Opinion
09 Civ. 05167 (HB)(THK)
02-15-2011
DAVID O'KANE, Petitioner, v. ROBERT KIRKPATRICK, Respondent.
Copies sent by mail to: David O'Kane 04-A-3962 (Pro Se) Attica Correctional Facility P.O. Box 149 Attica, NY 14011-0149 Ashlyn Hope Dannelly Priscilla Steward New York State Office of the Attorney General 120 Broadway New York, NY 10271
REPORT AND RECOMMENDATION
(Pro Se) TO: HON. HAROLD BAER, JR., UNITED STATES DISTRICT JUDGE.
FROM: THEODORE H. KATZ, UNITED STATES MAGISTRATE JUDGE.
Petitioner David O'Kane brings this action for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his July 8, 2004 conviction in New York State Supreme Court, New York County, upon his guilty plea, of Criminal Possession of a Controlled Substance in the Fourth Degree (N.Y. Penal Law § 220.09). Petitioner was sentenced, as a second felony offender, to an indeterminate prison term of 3 to 6 years.
This sentence was to run concurrently with an indeterminate prison term of from 2 ½ to 5 years arising from an unrelated 1999 conviction, upon his guilty plea, of Criminal Sale of a Controlled Substance in the Fifth Degree (N.Y. Penal Law § 220.31).
In a decision dated October 2, 2008, the Appellate Division, First Department affirmed Petitioner's conviction. See People v. O'Kane, 55 A.D.3d 315, 316, 865 N.Y.S.2d 61 (1st Dep't 2008), lv. denied, 11 N.Y.3d 928, 874 N.Y.S.2d 13 (2009). Petitioner is currently incarcerated at the Upstate Correctional Facility in Malone, New York.
In his undated pro se motion for habeas corpus relief, which was later clarified in an amended Petition, dated January 20, 2010, Petitioner argues that: (1) his indictment was defective because false statements were made in the felony complaint and the prosecutor knowingly presented false evidence to the grand jury; and (2) he received ineffective assistance of counsel because his attorney: (a) failed to investigate and impeach purportedly false statements in the felony complaint and pretrial proceedings; and (b) allowed Petitioner to plead guilty although the evidence against him was false. (See Petition for Writ of Habeas Corpus, dated Jan. 20, 2010 ("Pet."), at 1-3.) Respondent opposes the Petition, arguing that Petitioner's claim that the indictment is defective is procedurally barred and is not cognizable on federal habeas review. (See Respondent's Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, dated May 28, 2010 ("Resp't Mem."), at 16-23.) Respondent further contends that Petitioner received meaningful assistance of counsel. (See id. at 23-26.)
The Petition was referred to this Court for a Report and Recommendation, pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C). Having carefully considered the parties' submissions and the state court record, for the reasons that follow the Court respectfully recommends that the Petition be denied and Petitioner's claims be dismissed with prejudice.
BACKGROUND
I. Factual Background
A. The Crime
On January 7, 2004, at approximately 3:20 P.M., Detective Ephrem Deshazo ("Deshazo"), who was working undercover as part of a field team in a buy-and-bust operation, was sitting in a car on the corner of 114th Street and Lenox Avenue in Manhattan. (Pretrial Hearing, dated Apr. 29, 2004 ("H."), at 10-14.) Deshazo observed three people approach Petitioner and line up in front of him. (See id. at 17-21.) Petitioner handed each an object. (See id.) Deshazo could not see what the objects were, and could not see whether the three individuals gave Petitioner anything in exchange. (See id. at 18-19.)
Petitioner then headed north on Lenox Avenue and entered a supermarket on 116th Street and Lenox Avenue. (See id. at 21-22, 24.) Deshazo followed Petitioner into the store. As he entered, Deshazo removed his police shield from his vest pocket so that it was visible to Petitioner. (See id. at 24-25.) Petitioner looked at Deshazo and said, "[O]fficer, this is not my jacket." (Id. at 25.) Deshazo searched the jacket and recovered 50 ziplock bags of crack cocaine from the "right inside jacket pocket." (Id. at 25-27.) (emphasis added).
A short time later, Detective Glenn Puppa ("Puppa") arrived at the store. (See id. at 53-54.) Deshazo informed Puppa that he had recovered the bags of crack cocaine from Petitioner. (See id.) Puppa handcuffed Petitioner, escorted him outside, and searched him, recovering from Petitioner's pockets a wallet, a key, and 71 cents. (See id. at 54-58.) In response to Puppa's questions, Petitioner stated that the jacket that he was wearing did not belong to him, but the wallet and keys did. (See id. at 58, 60-63.)
B. Pretrial Hearing
At a Mapp/Huntley/Dunaway hearing on April 29, 2004, Petitioner introduced the jacket worn at the time of his arrest into evidence. Notably, the jacket had a left inside pocket, but no right inside pocket. Petitioner thus argued that Deshazo gave inconsistent testimony, since Deshazo testified at Petitioner's parole revocation proceeding that he recovered the drugs from the left inside jacket pocket, but had testified, both before the grand jury as well as at the instant hearing, that he recovered the drugs from the "right inside jacket pocket." (Id. at 78-80.)
