Opinion
No. 99 Civ. 11805 (LTS)(JCF)
December 22, 2000
REPORT AND RECOMMENDATION TO THE HONORABLE LAURA TAYLOR SWAIN
Stephen Parker brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for robbery in the second degree and his sentencing as a persistent felony offender. For the reasons that follow, I recommend that the petition be dismissed without prejudice because it contains both exhausted and unexhausted claims.
Background A. Factual Context
On January 24, 1994, at about 10:25 p.m., Aida Carrasquillo and her nine-year-old daughter, Naomi Otero, were returning home from a grocery store. As they walked along 165th Street in the Bronx, Ms. Carrasquillo was approached by a woman wearing a red hat, a dark coat, and gloves, later identified as Consuela Evans. Ms. Evans began talking about how she needed to go to the bathroom, and Ms. Carrasquillo became nervous and crossed the street. She was then accosted by a man with a mustache wearing a long, dark coat who was later determined to be the petitioner, Stephen Parker. Mr. Parker snatched Ms. Carrasquillo's purse as Ms. Evans demanded her other valuables. A third perpetrator, a woman wearing a gray hooded sweatshirt and a red coat, took Ms. Carrasquillo's watch. Ms. Evans tried to remove rings from Ms. Carrasquillo's hand using a knife and cut the victim's pinky finger in the process.
Naomi telephoned the police, and Officers James Abenante and Ralph Lisanti arrived shortly after the robbers had fled. The officers took Ms. Carrasquillo and Naomi in their patrol car to look for the suspects. Meanwhile, Officers Keith Clinton and Owen Clifford received a radio report of the robbery. While patrolling, they saw a man and a woman fitting fine description of the robbers running on Nelson Avenue and apprehended them.
A minute or so later, the police car carrying the victims arrived, and both Ms. Carrasquillo and Naomi identified the suspects — Mr. Parker and Ms. Evans — as the persons who had committed the robbery. Officer Clinton then arrested and frisked them. He recovered a pocket knife from Ms. Evans but did not secure the red hat she was wearing.
The police then drove Ms. Carrasquillo and Naomi through the neighborhood again, looking for the third suspect. They spotted someone wearing similar clothing, but when they saw the woman's face they agreed that she was not the robber. The police took the victims to the precinct where Ms. Carrasquillo identified the knife taken from Ms. Evans as the one she had been cut with. After leaving the precinct, Ms. Carrasquillo went to the hospital to have her finger examined, but left when she was not attended to promptly. She returned to the location where the suspects were arrested and recovered her wallet and phone book from the street.
B. Procedural History
The petitioner and Ms. Evans were subsequently indicted in New York State Supreme Court, Bronx County, and a hearing was held on July 17, 18, and 20, 1995 to determine the propriety of the identification procedure. In a decision dated September 7, 1995, Justice William C. Donnino denied the defense motion to suppress identification testimony. (Affidavit of Nancy D. Killian dated April 20, 2000 ("Killian Aff."), Exh. 7). Accordingly, the case proceeded to trial before the Honorable Gerald Sheindlin, and on February 8, 1996, the jury found Mr. Parker guilty of Robbery in the Second Degree, N.Y. Penal Law § 160.10, but acquitted him of first degree robbery. The jury convicted Ms. Evans of robbery in the first degree. On March 26, 1996, Justice Sheindlin sentenced Mr. Parker as a persistent felony offender to a prison term of fifteen years to life.
Mr. Parker appealed, raising four issues. First, he argued that his sentence was invalid because he was not provided with proper notice concerning his eligibility to be sentenced as a persistent felon. (Killian Aff., Exh. 1 at 14-16). Next, he contended that the identification had been suggestive and that the verdict was against the weight of the evidence on this issue. (Killian Aff., Exh. 1 at 16-20). Mr. Parker also claimed that the trial judge had improperly marshaled the evidence. (Killian Aff., Exh. 1 at 20-23). Finally, he maintained that he should have been permitted to call Ms. Carrasquillo as a witness at the pretrial suppression hearing. (Killian Aff., Exh. 1 at 23-26).
