Opinion
No. 06 Civ. 2573.
July 23, 2010
MEMORANDUM ORDER
Petitioner Derick Andrades brings this timely pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he alleges that he is being held in state custody in violation of his federal constitutional rights. Petitioner's claim arises from a judgment of conviction entered after a jury trial in the New York Supreme Court, Bronx County for Murder in the Second Degree. Petitioner was sentenced to an indeterminate term of imprisonment of twenty-five years to life. Petitioner asserts that his current detention is in violation of the United States Constitution because he was denied effective assistance of counsel and a fair suppression hearing when his attorney sought to withdraw from the case due to an "ethical dilemma." Petitioner also contends his due process rights were violated by the trial court's failure to adequately inquire into a specific statement made by defense counsel prior to Petitioner's application to proceed pro se. For the following reasons, the petition for a writ of habeas corpus is denied.
I. Background
The evidence at trial established that Petitioner attacked and killed Magalie Nieves, a woman he previously had sexual relations with, because he believed that she was HIV positive and that he had contracted the disease from her. Petitioner, with the assistance of Erica Cruz, a fourteen year old who lived with Petitioner, attacked Nieves at an apartment and then lured her to an isolated area, where he choked her with a bandana before stabbing her twice.
A few days later, Detective Madelyn Ruperto interviewed Petitioner at the 49th precinct. Petitioner waived his Miranda rights and told Ruperto that he had known Nieves for a month and twice had unprotected sex with her. He told the police that both he and Cruz had strangled her, and that he had stabbed her in the side. Ruperto reduced Petitioner's confession to writing. Petitioner then agreed to make a videotaped statement to an Assistant District Attorney. Petitioner received his Miranda warnings again. In a forty minute video, Petitioner repeated that he had killed Nieves. After the videotape, Ruperto's partner, Detective Cosme, obtained a signature from Petitioner on the written statement.
Petitioner was charged with the murder of Nieves, as well as various related crimes. Petitioner moved to suppress his written and videotaped statements. Petitioner did not claim that his confessions were involuntary, but rather that they were inaccurate because the content was supplied by the detectives. Petitioner also argued that when he was brought to the precinct for questioning he was drunk, although he conceded he was not "that drunk" when he was questioned. (Gov't Opp. Ex. 2 at 5.) Prior to the suppression hearing, defense counsel, Lawrence Sheehan, moved to withdraw. In the presence of Petitioner, defense counsel told the court that "[t]here is an ethical conflict with my continuing to represent him and I can't go any further than that." (H. at 2:15-17.) The Government opposed the application. The court asked defense counsel for additional information, but defense counsel responded that based on the relevant case law there was nothing more he could say. The court inferred that defense counsel's ethical dilemma concerned Petitioner's right to testify. The court denied the application to withdraw and directed counsel to advise the court more specifically of the nature of the ethical problem should the occasion arise.
After the Government presented its case at the suppression hearing, defense counsel stated that Petitioner wished to testify. Defense counsel then made the following statement to the court outside of the presence of Petitioner:
As part and parcel of my request to be relieved in this matter, I think I should tell the Court and place on the record that I did tell Mr. Andrades and advise Mr. Andrades that he should not testify at the hearing and as a result of the problem that I'm having, the ethical problem I'm having. . . . What I'm going to do is just basically direct his attention to date, time and location of the statement and let him run with the ball.
(H. 39:3-12.) At one point, the Government asked the court whether Petitioner needed to be present. The court held that Petitioner's right to be present was not implicated because the application did not constitute "a critical stage" of the trial. (H. at 40:22-41:2.) The court concluded that defense counsel had complied with the disciplinary rules and could provide Petitioner effective assistance of counsel. At the end of the hearing, the court concluded that both the written and videotaped statement were admissible.
After the Government had presented three witnesses, Petitioner moved to proceed pro se with defense counsel acting as "co-counsel." The court conducted a lengthy inquiry in which it asked about Petitioner's desired role in questioning the Government's remaining witnesses and in presenting the defense case. The court advised Petitioner repeatedly that he would be bound by the same legal rules that would bind defense counsel. After a lengthy colloquy, the court took a brief recess to allow Petitioner to discuss with defense counsel whether he still intended to proceed pro se. After the recess, Petitioner reaffirmed his desire to represent himself with the assistance of defense counsel in certain capacities. The court asked defense counsel whether he had anything to add, to which defense counsel responded that he did not have anything to add, although he believed that Petitioner was motivated in part by defense counsel's prior application to be relieved. Defense counsel also mentioned Petitioner's belief that Cruz would only tell the truth if Petitioner questioned her. The court granted Petitioner's application. Petitioner was convicted of murder in the second degree and sentenced to twenty-five years to life.