The court found that whether Deshazo recovered the drugs from the left or right inside jacket pocket was of no "particular moment," because it was clear that Deshazo recovered drugs from a pocket of the jacket that Petitioner was wearing at the time of his arrest. (See id. at 92.)
The court denied Petitioner's motion to suppress the ziplock bags of crack cocaine and the statements made to Deshazo and Puppa. The court further held that Deshazo had probable cause to arrest Petitioner. (See id. at 90-92.)
C. Plea Proceedings
On May 5, 2004, Petitioner appeared before the court with his attorney. After an off-the-record conference with the attorney, the court announced that Petitioner wished to plead guilty. (Plea Hearing, dated May 5, 2004 ("P."), at 105-06.) The court informed Petitioner that he would plead guilty to Criminal Possession of a Controlled Substance in the Fourth Degree in exchange for a promised sentence of 3 to 6 years. (See P. at 105, 108.) The court also explained the terms of a cooperation condition, reminding Petitioner that there was no guarantee of a reduced sentence, and that the ultimate determination of whether the information provided by Petitioner was of value would be in the sole discretion of the prosecutor. (See id. at 108-09.) Petitioner then admitted to possessing over one ounce of crack cocaine on January 7, 2004. (See id. at 109-10.) He confirmed that no one had threatened him, or otherwise compelled him to enter his guilty plea. The court accepted Petitioner's plea and adjudicated him a second felony offender. (See id. at 110-13.)
Petitioner also plead guilty in an unrelated case to Criminal Sale of a Controlled Substance in the Fifth Degree, in exchange for a promised concurrent sentence of 2 ½ to 5 years, again, with the understanding that his sentence could be reduced on the basis of information provided to the prosecutor. (See id. at 111, 113-14.) Petitioner then admitted that he sold cocaine on April 13, 1999, in New York County. (See id. at 114.) The court accepted his plea and adjourned the case for sentencing. (See id. at 114-115.)
D. Sentencing Proceedings
Prior to the sentencing proceedings, Petitioner filed a pro se motion for inspection of the grand jury minutes, new counsel, and withdrawal of his guilty plea to fourth-degree criminal possession. On July 8, 2004, at the sentencing hearing, the court asked Petitioner why he should be allowed to withdraw his plea and be given a new attorney. (Sentencing Hearing, dated July 8, 2004 ("S."), at 2-5.) Petitioner argued that the officers lacked probable cause to stop and search him, and that he thought that if the court were to hear all of the evidence, it would have a "different outlook." (See S. at 5-6.)
The court reminded Petitioner that he "already pled guilty" and stated: "I don't have any reason to give you your plea back. You don't have an automatic right. You have to give me some reason. I don't have a reason." (Id. at 10.) Petitioner argued, in response, that his attorney coerced him into pleading guilty, stating that:
I got scared. I got two lawyers telling me, you blow your hearings, you are not going to win the trial, you might as well take the three-to-six, and I got scared and I took the three-to-six.(Id. at 10-11.) The prosecutor objected, arguing that Petitioner wanted "three-to-six so bad," and that the plea itself was the result of "an extended negotiation" in which defense counsel convinced the prosecutor to lower his sentence offer from 4 ½ to 9 years to 3 to 6 years. Petitioner stated that he "didn't want three-to-six," and, again, pointed to the inconsistency in Deshazo's testimony, contending that the court did not make a credibility finding on that point at the pretrial hearing. (See id. at 12-14.) The court disagreed: "I believe that was something that came up during the hearing, but I made my determination." (Id. at 15.)
The court denied Petitioner's motion to withdraw his plea. (See id. at 16.) Petitioner was sentenced to concurrent, indeterminate prison terms of 3 to 6 years on the fourth-degree 2004 drug possession count and 2 ½ to 5 years on the fifth-degree 1999 drug sale count.
II. Procedural History
A. Motion to Vacate Judgment of Conviction
On March 21, 2006, Petitioner filed a pro se motion, pursuant to New York Criminal Procedure Law ("CPL") § 440.10, to vacate the judgment of conviction, contending that: (1) the indictment on the 2004 criminal possession charge was defective because it was based on false testimony; (2) the prosecutor knowingly presented false testimony to the grand jury; (3) there was no probable cause for his arrest; and (4) he was denied the effective assistance of counsel because his attorney failed to: (a) impeach Deshazo's pretrial statements and testimony regarding from which pocket he had recovered the drugs; and (b) seek a motion to dismiss the indictment on the ground that Deshazo provided false statements in the felony complaint and testified falsely before the grand jury. (See CPL § 440.10 Motion, dated Mar. 21, 2006, attached as Ex. D to Resp't Mem.)
