He contends that the determinations made by the state appellate court, concerning Miller's claims about the trial court's initial and supplementary jury instructions regarding accessorial liability, as well as Miller's claim concerning the prosecutor's closing argument to the jury, were neither contrary to nor unreasonable applications of clearly established federal law. Furthermore, the respondent maintains that petitioner's allegation that he received ineffective assistance from his trial counsel is a claim that is unexhausted for the purpose of habeas corpus review, procedurally barred from habeas corpus review and meritless.
II. BACKGROUND
Miller, David White ("White") and Thomas Broadhurst ("Broadhurst") were indicted by a New York County grand jury. The grand jury charged each with criminal sale of a controlled substance in the third degree (New York Penal Law § 220.39), and criminal sale of a controlled substance on or near school grounds (New York Penal Law § 220.44). White elected to plead guilty to a reduced charge, while Miller and Broadhurst proceeded to trial before a petit jury in New York State Supreme Court, New York County.
During the trial, the jury learned that on February 20, 2001, a male undercover police officer was escorted by Broadhurst and a woman named Tracy Beckum ("Beckum") to the vicinity of 11-15 West 123rd Street, in Manhattan, where White and Miller were located. The undercover officer announced to Miller that he wanted "eight." Miller instructed the officer to "keep it moving" and looked up and down the street. The undercover officer walked towards White. Broadhurst then asked the undercover officer for money, and Broadhurst received $40.00 of pre-recorded buy money from him. As the undercover officer was counting the money he would give to Broadhurst, Miller walked to White and handed White a clear sandwich bag that contained orange topped vials. White removed eight vials from the bag, handed them to Broadhurst and received the $40.00 in return. Police officers determined later that the vials contained cocaine.
After obtaining the eight vials, the undercover officer walked away from Broadhurst and White. He used a radio to transmit a description of the sale participants and their location to other officers who were in the vicinity. The officers who received that transmission traveled in vehicles to the vicinity of 11-15 West 123rd Street, where they apprehended Broadhurst and White, who had attempted to elude the officers by entering the building at that address. Beckum was apprehended several blocks away, and was returned by police officers to the vicinity of 11-15 West 123rd Street, where Broadhurst and White were in custody.
Shortly thereafter, a police officer spotted Miller standing among a group of bystanders on the opposite side of the street from where the others who had been apprehended were standing. That officer approached Miller, took him into custody and removed Miller to the place on West 123rd Street where the other arrestees were being held. Subsequently, the undercover officer who had purchased the eight vials drove past 11-15 West 123rd Street twice. As he did so, he indicated to the arresting officers that the four persons in custody had participated in selling eight vials of crack cocaine to him.
Miller testified in his own behalf at his trial. He acknowledged being in the vicinity of 11-15 West 123rd Street, in conversation with White, when Broadhurst, Beckum and the male undercover officer approached in search of crack cocaine. However, he denied participating in the charged drug sale. Moreover, Miller described the prosecution's claim, that he acted as the "stash person," that is, the person who supplied White with the vials that were sold to the undercover officer, as "not logical." Miller explained to the jury that he had spied a white woman across the street from White after he had instructed Broadhurst, Beckum and the undercover officer to "keep it moving." Due to her race, and her presence in Harlem at noontime, Miller believed the woman was an undercover police officer. Therefore, Miller testified that had he any intention of selling drugs — which he told the jury he did not — he would not have done so in plain view of a person he felt was an undercover police officer. Miller testified further that he had such a strong suspicion that the woman he observed was an undercover police officer, that he summoned White, who had walked off with Broadhurst, and cautioned him to be mindful of the woman if White was "doing anything."
After all the evidence had been received by the jury, the trial judge met with counsel to learn of any specific requests that the parties wanted to make concerning the instructions on the law that would be given to the jury by the court. Miller's counsel requested that the trial court instruct the jury on the concept of prior inconsistent statements; the court declined to do so. Miller's counsel also asked the court to adopt and incorporate into its jury instructions certain language pertinent to the concept of reasonable doubt. The court also denied that request. The court explained that it believed that the language proposed by Miller's counsel, respecting reasonable doubt, would confuse the jury rather than aid the jury in performing its task.
