Opinion
06 Civ. 2056 (DLC) (AJP).
January 19, 2007
For Petitioner: Trevor Simms, pro se.
For Respondent: Lisa Fleischmann, Assistant Attorney General, State of New York — Office of the Attorney General, New York, NY.
OPINION ORDER
Trevor Simms ("Simms") brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his March 6, 2003 conviction, following a jury trial, on criminal possession of a weapon in the third degree. Simms was sentenced to a determinate term of seven years incarceration as a predicate felon. Simms now challenges his conviction and asserts twenty-four grounds for habeas relief.
This case was referred to Magistrate Judge Andrew J. Peck for a report and recommendation ("Report"), which was issued on August 25, 2006. The Report recommends that the petition be denied. On September 27, Simms's objections to the Report ("Objections") were received. This Opinion adopts the Report.
Background
The facts relevant to the petition are set forth in the Report and summarized here. On the evening of April 2, 2002, Detective Kevin Roy ("Detective Roy") was patrolling in an unmarked police car on West 141st Street when he saw Simms standing on the sidewalk speaking with another person. Detective Roy observed the handle of a gun sticking out of Simms's waistband. Detective Roy told Sergeant Turner, who was also in the police car, that Simms had a gun. People in the street shouted "bajando," the word used in the community to warn of the presence of an unmarked police car. Simms walked to a parked car and got in the passenger seat. The vehicle drove off and Detective Roy followed, intending to pull Simms's car over to arrest him.
Once Simms's car turned the corner and stopped at a traffic light at 144th Street, Detective Roy and Sergeant Turner got out of their car and approached Simms's car. Upon his approach, Detective Roy saw Simms throw an object into the back seat of the car. Detective Roy told the car's driver, Donnie McCoy ("McCoy"), to get out of the car, while Sergeant Turner told Simms to exit the car. Detective Roy saw a gun on the back seat. Both McCoy and Simms were handcuffed and arrested. Sergeant Turner "stepped back" and radioed for the prisoner van, and Detective Roy vouchered the gun, which was loaded with eight bullets. While McCoy and Simms were standing in handcuffs, McCoy became "very upset" and Simms, who was facing both McCoy and Detective Roy, said, "It's not his gun, it's my gun," and then Simms said to McCoy, "I'm sorry."
At trial, on cross-examination by defense counsel, Detective Roy testified that when he saw Simms on the sidewalk, he had been looking for a drug seller. Sergeant Turner, however, did not recall that they were looking for a seller, but rather that she and Detective Roy were "just driving down the block" at the time. In addition, she did not recall hearing anyone yell "bajando," and she did not see a gun on Simms when she saw him get into the car. Sergeant Turner also testified on cross that she did not see movement inside the car as they approached the car, nor did she hear Simms admit that it was his gun or say that he was sorry. Detective Desmond Stokes ("Detective Stokes") was established, with the defense counsel's consent, as the prosecution's firearms identification and examination expert at trial. Detective Stokes testified that "based upon a reasonable degree of scientific certainty," the gun recovered from the car's back seat was loaded and operable.
At the charge conference, defense counsel requested a jury charge on the lesser included offense of fourth degree criminal possession of a weapon, in case the jury found that the gun was not loaded. The judge denied the request, concluding there was "no reasonable view of the evidence to suggest that the gun was not loaded." After defense counsel made clear that he was not requesting a missing witness charge, the judge allowed the defense counsel to comment in a limited way on the fact that McCoy was not called as a witness. On summation, the prosecutor argued that Detective Roy was a credible witness, in response to defense counsel's argument to the contrary. Defense counsel objected when the prosecutor told the jury to ask itself whether Detective Roy "c[a]me across as a detective who would take the stand and perjure himself," but was overruled. As part of his charge, the trial judge instructed the jury on both physical and constructive possession, and defense counsel made no objections to the charge.
The jury acquitted Simms of second degree criminal possession of a weapon, but convicted him of third degree criminal possession of a weapon. On March 6, 2003, Simms was sentenced to a determinate term of seven years incarceration as a predicate felon. Simms appealed to the First Department, claiming that (1) his conviction was against the weight of the evidence, and (2) the sentence imposed was unduly harsh. His conviction was affirmed on October 5, 2004. The New York Court of Appeals denied leave to appeal and denied a subsequent motion for reconsideration. On April 23, 2005, Simms applied to the First Department for a writ of error coram nobis on the ground that his appellate counsel was ineffective for ten separate reasons. The First Department denied Simms's coram nobis petition without opinion, and on September 22, 2005, the New York Court of Appeals denied leave to appeal.
Simms's pro se habeas petition was signed on February 13, 2006, and filed with the Court on March 16. The petition raises the same ten grounds raised in his coram nobis petition, and an additional fourteen claims.
Discussion
The court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The court shall make a de novo determination of the portions of the report to which petitioner objects. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). In his Objections, Simms takes issue with the Report's conclusion that fourteen of his twenty-four claims are procedurally barred, and that his ineffective-assistance-of-appellate-counsel claims should be denied. Upon de novo and clear error review, however, Simms's claims are properly denied for the reasons stated in the Report.
The Report describes the fourteen claims as "thirteen" but discusses all fourteen — which are all of Simms's claims other than the ten ineffective-assistance-of-appellate-counsel claims.