On January 4, 2007, the New York County Supreme Court denied Petitioner's CPL § 440.10 motion. (See CPL § 440.10 Decision, dated Jan. 4, 2007 ("440 Decision"), attached as Ex. F to Resp't Mem.) Petitioner sought leave to appeal to the Appellate Division, First Department, raising the same claims asserted in his original CPL § 440 motion. On March 28, 2007, the Appellate Division, First Department, denied Petitioner's leave application. (See Certificate Denying Leave, dated Mar. 28, 2007, attached as Ex. I to Resp't Mem.) Petitioner thereafter filed a motion for reargument in the Appellate Division, First Department. On June 6, 2007, the Appellate Division, First Department, denied Petitioner's motion. (See Order Denying Leave Upon Reargument, dated June 6, 2007, attached as Ex. L to Resp't Mem.)
B. Direct Appeal
In his direct appeal, Petitioner argued that: (1) he was denied his counsel of choice when the court proceeded with the pretrial hearing notwithstanding Petitioner's request for an adjournment so that his family could retain a private attorney; (2) the drugs recovered from Petitioner should have been suppressed because the police lacked probable cause to arrest him; and (3) Petitioner's due process rights and right to effective assistance of counsel were violated when: (a) the court denied Petitioner's application for new counsel following his motion to withdraw his guilty plea; and (b) his counsel provided him with inadequate information concerning his case and "coerced" him into pleading guilty by insisting that the court would find him guilty at his bench trial. (See Petitioner's Appellate Brief, dated March, 2008, attached as Ex. M to Resp't Mem.)
On October 2, 2008, the Appellate Division, First Department, unanimously affirmed the judgment of conviction. See People v. O'Kane, 55 A.D.3d 315, 865 N.Y.S.2d 61 (1st Dep't 2008). Petitioner sought leave to appeal to the New York Court of Appeals, asking the court to review all of the issues raised in the appellate brief. On January 20, 2009, the New York Court of Appeals denied Petitioner's leave application. See People v. O'Kane, 11 N.Y.3d 928 (2009).
DISCUSSION
Petitioner asserts in the instant Petition that: (1) the indictment was defective because Deshazo made false statements in the felony complaint, and the prosecutor knowingly presented false evidence to the grand jury; and (2) he received ineffective assistance of counsel, because his attorney: (a) failed to investigate and impeach Deshazo's purportedly false statements in the felony complaint and pretrial proceedings regarding the jacket pocket from which the drugs were taken; and (b) allowed Petitioner to plead guilty, even though the evidence against him was false. (See Pet. at 1-3.)
I. AEDPA Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a state court conviction "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," Id. § 2254(d)(2).
A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 1523 (2000); accord Hoi Man Yung v. Walker, 468 F.3d 169, 176 (2d Cir. 2006); Ernst J. v. Stone, 452 F.3d 186, 193 (2d Cir. 2006). The phrase, "clearly established Federal law," limits the law governing a habeas Petitioner's claims "to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Carey v. Musladin, 549 U.S. 70, 74, 127 S. Ct. 649, 653 (2006) (quoting Williams, 529 U.S. at 365, 120 S. Ct. at 1499); accord Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006).
"The 'unreasonable application' standard is independent of the 'contrary to' standard . . . [and] means more than simply an 'erroneous' or 'incorrect' application" of federal law." Henry v. Poole, 409 F.3d 48, 68 (2d Cir. 2005) (citing Williams, 529 U.S. at 410, 120 S. Ct. at 1522). A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identifies the governing legal rule, but applies it in an unreasonable manner to the facts of a particular case. See Williams, 529 U.S. at 413, 120 S. Ct. at 1523. The inquiry for a federal habeas court is not whether the state court's application of the governing law was erroneous or incorrect, but, rather, whether it was "objectively unreasonable." Id. at 408-10, 120 S. Ct. at 1521-22; see also Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001) ("[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently. The state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable.").
Moreover, under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [Petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("This presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041 (2003).
II. Defective Indictment
Petitioner argues, as he did in his CPL § 440 motion, that the 2004 indictment was defective and should have been dismissed. In particular, Petitioner contends that Deshazo's statement — that he recovered the drugs from Petitioner's "right inside jacket pocket" — was false, and that the prosecutor knowingly submitted this false evidence to the grand jury. (See Pet. at 1-3.) Respondent contends, and this Court agrees, that this claim is procedurally barred by an adequate and independent state law ground and is not cognizable in a federal habeas corpus proceeding. Specifically, Petitioner failed to raise this claim in his direct appeal and can no longer do so. In addition, as Respondent argues, the claim is not cognizable on federal habeas review.