The court then advised the parties of the time limits it was placing on each closing argument: 40 minutes, and the order in which defense closing arguments would be given. Miller's counsel learned that his closing argument would be the first the jury would hear. Counsel inquired of the court why that was so. He was informed that the court required defense closing arguments to proceed in reverse order of the defense opening statements. Miller's counsel was also advised that his closing argument to the jury would commence in approximately 20 minutes from that point in the proceedings. Miller's counsel indicated to the court that he was unaware that he would be addressing the jury first and that he would need more time to prepare his closing argument. However, the court declined to provide Miller's counsel with additional time to prepare his closing argument. The trial transcript indicates that, at this juncture in the proceedings, Miller's counsel "[stepped] out of the courtroom." In the absence of Miller's counsel, the court continued the pre-charge conference and inquired of Broadhurst's counsel whether he wished to have the jury instructed on the issue of identification. Counsel to Broadhurst did not respond. Thereafter, a recess was taken by the court.
When the trial proceedings resumed, the jury heard the parties' closing arguments. Counsel to Miller urged the jury to find that the undercover police officer, who testified that he purchased the eight vials of crack cocaine, was not worthy of belief. He explained that this was so, in part, because:
. . . his entire work day is concerned with deception. . . . A leopard doesn't change his spots . . . a person who's an undercover officer, involved in deception day in and day out, for him to come into a courtroom and suddenly shed his spots is just not probable.
In response, during his closing argument, the prosecutor asked the jury to weigh petitioner's credibility against that of the police officers who testified at the trial. He recalled for the jury that Miller had testified that when he encountered White on Lenox Avenue near West 123rd Street, Miller claimed he was on his way to visit Patricia Downes ("Downes"), the mother of one of his children. After reminding the jury that the burden of proof was on the prosecution and that Miller need not prove anything, the prosecutor suggested to the jury that they consider that Downes had not testified before them, to corroborate Miller's testimony that he was scheduled to meet with her the day he was arrested.
Now, Mr. Miller doesn't have the burden to prove anything. The burden rests only on the People. Who is Patricia who he knows for over 20 years? Who is she? He told you he made plans to meet her on that day. Where is she to confirm in fact he was going to meet her that day? . . . Nowhere to be seen.
The prosecutor also recalled for the jury that Miller testified that, prior to his arrest, a detective seized him but did not arrest him because the white female undercover officer Miller told the jury about had informed the detective that Miller was not among the persons who were to be arrested in connection with the sale of cocaine to the male undercover officer. The prosecution questioned whether the detective, who Miller alleged had seized him, existed, since Miller was the only person who testified to the detective's existence.
Immediately after the final closing argument was delivered, and before the court instructed the jury on the applicable law, Miller's counsel inquired of the court concerning the language that would be included in its instruction to the jury respecting the criminal culpability of a person who is alleged to have acted in concert with another in committing a crime. Miller's counsel asked the court to inform the jury, among other things, that "knowledge that a crime is about to be committed is . . . not sufficient for [the jury to find that an accused was] acting in concert." The trial judge declined to adapt the jury instruction he had contemplated giving to include the language suggested by Miller's counsel. The court explained that it would give the jury the instruction on accessorial liability contained in New York's Pattern Jury Instructions. The court explained further that, while the precise language proposed by Miller's counsel was not included in the pattern jury instruction, the pattern jury instruction conveyed essentially the same information.
The trial judge instructed the jury concerning accessorial liability relying upon New York's Pattern Jury Instructions. After the jurors commenced deliberations, they requested that the court review with them again the elements of the charged crimes and acting in concert. The court advised counsel to the parties that it would reread the instructions it had given to the jury on these matters, unless any party objected. No objection was voiced by any party. Therefore, the court summoned the jurors to the courtroom and reread to them the relevant portions of the instructions on the law that had previously been delivered to them. After this exercise was completed, but before the jury resumed deliberations, Miller's counsel renewed his request that the court instruct the jury that "mere presence even with knowledge that a crime is about to be committed is not sufficient for acting in concert." The court declined to so instruct the jury. The jury later returned a verdict convicting Miller and his co-defendant of all charges in the indictment.
Miller appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. He urged that court to upset his conviction because: (1) the trial court's initial and supplementary instructions concerning accessorial liability were, inter alia, incomplete and misleading and, therefore, denied him a fair trial; and (2) the prosecutor's closing argument was improper, in that it (a) suggested, improperly, that Miller was obligated to summon to trial two witnesses about whom he testified, and (b) vouched for the credibility of the prosecution's police officer witnesses and, thereby, deprived him of a fair trial. In addition, Miller asked the Appellate Division to dismiss his conviction for criminal sale of a controlled substance in the third degree in the interest of justice.