A. Procedural Bar to Fourteen Claims
A federal court may not grant a habeas petition unless "the applicant has exhausted the remedies available in the courts of the State," "there is an absence of available State corrective process," or "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1). When a petitioner has failed to exhaust state court remedies and the state would now find the claims "procedurally barred," the federal habeas claim is procedurally defaulted.Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir. 2003) (citingColeman v. Thompson, 501 U.S. 722, 735 n. 1 (1991)). Where there is a procedural default, habeas review is barred "unless the prisoner 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 fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
As the Report indicates, fourteen of Simms's claims were not raised before the state courts. The fourteen claims can be grouped into five categories: (1) Simms's trial counsel was ineffective for failure to: (a) call Simms or any defense witnesses or prepare a defense; (b) conduct a pre-trial investigation; (c) prepare for and consult with Simms before the predicate felony sentencing hearing; and (d) move to dismiss the indictment for violation of Simms's right to a speedy trial; (2) he was denied his right to testify before the grand jury; (3) the Assistant District Attorney ("ADA") coerced Simms's co-arrestee McCoy not to testify and was obligated to call McCoy as a witness but failed to do so; (4) Simms's guilt was not proven beyond a reasonable doubt; and (5) Simms was denied his due process right to confront and call witnesses by the trial judge's failure to call McCoy to testify. All of these claims except for the ineffective-assistance-of-trial-counsel claims could have been raised on Simms's direct appeal but were not. In contrast, Simms's ineffective-assistance-of-trial-counsel claims include claims based on evidence outside of the trial record. Such claims cannot be raised on direct appeal, but rather must be made through a Section 440.10 motion under the New York Criminal Procedure Law. See N.Y. Crim. Proc. Law § 440.10; People v. Santer, 816 N.Y.S.2d 444, 444 (App.Div. 2006). Magistrate Judge Peck ordered Simms to notify the court whether he wanted to have the Court stay his habeas petition to allow Simms to bring such a motion in state court. Simms responded that he did not request a stay. Since Simms has declined to exhaust his ineffective-assistance-of-trial-counsel claims, those claims are also deemed procedurally barred for habeas purposes.
Simms has not shown that he can overcome the procedural bar to the fourteen claims. He has not alleged cause and prejudice. Despite his suggestion that he is innocent, he has made no showing of actual innocence. He objects to the Report's conclusion by arguing that these fourteen claims are "claims that would prove [his] innocence and are violations of the U.S. C[onstitution]." Thus, the Report is adopted, and habeas review of all fourteen of his barred claims is denied.
B. Ineffective Assistance of Appellate Counsel
For his ineffective-assistance-of-appellate-counsel claim, Simms raises ten grounds that his appellate counsel failed to argue: (1) the trial judge erred by refusing to charge a lesser included offense; (2) the trial judge erred by submitting the "full charge on possession" of the gun to the jury; (3) trial counsel was ineffective for failing to call Simms and McCoy to testify; (4) trial counsel was ineffective for failing to object to the prosecution's firearms expert and the trial judge erred by accepting the expert as such; (5) Simms's right to a speedy trial was violated; (6) the denial of Simms's motion to suppress should have been appealed; (7) trial counsel was ineffective for failing to advise Simms of his right to be present during the grand jury proceeding; (8) the prosecutor's statements during summation were improper; (9) trial counsel was ineffective for failing to "advise [Simms] that the case used to sentence [Simms] was not a valid predicate felony under New York law"; and (10) the ADA withheld Rosario and Brady material.
"[I]n order to prevail on an ineffective assistance of counsel claim, a defendant must show (1) that his attorney's performance fell below an objective standard of reasonableness, and (2) that as a result he suffered prejudice." United States v. Jones, 455 F.3d 134, 151 (2d Cir. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The performance inquiry examines the reasonableness of counsel's actions under "all the circumstances," Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) (citing Strickland, 466 U.S. at 688), and from the perspective of counsel at the time, id. (citing Rompilla v. Beard, 545 U.S. 374, 389 (2005); Strickland, 466 U.S. at 689). Counsel is "strongly presumed" to have exercised reasonable judgment in all significant decisions. Id. (citing Strickland, 466 U.S. at 690). Prejudice forms the second half of an ineffective assistance claim. The defendant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Lynn v. Bliden, 443 F.3d 238, 247 (2d Cir. 2006) (citing Strickland, 466 U.S. at 688, 694). The habeas petitioner bears the burden of establishing both deficient performance and prejudice. See Greiner, 417 F.3d at 319.
The Strickland test applies to appellate counsel as well as trial counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000). In an ineffective-assistance-of-appellate-counsel claim, petitioner must show first that "his counsel was objectively unreasonable in failing to find arguable issues to appeal — that is, that counsel unreasonably failed to discover nonfrivolous issues." Id. A petitioner may show inadequate performance by proving that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Once a petitioner has made such a showing, then the petitioner must show prejudice; he must show "a reasonable probability that, but for his counsel's unreasonable failure . . . he would have prevailed on his appeal." Smith, 528 U.S. at 285.
The Report discusses each of Simms's ten grounds for ineffective assistance of appellate counsel and concludes that they do not constitute ineffective assistance. Simms objects to the Report's conclusions, but an objection which is "devoid of any reference to specific findings or recommendations" and is "unsupported by legal authority" does not preserve a claim. Mario v. P C Foods, Inc., 313 F.3d 758, 766 (2d Cir. 2002). Simms's Objections merely restate conclusions without citation to any legal authority and do not refer to any specific portion of the Report. Although pro se submissions are construed liberally, Wright v. Comm'r, 381 F.3d 41, 44 (2d Cir. 2004), such perfunctory objections cannot preserve his claims, and the Report is reviewed under the clear error standard. This Court identifies no clear error in the Report.
Conclusion
The recommendation of Magistrate Judge Peck is adopted, and the petition for a writ of habeas corpus is denied. In addition, I decline to issue a certificate of appealability. Simms has not made a substantial showing of a denial of a federal right, and appellate review is therefore not warranted. Grotto v. Herbert, 316 F.3d 198, 209 (2d Cir. 2003). I also find, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss the petition.
SO ORDERED: