Opinion
Nos. 02-CV-4824, 03-MISC-0066.
April 28, 2004
MEMORANDUM, JUDGMENT ORDER
The petitioner (sometimes referred to as defendant) seeks a writ of habeas corpus. The petition is denied for lack of merit. No hearing is required.
I. Introduction
A. Proceedings in this court
The petition was filed on August 26, 2002 pro se. A letter, treated as an "amended petition," was filed on February 11, 2003. A formal amended petition was filed on March 27, 2003. On May 15, 2003 an order was filed staying this proceeding to permit exhaustion of state grounds. A motion to reopen the case was filed on July 31, 2003 and granted on August 7, 2003. Respondent and petitioner filed papers in opposition to, and support of the petition.
Richard E. Mischel, Esq. Filed papers on April 19, 2004 in final support of petitioner's claims permitting this court to finally dispose of the case. His brief is entirely devoted to timeliness, with no discussion of the merits.
The briefs of both sides are largely directed to the timeliness of the petition. Since the claims have no substantive merit, they will be addressed on this ground.
The amended petition raises the following claims (no sic signals are used):
(1) on my direct appeal I did not raise the issue of ineffective assistance of trial counsel — but I exhaust my state remedies on 440.10 motion. (2) I file motion "error coram nobis" for the issue of ineffective of appellate counsel and this motion is still pending in the Appellate Division Court 2nd Dept. (3) see "attached my appellate brief" which have a four (4) grounds issue raised on my direct appeal.
Petitioner's brief on direct appeal to the Appellate Division, incorporated by reference in his petition includes the following claims:
POINT 1 — Defendant's guilt of attempted murder in the second degree was not proved beyond a reasonable doubt.
POINT II — Defendant was denied a fundamentally fair trial when the prosecutor was allowed to elicit the unnecessary, terribly inflammatory statement from the complainant that defendant had previously threatened her with death by telling her that a "nigger" was going to kill her; the trial court erroneously denied the defense motion In Limine pursuant to which the complainant would have been allowed to testify about the alleged threat on her life, but without using the word "nigger."
POINT III — Defendant was denied a fair trial when the prosecutor engaged in cross-examinations of the two defense witnesses, apparently without a good-faith basis, which was designed to suggest to the jury that these witnesses might be testifying under false names in an effort to deceive the jury, and which underlined the fact that these witnesses were arab immigrants of an ethnic background similar to defendant's, and different from the jurors'.
POINT IV — The four determinate, one-year sentence imposed on the four criminal contempt counts must run concurrently with the indeterminate sentence imposed for attempted murder, or any other indeterminate sentence that survives this appeal; moreover, the maximum 12-1/2 to 25 year term imposed for attempted murder was harsh and excessive, and should be reduced in the interest of justice.
In addition, petitioner's claim on his motion for a writ of error coram nobis was based on the contention that his appellate lawyer failed to argue on appeal that trial counsel was ineffective. See Petitioner's application to the appellate Division dated April 27, 1996. His pro se brief relied on prejudice against petitioner as a Muslim, an improper charge and lies of the witnesses against him. Ibid. B. Proceedings in State court
The current petition seeks habeas corpus relief from a May 15, 1996, judgment of the New York State Supreme Court, Queens County, as amended by the Appellate Division. By that judgment, petitioner was convicted after a jury trial, of Attempted Murder in the Second Degree (N.Y. Penal Law 110.00/125.25[1]), Assault in the Second Degree (N.Y. Penal Law § 120.05), Reckless Endangerment in the First Degree (N.Y. Penal Law § 120.25), Leaving the Scene of an Incident Without Reporting (N.Y. Vehicle and Traffic Law § 600[a]), Resisting Arrest (N.Y. Penal Law § 205.30), Criminal Mischief in the Third Degree (N.Y. Penal Law § 145.05), and four counts of Criminal Contempt in the Second Degree (N.Y. Penal Law § 215.50[3]).
He was sentenced as a predicate felon to concurrent indeterminate prison terms of from twelve and one-half to twenty-five years for the attempted murder, from three and one-half to seven years for the assault, from three and one-half to seven years for reckless endangerment, and from two to four years for the criminal mischief. Concurrent with each other and with the above sentences, the court also sentenced petitioner to definite jail terms of ninety days for leaving the scene of an accident and one year for resisting arrest. For each criminal contempt conviction, the court sentenced petitioner to a one-year jail term, each to be served consecutively to the others (a sentence later modified by the Appellate Division), as well as to the twelve-and-one-half-to-twenty-five-year prison term for attempted murder. Petitioner is currently incarcerated pursuant to that judgment of conviction.
The evidence supports the following factual and legal conclusions in the state courts:
From 1986 until 1991, petitioner stalked and terrorized Italia Parisi because she refused his romantic advances. The situation escalated until petitioner ultimately threatened her life — and then acted on that threat.
On April 26, 1990, Parisi obtained from Queens County Supreme Court an Order of Protection, prohibiting petitioner from harassing or contacting Parisi or her brother, Dino, for the duration of five years. Petitioner, present in court during the issuance of this Order, signed the document, as did the presiding judge. Less than three months thereafter, on July 6, 1990, petitioner intentionally drove a van into Parisi's parked car, damaging it so seriously that it had to be towed away. The next day, petitioner appeared at Parisi's workplace and uttered a threat: "I'm not finished with you yet." For these acts, petitioner was charged with Criminal Mischief in the Third Degree and two counts of Criminal Contempt in the Second Degree, under Queens County Indictment Number 4163/90.