A. Procedural Bar
1. The Law
Before a federal court may consider a state prisoner's petition for a writ of habeas corpus, all state remedies must be exhausted. See 28 U.S.C. § 2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275-76, 92 S. Ct. 509, 512-13 (1971); Jimenez v. Walker, 458 F.3d 130, 148-49 (2d Cir. 2006); Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997). To satisfy the exhaustion requirement of 28 U.S.C. § 2254, "it is not sufficient merely that the [petitioner] has been through the state courts." Picard, 404 U.S. at 275-76, 92 S. Ct. at 512-13. Rather, the claims must be "fairly presented" to the state courts so that the state has an opportunity to correct any alleged constitutional violations. See Castille v. Peoples, 489 U.S. 346, 351, 109 S. Ct. 1056, 1060 (1989); Picard, 404 U.S. at 276, 92 S. Ct. at 513; Aparicio, 269 F.3d at 89-90. Moreover, to satisfy this requirement, a petitioner must fairly present his federal claims to the highest state court from which a decision can be had. See Daye v. Attorney General, 696 F.2d 186, 190-91 (2d Cir. 1982) (en banc); accord Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990) (per curiam).
To have his claims heard by a federal habeas court, a petitioner must return to state court if he has not exhausted his state remedies. See Engle v. Isaac, 456 U.S. 107, 125-126 n.28, 102 S. Ct. 1558, 1570-71 n.28 (1982); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991); Robertson v. Artuz, No. 97 Civ. 2561 (DC), 2000 WL 10265, at *3-4 (S.D.N.Y. Jan. 4, 2000). However, "[f]or exhaustion purposes, 'a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.'" Grey, 933 F. 2d at 120 (quoting Harris v. Reed, 489 U.S. 255, 263 n.9, 109 S. Ct. 1038, 1043 n.9 (1989)). If a petitioner has no available state forum in which to pursue a remedy because of a state procedural bar, his claim may be deemed exhausted, yet procedurally barred. See Teague v. Lane, 489 U.S. 288, 297-299, 109 S. Ct. 1060, 1068-1069 (1989); Jimenez, 458 F.3d at 149; Grey, 933 F.2d at 120.
Under AEDPA, however, a court may waive exhaustion if it concludes that a claim should be dismissed on its merits. See 28 U.S.C. § 2254(B)(2).
Federal habeas review is generally foreclosed when a petitioner's claim is barred by a state procedural rule which is "independent of [a] federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553 (1991); accord Brown v. Miller, 451 F.3d 54, 56 (2d Cir. 2006). State procedural bars are independent and adequate when such laws are "firmly established and regularly followed" by the state in question. James v. Kentucky, 466 U.S. 341, 348, 104 S. Ct. 1830, 1835 (1984); see also Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003).
When engaging in an adequacy analysis of the procedural bar, federal courts should give deference to state court decisions and determine if there is a "fair or substantial basis" for the application of the state law to the particular case. Garcia v. Lewis, 188 F.3d 71, 78 (2d Cir. 1999). "[T]he question is whether application of the procedural rule is 'firmly established and regularly followed' in the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances." Cotto, 331 F.3d at 240 (citing Lee, 534 U.S. at 386-87, 122 S. Ct. at 877) (emphasis added).
In Garvey v. Duncan, 485 F.3d 709 (2d Cir. 2007), the Second Circuit examined the guidelines a habeas court should use to determine the adequacy of a claimed state procedural bar:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had 'substantially complied' with the rule given 'the realities of trial,' and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Garvey, 485 F.3d at 714 (quoting Cotto, 331 F.3d at 240). While the factors "are not a test for determining adequacy, they are nonetheless used as guides in evaluating 'the state interest in a procedural rule against the circumstances of a particular case.'" Id. at 714 (quoting Lee, 534 U.S. at 386-87, 122 S. Ct. at 891).
2. Application
In his CPL § 440.10 motion, Petitioner argued that the judgment of conviction should be vacated because the 2004 indictment for criminal possession was procured on the basis of false testimony and was, therefore, defective. The New York County Supreme Court rejected Petitioner's motion, holding that his claims in connection with "alleged discrepancies in the witnesses' testimony at various pretrial stages, including at the grand jury and suppression hearing," were "thoroughly explored on the record before [Petitioner] entered a guilty plea" and were, therefore, "not the proper subject of a CPL [§] 440 motion." (440 Decision.) The state court noted that "[t]he grand jury minutes were reviewed by another Court who found them to be legally sufficient" and concluded that "[s]ince sufficient facts appeared on the record to permit review on direct appeal but [Petitioner] failed to make such appeal, [Petitioner's] motion with respect to this evidence is denied." (Id.)
Under New York law, all claims that are record-based must be raised in a direct appeal. See Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002) ("In New York, a criminal defendant may not raise in a § 440 motion a claim that could have been raised on direct appeal."); CPL § 440.10(2)(c) (requiring courts to deny a motion to vacate the judgment where "sufficient facts appear on the record" for the claim to have been raised and decided on direct appeal). Indeed, the denial of a CPL § 440.10 motion for failure to raise a claim on direct appeal represents the application of a "firmly established and regularly followed" New York rule. See Arce v. Smith, 889 F. 2d 1271, 1273 (2d Cir. 1989); accord Williams v. Goord, 277 F. Supp. 2d 309, 318-19 (S.D.N.Y. 2003). It is only when a defendant's claim hinges upon facts outside the trial record, that he may collaterally attack his conviction by bringing a claim under CPL § 440.10. See CPL § 440.10(1); Aparicio, 269 F.3d at 91.