The Appellate Division, First Department affirmed Mr. Parker's conviction and sentence on December 3, 1998. People v. Parker, 256 A.D.2d 56, 682 N.Y.S.2d 136 (1st Dep't 1998). It held that the suppression motion had properly been denied and that the refusal to require the complainant to testify at the suppression hearing was not an abuse of discretion. The court further held that the verdict was not against the weight of the evidence. It rejected the petitioner's challenge to his sentence both because the objection had not been properly preserved and because any error was harmless. The petitioner then sought leave to appeal to the Court of Appeals, but his petition was denied on March 9, 1999. People v. Parker, 93 N.Y.2d 877, 689 N.Y.S.2d 439 (1999).
Meanwhile, on February 16, 1999, Mr. Parker filed a motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10. (Killian Aff., Exh. 3). He argued that the identification evidence was tainted by the fact that the complainant saw him in the precinct while he was being booked. (Killian Aff., Exh. 3 at 3-6) Mr. Parker further maintained that exculpatory evidence had been withheld from him, since he was never provided with a laboratory report showing that the knife seized from Ms. Evans had no blood on it. (Killian Aff., Exh. 3 at 6-8). Finally, he contended that he was denied effective assistance of counsel in that his trial attorney failed to diligently pursue the identification issue, failed to object to the jury seeing Mr. Parker in handcuffs, and failed to demand production of any laboratory report concerning the knife. (Killian Aff., Exh. 3 at 8-10).
On April 26, 1999, Justice Sheindlin denied the motion. (Killian Aff., Exh. 5). He found that the issue of the precinct showup was procedurally barred since it had not been raised on direct appeal and, in any event, it was not supported by the requisite factual proffer. Next, Justice Sheindlin rejected the claim that the laboratory results had been improperly withheld on the ground that this argument had already been rejected on direct appeal. He further held that the issue was irrelevant since the presence or absence of blood on the knife was not material to any element of the crime of which Mr. Parker was convicted. Justice Sheindlin rejected the petitioner's claim of ineffective assistance of counsel both because it was not adequately supported and because Mr. Parker failed to raise this claim on direct appeal. Thereafter, the Appellate Division denied leave to appeal from Justice Sheindlin's decision. (Killian Aff., Exh. 6).
Mr. Parker then filed the instant petition in which he raises four claims. The first claim has two parts: he challenges the admission of identification testimony as tainted both by the showup at the time of arrest and by the fact that the complainant saw Mr. Parker at the precinct. Second, the petitioner contends that the prosecution falsely represented that the knife seized from Ms. Evans had not been tested for blood. Third, he argues that he was denied effective assistance of counsel at trial. Finally, he maintains that he was denied due process when he did not receive the required notice prior to being sentenced as a persistent felony offender.
The respondent contends that Grounds Two, Three, and Four as well as that part of Ground One relating to the viewing at the precinct are procedurally barred. Further, the respondent argues that Ground Four and that part of Ground One concerning the showup at the time of arrest are unexhausted because they were not presented to the state courts in federal constitutional terms. Finally, even if the latter issue were exhausted, the respondent contends that the showup at arrest was not impermissibly suggestive.
Discussion
A. Exhaustion and Procedural Default
The doctrine of exhaustion generally requires a petitioner in a habeas corpus proceeding to exhaust all available state remedies for each claim prior to federal review. 28 U.S.C. § 2254(b) (c); Duckworth v. Serrano, 454 U.S. 1, 3 (1981). This requirement is satisfied if the petitioner has "fairly presented" his constitutional claim in state court. Picard v. Connor, 404 U.S. 270, 275-76 (1971); Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991). "In order to have fairly presented his federal claim to the state courts the petitioner must have informed the state court of both the factual and the legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc) (citations omitted). A petition containing both exhausted and unexhausted claims is a "mixed petition" and must be dismissed in its entirety. Rose v. Lundy, 455 U.S. 509, 510, 522 (1982).
Nevertheless, a federal court may deem a claim exhausted "if it is clear that the state court would hold the claim procedurally barred."Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989)). In such a case, the federal court may not reach the merits of the claim unless the petitioner is able to demonstrate both cause and prejudice. Harris, 489 U.S. at 262; Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977). Thus, while a petitioner may not prevail on a procedurally barred claim, such a claim, because it is deemed exhausted, does not preclude review of the balance of the petition.Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Each of the petitioner's claims may now be assessed in light of these procedural requirements.