While those charges were pending, petitioner again threatened Parisi's life on February 7, 1991. That morning, he drove to Parisi's home in a yellow taxicab and announced, "[A nigger] was going to kill [her] . . [a]nd that [she] was going to be with [her dead] father." That afternoon, just after Parisi had driven home from work and parked her car at the curb in front of her home, petitioner — driving the same yellow cab that he had driven earlier that morning — aimed straight at her He smashed into Parisi with the bumper of his cab while she stood in front of the open door of her own car. She was seriously injured, and taken by ambulance to the hospital.
Parisi's brother, Dino, who had witnessed the event, later canvassed the area in a police car, spotted petitioner's cab in the area, and pointed it out to the police. Petitioner, ignoring police sirens, led Dino Parisi and the police on a high-speed chase through the streets of Queens, disregarding stop signs and driving the wrong way down one-way streets. He eventually abandoned his taxi and ran into an alley to hide behind a garbage dumpster. When apprehended, petitioner waved his arms and kicked his legs to prevent police from handcuffing him.
For these acts, petitioner was charged with Attempted Murder in the Second Degree, Assault in the Second Degree, Reckless Endangerment in the First Degree, Leaving the Scene of and Incident Without Reporting, Criminal Contempt in the Second Degree (two counts), and Resisting Arrest, under Queens County Indictment Number 952/91.
On May 14, 1991, petitioner pled guilty to the crime of Attempted Murder in the Second Degree, under Indictment Number 952/91, and to Criminal Mischief in the Third Degree, under Indictment 4163/90, in full satisfaction of both indictments. He was sentenced on June 5, 1991, in absentia, to consecutive indeterminate prison terms of from twelve and one-half to twenty-five, and from two to four years. It appears that at the time of his sentencing petitioner had already departed from the United States. Four years later, after petitioner returned to the United States from Egypt, Justice Lawrence J. Finnegan of the Supreme Court, Queens County, vacated that original judgment. People v. Abbas, 168 Misc.2d 116 (Sup.Ct. Queens Co. 1995).
The two indictments were then consolidated, and petitioner proceeded to trial before a jury. At the conclusion of the trial, petitioner was convicted of all charges. He was sentenced on May 15, 1996, as already noted.
On May 16, 1996 and May 24, 1996, petitioner filed Notices of Appeal from his conviction. After an appellate attorney had already perfected petitioner's appeal by filing a brief on his behalf, and the state had replied to that brief, petitioner asked that his brief be stricken, and substituted for it one by another appellate attorney. Counsel's contentions have been quoted in part IA, supra.
On February 14, 2000, the Appellate Division, Second Department, modified petitioner's sentence so that all sentences were to be served concurrently, but also explicitly held that the state's evidence was legally sufficient to prove petitioner's guilt, and found as well that the proof of petitioner's guilt was not against the weight of the evidence. The court disposed of petitioner's remaining claims by finding them" either unpreserved for appellate review or without merit." People v. Abbas, 269 A.D.2d 456, 702 N.Y.S.2d 885 (2d Dept. 2000).
On March 24, 2000, petitioner filed a ten-page letter seeking leave to appeal with the New York State Court of Appeals, arguing that the victim (according to petitioner, his exgirlfriend), had falsely accused him of crimes purportedly committed on July 6, 1990, and February 7, 1991. In this letter petitioner argued that the trial judge had made racist remarks, that the prosecutor had removed Muslims from the jury panel, and that the White court reporter had not set down petitioner's words on the day of his sentence — a day when he had purportedly argued the ineffectiveness of his trial attorney. Petitioner argued that he possessed evidence exonerating him from having struck the victim's car on July 6, 1990, because the van in which he had been accused of perpetrating that crime had been involved in an earlier accident, but that trial counsel never made use of that exculpatory information; though petitioner spoke about this at his sentencing, his statements were not set down in the court record. Petitioner argued that the trial judge conspired to convict him; that he himself prepared a post-trial motion attacking counsel's effectiveness, and spoke about that motion at his sentence. Petitioner additionally claimed that his appellate counsel did not attack trial counsel's ineffectiveness in the appellate brief because the two attorneys knew one another. He also argued that appellate counsel had indicated that petitioner should attack trial counsel in a post-judgment motion.
Petitioner argued his claims of innocence and that he had been the victim of a conspiracy by the District Attorney's Office and the court, because the victim had been related to former Queens County District Attorney John Santucci. Petitioner also claimed that he was the victim of American fears of violence against women; and that he, a foreigner, had been used as an example. He argued that his trial attorney had represented police officers accused of attacking Abner Louima and Amadu Diallo; that counsel had successfully gotten these guilty men free of the criminal justice system, but had not done the same for petitioner. Petitioner additionally argued that he did not understand what was going on during his trial, owing to the poor services of a translator who did not speak Egyptian. Petitioner added that the judges in the Appellate Division included two Jewish women and an Italian judge, this last being Fred Santucci, who was actually related to the victim in this case. He accused the Appellate Division panel of having a racist dislike of him. Petitioner argued that the Order of Protection issued against him resulted from his having gone before an Italian judge; and added that he was treated differently from Americans because his name was Muslim. Petitioner asked the Court of Appeals to look fairly at his case, and at the evidence that he attached to his letter, arguing once more that his attorneys did not do their job, and that was why he was in prison. He contended that he had earlier pled guilty to a crime that he had not committed.