The New York County Supreme Court invoked this adequate and independent state law ground in denying Petitioner's claim that the indictment was defective. In particular, the state court held that since all the facts relating to the claim appeared on the record, Petitioner had an obligation to raise his claims on direct appeal. Petitioner failed to do so. A defendant is entitled to only one direct appeal. See Jimenez, 458 F.3d at 149; Aparicio, 269 F.3d at 91 (citing CPL § 450.10(1); N.Y. Ct. App. R. 500.10(a)). Thus, Petitioner's claim is procedurally barred under well-established New York law.
The application of the statutory procedural bar in this case satisfies the three factors identified in Garvey. As to the first Garvey factor, Petitioner's failure to raise his claim on direct appeal was plainly relied upon by the trial court, as evidenced by its decision. As to the second Garvey factor, it is clear, under New York law, that where the factual basis of a claim appears on the record, a defendant can raise that claim only on direct appeal, and relief by way of a CPL § 440.10 motion is precluded. Finally, as to the third Garvey factor, Petitioner did not "substantially comply" with the state procedural requirement. As the New York Court of Appeals has recognized, "the purpose of the provision is to prevent CPL [§] 440.10 from being employed as a substitute for direct appeal when [a] defendant [is] in a position to raise an issue on appeal (CPL [§] 440.10 [2][b]) or could readily have raised it on appeal but failed to do so." People v. Cooks, 67 N.Y.2d 100, 103, 500 N.Y.S.2d 503 (1986); accord Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir. 2003). Here, Petitioner could have, but failed to raise his claim on direct appeal. Had he done so, the Appellate Division could have reviewed his claim, which is now barred from federal habeas review.
B. No Cause and Prejudice or Miscarriage of Justice
If a state court judgment is based on an independent and adequate state procedural rule, federal courts generally cannot review the state court judgment in a habeas corpus proceeding, unless the petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S. Ct. at 2565; see also Jimenez, 458 F.3d at 149; Ramirez v. Attorney Gen. of New York, 280 F.3d 87, 94 (2d Cir. 2001); Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993).
To demonstrate cause for his default, a petitioner must show "that 'some objective factor external to the defense impeded [his] efforts' to raise the claim in state court." McCleskey v. Zant, 499 U.S. 467, 493, 111 S. Ct. 1454, 1470 (1991) (quoting Murray v. Carrier, 477 U.S. 467, 488, 106 S. Ct. 2639, 2645 (1986)); accord Bloomer v. United States, 162 F.3d 187, 191 (2d Cir. 1998); Rolling v. Fischer, 433 F. Supp. 2d 336, 346 (S.D.N.Y. 2006). Once a petitioner shows cause, the petitioner must also establish prejudice by demonstrating that there is a "reasonable probability" that, but for the constitutional violation that is the subject of the defaulted claim, the outcome of the relevant proceeding would have been different. See Strickler v. Greene, 527 U.S. 263, 289, 119 S. Ct. 1936, 1952 (1999); McClesky, 499 U.S. at 494, 111 S. Ct. at 1471; accord DiSimone v. Phillips, 461 F.3d 181, 192 (2d Cir. 2006).
Here, Petitioner has not argued or demonstrated "cause" for his procedural default; therefore, the Court need not consider the issue of prejudice. See McCleskey, 499 U.S. at 502, 111 S. Ct. at 1474; Stepney v. Lopes, 760 F. 2d 40, 45 (2d Cir. 1985); Dixon v. McGinnis, 492 F. Supp. 2d 343, 352 (S.D.N.Y. 2007).
Alternatively, a claim that is barred from habeas review pursuant to independent and adequate state grounds can be considered if a petitioner demonstrates that failure to consider it would result in a miscarriage of justice. A miscarriage of justice occurs "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496, 106 S. Ct. at 2649; see also Bousley v. United States, 523 U.S. 614, 623, 118 S. Ct. 1604, 1611 (1998); James, 996 F.2d at 1447. "Actual innocence means factual innocence, not mere legal insufficiency." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (quoting Bousley, 523 U.S. at 623, 118 S. Ct. at 1611) (internal quotation marks omitted). "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . ." Schlup v. Delo, 513 U.S. 298, 324, 115 S. Ct. 851, 865 (1995). The doctrine of actual innocence applies only in "extraordinary case[s]" and "credible claims of actual innocence are extremely rare." Doe v. Menefee, 391 F.3d 147, 160-61 (2d Cir. 2004) (quoting Murray, 477 U.S. at 479, 106 S. Ct. at 2642, and Schlup, 513 U.S. at 321, 115 S. Ct. at 864) (internal quotation marks omitted).
There is nothing in the record, however, to suggest that such exceptional circumstances can be demonstrated here. Specifically, without offering new evidence of his innocence, Petitioner cannot establish that a miscarriage of justice has occurred. See Dunham, 313 F.3d at 730 ("[Petitioner] presented no new evidence of his innocence and did not make the necessary showing required . . . to bypass the procedural bars.").
