Opinion
98 Civ. 7020 (LAK)
June 25, 2001
ORDER
Petitioner was convicted in New York Supreme Court of murder in the second degree and criminal possession of a weapon in the fourth degree and sentenced to concurrent terms of imprisonment of from 17 years to life and one year, respectively. His conviction was affirmed by the Appellate Division, with leave to appeal denied by the Court of Appeals. People v. Alicea, 173 A.D.2d 397, 570 N.Y.S.2d 29 (1st Dept.), leave to appeal denied, 78 N.Y.2d 961, 574 N.Y.S.2d 940 (1991). He subsequently mounted a collateral attack on his conviction in the state courts. The hearing justice set aside the conviction on the ground that trial counsel's failure to use certain complaint reports produced by the prosecution had deprived petitioner of the effective assistance of counsel. The Appellate Division, however, concluded otherwise and reinstated the conviction. People v. Alicea, 229 A.D.2d 80, 656 N.Y.S.2d 2 (1st Dept.), leave to appeal denied, 90 N.Y.2d 890, 662 N.Y.S.2d 433 (1997). Petitioner then brought this habeas petition in which he makes principally the same ineffective assistance argument mounted previously in the state courts.
In a careful report and recommendation, Magistrate Judge Eaton dissected the police reports in question and analyzed the trial testimony, concluding that petitioner had failed to establish that trial counsel's failure to use the police reports fell below the minimal standard of performance established by the Sixth Amendment as applied to the states thorough the Fourteenth. He recommends dismissal of the petition. While this Court reaches the same conclusion, it comes to it by a somewhat different path.
When Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA") in 1996, it placed a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners. Federal courts now are prohibited from granting an application for a writ of habeas corpus with respect to a claim adjudicated on the merits in state court unless that adjudication "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 "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding."
See Williams v. Taylor, 529 U.S. 362, 379 (2000).
The AEDPA thus shifts the focus of the federal courts from a petitioner's claims to the state court decision in which the petitioner's claims were adjudicated on their merits, and limits review of the state court decision to its application of legal rules that were "clearly established . . . by the Supreme Court," 28 U.S.C. § 2254(d)(1); accord, Lainfiesta v. Artuz, No. 00-2643, 2001 WL 636818, at *3 (2d Cir. June 8, 2001), or to an "unreasonable determination of the facts in light of the evidence," 28 U.S.C. § 2254(d)(2). Moreover, 28 U.S.C. § 2254(e)(1) provides that state court determinations of factual issues "shall be presumed to be correct," and puts the burden on the petitioner to rebut the presumption of correctness by "clear and convincing evidence."
A state court decision is "contrary to" Supreme Court precedent only if it either "arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law" or "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at [the opposite result]." Williams v. Taylor, 529 U.S. 362, 405 (2000). It comes within the "unreasonable application clause" only "if the state court identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Moreover, "a federal habeas court is not empowered to grant the writ when, in its independent judgment, it determines that the state court incorrectly applied the relevant federal law. The state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Lainfiesta, at *4 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000). Habeas relief may not be granted under Section 2254(d)(2) "unless the confinement ruling lacks the evidentiary support needed to satisfy the requirements of the Due Process Clause." Francis S., 221 F.3d at 115.
In this case, the Appellate Division correctly identified the legal standard governing claims of ineffective assistance of counsel, so its decision was not contrary to any decision of the Supreme Court. The question under Section 2254(d)(1) therefore is whether the Appellate Division's conclusion that petitioner failed to establish both that counsel's failure to use the reports on cross breached the minimal standard of competence guaranteed by the Constitution and that the failure prejudiced petitioner — as would be necessary to justify a finding of ineffective assistance — was unreasonable. As ineffectiveness of counsel is a mixed question of law and fact, see Strickland v. Washington, 466 U.S. 693, 698 (1984), the Court must ask also whether the determination of facts necessary for the Appellate Division to reach its conclusion was unreasonable under Section 2254(d)(2).
To begin with, the Appellate Division declined to credit trial counsel's speculative assertion that he would have used the reports if he had been aware of them — a factual determination well within its province, however unusual the power to make factual determinations may be among appellate courts around the country. People v. Alicea, 229 A.D.2d at 88-89, 656 N.Y.S.2d at 6-7. It then went on to conclude either that the failure to use the reports on cross examination reflected trial strategy or, in any event, that petitioner had failed to establish otherwise. Id. at 89, 656 N.Y.S.2d at 7. While one perhaps might disagree with the Appellate Division's credibility determination, one certainly cannot say that its judgment was unreasonable. Nor can one so characterize its conclusion that there was a number of tactical reasons that might have led competent trial counsel not to use the reports, a conclusion that led quite directly to the further conclusion that petitioner had failed to carry his burden of demonstrating constitutional ineffectiveness. Similar considerations support the Appellate Division's holding that petitioner had failed to establish prejudice. Petitioner, moreover, has failed to offer clear and convincing evidence to rebut the presumption of correctness of the Appellate Division's fact findings.
The Appellate Division reversed the hearing judge "on the law and the facts," thus signifying that it had exercised its power to find facts at the appellate level. See N.Y. CRIM. PROC. L. § 470.15, subd. 1 (McKinney 1994).
The Court has considered the other points advanced by petitioner and found them to be without merit, substantially for the reasons set forth in the report and recommendation.
As petitioner has failed to demonstrate any error, much less a constitutional error that would permit a federal habeas court to grant relief consistent with 28 U.S.C. § 2254(d)(1) and (2), the petition is denied. There being no substantial constitutional question, a certificate of appealability is denied and the Court determines that an appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 1915.
SO ORDERED.