On April 12, 2000, the New York State Court of Appeals, denied petitioner's request for leave. People v. Abbas, 94 N.Y.2d 944, 710 N.Y.S.Q2d 1 (2000).
On April 13 2000, petitioner wrote again to the Court of Appeals — a nine-page letter, initially raising several questions: why the trial court had changed a Black court reporter for a White one; why petitioner's statements about his attorney's ineffectiveness were not on the record; why petitioner's statements about his "van 'car'" [ sic] were not of record; why the court and the prosecutor had removed persons with Muslim names from the jury; and why the trial court had denied petitioner's post-verdict motion attacking trial counsel. Petitioner reiterated that his van was inoperable after an accident on June 30, 1990, and could not have been involved in damaging the victim's car on July 6th of that year, yet counsel never used that evidence on his behalf at trial. Petitioner argued that the arresting officer in this case was the victim's cousin, and that that officer took petitioner's Egyptian friend's taxi cab to fake an attempted murder and charge petitioner with the crime, so that the victim could collect fraudulently from insurance companies. Petitioner pointed out a difference between the testimony of the victim and her eyewitness brother, who each testified that petitioner's taxi had struck her on different sides of her body. Petitioner claimed that the victim lied to the jury that petitioner had threatened her that she would be murdered by a Black man — a lie, and a racist statement meant to inflame the Black members of the jury — and that the trial prosecutor had fostered the inflammatory, racist language, to obtain a conviction. Petitioner argued that the trial judge made matters difficult for his original attorney, as a consequence of which petitioner changed attorneys before trial. The trial judge was set against petitioner because he [the judge] feared the anger of the Governor and the Mayor, and the possible loss of his job, if he did not obtain a conviction of petitioner. Petitioner reiterated the alleged familial connection between the victim, the Queens County District Attorney, and an Appellate Division Judge; he also stated that the victim's bother was a police officer; that her cousin (the arresting officer) was an undercover police officer; and that her ex-husband was also a police officer. Petitioner argued that a taxi cab was an unlikely weapon for a murderer's use; and that a killer would not threaten or warn his victim ahead of time (as petitioner had been accused of doing). Petitioner reiterated that trial counsel and the court conspired against him, and that trial counsel never showed petitioner's exculpatory evidence to the jury; that the White judge and White counsel acted against him as his initial, Black, Muslim attorney would never have acted. Petitioner complained again that his statements against trial counsel at his sentencing were never put on the record. He complained that his conviction resulted from American fear of the battering of women, and from his ethnic and religious background. In retaliation, he accused his victim of having come from an "Italian mob family." He stated that he had never stalked or harassed anyone. He feared that his case was not justly handled in the Appellate Division, owing to the presence of two Jewish judges and Judge Santucci, the last of whom was related to the crime's victim. He argued that trial counsel had not properly handled his case, though counsel had successfully defended one of the police officers who had shot "my friend" Amadu "Dillo." [sic]. Counsel, according to petitioner, should have shown the jury the exculpatory evidence, as well as the Order of Protection that had been issued against the victim in this case, his "ex-girlfriend," and her brother and "her mob family member." Petitioner argued that an earlier judge on his case, had told the "D.A." to stay away from the case; but the "D.A." did not like the Black judge, and had the case transferred to an Italian judge. Petitioner concluded by noting that his appellate attorney had told petitioner to attack trial counsel in a post-judgment motion, and also had told petitioner that he had only a one-percent chance of success in the Court of Appeals.
On April 24, 2000, petitioner wrote once more to the Court of Appeals, after being informed that his initial application for leave to appeal had been denied. He argued that here were issues of law for resolution by the Court: that Judge Fred Santucci had sat on the Second Department bench, and that he and the judge's brother John, Queens County District Attorney in 1990-91, were both related to the crime victim. Consequently, there existed a conflict of interest; yet petitioner's attorney did not raise the issue in the appellate brief. Petitioner argued that no judge was going to rule for an Egyptian man; he added that too many Black people were in prison because they were Black.
On May 17, 2000, petitioner wrote yet again to the Court of Appeals, questioning why the judge who had denied his application for leave had been re-assigned to his application for reconsideration. He reiterated his innocence of the crime, and stated that everything said against him was a lie. He stated that he had been "fucked-up" in his trial, owing to the people related to John Santucci and Fred Santucci. Petitioner added that "I am not going to speak or talk about law issues or court rules. Because I am finished with the law. Because I did not have respect to anyone who talk about law." He added that law in America is for White people only, and attacked racist judges and his racist lawyer who did not do his job. (It is not clear whether petitioner was referring here to trial or appellate counsel.) Petitioner anticipated no justice in his case until his three Egyptian brothers came to the United States and took care of his case; it would then appear on "Sixty Minutes" and "Twenty/Twenty." Petitioner added that, once they took the case, it would be seen "who are the criminal-the Egyptian or the Italian." Petitioner added that "because I am in prison for something I never did, they fucked me in the trial court, and because I am Egyptian and Muslim. But they will pay for what happen to me and what happen to my family." Petitioner noted that he had received a sentence of from twelve and one-half to twenty-five years for having hit someone by taxicab. He added that his brothers would not use a taxicab.
