Opinion
02-CV-4149(JBW); 03-MISC-0066 (JBW)
December 11, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied, No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
Petitioner was tried for a series of six robberies of women, occurring between November 1994 and January 1995, near the Long Island Railroad station in Great Neck, New York, In each instance a weapon was displayed or violence was threatened if the victim did not cooperate, Four of the six women testified at trial and identified petitioner as their assailant. The owner of a jewelry store testified that he purchased a ring and necklace from petitioner that were later identified by one of the victims as having been taken from her. A special agent in the security department of a telephone company testified that a calling card taken from one of the victims was used to make a telephone call to petitioner's home.
Petitioner offered no evidence in his defense. He was convicted of robbery in the first degree, robbery in the third degree (two counts), and attempted robbery in the third degree. He was sentenced as a persistent violent felony offender to 39 years to life in prison.
Petitioner's conviction was affirmed by the Appellate Division. Leave to appeal to the New York Court of Appeals was denied.
Before any state collateral proceedings were initiated, petitioner filed an application for a writ of habeas corpus in this court. At his request, the application was dismissed to allow him to exhaust in the state courts his claims of ineffective assistance of trial and appellate counsel.
Petitioner subsequently filed a motion to vacate his sentence, which was denied by the trial court. The Appellate Division denied leave to appeal. Petitioner initiated no further state collateral proceedings and has never presented his ineffective assistance claims to any state court.
The instant habeas application was ordered reopened on October 21, 2003, In his application for a writ of habeas corpus, petitioner claims that (1) he received ineffective assistance of trial counsel; (2) he received ineffective assistance of appellate counsel; (3)the suppression healing court erred when if found an independent source for the in-court identification of petitioner by his victims; and (4) his conviction was against the weight of the evidence and unsupported by legally sufficient evidence.
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. Torres v. Berbary, 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. 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 dented 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 aha Ramos v. Keane, No. 98 CIV. 1604, 2000 US. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
IV. 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 case law 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 docs 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.
V. 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 defence." 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," ML at 694, See also Wiggins v. Smith, 539 U.S. ___, 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, 321 F.3d at 136 (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).
VI. Certificate of Appealability
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)," See also Shabazz v. Artuz, No. 02-2320, 2003 U.S. App. LEXIS 14450, at *15 (2d Cir. July 18, 2003).
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure, No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S, 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit"),
VII. Analysis of Claims
Unless otherwise noted below, all claims are reviewed under a de novo standard.
A
Petitioner claims that he received ineffective assistance of trial and appellate counsel. Although his initial habeas application was dismissed, pursuant to his request, to allow petitioner to exhaust these claims in the state courts, petitioner failed to do so. Because the claims are meritless and may be denied along with the entirety of the application, dismissal is not necessary.
Petitioner first complains that trial counsel failed to move for appropriate relief and to preserve claims relating to prosecutorial misconduct. He also complains about the failure of trial counsel to preserve a weight of the evidence claim and a claim concerning "defective voluntary disclosure notice regarding witness no. 1 in the identification notice." See Ground One, points 1, 3, 4, 6 7. Petitioner suffered no harm from counsel's performance in these regards, because the Appellate Division exercised its discretion to review the merits of these underlying substantive claims on direct appeal, irrespective of counsel's failure to preserve the issues. Because the claims were deemed meritless by the Appellate Division, trial counsel was not ineffective for failing to preserve them.
Petitioner next contends that trial counsel was ineffective for failing to "effectively challenge" the constitutionality of his prior felony convictions at the persistent violent felon hearing. See Ground One, point 2. In fact, counsel did challenge petitioner's earlier convictions on constitutional grounds. See Dec. 11, 1996 Sentencing Tr. at 2-12. Petitioner docs not state in what fashion counsel could have done more on his behalf at the hearing. The claim is meritless.
Petitioner next complains that trial counsel failed to make a timely request for 911 tapes which, he contends, contained descriptions by two of the complaining witnesses that were inconsistent with his appearance, See Ground One, point 5. Petitioner's contention that witnesses gave descriptions inconsistent with his actual appearance is pure speculation, unsupported by any evidence. The claim is meritless.
Finally, petitioner contends that appellate counsel was ineffective for failing to raise the above claims on direct appeal. Because all of petitioner's ineffective assistance claims, as well as the underlying substantive claims, are meritless, appellate counsel was not ineffective for failing to raise them. Petitioner identifies no other ground that, in his opinion, appellate counsel was ineffective for failing to have raised.
Habeas corpus relief on the ground of ineffective assistance of trial or appellate counsel is not warranted.
B
Petitioner claims that the suppression hearing court erred when if found an independent source for the in-court identification of petitioner by his victims. The hearing court made this determination after it ruled that the lineup viewed by the complainants was impermissibly suggestive because the numbered card held by petitioner was orange while the numbered cards held by the fillers in the lineup were yellow, (It was not explained why petitioner's counsel, who attended the lineup, did not object to the procedure contemporaneously.)
The Appellate Division rejected on the merits petitioner's claim that the hearing court's "independent source" decision was erroneous, stating.
The hearing court properly found that the four women had independent sources for their in-court identifications of the defendant. They described their assailant's gender, race, age, height, build, facial hair, and clothing after observing him for a minimum of 20 seconds and in some cases for several minutes during face to face encounters in well-lit surroundings. Their descriptions were sufficiently detailed, and took place under circumstances in which the witnesses had the opportunity to observe so as to provide an independent source for in-court identificationsPeople v. Allah, 725 N.Y.S.2d 659, 660 (App.Div. 2001). Review proceeds under the deferential standards of AEDPA.
In United States v. Wade, the Supreme Court recognized that there is a "grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial," 388 U.S. 218, 236 (1966), and that to protect defendant's Sixth Amendment rights the trial court must ascertain prior to trial whether a witness's identification testimony is tainted by an improperly made identification.
The Court has set forth a two-step inquiry for evaluating the constitutional permissibility of in-court identification testimony based on out-of-court identification procedures, "requiring a determination of whether the identification process was impermissibly suggestive and, if so, whether it was so suggestive as to raise `a very substantial likelihood of irreparable misidentification.'" Jackson v. Fogg, 589 F.2d 108, 111 (2d Cir. 1978) (quoting Neil v. Biggers, 409 U.S. 188, 198 (1972) (citing Sinmons v. United States, 390 U.S. 377, 384 (1968))). "If pretrial procedures have been unduly suggestive, a court may nonetheless admit in-court identification testimony if the court determines it to be independently reliable," United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994) (citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Jarrett v. Headley, 802 F.2d 34, 42 (2d Cir. 1986).
In Manson, Court stated that "reliability is the linchpin in determining the admissibility of identification testimony," and that the factors to be considered in determining reliability include "[1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness' degree of attention, [3] the accuracy of his prior description of the criminal, [4] the level of certainty demonstrated at the confrontation, and [5] the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself." 432 US, at 114.
In the instant case, it was reasonable for the Appellate Division to conclude that the hearing court's independent source ruling was appropriate. Each of the complainants who identified petitioner as her assailant at trial testified that she had a good look at petitioner in good light at the time of the incident. Only with respect to complainant Cosette Trotto could this conclusion be called into any doubt, since she testified that petitioner was wearing a pantyhose stocking over his face and a knit cap on his head. Nonetheless, she testified that the hose mask had several large runs in it and that she was able to see petitioner's face sufficiently clearly, This identification testimony is buttressed by evidence that the GTE calling card stolen along with her wallet was found to have been used after the robbery to make a call to petitioner's home.
Habeas corpus relief on this claim is not warranted.
C
Finally, petitioner claims that his conviction for third degree attempted robbery was against the weight of the evidence and unsupported by legally sufficient evidence. The claim was reviewed and rejected by the Appellate Division as meritless. Review in this court proceeds under the deferential standards of AEDPA.
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.
The complainant with respect to this claim testified that she walked into her apartment building at night and turned to find right behind her a man who did not belong in the building, He was "mumbling" something, the only word of which the complainant understood being "money." Aug. 2, 1996 Trial Tr. at 683. Petitioner's right had was inside his vest, Napoleon style," When the complainant stepped backward, petitioner stepped forward, and followed each of her moves: "If I took a few steps to the left, he paralleled me to the left. I did the same thing. took a few steps to the right, he did the same thing." Id. at 684. She screamed and petitioner ran from the building.
Viewed in the light roost favorable to the prosecution, this evidence was sufficient for a rational juror to have concluded that petitioner was guilty beyond a reasonable doubt of each element of the crime of attempted robbery. Habeas corpus relief on this claim is not warranted.
VIII. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right.
SO ORDERED.