The Appellate Division affirmed Miller's conviction unanimously. See People v. Miller, 306 A.D.2d 16, 759 N.Y.S.2d 658 (App.Div. 1st Dep't 2003). That court determined that, when viewed as a whole, the instructions given by the trial court to the jury concerning accessorial liability conveyed correctly the applicable legal standards. The Appellate Division also found that the trial court fulfilled its obligation to respond meaningfully to the jury's request for a supplementary instruction concerning accessorial liability when it repeated its original instruction to the jury on that matter. In addition, the Appellate Division concluded that the challenged portions of the prosecutor's closing argument were not improper but, rather, constituted fair comment on the evidence in response to arguments urged upon the jury by Miller's counsel. The Appellate Division also rejected Miller's request that it exercise its discretion and dismiss his conviction for criminal sale of a controlled substance in the third degree in the interest of justice. Thereafter, Miller applied to the New York Court of Appeals for leave to appeal from the determination of the Appellate Division. That application was denied by an associate judge of that court. See People v. Miller, 100 N.Y.2d 584, 764 N.Y.S.2d 395 (2003). The instant application for a writ of habeas corpus followed.
III. DISCUSSION
Trial Court's Jury Instructions
Where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 provides that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: (1) was contrary to, or involved an unreasonable application of, federal law, as determined by the Supreme Court of the United States; or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
In the case at bar, the Appellate Division decided Miller's due process claims of an unfair trial, premised upon the trial court's determination to rely exclusively upon the language found in New York's Pattern Jury Instructions when informing the jury about accessorial liability, on the merits. Therefore, in considering whether Miller is entitled to habeas corpus relief on these claims, the court typically would have to determine whether the Appellate Division's adjudication resulted in a decision that was contrary to or involved an unreasonable application of federal law as determined by the Supreme Court or was based upon an unreasonable determination of the facts in light of the evidence presented at Miller's trial. However, since two grounds upon which Miller seeks the issuance of a writ of habeas corpus involve a claim of error respecting state trial jury instructions, Miller is not entitled to habeas corpus relief unless he can establish that a challenged jury instruction "by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 146-147, 94 S.Ct. 396, 400 (1973). This is so because the adequacy of a state court's jury instruction is a matter of state law, see Gilmore v. Taylor, 508 U.S. 333, 342, 113 S. Ct. 2112, 2117 (1993), and habeas corpus relief is only available for violations of federal law. See 28 U.S.C. § 2254(a); Rasul v. Bush, ___ U.S. ___, 124 S. Ct. 2686, 2693 (2004).
Under New York law "[w]hen one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct." New York Penal Law § 20.00. As noted above, the trial judge informed Miller's counsel that he would rely upon language found in New York's Pattern Jury Instructions when discussing the law respecting accessorial liability with the jury, prior to releasing them to deliberate. In so doing, the trial court advised the jury that a person is criminally liable for an offense when, among other things, the person "intentionally aids in its commission." The court explained that a person "who intentionally participates in the commission of a crime may be found guilty of that crime." The court explained further that one who participates or aids in the commission of a crime must do so "voluntarily and purposefully and with a specific intent to do some act that the law forbids." The trial court also advised the jury that a person's "mere presence" would be an insufficient basis upon which to convict the person for acting in concert in the commission of a crime. The trial judge's determination to rely upon language found in New York's Pattern Jury Instructions, rather than to adopt language offered by Miller's counsel, was reasonable and appropriate.
The pattern jury instructions used in criminal cases decided by New York courts are the product of a committee composed of "judges and lawyers who are charged with providing standard instructions to be used by judges charging juries on the law and to bring the instructions current with all statutory and case law requirements. Their recommended pattern charges are widely used in criminal trials in the state and their recommendations are given much weight in determining the explanation of concepts and terms under the law." People v. Grinberg, 4 Misc. 3d 670, 680 n. 3, 781 N.Y.S.2d 584, 591 n. 3 (N.Y. City Crim. Ct. 2004).
The Court has reviewed the jury instructions as a whole and finds that the portion devoted to accessorial liability adequately conveyed that legal concept to the jury and did not "infect the entire trial" such that petitioner was deprived of due process. Furthermore, nothing submitted by Miller to the Court, in support of his application for a writ of habeas corpus, demonstrates how, if at all, the trial court's instruction to the jury concerning accessorial liability so "infected the entire trial" that his conviction violates due process, in light of the evidence that Miller supplied to White the clear plastic bag from which the vials purchased by the undercover officer were extracted.
Moreover, by statute a trial court in New York is required, when a deliberating jury requests further instructions with respect to the law, to "give such requested information or instruction as the court deems proper." New York Criminal Procedure Law Section 310.30. New York's Court of Appeals has advised that a trial court, in exercising its discretion, may reread the original instruction it has given to the jury when responding to a request for additional instructions on the law.See People v. Santi, 3 N.Y.3d 234, 248, 785 N.Y.S.2d 405, 414 (2004). Inasmuch as the Court has found that the original instruction given by the trial court to the jury concerning accessorial liability did not run afoul of Miller's due process rights, the Court also finds that the rereading of that instruction to the jury, in response to its query while deliberating, did not violate Miller's due process rights.