Petitioner's conviction was affirmed by the Supreme Court of the State of New York, Appellate Division, First Department, People v. Andrades, 772 N.Y.S. 2d 60 (N.Y. App. Div. 2004), and the New York Court of Appeals, People v. Andrades, 4 N.Y.3d 355 (2005).
II. Standard of Review
"It is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A petitioner may only bring a claim under 28 U.S.C. § 2254 on the grounds that his or her custody is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A claim under Section 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), will only succeed if the petitioner shows that the state court decision was either "contrary to, or involved an unreasonable application of, clearly established federal law," or "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)(1)-(2).
With respect to the "contrary to" clause, the writ may be issued if (1) the state court decision is contrary to Supreme Court precedent on a question of law; or (2) if the state court decision addresses a set of facts "materially indistinguishable" from a relevant Supreme Court case and arrives at a result different than that reached by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision involves an "unreasonable application" of Supreme Court precedent when the state court either "identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or "unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407. In order to establish that a state court decision is an unreasonable application, the state court decision must be "more than incorrect or erroneous." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The decision must be "objectively unreasonable." Id. Factual determinations made by the state court are presumed to be correct, and the petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
III. Discussion
Petitioner contends that he was deprived of his right to a fair hearing and effective assistance of counsel at the suppression hearing. The New York Court of Appeals held that "that counsel's disclosure to the court, which was open to the inference that his client intended to perjure himself upon taking the stand, did not deprive defendant of a fair hearing or of the effective assistance of counsel." Andrades, 4 N.Y.3d at 357. In People v. DePallo, 96 N.Y.2d 437 (2001), the New York Court of Appeals recognized that "an attorney's duty to zealously represent a client is circumscribed by an `equally solemn duty to comply with the law and standards of professional conduct . . . to prevent and disclose frauds upon the court.'" 96 N.Y.2d at 441 ( quoting Nix v. Whiteside, 475 U.S. 157, 168-69 (1986)). The DePallo court held that under the precedent of the Supreme Court of the United States and New York's Code of Professional Responsibility, defense counsel acted properly by first attempting to persuade the defendant not to testify and then, when that attempt failed, notifying the court. Id. at 441. However, in a footnote the court noted that it did "not have occasion to address whether a similar disclosure in the course of a bench trial would be appropriate or implicate any due process concerns." Id. at 442.
While defense counsel in the instant case followed the procedure outlined in DePallo, Petitioner's appeal raised a question not previously decided by the New York Court of Appeals because the trial court was the fact-finder at the suppression hearing. The Court of Appeals began by summarizing DePallo, and then held that "counsel's ethical obligations do not change simply because a judge rather than a jury is sitting as the factfinder." Andrades, 4 N.Y.3d at 362. The court held that "defense counsel properly balanced his duties to his client with his duties to the court and the criminal justice system and that in doing so, defendant was not denied his right to a fair hearing." Id. Furthermore, because defense counsel did not breach any professional duty, Petitioner's claim of ineffective assistance of counsel was denied. Id. We find that this decision is not contrary to or an unreasonable application of federal law.
In Strickland v. Washington, the Supreme Court established a two part test to determine whether or not counsel's assistance is ineffective. 466 U.S. 668, 687 (1984). First, the defendant must show that counsel's performance was deficient, which "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the Sixth Amendment." Id. To establish that counsel was ineffective, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id. at 688. Second, the defendant must show that the deficient performance prejudiced the defense, which requires that the defendant show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id.
Finally, "the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. Where, as is the case here, the state court found that Petitioner received effective assistance of counsel, Andrades, 4 N.Y.3d at 362, we review that decision under the deferential standard of AEDPA. 28 U.S.C. § 2254(d)(1)-(2); see Henry v. Poole, 409 F.3d 48, 67 (2d Cir. 2005). In reviewing a habeas petitioner's claim of ineffective assistance of counsel, we "cannot simply conclude that the [state] court's application was erroneous; rather, we must find that there was `[s]ome increment of incorrectness beyond error.'" Cox v. Donnelly, 387 F.3d 193, 197 (2d Cir. 2004) ( quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)); see also Henry, 409 F.3d at 67. The New York Court of Appeals found that defense counsel acted in accordance with Supreme Court precedents and New York's Code of Professional Responsibility and, therefore, denied Petitioner's claims. Andrades, 4 N.Y.3d at 361-62.
