Opinion
No. 99 CV 3627 (SJ).
February 7, 2005
YICK MAN MUI, White Deer, PA, Petitioner Pro Se
ROSLYNN MAUSKOPF, United States Attorneys Office, Eastern District of New York, Brooklyn, NY, Bernadette Miragliotta, Attorney for Respondent.
MEMORANDUM AND ORDER
Petitioner Yick Man Mui ("Petitioner"), pro se, has petitioned this Court pursuant to 28 U.S.C. § 2255, to vacate or set aside his sentence and to grant him a new trial, as well as an evidentiary hearing regarding the instant application. Also before this Court are Petitioner's motions for discovery, the appointment of counsel, and summary judgment on Petitioner's § 2255 claims. For the reasons stated below, each of Petitioner's applications is DENIED in its entirety.
BACKGROUND
On October 30, 1996, Petitioner was convicted by a jury of violent crimes in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1). Prior to sentencing, Petitioner, represented by new counsel, moved unsuccessfully for a new trial on the grounds that his prior trial counsel was ineffective and that the government's rebuttal summation denied him a fair trial. On April 10, 1997, Petitioner was sentenced to life imprisonment followed by a consecutive five-year sentence on firearms charges. Petitioner appealed on the grounds, inter alia, that his trial counsel was ineffective for (1) conceding certain facts in his opening statement; (2) failing to present a defense case and advising him not to testify; and (3) not fully cross-examining a cooperating witness regarding certain phone records. Petitioner's conviction was affirmed by the Second Circuit on May 22, 1998. U.S. v. Mui, 159 F.3d 1349 (2d Cir. 1998).
Petitioner filed the instant application for a writ of habeas corpus on May 28, 1999, alleging violations of his Fifth and Sixth Amendment rights. Specifically, Petitioner claims that (1) his trial counsel was ineffective for not consulting Mui more fully regarding the case, failing to communicate with Mui effectively due to a language barrier, failing to file certain motions, failing to analyze certain crime scene evidence, conceding certain facts in his opening statement, and not objecting to the admission of certain evidence; (2) his appellate counsel was ineffective in handling the ineffective assistance of trial counsel claim and in failing to communicate with Mui effectively due to a language barrier; and (3) he is entitled to an evidentiary hearing on the issues raised in the instant application. Petitioner also requests "leave to obtain the discovery of testimony" and the appointment of counsel to facilitate discovery.
Though the Petition was signed on May 28, 1999 it was not filed until June 25, 1999.
DISCUSSION
I. Procedural Bar to Petitioner's Claims
A. Certain of Petitioner's Claims Were Rejected on Direct Appeal
Under § 2255, a sentencing court may "vacate, set aside or correct" a conviction or sentence "imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. Relief is generally available only for a constitutional error, defect of jurisdiction, or an error of law constituting "a fundamental defect which inherently results in a complete miscarriage of justice." Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996); see also Hardy v. United States, 878 F.2d 94, 97 (2d Cir. 1989).
Requests for habeas corpus relief, however, are in "tension with society's strong interest in the finality of criminal convictions"; accordingly, "the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack." Ciak v. United States, 59 F.3d 296, 301 (2d Cir. 1995), abrogated on other grounds by Mickens v. Taylor, 535 U.S. 162 (2002); see also United States v. Frady, 456 U.S. 152, 165 (1982). Procedural restrictions are one such obstacle in the path of habeas petitioners. For instance, a habeas court will not usually readjudicate claims previously raised and rejected on direct appeal. Reed v. Farley, 512 U.S. 339, 358 (1994) (Scalia, J., concurring in part and concurring in the judgment) ("[C]laims will ordinarily not be entertained under § 2255 that have already been rejected on direct review."); United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997) ("A § 2255 motion may not relitigate issues that were raised and considered on direct appeal.").
In his motion for a new trial, Petitioner attacked his trial counsel's strategy, including counsel's advice to Mui not to testify, and this Court ruled that Petitioner's counsel was not constitutionally ineffective. On his direct appeal, Petitioner claimed that his trial counsel was ineffective for (1) conceding certain facts in his opening statement; (2) failing to present a defense case and advising him not to testify; and (3) not fully cross-examining a cooperating witness regarding certain phone records. In a slip opinion, the Court of Appeals for the Second Circuit rejected those arguments and unanimously affirmed the district court's judgment. US v. Mui, 159 F.3d 1349 (2d Cir. 1998) ("We have considered defendants[`] additional arguments and find them to be without merit.") Thus, to the extent that Petitioner seeks to readjudicate those claims, they are procedurally barred and are therefore dismissed.
B. Certain of Petitioner's Claims Were Not Raised on Direct Appeal
Generally, courts have refused to entertain § 2255 claims that were not raised on direct appeal unless a petitioner can show that there was cause for failing to raise the claims and prejudice resulting therefrom, or that s/he is innocent of the charges. See Bousley v. United States, 523 U.S. 614, 622-23 (1998) (holding that defendant who fails to raise a claim on direct appeal cannot pursue it in a habeas petition unless he demonstrates either cause for the default and ensuing prejudice for the default, or "factual innocence, not mere legal insufficiency"); Underwood v. United States, 166 F.3d 84, 87-88 (2d Cir. 1999). For the first time Petitioner now claims that: he was unable to communicate with trial counsel due to a language barrier; he had difficulty understanding any of the proceedings due to the court interpreter's Mandarin accent; his trial counsel failed to examine certain crime scene evidence and file certain motions, inter alia, for severance, exclusion of extrinsic evidence, change of venue, and "preservation of the rough notes of any and all agents"; his trial counsel's assertions were completely false; and his trial counsel failed to investigate potential defense witnesses. Petitioner has failed to demonstrate, or even address, his reasons for not raising these claims on his direct appeal and the resulting prejudice. Nor has Petitioner demonstrated that he is factually innocent of the charges for which he was convicted.