On June 8, 2000, petitioner wrote to the Court of Appeals again, stating that he was "not filing any paper for reconsideration request" because he knew nothing about the law, and stating that nothing the Court of Appeals could do would change the trial, in which White Anglo-Saxon Protestants "manufactured the jury" in the American justice system. Petitioner reiterated that he had been convicted because he was Muslim, Black and Egyptian. Petitioner said that too many innocent Black people in America were imprisoned because the politicians ran American courtrooms. He complained that he had been convicted because there were five Black jurors in his case, and "they make me racist Egyptian man and he call Black people 'nigger'." Petitioner further argued that his fully preserved question of law could be found in Point II of his appellate brief; then he argued that the trial court did not allow him to have a Muslim attorney. Petitioner added that the Court of Appeals would do nothing to aid a Black or a Muslim or an Egyptian defendant.
On June 16, 2000, the Court of Appeals certified "that the motion for reconsideration is granted and, upon reconsideration, upon application timely made . . . permission to appeal is hereby denied." People v. Abbas, 95 N.Y.2d 831, 713 N.Y.S.2d 138 (2000).
On August 12, 2001, petitioner filed pro se a motion to vacate the judgment against him. The gravamen of his claim was that trial counsel had ineffectively served him, by failing to offer into evidence purported documentary proof that (1) petitioner could not have driven his van on July 6, 1990 to smash his victim's car, because petitioner had surrendered his license plates on July 2, 1990; and (2) petitioner's van had been involved in an automobile accident on June 30, 1990, and therefore was inoperable on July 6th of that year.
On January 30, 2002, the New York State Supreme Court denied petitioner's motion without conducting a hearing, ruling, first, that petitioner's claim was procedurally barred, second, that petitioner had received effective assistance from trial counsel, and third, that counsel's failure to introduce documents into evidence did not result in his having ineffectively served petitioner.
The decision of the state trial court read in part as follows:
The defendant's motion, pursuant to CPL 440 is denied in all respects.
Defendant moves to vacate the judgments of conviction pursuant to CPL 440.10 claiming that he was denied effective assistance of counsel based upon what he claims to be ineffective representation. The court rejects these claims finding that (a) they are procedurally barred, (b) even if they were not barred, they are wholly lacking merit.
Initially, the Court agrees with the People that the alleged deficiencies of counsel as to introduction or the failure to introduce certain evidence are matters of record, which could have been reviewed on appeal, thereby rendering them procedurally barred under CPL 440.10(2)). The Court notes that the defendant in his moving papers relies upon the record to demonstrate counsel's alleged incompetence in failing to introduce certain receipts into evidence.
However, even assuming, arguendo, that these matters are ripe for expansion and determination in a CPL 440 motion, this Court finds that they do not rise to the level of ineffective assistance of counsel.
That a defendant was convicted is not in itself dispositive, and may have little to do with counsel's performance. This Court is properly skeptical when convicted defendants, disappointed with the outcome at trial, then seek to try their former attorney's performance on charges of incompetent representation. ( See, People v. Benevento, 91 N.Y.2d 708 [1998]).
"Effective assistance" of counsel is, by sheer necessity, a flexible standard, not amenable to precise demarcation applicable in all cases. ( See, People v. Baldi, 54 N.Y.2d 137, 146 [1981]). The core inquiry is whether he defendant received "meaningful representation." ( See, People v. Benevento, supra at 712). "Counsel's efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective." ( See, People v. Benevento, supra at 712). In reviewing claims of ineffective counsel, the Court must avoid both confusing true ineffectiveness with mere losing tactics, and according undue significance to retrospective analysis" See, People v. Baldi, supra at 146). The Constitution guarantees the accused a fair trial, not necessarily a perfect one. ( See, People v. Benevento, supra).
Upon reviewing the submissions of the parties, it is clear to the Court that defendant was provided with "meaningful representation" consistent with his constitutional rights. ( See, People v. Shamblee, 222 A.D.2d 834, 835 [3d Dept. 1995]). "Hindsight should not escalate what may have been a few tactical errors into ineffective assistance of counsel." ( People v. Baldi, supra at 151).
In order to prevail on a claim that he was denied the effective assistance of counsel, a defendant must demonstrate that he was deprived of a fair trial by less than "meaningful representation." Counsel's performance should be evaluated to determine whether it was consistent with the strategic decisions of a "reasonably competent attorney." ( People v. Satterfield, 66 N.Y.2d 796m 688 [1985]). While the inquiry focuses on the quality of the representation provided to the accused, the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather on its particular impact on the outcome of the case." ( People v. Benevento, supra at 714). In order to warrant a hearing, the defendant must demonstrate that the non-record facts sought to be established are material and would entitle him to relief ( See, People v. Satterfield, supra at 799). In the case at bar, the defendant does not meet his burden by simply claiming that counsel failed to introduce certain receipts into evidence.
The decision on direct appeal reads in part as follows:
ORDERED that the judgments are modified, on the law, by providing that the terms of imprisonment for the defendant's convictions of criminal contempt in the second degree shall run concurrently with each other and with the sentence imposed on the conviction of attempted murder in the second degree; as so modified, the judgments are affirmed.
Viewing the evidence in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see, CPL 470.15[5]).