B. Showup During Arrest
The respondent argues that Mr. Parker failed to exhaust his claim that the identification at the time of arrest was suggestive because he never presented this claim to the state courts in federal constitutional terms. It is certainly true that the petitioner's appellate attorney cited neither a specific constitutional provision nor any federal caselaw in support of this point; indeed, counsel cited no legal authority whatsoever. (Killian Aff., Exh. 1 at 16-20).
Nevertheless, a petitioner need not cite "book and verse on the federal constitution" to alert a state court to the federal nature of a legal claim; it is sufficient that the legal claims are substantially equivalent. Picard, 404 U.S. at 277-78 (citations omitted); Daye, 696 F.2d at 192 (citations omitted). Without explicitly citing the Constitution, the federal nature of a state defendant's claim may be demonstrated by:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye, 696 F.2d at 194.
Here, the petitioner's suggestive identification claim should have alerted the state courts to a potential violation of his due process rights as guaranteed by the Fifth Amendment to the United States Constitution. See Neil v. Biggers, 409 U.S. 188, 198 (1972) (possibility of misidentification implicates due process rights); Wray v. Johnson, 202 F.3d 515, 524 (2d Cir. 2000) (same); United States v. Concepcion, 983 F.2d 369, 377 (2d Cir. 1992) (due process analysis applies to showups). Thus, Mr. Parker has exhausted this claim even if his appellate attorney failed to articulate it in specifically constitutional terms. However, whether it can be addressed on the merits will depend on whether the remaining claims are exhausted.
C. Showup at the Precinct
The respondent contends that the other aspect of the petitioner's identification claim — the complainant's viewing of him at the precinct — is procedurally barred. Mr. Parker raised this claim for the first time in his CPL § 440.10 motion. (Killian Aff., Exh. 3 at 3-5). However, under New York law, such a motion must be denied when
[a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's . . . unjustifiable failure to raise such ground or issue upon appeal actually perfected by him[.]
CPL § 440.10(2)(c). Accordingly, Justice Sheindlin found that Mr. Parker had forfeited this claim because the petitioner failed to raise it on direct appeal. (Killian Aff., Exh. 6). This claim is therefore procedurally barred for purposes of habeas corpus. See Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000); Strogov v. Attorney General, 191 F.3d 188, 193 (2d Cir. 1999).
This part of Mr. Parker's identification claim may be considered on the merits, then, only if the petitioner is able to demonstrate cause for the default and resulting prejudice. See Sawyer v. Whitley, 505 U.S. 333, 338 (1992); Strogov, 191 F.3d at 193. Mr. Parker has asserted that the failure to raise this claim on appeal was the result of ineffective assistance by his appellate attorney. (Traverse Affidavit in Reply to Respondent's Answer ("Traverse") at 5). If appellate counsel were indeed ineffective, this could constitute cause for the procedural default. See Murray v. Carrier, 477 U.S. 478, 488 (1986).
However, "The exhaustion doctrine . . . generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Id. at 488-89. Since Mr. Parker has never asserted a claim of ineffective assistance of appellate counsel in state court, that claim is unexhausted, and he cannot now assert it as cause for any procedural default.
The question remains whether the ineffective assistance issue is merely unexhausted, such that Mr. Parker could still litigate it in state court, or procedurally forfeited, such that the petitioner can never utilize it as cause for overcoming other procedural bars. As the Second Circuit has held, "a claim of cause for procedural default is not itself excepted from the doctrine of procedural default. Thus, a petitioner may not bring an ineffective assistance claim as cause for a default when that ineffective assistance claim itself is procedurally barred." Reyes v. Keane, 118 F.3d 136, 140 (2d Cir. 1997) (citations omitted).
In New York, the appropriate procedure for asserting a claim of ineffective assistance of appellate counsel is to file an application for a writ of error coram nobis in the Appellate Division. See Dumas v. Kelly, 105 F. Supp.2d 66, 74 (E.D.N.Y. 2000); Cowan v. Artuz, 96 F. Supp.2d 298, 304 (S.D.N.Y. 2000); People v. Bachert, 69 N.Y.2d 593, 598-600, 516 N.Y.S.2d 623, 626-28 (1987). Mr. Parker can still apply for this writ because there is no time limit for filing such an application.See Dumas, 105 F. Supp. 2d at 74; Harris v. Artuz, No. 99 Civ. 5019, 2000 WL 358377, at *3 (S.D.N.Y. April 7, 2000); People v. Richetti, 302 N.Y. 290, 298 (1951). Consequently, his ineffective assistance claim remains unexhausted, but it is not procedurally defaulted.