Accordingly, because Petitioner's claim that the indictment was defective is procedurally barred from further state review, and Petitioner has failed to demonstrate cause and prejudice, or a miscarriage of justice, Petitioner's indictment claim should be dismissed.
C. Claim is Not Cognizable on Federal Habeas Review
In addition to being procedurally barred, Petitioner's claim that his indictment was defective is not, on its substance, cognizable in a federal habeas corpus petition.
There is no federal constitutional right to a grand jury in state criminal proceedings. See, e.g., Alexander v. Louisiana, 405 U.S. 625, 633, 92 S. Ct. 1221, 1226-27 (1972). Consequently, errors alleged to have occurred at state grand jury hearings are not reviewable by federal habeas courts. See Alexander, 405 U.S. at 633, 92 S. Ct. at 1227; Fields v. Soloff, 920 F.2d 1114, 1118 (2d Cir. 1990) (holding that Fifth Amendment right to indictment by a grand jury is not incorporated by the Due Process Clause of the Fourteenth Amendment and does not apply to the states); Dunn v. Sears, 561 F. Supp. 2d 444, 453 (S.D.N.Y. 2008) ("Federal courts have consistently held that the right to appear before the grand jury is not reviewable by a federal habeas court."). This rule applies to claims of perjury occurring before the grand jury. See May v. Warden, No. 07 Civ. 2176 (BSJ) (GWG), 2010 WL 1904327, at *3 (S.D.N.Y. May 10, 2010); Brazeau v. Zon, No. 04-CV-031 (RJA), 2007 WL 2903617, at *7 (W.D.N.Y. Oct. 1, 2007) (finding petitioner's claim that prosecutor knowingly suborned perjury in the grand jury not cognizable on habeas review, because it asserts errors that allegedly occurred only at the grand jury proceeding). Thus, Petitioner's claim that his indictment is defective because it was procured on the basis of false testimony is a state law issue and affords no basis for federal habeas relief here.
Moreover, "[g]enerally a knowing and voluntary guilty plea precludes federal habeas corpus review of claims relating to constitutional rights at issue prior to the entry of the plea." Whitehead v. Senkowski, 943 F.2d 230, 233 (2d Cir. 1991) (citing Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608 (1973)). As the Supreme Court explained:
[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is
in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within [acceptable] standards.Tollett, 411 U.S. at 267; accord United States v. Randall, 327 Fed. App'x 255, 256 (2d Cir. 2009); see also United States v. Arango, 966 F.2d 64, 66 (2d Cir. 1992) (holding that "[b]y pleading guilty . . . [the defendant] waived his right to object to the constitutionality of the search").
Petitioner's claims regarding deficiencies in the felony complaint, and the manner in which the prosecutor procured the indictment, are clearly independent claims arising out of events that occurred prior to the entry of Petitioner's guilty plea. Under well-settled Supreme Court law, these claims were thus waived when Petitioner entered his guilty plea.
Accordingly, Petitioner's claim that the 2004 indictment was defective is not cognizable in this proceeding and should be dismissed.
III. Ineffective Assistance of Counsel
Petitioner contends that he was denied effective assistance of counsel on two grounds: (1) as Petitioner argued in his CPL § 440 motion, counsel failed to investigate and impeach Deshazo's purportedly false statements in the felony complaint and pretrial proceedings; and (2) counsel allowed Petitioner to plead guilty even though the evidence against him was false, as Petitioner argued on direct appeal. (See Pet. at 1-3.)
A. Legal Standard
To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must establish: (1) that his attorney's performance was so deficient that it "fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064 (1984); and (2) that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, 104 S. Ct. at 2068; accord Cox v. Donnelly, 387 F.3d 193, 197 (2d Cir. 2004).
In evaluating the reasonableness requirement, a court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound . . . strategy." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (internal quotation marks omitted); accord Cox, 387 F.3d at 198. The Second Circuit has defined a "strategic decision" as a "conscious, reasonably informed decision made by an attorney with an eye to benefitting his client." Cox, 387 F.3d at 198 (quoting Pavel v. Hollins, 261 F.3d 210, 218 (2d Cir. 2001)). A court must not use "perfect hindsight to criticize unsuccessful strategies." Eze v. Senkowski, 321 F.3d 110, 132 (2d Cir. 2003); see Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Cox, 387 F.3d at 198.
The "reasonable probability" of prejudice prong of Strickland is defined as "a probability sufficient to undermine confidence in the outcome" of the state proceedings. Strickland, 446 U.S. at 694, 104 S. Ct. at 2068; see also Cox, 387 F.3d at 199 ("The level of prejudice [a petitioner] need demonstrate lies between prejudice that had 'some conceivable effect' and prejudice that more likely than not altered the outcome in the case.") (quoting Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir. 2001)); United States v. McCloud, 303 Fed. App'x 916, 920 (2d Cir. 2008) (holding that when ineffective assistance of counsel claims are without merit, they are unable to "demonstrate the prejudice required by the second prong of Strickland"). "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Strickland, 446 U.S. at 700, 104 S. Ct. at 2071.