Notwithstanding the default of Petitioner's claims, they may still be reviewed by this Court if Petitioner can establish that the constitutional ineffectiveness of his trial counsel "has resulted in the conviction of one who is actually innocent."Murray v. Carrier, 477 U.S. 478, 496 (1986). Petitioner has filed a supplemental motion in which he purports to include an "adopted actual innocence argument." "To establish actual innocence, petitioner must demonstrate that, `in light of all the evidence,' `it is more likely than not that no reasonable juror would have convicted him.'" Bousley, 523 U.S. at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327-28) (1995)). "`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Id. (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992) ("A prototypical example of `actual innocence' in a colloquial sense is the case where the State has convicted the wrong person of the crime.")
This Court finds that Petitioner is challenging the legal sufficiency of the evidence against him rather than asserting his factual innocence. For example, a large portion of Petitioner's memorandum is a review of the alleged inconsistencies between witnesses' trial testimony and his trial counsel's failure to point them out to the jury. See, e.g., Pet. Supp. Mem., Part II at 1. In addition, Petitioner's central claim is that the government's key witness, Kenny Chen, committed perjury, id. at part III, and that law enforcement agents then coached a second witness to adopt Chen's testimony, id., part II at 5-9. Furthermore, Petitioner's claims of innocence are completely unsubstantiated and are contradicted by the overwhelming evidence against him at trial. Thus, Petitioner may not avail himself of the narrow exception by which courts may review claims that are otherwise procedurally barred and therefore his claims are dismissed. See Dretke v. Haley, 541 U.S. 386, 124 S.Ct. 1847, 1849 (2004) (citing Murray v. Carrier, 477 U.S. 478, 496 (1986)).
II. Ineffective Assistance of Appellate Counsel
Petitioner also alleges that his appellate counsel was ineffective. In particular, he claims that (1) counsel should not have brought a direct appeal on an ineffective assistance of trial counsel claim because such claims are better litigated in the form of a collateral attack; (2) counsel limited the direct appeal to one issue; and (3) counsel did not communicate effectively with him due to a language barrier. For the reasons more fully explained below, this Court rejects those arguments.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-part test to determine whether counsel's assistance was ineffective. First, "the defendant must show that counsel's representation fell below an objective standard of reasonableness. . . . under prevailing professional norms." Id. at 688. When evaluating counsel's performance, courts examine the circumstances of counsel's conduct from counsel's perspective rather than from hindsight. See Kwok v. United States, 2003 WL 22697805 at * 1 (E.D.N.Y. Apr. 14, 1999) (Johnson, J.) Thus, in order to satisfy the first prong of Strickland, Petitioner must overcome the strong presumption that the challenged action or inaction may be considered reasonable trial strategy. Id. at 689.
Second, the defendant must show that counsel's performance prejudiced his defense. Id. at 689. To show prejudice, there must be a reasonable probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different. Id. at 694. Thus, Petitioner must demonstrate that counsel failed to raise significant and obvious issues that, if raised, would likely have been successful. Mayo v. Henderson, 13 F.3d 528, 533-34 (2d Cir. 1994). Unless Petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process.
In the instant case, Petitioner has not demonstrated that the actions of his appellate counsel fell below current prevailing professional norms and thus, Petitioner has not satisfied the first prong of the test set forth in Strickland. While Petitioner is correct that ineffective assistance of counsel claims are generally limited to collateral review, an appellate court may review such claims where the record is adequately developed. See, e.g., Gov't of the Virgin Islands v. Zepp, 748 F.2d 643, 646 (3d Cir. 1984); United States v. Gambino, 788 F.2d 938, 950 (3d Cir. 1986). The record reveals that, counsel first brought a motion in the district court for a new trial, filed an affidavit by Petitioner regarding his trial counsel's alleged ineffectiveness; and requested a hearing on the issue of the trial counsel's ineffectiveness. Thereafter, counsel raised those issues that had been developed during the motion practice in the Court of Appeals. Moreover, to the extent that counsel did not raise other issues in the direct appeal, the Court declines to second-guess his implicit determination that those issues were not yet ripe. Thus, this Court refuses to find that counsel's handling of Petitioner's direct appeal was constitutionally ineffective. Finally, Petitioner's claim that counsel did not communicate effectively with him is belied by Petitioner's admission that his sister translated during the attorney-client consultations. Accordingly, Petitioner's claim for ineffective assistance of appellate counsel lacks merit and is therefore dismissed.
CONCLUSION
For the reasons stated above, Petitioner's motion to vacate or set aside his conviction and for a new trial pursuant to § 2255 is DENIED. Petitioner's motions for an evidentiary hearing, discovery, and the appointment of counsel to facilitate discovery on his § 2255 claims, and for summary judgment on his § 2255 claims are also DENIED.
SO ORDERED.