I note that the court reached a different conclusion in Richter v. Artuz, 77 F. Supp.2d 385, 395 (S.D.N.Y. 1999). As in this case, the petitioner inRichter sought to excuse a procedural default on the ground that he was represented by incompetent counsel on appeal. The court rejected that argument, stating:
[t]his claim of ineffective assistance of counsel is raised for the first time in this federal habeas petition, and is raised solely in support of the claimed excuse for failing to present another claim below. The claim of ineffective assistance of counsel has never been presented to the state courts. It therefore cannot serve as cause for the procedural default with respect to the third ground of this habeas petition.Id. (citing Reyes, 118 F.3d at 140). However, the reliance on Reyes was misplaced. In that case, the petitioner argued that ineffective assistance of trial counsel was cause for procedural default, and he conceded that the ineffective assistance claim was itself procedurally barred. Reyes, 118 F.3d at 138-40. By contrast, in Richter and in the instant case, the ineffective assistance of appellate counsel claim is not forfeited because it may still be litigated in state court.
Where a predicate claim that is the basis for demonstrating cause for a procedural default is unexhausted, then the claim-in-chief is likewise unexhausted but not procedurally barred. As discussed above, Mr. Parker's predicate claim of ineffective appellate counsel is not exhausted. Consequently, his claim that the precinct showup violated his due process rights is likewise unexhausted.
D. Exculpatory Evidence
The respondent also argues that the petitioner procedurally defaulted on Ground Two of the petition, his claim that the prosecution failed to disclose an exculpatory lab report concerning the absence of evidence of blood on the knife. On direct appeal Mr. Parker alluded to the absence of blood on the knife only in connection with an argument concerning the weakness of the identification evidence. (Killian Aff., Exh. 1 at 18). In his CPL § 440.10 motion, however, the petitioner contended that the failure to disclose the laboratory report constituted a due process violation under the principles set forth in Brady v. Maryland, 373 U.S. 83 (1963). (Killian Aff., Exh. 3 at 6-7). Justice Sheindlin rejected this argument, stating that "[n]o exculpatory evidence was found in lab tests. This argument was denied in direct appeal." (Killian Aff., Exh. 5). To the extent that Justice Sheindlin meant that this issue was foreclosed by a decision on Mr. Parker's own appeal, he was mistaken since no such claim had been raised by the petitioner. Rather, it had apparently been argued on direct appeal by his co-defendant, Ms. Evans. (Killian Aff., Exh. 4 ¶ 13). See People v. Evans, 245 A.D.2d 87, 665 N.Y.S.2d 873 (1st Dep't 1997). That, of course, did not create a procedural bar to Mr. Parker's making the same argument on his own behalf.
Nevertheless, the petitioner forfeited his Brady argument by failing to advance it on direct appeal. CPL § 404.10(2)(c). Accordingly, it can now be reviewed on the merits only if Mr. Parker demonstrates cause and prejudice. Once again, however, he argues cause based on ineffective assistance of appellate counsel. As discussed above, this predicate claim is unexhausted and must be considered by the state courts before this Court may address it.
E. Ineffective Assistance of Trial Counsel
Mr. Parker's claim of ineffective assistance of trial counsel is in precisely the same posture as his claim concerning the showup at the precinct. He asserted his ineffective assistance claim for the first time in his CPL § 440.10 motion. (Killian Aff., Exh. 3 at 8-10). Justice Sheindlin found that it was procedurally barred because of the petitioner's failure to raise this claim on direct appeal. (Killian Aff., Exh. 5). Mr. Parker now argues that it was not raised on appeal due to the incompetence of his appellate attorney. (Traverse at 5). That claim is unexhausted, and therefore the underlying ineffective assistance of trial counsel claim is unexhausted as well.