However, as correctly conceded by the prosecution, the four definite one-year sentences imposed on the defendant for the four convictions of criminal contempt should merge by operation of law and run concurrently with the indeterminate sentence imposed on the conviction of attempted murder. Penal Law § 70.35 provides that "service of an indeterminate * * * sentence * * * shall satisfy any definite sentence of imprisonment imposed on a person for an offense committed prior to the time the indeterminate * * * sentence was imposed", and "contemplates that the definite and indefinite sentences will be served concurrently" ( see, People v. Leabo, 84 N.Y.2d 952).
The defendant's remaining contention are either unpreserved for appellate review or without merit.
On March 15, 2002, petitioner, acting now through new counsel, sought leave to appeal the denial of the post-judgment motion to the Appellate Division. On September 3, 2002, the Appellate Division summarily denied petitioner's request for leave to appeal his post-judgment matter.
On October 30, 2002, petitioner moved in the Appellate Division, Second Department, for a writ of error coram nobis, claiming that he had received ineffective assistance from the appellate counsel who had failed to brief the issue of trial counsel's ineffectiveness for having failed to introduce into evidence the exculpatory documents that had formed the basis for petitioner's earlier post-judgment motion. On February 24, 2003, the Appellate Division, Second Department, denied petitioner's motion, ruling that petitioner "has failed to establish that he was denied the effective assistance of appellate counsel ( see Jones v. Barnes, 463 U.S. 745)."
Petitioner sought leave to appeal to the New York State Court of Appeals from the Appellate Division's ruling. On April 5, 2003, petitioner supplemented his earlier letter to the Court of Appeals, claiming that his trial attorney had sold him out, and failed to use exculpatory evidence in petitioner's behalf. Petitioner additionally argued that one of the judges on the Appellate Division bench that heard his coram nobis matter was related to the crime's victim, and consequently was biased against petitioner. On June 12, 2003, the Court of Appeals denied petitioner's request for leave.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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." 28 U.S.C. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ 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 this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Berbary v. Torres, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
III. Limitations Period
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion." Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground." Id.
In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted. . . ." 28 U.S.C. § 2244(d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is ' properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been 'properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is 'pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements. Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998). But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law." Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an 'application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition." 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling . . . is only appropriate in 'rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with 'reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances 'beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of 'extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, No. 02-2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the court of appeals has explained,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations.Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 158 F.3d 762, 780 (5th Cir. 1999)).
IV. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An 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."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
V. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "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 a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(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.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as 'the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence. Id. at 321. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding."). A habeas court is, in short, concerned "'not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.'" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances).
VII. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and 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. See also Wiggins v. Smith, 539 U.S. 510, No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that 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). Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance." Id. (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with 'that fundamental fairness' which is 'essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "'substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been 'crucial, critical, highly significant.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA. See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).
X. Verdict Against the Weight of the Evidence
To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
XI. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No. 01-2694, 2003 U.S. App. LEXIS 8326, at *92 (2d Cir. May 1, 2003).
XII. Analysis of Substantive Claims
A reading of the record reveals no basis for petitioner's pervasive claims of prejudice against him, conflicts of interest of prosecutor and judiciary and incompetence of trial and appellate counsel in their representation.
A.
Petitioner's first contention is that trial counsel had ineffectively served him by failing to offer into evidence purported documentary proof that (1) petitioner could not have driven his van on July 6, 1990, to smash his victim's car, because petitioner had surrendered his license plates on July 2, 1990; and (2) petitioner's van had been involved in an automobile accident on June 30, 1990, and therefore was inoperable on July 6th of that year.
The evidence of the use of a vehicle by petitioner to commit at least some of the crimes involved was strong. There is no indication of a lack of proper preparation by counsel. The evidence petitioner claims should have been submitted was at best peripheral and tangential to that relied on by the state. It did not tend in the least to disprove the State's case.
This claim has no basis.
B.
Lack of adequate appellate council effectiveness is not based on any substance. The Brief of counsel advanced points as credible as could be gleaned from the record.
That brief was fully supplemented by petitioner's own submissions on appeal. They were rambling and hard to follow, but even giving them the greatest weight possible they were completely unconvincing. Since trial counsel provided a competent defense, nothing was to be gained by appellate counsel's attacking defense counsel's action on failure to act at the trial. Appellate counsel indicated to petitioner that he did not raise petitioner's claim against trial counsel because he believed that sufficient facts could not be found on the record to address that claim on direct appeal (Letter: April 16, 1999). The existence of that letter demonstrates that appellate counsel considered the claim against trial counsel, but in the exercise of reasonable judgment concluded that an insufficient factual basis supported the issue.
This claim has no merit.
C.
The claim that guilt was not proven beyond a reasonable doubt is belied by the record. The testimony was overwhelmingly favorable to the prosecution.
As an example, petitioner's intent to kill Parisi may be inferred by the many death-threats he uttered, including one on the very morning of the main incident. The evidence established that petitioner first threatened Parisi on May 2, 1989, telling her, "[i]n my country anyone who insults a mother must be killed," and "[i]n three days you are going to get it" (I. Parisi: 258). Petitioner again threatened Parisi on July 7, 1990, when he went to her workplace and shouted at her, "I'm not finished with you yet" — referring to his act of smashing her car the day before. Petitioner's threats to kill Parisi continued. On December 10, 1990, petitioner pulled along side Parisi's automobile, brandished a knife, and called out, "I'm going to cut your throat," and mimicked a slicing motion across his neck (I. Parisi: 273). Finally, petitioner on the morning of the incident pulled up in front of Parisi's home, and screamed from his cab that a "nigger" was going to kill her, and that she was going to be with her deceased father (I. Parisi 274-275). A rational trier of fat could conclude from petitioner's many death-threats that he intended to kill Parisi, and that his subsequent actions were an attempt to carry out those threats.
