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describing the agent's testimony behind a screen as a "less exclusive procedure" compared to excluding the public from the courtroom
Summary of this case from Rodriguez v. MillerOpinion
00 Civ. 5508 (JSM)
November 4, 2002
OPINION AND OPINION
Thomas Tocco, who was convicted after a jury trial in the New York State Supreme Court, Bronx County, on two counts of Criminal Sale of a Controlled Substance in First Degree, two counts of Criminal Possession of a Controlled Substance in Second Degree and two counts of Criminal Possession of a Controlled Substance in Third Degree, brings this action pursuant to 28 U.S.C. § 2254 seeking to vacate his conviction.
Petitioner contends 1) his counsel was ineffective; 2) the trial judge improperly excluded the public during the voir dire of the jury; 3) the trial court denied him the right to a public trial by allowing an undercover policeman to testify from behind a screen; 4) that he was denied due process when the trial judge refused his request for an entrapment charge; 5) the imposition of consecutive sentences constituted cruel and unusual punishment; and 6) the trial judge should have recused himself from presiding over post-judgment proceedings.
Before turning to petitioner's specific claims it must be noted that Congress has limited the jurisdiction of the federal courts to provide relief under 22 U.S.C. § 2254.
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.See generally Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000).
None of the claims asserted by the petitioner meets this standard.
In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). To establish prejudice "[t]he defendant must show 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.
Plaintiff attempts to buttress his claim that his counsel was ineffective by arguing that his counsel had a conflict of interest because defense counsel's deceased former partner had been a friend of an individual who had been murdered named Bailey and, during the course of negotiations of a plea agreement with the prosecutor, petitioner was asked to provide information concerning the Bailey homicide. However, petitioner had never been charged with the Bailey homicide and defense counsel had been told by prosecutors that there was no evidence that petitioner had any involvement in that murder, although the prosecutor believed the murder had been committed by two individuals who had engaged in other criminal activity with petitioner. Thus, even if one assumes that defense counsel had some emotional interest in seeing the Bailey murderer brought to justice, there was nothing improper about him representing petitioner on a totally unrelated charge involving the sale and possession of narcotics.
Nor is there any evidence that counsel's representation of petitioner was in any way deficient. While current counsel argues that certain witnesses should have been called, he does not reference any particular testimony that the witnesses might have given that would have been helpful to the defense. To the extent he argues that a police officer should have been called to testify that they wanted to put pressure on petitioner to provide information about the Bailey murder, it is most doubtful that any experienced trial lawyer would call the police officer and risk opening the door to testimony that the officer believed that petitioner had information about the Bailey murder because he had committed an arson with the two individuals suspected of the murder. The decision not to call the officer was well within the range of tactical strategy that is left to the professional judgment of defense counsel, and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 5. Ct. at 2065.
Petitioner also faults counsel for waiving the statutory period between receipt of the presentence report and the sentencing, and for not preparing a sentencing memorandum. In this regard current counsel states "there is no way of knowing whether such steps would have affected this Court's ultimate judgment." However, to establish his right to relief, petitioner must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra at 694, 104 5. Ct. at 2068. In sum, petitioner has failed to establish either that his counsel was ineffective or that counsel's allegedly inadequate performance prejudiced him in any way.
Petitioner's next contention is that the trial judge improperly excluded the public from the courtroom during the jury selection. Respondent correctly notes that this claim is not available because there was no objection to the procedure at the time. Martineau v. Perrin, 601 F.2d 1196, 1200 (1st Cir. 1979) See Levine v. United States, 362 U.S. 610, 619-20, 80 S.Ct. 1038, 1044 (1960).
There is similarly no merit to the claim that petitioner's right to a public trial was violated because the undercover police officer was allowed to testify behind a screen. While the public may not be barred from the courtroom for a trivial reason, Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210 (1984), the Second Circuit has held that:
courtroom closure is permissible so long as there is a positive and proportional relationship between (1) the extent of the closure, and (2) The "gravity" of the interest that assuredly justifies the closure, discounted by the probability of the interest being harmed if the courtroom is not closed.Bowden v. Keane, 237 F.3d 125, 129 (2d Cir. 2001). See Brown v. Kuhlmann, 142 F.3d 529. 538 (2d Cir. 1998).
Here the trial judge carefully balanced the need to protect the identity of the undercover officer and petitioner's right to a public trial. Rather than excluding the public from the courtroom as was approved in Bowden v. Keane, supra, the court adopted the less exclusive procedure of having the agent testify behind a screen. The undercover officer's stated reasons for his concern about his safety were more than sufficient to justify the limited remedy adopted by the trial judge. Trial Tr., March 7, 1997, at 53-64.
Petitioner's claim that his due process rights were violated because the trial judge refused to give an entrapment charge does present a viable federal claim. "It is not the province of a federal habeas court to reexamine state-court determinations of state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480 (1991). To establish a right to habeas relief on the basis of a jury instruction, "it must be established not merely that the instruction is undesirable, erroneous, or even "universally condemned," but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400 (1973).
A claim of entrapment of the type alleged by the petitioner does not raise a constitutional issue. See United States v. Russell, 411 U.S. 423, 433, 93 S.Ct. 1637, 1643-44 (1973); Hampton v. United States, 425 U.S. 484, 488-91, 96 S.Ct. 1646, 1649-51 (1976) (plurality). Thus, the failure of the trial judge to give an entrapment charge, even if error, would not entitle petitioner to habeas corpus relief. Tusco v. Landucci, 548 F. Supp. 180, 182 (S.D.N.Y. 1982).
Petitioner's next point is that the imposition of consecutive sentences violated the Eighth Amendment. However, absent extraordinary factors, not present here, a sentence within the statutory range is not subject to challenge under the Eighth Amendment. See Harmelin v. Michigan, 501 U.S. 957, 994-96, 111 S.Ct. 2680, 2701-02 (1991); Briecke v. State, 936 F. Supp. 78, 85 (E.D.N.Y. 1996). Sentencing decisions are not cognizable on habeas corpus review unless the sentence imposed falls outside the range prescribed by state law. White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).
Petitioner's claims that the trial judge should have recused himself from the post-judgment proceedings because the judge had complained that he believed that petitioner's relatives had attempted to intimidate him by showing up at a civil trial in which the judge was a party. However, threats or attempts to intimidate a judge will not ordinarily require disqualification. United States v. Cooley, 1 F.3d 985, 993-94 (10th Cir. 1993) While in extreme cases, disqualification may be appropriate, United States v. Greenspan, 26 F.3d 1001, 1005-06 (10th Cir. 1994), it would not be sound policy to permit a defendant to disqualify a judge by making threats against the judge. The ruling that recusal was not mandated was not "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." 22 U.S.C. § 2254.
For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2254 is denied and the action is dismissed. In addition, the Court determines that the petition presents no question of substance for appellate review and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.