F. Due Process at Sentencing
Finally, the respondent argues that Ground Four of the petition, in which Mr. Parker contends that he was denied due process at sentencing because he did not receive adequate notice concerning persistent felony offender status, is both unexhausted and procedurally forfeited. The petitioner did challenge his sentencing on direct appeal, but solely in terms of purported state law violations. He argued only that the prosecutor had failed to file a persistent violent offender statement that conformed to state procedural requirements. (Killian Aff., Exh. 1 at 14-16). Moreover, every one of the cases cited by Mr. Parker's appellate counsel relied exclusively on state sentencing law; none hinted at any federal constitutional issue. See People v. Bouyea, 64 N.Y.2d 1140, 490 N.Y.S.2d 724 (1985) (relying on CPL § 400.21); People v. Johnson, 196 A.D.2d 408, 601 N.Y.S.2d 103 (1st Dep't 1993) (relying on CPL § 400.15(2)); People v. Graybosch, 139 A.D.2d 664, 527 N.Y.S.2d 304 (2d Dep't 1988) (relying on CPL § 400.21(2)); People v. Thomas, 113 A.D.2d 1029, 494 N.Y.S.2d 590 (4th Dep't 1985) (same); People v. Todd, 88 A.D.2d 886, 452 N.Y.S.2d 604 (1st Dep't 1982) (same). Accordingly, this claim is unexhausted.
Furthermore, Mr. Parker cannot now file a direct appeal in state court in which he recasts his sentencing claim in constitutional terms; he is only entitled to a single appeal. See Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). Nor can he seek state collateral review of this issue, because he did not raise it on direct appeal. See CPL § 440.10(2)(c). Thus, the petitioner has procedurally forfeited this claim and it cannot be reviewed on the merits by this Court.
F. Review of Unexhausted Claims
To summarize, Mr. Parker's claim relating to the showup at the time of arrest is exhausted. His claims concerning the showup at the precinct, the alleged Brady violation, and ineffective assistance of trial counsel are all unexhausted because the issue of whether there was cause for having defaulted on these claims is also unexhausted. Mr. Parker's sentencing claim is unexhausted but procedurally barred.
Previously, a petitioner in a habeas corpus proceeding was required to exhaust all available state court remedies for each claim prior to federal review. Rose v. Lundy, 455 U.S. 509, 522 (1982). However, with the enactment of the Anti-Terrorism and Effective Death Penalty Act (the "AEDPA"), Pub.L. 104-132, 110 Stat. 1214 (April 24, 1996), the habeas corpus statute has been amended to provide that "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). Thus, if the federal court finds that all the claims are meritless, the court has discretion to dismiss the petition on its merits even though it may contain some unexhausted claims. Conversely, if some of the claims are not "patently frivolous" and it would not be futile to send the unexhausted claims back to state court, the federal court should dismiss the petition as unexhausted. See Ojeda v. Artuz, No. 96 Civ. 5900, 1997 WL 283398, at *3 n. 5 (S.D.N.Y. May 29, 1997); Edkin v. Travis, 969 F. Supp. 139, 142 n. 1 (W.D.N.Y. 1997).
In this case, the unexhausted ineffective appellate counsel claim is not frivolous on its face. There is no indication that the issues first raised by Mr. Parker in his CPL § 440.10 motion had been considered by appellate counsel and omitted from the direct appeal for rational, strategic reasons. That question is best addressed in the first instance by the state courts. Accordingly, Mr. Parker's petition includes unexhausted claims that should not now be addressed on the merits and should therefore be dismissed.
Mr. Parker would then have a choice. He could proceed to exhaust all the currently unexhausted claims in state court and then refile his petition here. Alternatively, he could refile a new petition right away raising the one exhausted claim, and then file a subsequent petition when the remaining claims have been exhausted. Either course has its pitfalls.
If the petitioner waits until all his claims are exhausted before filing one complete petition, he must be careful to refile within the one-year statute of limitations. See 28 U.S.C. § 2244(d)(1); Warren v. Garvin, 219 F.3d 111 (2d Cir. 2000) (habeas petition rejected where, at petitioner's request, court dismissed first petition without prejudice and petitioner failed to file second within statute of limitations). Moreover, the period actually available to Mr. Parker may be significantly shorter than a full year since some portion of the limitations period undoubtedly ran before he filed the instant petition, and it will start running again at any point that Mr. Parker does not have a properly filed petition or other request for collateral relief pending in the state or federal courts.
If, on the other hand, Mr. Parker chooses to proceed now with his single exhausted claim, he runs the risk that any subsequent petition would be dismissed as a second or successive petition. See 28 U.S.C. § 2244(b).
Conclusion
For the reasons set forth above, I recommend that Mr. Parker's petition be dismissed without prejudice as it contains unexhausted claims. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Laura T. Swain, Room 426, 40 Foley Square, New York, New York 10007 and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.
Respectfully submitted,