A state prisoner seeking habeas corpus relief based upon a claimed improper jury instruction faces a substantial burden.See DelValle v. Armstrong, 306 F.3d 1197, 1200-1201 (2d Cir. 2002) (citing Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1737). He or she must show more than that "the instruction is undesirable, erroneous or even universally condemned," but rather must establish that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp, 414 U.S. at 146-147, 94 S. Ct. at 400. Under the circumstances, Miller has not satisfied the substantial burden placed upon him, see DelValle, supra, and is not entitled to habeas corpus relief based upon the challenges he makes to the initial and supplementary jury instructions concerning accessorial liability that were given at his trial.
Prosecutor's Closing Argument
Miller's claim concerning the prosecutor's comments during his closing argument to the jury, that focused on Miller's failure to summon two witnesses to testify on his behalf and vouched for the credibility of the police officer witnesses who testified on behalf of the prosecution, was addressed on the merits by the Appellate Division. Therefore, in order to obtain habeas corpus relief based upon this branch of his petition, Miller must establish that the Appellate Division's adjudication of this claim was contrary to or involved an unreasonable application of federal law as determined by the Supreme Court of the United States or was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
The Supreme Court has held that when a criminal defendant directly or through the arguments of the criminal defendant's counsel to a jury, makes statements that invite reply by the prosecution, such a reply, when given, is not improper if, when considered within the context of the entire trial, the reply cannot be said to have deprived the defendant of a fair trial.See Lawn v. United States, 355 U.S. 339, 359, 78 S.Ct. 311, 322 n. 15 (1958); United States v. Young, 470 U.S. 1, 11-12, 105 S. Ct. 1038, 1044 (1985). Here, as Supreme Court precedent suggests, the Appellate Division considered all the evidence presented at the trial and the arguments urged upon the jury by Miller's trial counsel during his summation, and found that the challenged portions of the prosecutor's closing argument to the jury constituted fair comment. Miller has not made a showing to the Court that the determination reached by the Appellate Division, on Miller's claim concerning the prosecution's closing argument to the jury, was either contrary to or involved an unreasonable application of federal law as determined by the Supreme Court or was based upon an unreasonable determination of the facts in light of the evidence presented to the Appellate Division. Absent such a showing by Miller, he is not entitled to habeas corpus relief on this claim. See 28 U.S.C. § 2254(d).
Ineffective Assistance of Counsel
Miller contends that his trial counsel rendered ineffective assistance to him because: (i) counsel departed from the courtroom during the pre-charge conference convened by the trial court; and (ii) counsel failed to "put in motions for insufficient [evidence]." Miller's ineffective assistance of counsel claim was not raised by him when he appealed from the judgment of conviction entered by the trial court. Furthermore, the record before the Court is barren of any evidence that any collateral attack upon the judgment of conviction was made by Miller in the state court premised upon his claim that he received ineffective assistance from his trial counsel. Miller is now foreclosed by New York procedural rules from presenting his claim of ineffective assistance of counsel to the highest state court, the New York Court of Appeals, because he has already made the one request for leave to appeal to that court to which he is entitled. See New York Court Rules, Section 500.10(a). Miller is also foreclosed from seeking collateral review of his claim in the state courts because, although sufficient facts were of record that would have permitted Miller to raise the claim upon appeal from the judgment of conviction, he failed to do so. Therefore, any application for collateral review of the claim made to a state court would have to be denied. See New York Criminal Procedure Law, Section 440.10(2)(c).
Under the circumstances, the Court finds that Miller failed to exhaust the state remedies available to him through which his claim of ineffective assistance of trial counsel could have been adjudicated. However, since he can no longer obtain review of that claim from the highest state court that could entertain it or through collateral review, Miller's ineffective assistance of counsel claim should be deemed to have been exhausted for the purpose of habeas corpus review. See Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). A federal court may not reach the merits of a claim such as this that was procedurally defaulted in the state courts "unless the habeas petitioner can show cause for the default and prejudice attributable thereto or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043 (1989); Coleman v. Thompson, 501 U.S. 722, 755, 111 S. Ct. 2546, 2564-65 (1991).
Miller contends that he failed to raise the instant claim in his direct appeal from the judgment of conviction because his appellate counsel determined that no viable Sixth Amendment claim upon which an appellate court might upset his conviction existed. Therefore, he has set forth cause for his failure to assert a claim of ineffective assistance of trial counsel during the state appellate process.