Petitioner's flight from the police was probative of his intent to kill Parisi. While evidence of flight may be of limited probative value, flight under these circumstances was probative of petitioner's intent to murder Parisi. In New York, the driver of an automobile is under an affirmative duty to stop and pull over when a police car, its lights and sirens on, pursues his automobile. Here, petitioner's decision to flee from the flashing lights and sirens of Officer's Lentini's unmarked cruiser and lead the police on a hazardous high-speed chase through stop signs, and the wrong way down one-way streets, indicated his guilty mental state (Lentini: 249-251; D. Parisi: 219-221). Furthermore, petitioner was discovered hiding in an alleyway with a jacket over his body, attempting to conceal his whereabouts from the police (Lentini: 253).
The state provided a motive for petitioner's intent to kill. Parisi's rejection of petitioner's advances enraged petitioner, and he was arguably vengeful as a consequence. Petitioner ignored court orders and violated probation to contact her, and he continually threatened her (I. Parisi: 258, 271-73). Finally, the evidence demonstrated that petitioner ultimately sought out his revenge by attempting to kill Parisi with his taxi (I. Parisi: 278-280).
This claim has no merit.
D.
Petitioner complains of the prosecutor's elicitation, on the state's direct case of an inflammatory statement. This statement amounted to petitioner's threat against his victim that a "nigger" would come to kill her.
The evidence indicates that the statement was made. It's inflammatory nature and the poison of the statement is due to petitioner's own fault. Its use in haec verba suggests petitioner's anger at the moment. It could not be redacted without substantially changing the force of the threat.
This claim has no merit.
E.
Petitioner complains of the prosecutor's alleged bad-faith cross-examination of two defense witnesses, both of Arabic ethnicity.
The cross-examination appear to have been well within appropriate limits. The fact, as petitioner suggests, that the witnesses were Arab was part of the trial and real life. There is no basis for the suggestion that the court, the prosecutor or the jury was at all prejudiced, or acted in a prejudiced way because of any ethnic or religious reasons.
The prosecutor's questions whether either of the two defense witnesses had ever testified under a different name for petitioner in connection with this case went directly to their possible bias in favor of petitioner, and to their credibility, as well. A witness' testimony under a different name is arguably, under these circumstances, probative of that witnesses' credibility and truthfulness, because it may indicate the witness' willingness to lie.
As a direct result of the prosecutor's cross-examination of defense witness, Osman, it was revealed that Osman had in fact earlier testified on behalf of petitioner in connection with this case (Osman: 404). The prosecutor was able to elicit testimony from the witness that he had testified because petitioner's mother had asked him to do so, and that he had known petitioner's family sine 1986 (Osman: 404). In fact, the prosecutor was able to use Osman's own prior testimony to impeach the witness' initial statement to the jury, to the effect that petitioner's mother had not asked him to testify on behalf of petitioner — a claim he later recanted, after the prosecutor had read to him his prior testimony (Osman: 405-406). This testimony was probative of Osman's bias and credibility. Not only did it tend to establish that the witness was a friend of petitioner's family, but also that he was less than forthright about his relationship to petitioner (Osman: 404). The fact that Osman had changed his name, and had testified on behalf of petitioner, established the prosecutor's good-faith basis for asking these questions.
Petitioner argues that because the prosecutor was unable to suggest that "Mr. Osman's explanations were false," her motives for asking the questions must have been impure. Petitioner also contends that the prosecutor's motives were somehow "insidious" because she did not make any effort to show that Gamaa was lying when he denied both testifying on behalf of petitioner under a different name, and using the name "Hasan Ali" in the past. Because the prosecutor was cross-examining the witness on collateral matters affecting only credibility, she was bound by those answers — whether they were helpful or not to the state's case. See People v. Inniss, 83 N.Y.2d at 658, 612 N.Y.S.2d 360.
The prosecutor's remarks on summation questioning the veracity of one of petitioner's witnesses' on the basis of a change of names was not inappropriate, but was of minor significance and did not constitute an attack because they were "immigrants from the Middle East" (Petitioner's Brief at 31); (State's summation: 459).
Parisi had testified that she did not have an intimate relationship with petitioner, and that the only time she saw petitioner outside of the BQE Racquetball and Health Club, was when he was harassing her. This testimony provided a proper basis for the prosecutor's comment, on summation. Furthermore, Osman admitted on cross-examination that he had gone to Parisi's place of work to try to "reconcile" her with him (Osman: 412). The prosecutor was suggesting a reasonable inference based on Parisi's testimony, as well as that of Oman, that Gamaa and Osman could have only seen Parisi at her health club or her place of work. See People v. Scotti, 220 A.D.2d 543, 632 N.Y.S.2d 209 (2d Dept. 1995).
There is nothing in the record to support petitioner's contention that the prosecutor was attempting to capitalize upon the fact that the defense witnesses were of the same ethnicity as petitioner. The prosecutor never questioned Gamaa or Osman about their nationality, religion, or place of birth. Contrary to petitioner's unsupported claim the prosecutor never stated or suggested that they did not have "good old 'American' names," or that they were linked to petitioner and each other through a "similar ethnicity".
This claim has no merit.
F.
Petitioner complains about his sentence. The sentence was corrected by the Appellate Division. No federal claim is posed by harshness of the New York Penal law.
This claim has no merit.
G.
Petitioner's shifting claims of innocence and prejudice is illustrated by the following: On October 30, 2002, in conjunction with his post-judgment motion, petitioner filed a sworn affidavit with the New York State Supreme Court stating that, on the night of the crime, he was riding as a passenger in a friend's taxicab, when he noticed a police car parked nearby. An officer jumped out and seized and struck him. See Affidavit of Abbas, October 30, 2002, at p. "A." As petitioner himself noted in his letter to the New York State Court of Appeals on March 24, 2000, at p. [unnumbered] 10, he had actually once pled guilty to the very crime of which he later protested his innocence. In Petition I, filed with this Court on August 5, 2002, petitioner offered an entirely different version of events: namely, that his victim, his ex-girlfriend, so he claimed, had concocted a scheme to defraud insurance companies by faking an accident — and that she followed through with this scheme even when petitioner failed to concur in it. See Petition I at pp. 1-2. In the same Petition I, petitioner admitted that he himself had been a taxicab driver, when he stated that his family "left this country because I was not there to support them from my working as Taxi cab driver [earning] a livelihood that supported my family." Id. At 2. At trial, one of petitioner's own defense witnesses, a long-time taxicab driver, testified that he had met petitioner on the job (Osman: 403) ("He was working with the taxi business"). This series of inconsistent claims of innocence, and attempts to evade the fact that he himself operated a taxicab at the time of the crime, and thus had no need to ride in a friend's cab, combined with petitioner's own earlier plea of guilty to the crimes, weakens his claim of innocence.
The proof at trial demonstrated petitioner's guilt. Both victim Italia Parisi and her brother Dino identified petitioner as the man who drove a taxicab into her body on the evening of February 6, 1991. Petitioner amply demonstrated consciousness of guilt when he drove his taxicab dangerously on New York City streets while running from the police in a high-speed chase. Petitioner fled from his cab and tried to elude the police in an alleyway, covering himself with the garbage that he found there. When the arresting officer found him, petitioner resisted arrest.
The claims of innocence have no merit, and are, in any event irrelevant since the trial complied with the Constitution.
H.
Petitioner's suggestion that incompetent counsel denied him justice is of a feather with his other claims. It has no merit.
Trial counsel advanced cogent arguments for his client, sufficiently investigated the issues raised by petitioner, and formulated a trial strategy. This record demonstrates that he was well prepared and possessed a more than suitable understanding of both the facts and the law. See Wise v. Smith, 735 F.2d 735 (2d Cit. 1984). His representation was above constitutionally-mandated norms, and did not unfairly prejudice petitioner, whose guilt was overwhelmingly proved by the testimony of two eyewitnesses, as well as by his own attempt to escape the authorities.
Before trial, counsel made a Sandoval application on behalf of his client ( see *205-*206), to prevent the prosecutor from questioning petitioner about prior crimes, should petitioner take the stand (*198-*203). Counsel delivered appropriate opening remarks, noting the absence of any burden on the defense to offer proof at trial, reiterating the doctrines of the presumption of innocence and of proof beyond a reasonable doubt. He told the jury that petitioner had had a brief relationship with Parisi, an occurrence that he planned to substantiate by witnesses' testimony. He prepared the jurors for Parisi's anticipated allegations against petitioner, and asked that the jury pay close attention to his cross-examination of the victim. He disputed the occurrence of any direct striking of Parisi by a taxicab, and adverted to the medical evidence in support of his position. He also asked jurors to examine carefully the inconsistencies in Parisi's impending testimony. Finally, he reminded the jury that the prosecutor's opening statement did not constitute evidence in the case (*229-*232).
Trial counsel made appropriate objections during the direct examination of the state's witnesses, and vigorously cross-examined them. He attempted to impeach the credibility of the state's witnesses by highlighting the inconsistencies between their prior statements and their testimony at trial (Lentini: *265-*268; D. Parisi: 237-238, 241-242; I. Parisi, 297-299; 307-312; 319-320; 324-325, 328-331, 333), as well as by testing their ability to recall detail. Counsel additionally presented a case for petitioner by means of two separate witnesses who testified that petitioner and his victim had indeed been boyfriend and girlfriend (Gamaa: 368-375; Osman: 396-401).
Counsel delivered a summation arguing that the present case embodied a "cultural clash" (Defense Summation: 428); that petitioner and the victim knew one another, and in fact had dated. (Defense Summation: 429-432). Counsel attacked the supposed absence of evidence against his client (Defense Summation: 433-436), and attempted to link Dino Parisi's animosity toward petitioner to the "cultural clash" that he had already described (Defense Summation: 434). He emphasized against the police's failure to investigate paint chips on the vehicles involved (Defense Summation: 437-438). He argued that there was also no evidence that petitioner had threatened Italia Parisi that morning (Defense Summation: 439). He attacked the credibility of Dino Parisi's testimony — particularly that treating the damage that Parisi saw on petitioner's taxicab (Defense Summation: 440-443). He pointed out the absence of objective medical supporting a charge of attempted murder (Defense Summation: 443-445). Counsel argued that petitioner did not want to kill Italia Parisi; instead, he wanted to marry her (Defense Summation: 445). Thereafter, counsel attacked petitioner's supposed motive for having smashed into Parisi's car in July of 1990 (Defense Summation: 447-448), and attacked the victim's veracity as well, arguing that she had lied about the extent of her relationship with petitioner (Defense Summation 448-451). In conclusion, he argued that here was no evidence of a crime, and that the relationship between the two principals had now ended; that the jury should allow each to get on with his or her life, and find petitioner not guilty (Defense Summation: 451-453).
The record demonstrates that petitioner was afforded meaningful and competent representation, and that the purported errors counsel made were the product of legitimate strategies that could not significantly have prejudiced petitioner. The totality of defense counsel's performance, examined as of the time of the representation, demonstrates that defense counsel acted in a competent manner, and vigorously represented petitioner's position. Counsel, an experienced criminal attorney, extensively cross-examined the state's witnesses, articulated a logical and rational theory of the case, and presented that theory in a persuasive manner. That petitioner was convicted nonetheless because the State overwhelmingly proved its case beyond a reasonable doubt does not impugn the effectiveness of counsel.
Counsel pursued a coherent and logical defense — that Parisi, following a failed relationship, over-reacted, and charged petitioner with crimes he had not committed — a credible assessment of the events, limited, unfortunately for counsel, by the strength of the proof of petitioner's guilt — and argument that arguably stood the best chance of success, given the quality and quantity of the evidence assembled against petitioner.
Counsel squarely faced up to the challenge of refuting the state's evidence, countering it by pointing out the alleged relationship between petitioner and his victim, remarking on the absence of objective medical corroboration of an attempted murder, and claiming that this contretemps had been in effect a tempest in a teapot, from which no one had emerged badly hurt. That he could not overcome the state's proof was not his professional fault.
Nonetheless, petitioner argues that trial counsel served him ineffectively because he chose not to offer into evidence petitioner's allegedly exculpatory evidence. The evidence amounts to documentation, as already noted, indicated that (1) petitioner handed in his van's license plates several days before a crime that he allegedly committed by employing his van; and (2) a vehicle belonging to petitioner had been demolished in an accident several days before the crime. This evidence, if believed, would — so petitioner claims — have demonstrated that he had already given up his license plates before his alleged July, 1990, attack on his victim's car; and would also have shown that the van he was charged with having used in that crime had been destroyed on the last day of June, and so could not possibly have been used in the July crime.
Petitioner has not demonstrated that counsel should have accepted the validity of this purported evidence. If counsel became aware of the falsity of petitioner's purported claim that he had turned in his license plates on July 2, several days before the occurrence of the crime, then counsel would have acted well within his professional duties in refusing to offer that material into evidence. There would have been good reason for counsel to have questioned the validity of petitioner's purported evidence. At trial, not only victim Italia Parisi, but also disinterested insurance agent Elias Douramanis testified that petitioner had handed in his license plates to the agents only moments after having committed the crime of smashing his van into Parisi's car. Counsel would have had legitimate reasons for suspecting that his client's proposed evidence — directly contradicting the testimony of these two witnesses — might not be legitimate. Counsel would have acted within his capacity as officer of the court in refusing to offer that material because he believed it false. Such a determination would have led counsel to say nothing to the court or to his opponent about his reasons for refusing to offer the material because he would have feared that this information would badly prejudice petitioner's case.
Petitioner claims that his receipt for the June 30, 1990, towing of some vehicle belonging to him precluded the possibility that he attacked Parisi's car with his van in early July of that year. Petitioner's documentation and proposed evidence say nothing about a van's having been disabled in an accident. The towing slip and the much later (post-trial) affidavit of Ashraf Elnaggar make no mention of a van's having been involved in an accident; nor does either document refer to a specific licence-plate number traceable to petitioner's van. As the state pointed out in its responsive papers, petitioner offered no connection between his documentation and his inability to have used a van against his victim's car in early July, 1990. Trial counsel was not remiss for having chosen not to offer this questionable documentation into evidence at petitioner's trial. As an experienced attorney, he might quite rightly have feared that this unspecific information might have been shredded on cross-examination, with the result that his client would come out of this evidentiary episode looking worse before the jury than he would have had he failed to offer the document.
This congeries of claims has no merit.
I.
On appeal the beneficial alteration of sentence obtained by his counsel was all that could reasonably be gained from New York's appellate courts.
This attack on his appellate counsel and the appellate courts is without merit. Petitioner's own contribution to the appellate process was not helpful to his case.
J.
Any undue prejudice that might have accrued from the prosecutor's remark on summation was dissipated by the court's extensive and repeated instructions to the jury throughout the trial. The trial court explained to the jury that the testimony and evidence presented during the trial was the only evidence it could consider in reaching a verdict, and that nothing said by counsel for either party in opening or closing statements constituted evidence (Preliminary Charge: 209; Jury Charge: 506). These instructions made it clear that it was their recollection of the evidence that was to guide them in their deliberations, rather than the comments or arguments of the attorneys.This claim has no merit.
K.
There is no indication that there was a miscarriage of justice.
No other claim of petitioner is more than frivolous.
XIV. Conclusion
The petition is dismissed.
No certificate of appealability is granted because no substantial federal claim has been raised. Petitioner may seek a certificate of appealability from the Court of Appeals of the Second Circuit.
SO ORDERED.