The Supreme Court of the United States has held that the right to effective assistance of counsel is not violated when an attorney refuses to cooperate with a defendant presenting perjured testimony. Nix, 475 U.S. at 173 ("[T] the right to counsel includes no right to have a lawyer who will cooperate with planned perjury. A lawyer who would so cooperate would be at risk of prosecution for suborning perjury, and disciplinary proceedings, including suspension or disbarment."). The Court held that the defendant's disclosure of his intent to commit perjury is no different than if he disclosed to his attorney an intent to arrange a bribe or threaten a witness — in either situation the defendant "would have no `right' to insist on counsel's assistance or silence." Id. at 174. Therefore, if an attorney believes that his or her client intends to commit perjury, the attorney must first attempt to persuade his or her client not to testify. See Nix, 475 U.S. at 169-170; DePallo, 96 N.Y.2d at 441. If the client cannot be so persuaded, the attorney must seek to withdraw. Id. If the request for withdrawal is denied, the attorney must allow his or her client to testify but in narrative form, thereby playing no role in eliciting the testimony. Furthermore, the attorney has an ethical obligation to disclose to the court his or her client's intent to commit perjury, as the attorney's duty of confidentiality does not pertain to a client's announced plans to commit a future crime. Nix, 475 U.S. at 174.
Petitioner argues that Nix is inapplicable in the instant case because the trial court was also the fact-finder at the suppression hearing. However, as the New York Court of Appeals noted, the ethical obligations of defense counsel do not cease because the trial court is the fact-finder. Defense counsel was precluded by Supreme Court law and New York's Code of Professional Responsibility from sitting by passively or silently if he believed that Petitioner intended to commit the crime of perjury. Defense counsel did not actually disclose that he believed Petitioner intended to commit perjury. Rather, defense counsel referred to an ethical dilemma pertaining to Petitioner's right to testify when he sought to withdraw representation. After the court denied his application to withdraw, defense counsel attempted to dissuade Petitioner from testifying. Petitioner was determined to testify; therefore, defense counsel, referencing his application to withdrawal, indicated that Petitioner would testify in narrative form. Defense counsel acted in accordance with his ethical obligations, while revealing as little information as possible in order to protect his client's interests. The state court's application of Nix in the instant case to determine that Petitioner was not denied effective assistance of counsel or a fair hearing was reasonable.
Petitioner argues that defense counsel should have said nothing, proceeded to question Petitioner in narrative form, and, if necessary, refrained from using Petitioner's testimony in closing argument. The New York Court of Appeals noted that "as a practical matter, defendant's suggestion would solve nothing because counsel would likely find it difficult to allow defendant to testify in the narrative without prior explanation." Andrades, 4 N.Y.3d at 362. If Petitioner began to testify in narrative form, he would likely have drawn an objection from the prosecution. Even if the prosecution did not object, the use of the narrative form would signal to the trial court that defense counsel believed that Petitioner intended to commit perjury. Andrades, 4 N.Y.3d at 362.
Petitioner also contends that his right to be present was violated because the colloquy between defense counsel and the trial court regarding presenting his testimony in narrative form occurred outside of his presence. The New York Court of Appeals held that "a colloquy of this nature involves procedural matters at which a defendant can offer no meaningful input." Andrades, 4 N.Y.3d at 362. This decision was not unreasonable or contrary to clearly established federal law. See DePallo v. Burge, 296 F. Supp. 2d 282, 290 (E.D.N.Y. 2003) ("In sum, because the subject matter of the exparte communication here was merely procedural, and there was no hearing or other factual inquiry beyond that which had transpired earlier in the proceedings, defendant had no right to be present.").
IV. Conclusion
We have reviewed Petitioner's remaining claims and find them to be without merit. The petition for a writ of habeas corpus is denied and the Court will not issue a certificate of appealability.
With regard to Petitioner's argument that the trial court failed to conduct a sufficient inquiry prior to granting Petitioner's application to proceed pro se, we agree with the New York Court of Appeals that this claim is entirely without merit. See Andrades, 4 N.Y.3d at 359 n. 2 ("We expressly reject defendant's claim that the trial court failed to conduct a sufficient inquiry into defendant's understanding of the perils of self-representation. The record makes plain that the court engaged defendant in a two-hour colloquy and warned him against proceeding pro se. And given the court's repeated warnings that defendant would be held to the same rules of evidence as would his attorney, no further explanation was needed to address counsel's statement to the court that defendant believed that he could take certain actions that his attorney could not.").