For the purposes of AEDPA, it is well-settled that the Strickland standard constitutes the relevant "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); see Aparicio, 269 F.3d at 95 & n.8; Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001). Thus, on habeas review, the question before a court is not whether, as a de novo matter, the court finds counsel to have been effective or ineffective; rather, the relevant question is whether the state court decision addressing the issue involved an "unreasonable application" of the Strickland standard to the facts of the petitioner's case. See Sellan, 261 F.3d at 314-15 & n.6.
B. Application
1. Failure to Investigate or Impeach
Petitioner contends that he was denied effective assistance of counsel because counsel failed to impeach Deshazo's purportedly false statements in the felony complaint and pretrial proceedings.
The New York County Supreme Court rejected Petitioner's ineffective assistance of counsel claim, holding that "the record bears out the fact that [Petitioner] did, in fact, receive meaningful assistance." (440 Decision.) The court found that Petitioner's attorney "filed adequate pretrial motions, represented [Petitioner] appropriately at the suppression hearing and assisted in negotiating a favorable plea bargain for [Petitioner]." (Id.) The Appellate Division denied Petitioner's application for leave to appeal. There is no reason to conclude that these state court decisions were contrary to, or an unreasonable application of, clearly established Supreme Court law.
As an initial matter, any claims regarding Petitioner's attorney's performance — other than those relating to his guilty plea — relate to matters preceding his decision to plead guilty and are, therefore, rendered moot by his guilty plea. See Tollett, 411 U.S. at 267, 93 S. Ct. at 1608; United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997); Arango, 966 F.2d at 66.
In any event, there is simply no merit to Petitioner's claim that his attorney was ineffective in failing to investigate and impeach Deshazo's purportedly false statements in the felony complaint and at pretrial proceedings. His attorney, for example, thoroughly investigated whether Deshazo had, in fact, proffered conflicting accounts with respect to the location of the jacket pocket from which the police obtained the crack cocaine. His attorney sent a private investigator to the jail, recovered the jacket, and then introduced it into evidence at the suppression hearing. Although Petitioner's counsel did not cross-examine Deshazo with his inconsistent statement, by introducing the jacket into evidence, his attorney established that the jacket had only a left inside pocket — proving that Deshazo could not have recovered drugs from a "right inside jacket pocket," as he had testified. In other words, by introducing the jacket into evidence and not cross- examining Deshazo, counsel was able to make the important point about Deshazo's testimony, without providing Deshazo an opportunity to explain the inconsistency. This was a legitimate strategic decision. Under Strickland, a losing tactic is not necessarily an ineffective one. See 466 U.S. at 689, 104 S. Ct. at 2065.
Moreover, even after the inconsistency was drawn to the trial court's attention, the court concluded that it was of no "particular moment to this Court," and that "[Deshazo] was clear that he recovered drugs from the pocket and somebody's left side could be somebody's right side, as far as I am concerned. I don't see the importance of that." (H. at 92.) Indeed, as the court stated on the record, Petitioner already conceded in his grand jury testimony that he did not dispute the fact that Deshazo found crack cocaine in his pocket. (See id. at 81.) The key issue in the state court's view was not so much the location of the jacket pocket, but whether the jacket, in fact, belonged to Petitioner. (See id.) Hence, even if counsel had cross-examined Deshazo with his prior inconsistent statements about the specific location of the jacket pocket, this would not have altered the outcome of the suppression hearing.
Accordingly, Petitioner fails to satisfy either prong of the Strickland test with respect to this claim.
2. Decision to Plead Guilty
Petitioner further faults his attorney for allowing him to plead guilty, even though the evidence against him was false. In particular, Petitioner contends that his lawyer provided him with inadequate information concerning his case and "coerced" him to plead guilty by insisting that he would most likely be convicted at a bench trial. The Appellate Division rejected this claim, holding that Petitioner's "arguments concerning his motion to withdraw his plea, including his constitutional claims, are without merit," O'Kane, 55 A.D.3d at 316, 865 N.Y.S.2d at 62. The New York Court of Appeals denied Petitioner's leave application. There is no basis to conclude that either decision was contrary to, or an unreasonable application of, clearly established Supreme Court law.
As discussed, Petitioner "may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within [acceptable] standards . . ." Tollett, 411 U.S. at 267, 93 S. Ct. at 1608; accord Grant v. United States, No. 03 Cr. 725 (RPP), 2007 WL 2469450, *4 (S.D.N.Y. Aug. 31, 2007); see also United States v. Cayce, No. 04 Cr. 506 (LAP), 2010 WL 2106174, at *7 (S.D.N.Y. May 19, 2010) (holding that a plea is involuntary "if the defendant made it without the effective assistance of counsel"). There is no indication here that the legal advice received by Petitioner with respect to the decision to plead guilty was not within acceptable standards.