The failure of Miller's trial counsel to attend the entirety of the pre-charge conference prejudiced Miller because he was denied the input and assistance of his counsel at a critical stage in the trial proceedings. As the Supreme Court has explained, "[t]here are, however, circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. . . . Most obvious, of course, is the complete denial of counsel. The presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial." United States v. Cronic, 466 U.S. 648, 658-59, 104 S. Ct. 2039, 2046-47 (1984).
The Sixth Amendment guarantees a criminal defendant the "right to effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984), to determine whether counsel's assistance was effective, a two-part test devised by the Supreme Court is typically applied. See Strickland, 466 U.S. at 687-96, 104 S. Ct. at 2064-69. First, a criminal defendant must show that his counsel's performance was deficient, that is, that it fell below an "objective standard of reasonableness," measured according to "prevailing professional norms." Id. at 687-88, 2064-65. Second, the criminal defendant must affirmatively demonstrate prejudice. Id. at 694-2068. Prejudice is rarely presumed, and so the defendant generally must prove that "there is a reasonable probability that but for counsel's [error], the result of the proceeding would have been different." Id. A reasonable probability has been defined as "a probability sufficient to undermine confidence in the outcome."Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Considerable deference is accorded counsel's performance, as counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id., 466 U.S. at 690, 104 S. Ct. at 2066.
The respondent speculates that Miller's trial counsel exited the courtroom before the pre-charge conference concluded so that he might "collect his thoughts, review the evidence, and prepare to deliver a persuasive summation." The respondent argues that even if Miller's trial counsel's exit from the courtroom, prior to the conclusion of the pre-charge conference, constituted error, it should be overlooked because Miller was not prejudiced by his counsel's absence. This is so, according to the respondent, because the only matter addressed by the court in the absence of Miller's counsel was whether counsel to Miller's co-defendant desired to have a particular instruction given to the jury. However, inCronic, supra, the Supreme Court noted that "[t]he Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding." Cronic, 466 U.S. at 659 n. 25, 104 S.Ct. 2047 n. 25 (citations omitted).
Under the circumstances, the Court finds that Miller was abandoned by his trial counsel at a critical stage in the trial proceedings — the pre-charge conference — and that counsel's failure to attend and to represent Miller's interest throughout the entirety of the pre-charge conference, when measured according to prevailing professional norms, was unreasonable. Furthermore, the Court finds, based upon Cronic, that Miller need not make any showing of prejudice since the failure of his trial counsel to attend the entirety of the pre-charge conference was constitutional error.
However, the Court is mindful that, after Cronic was decided, the Supreme Court explained in Satterwhite v. Texas, 486 U.S. 249, 108 S. Ct. 1792 (1988), that the absence of counsel at a critical stage in a criminal proceeding does not always demand that a resulting conviction be reversed. Reversal is warranted when "the deprivation of the right to counsel effect[s] — and contaminate[s] — the entire criminal proceeding." Satterwhite, 4860 U.S. at 257, 108 S.Ct. 1798. Here, Miller's counsel's absence from a small portion of the pre-charge conference, during which the trial court directed an inquiry to counsel to Miller's co-defendant concerning his desire to have a particular legal issue explained to the jury, as it related to Miller's co-defendant, had a very limited effect on the Sixth Amendment violation that occurred in the instant case. Moreover, when that constitutional error is subjected to the harmless error analysis applicable to cases on collateral review, see Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710 (1993), the Court finds that the error did not have a "substantial and injurious effect or influence" on the verdict determined by the jury. Id. at 637, 1722. Therefore, the Sixth Amendment violation suffered by Miller, occasioned by his trial counsel's erroneous determination to exit the courtroom prior to the completion of the pre-charge conference with the court, was harmless error that does not warrant granting Miller habeas corpus relief.
Miller also contends that his trial counsel rendered ineffective assistance to him by failing to "put in motions for insufficient evidence." Miller's contention is without support in the record. The trial transcript indicates that Miller's counsel made an application that the charges be dismissed because the prosecution had failed to establish a prima facie case. At the conclusion of the presentation of all the evidence to the jury, Miller's counsel asked the court to dismiss the case based upon a renewed application premised "on the fact that the People had failed to prove the guilt of Mr. Miller beyond a reasonable doubt, as a matter of law." In light of the record evidence, the Court finds that Miller's claim that his counsel failed to render effective assistance to him by failing to move for the dismissal of the charges against him, based upon the failure of the state to produce sufficient evidence, is meritless and, thus, cannot be the basis upon which habeas corpus relief can be granted.
IV. RECOMMENDATION
For the reasons set forth above, Miller's application for a writ of habeas corpus should be denied.