To start, although Petitioner claims that his counsel did not provide him with an opportunity to review the grand jury minutes and police statements prior to trial, as the prosecutor stated on the record, copies of these documents had been provided to Petitioner's attorney, and Petitioner's attorney confirmed that Petitioner had every opportunity to view them with him, and that they "went over everything." (See S. at 18, 20.)
In addition, there is no merit to Petitioner's claim that he was "coerced" by his attorney into pleading guilty. Merely being advised of the likely outcome of his trial — conviction — does not constitute coercion. Moreover, given the substantial evidence against him, and the possibility of a lengthy prison sentence, his plea constituted a fair bargain, which was the product of "extended negotiations," and it was entirely reasonable for his attorney to suggest that he plead guilty according to its terms. Indeed, as the 440 court itself noted: "In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel." (440 Decision) (citation omitted) (emphasis added).
In particular, if convicted, Petitioner — a five-time predicate felon with a 25-year criminal history — faced a sentence of from 8 1/3 to 25 years on the 2004 drug possession charge, as well as the possibility of a consecutive sentence of up to that same amount of time on his pending 1999 drug sale charge. See Penal Law §§ 70.00(2), 70.06(3)(b). After extensive discussions with his attorney, however, Petitioner pled guilty to the lesser charge of fourth-degree criminal possession in exchange for a promised sentence of from 3 to 6 years in prison — to be served concurrently with a sentence of from 2 ½ to 5 years upon his pleading guilty to the 1999 drug sale charge. Petitioner did not waive his right to appeal as a condition of either plea.
Thus, although Petitioner contends that he pled guilty to the 2004 drug possession charge only because his attorney informed him that he would likely be convicted at a bench trial and receive a sentence higher than from 3 to 6 years, in light of his failed suppression motion, as well as the lengthy prison sentence that he risked in proceeding to trial, his lawyer's advice that he accept the guilty plea constitutes, in this Court's view, not coercion, but rational advice.
In any event, a review of the record plainly establishes that Petitioner's decision to plead guilty to Criminal Possession of a Controlled Substance in the Fourth Degree was knowing, voluntary, and intelligent, and not the result of coercion on the part of his attorney. Having been convicted of felony drug dealing and possession in the past, it is clear that Petitioner understood the charge to which he pled guilty in the instant case. Moreover, there is no doubt that the court elicited Petitioner's voluntary admission of guilt. Specifically, Petitioner assured the court that no one had threatened, or otherwise compelled him, to plead guilty, and that he was pleading guilty voluntarily, and of his own free will. (See P. at 110.) "These statements create a presumption that his plea was knowing and voluntary, a presumption that is not overcome by vague and unsupported assertions that his attorneys failed to properly advise him." United States v. Tremblay, No. 08 Civ. 7030 (JFK), 2009 WL 1055007, at *7 (S.D.N.Y. Apr. 20, 2009); see also Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629 (1977) ("Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible."); United States v. Hernandez, 242 F.3d 110, 112-13 (2d Cir. 2001) (holding that petitioner's conclusory allegation that he was "misled about the consequences of his guilty plea by his attorney" did not overcome the presumption, created by his sworn statements made in open court, that his guilty plea was knowing, voluntary, and made after extensive discussions with his attorney).
Moreover, throughout the pretrial proceedings, the state court repeatedly reminded Petitioner that the decision to plead guilty was entirely "up to" him and explained to Petitioner that if he did not plead guilty, he would be "tak[ing] a chance" and "roll[ing] the dice," as his sentence could be "at least 4 Ho 9 [years]" — if not "higher" — if he were found guilty at trial. (See H. at 77-81.) In other words, Petitioner's guilty plea was entered voluntarily, and with a full understanding of the "risks" associated with pleading not guilty. (See id. at 82.)
Accordingly, for all the reasons given, Petitioner's claim of ineffective assistance of counsel is meritless and should be dismissed.
CONCLUSION
For the reasons set forth above, this Court respectfully recommends that Petitioner's request for habeas relief be denied and that this action be dismissed with prejudice. Further, because Petitioner has not made a substantial showing of the denial of a federal right, the Court recommends that no certificate of appealability be issued. See 28 U.S.C. § 22 53(c)(2); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). The Court further recommends that the Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from its order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 920-21 (1962).
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6(a) and (d) (2008). Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Harold Baer, Jr., United States District Judge, and to the chambers of the undersigned, Room 1660. Any requests for an extension of time for filing objections must be directed to Judge Baer. Failure to file objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 145, 155, 106 S. Ct. 466, 470, 475 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).
Respectfully submitted,
/s/_________
THEODORE H. KATZ
UNITED STATES MAGISTRATE JUDGE Dated: February 15, 2011
New York, New York Copies sent by mail to: David O'Kane
04-A-3962 (Pro Se)
Attica Correctional Facility
P.O. Box 149
Attica, NY 14011-0149 Ashlyn Hope Dannelly
Priscilla Steward
New York State Office of the Attorney General
120 Broadway
New York, NY 10271