Opinion
99 CV 0065 (SJ)
December 16, 2003
GEORGE BALLARD, Elmira, New York, for Petitioner
CHARLES J. HYNES, ESQ., Solomon Neubort, Esq., Brooklyn, New York, for Respondent
MEMORANDUM ORDER
Petitioner George Ballard (hereinafter, "Petitioner" or "Defendant"), appearing pro se, has petitioned this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. For the reasons stated below, the petition for habeas corpus is denied.
BACKGROUND
Petitioner was charged by a Kings County Indictment with the crimes of Murder in the Second Degree, Attempted Murder in the Second Degree, and Kidnapping in the First Degree. The state alleged that Petitioner and a co-defendant kidnapped Robert Eachem and Zenee Emmanuel, shot and killed Eachem, and stabbed Emmanuel and left her for dead. The state alleged that the attack was in retaliation for a prior incident in which Eachem allegedly slashed Petitioner. Emmanuel survived the attempt, and was the primary witness at trial. Petitioner was tried and convicted by a jury before the Honorable Michael Juviler in the New York Supreme Court, Kings County. On July 10, 1987, Judge Juviler sentenced him to two concurrent terms of 25 years to life, and a consecutive term of 25 years to life.Petitioner appealed to the Appellate Division, Second Department, which affirmed on May 6, 1991. People v. Ballard, 570 N.Y.S.2d 101 (App.Div., 2d Dep't 1990). The Appellate Division found that the People had proved Defendant's identity as one of the perpetrators beyond a reasonable doubt. Further, the Appellate Division found that the admission into evidence of Defendant's hospital records had violated the physician-patient privilege, as Defendant claimed, yet held that the error was harmless, given the overwhelming evidence of his guilt. New York's Court of Appeals denied leave to appeal on August 26, 1991. People v. Ballard, 78 N.Y.2d 960 (1991).
Petitioner filed a motion in state court to vacate the judgment on April 17, 1997, pursuant to New York Criminal Procedure Law § 440.10 (" § 440.10"). In a Memorandum Decision dated November 20, 1997, Judge Juviler summarily denied the motion without a hearing. The trial court held that Petitioner's allegations failed to state a claim for which relief could be granted under § 440.10, and further, that the claims were procedurally barred. State v. Ballard, Ind. No. 326/86, November 20, 1997 Order. It appears that the basis of the trial court's ruling was that since the Appellate Division found that the improper admission of the medical records at trial was harmless error, any claims based on the admission of those records would be unreviewable in a § 440.10 motion. The Appellate Division denied leave to appeal on February 11, 1998. People v. Ballard, 570 N.Y.S.2d 101 (N.Y.App.Div. 1998).
Petitioner then moved in the Appellate Division for a writ of error coram nobis, dated September 15, 1998, claiming that appellate counsel had been ineffective. The court denied the writ on December 7, 1998.
Petitioner filed a timely application for a writ of habeas corpus in federal court, pursuant to 28 U.S.C. § 2254, on January 11, 1999. Petitioner claims that: (a) the state failed to prove beyond a reasonable doubt his guilt of the crimes of which he was convicted; (b) he was denied the right to due process and a fair trial when his privileged medical records were entered into evidence; (c) the prosecutor committed misconduct by improperly acquiring Defendant's medical records; (d) Defendant was denied the effective assistance of trial counsel because trial counsel failed to prevent the admission of the medical records into evidence; and (e) appellate counsel was ineffective because he failed to argue on appeal (1) that the introduction of the records violated Defendant's Fifth Amendment right against self-incrimination, and (2) that trial counsel was ineffective for failing to challenge the prosecution's alleged misconduct.
On July 7, 1999, the Clerk of this Court entered a judgment of dismissal, apparently in error, as no decision had been issued by the Court. Petitioner appealed to the Court of Appeals for the Second Circuit, which discovered the error and transferred the Petition to the District Court for a decision. This Court gave Petitioner the opportunity to amend his Petition and directed additional government response. Petitioner's amendment consisted of a renewal of his request for discovery regarding the acquisition and use of his medical records at trial.
DISCUSSION
Procedural Bar
The Kings County District Attorney, acting on behalf of Respondent, has argued that two of Petitioner's claims are procedurally barred. Federal courts may not consider the merits of federal constitutional claims on habeas review when a state court has already found those claims to be procedurally barred by an adequate and independent state ground. See Coleman v. Thompson, 501 U.S. 722, 730 (1991); Wainwright v. Sykes, 433 U.S. 72, 81, 87 (1977). Here, the New York Supreme Court, Juviler, J., found that Petitioner was procedurally barred from raising his claims of prosecutorial misconduct and ineffective assistance of counsel in his state habeas petition pursuant to § 440.10, because the underlying basis for each of those claims had been considered and rejected on the merits in Petitioner's direct appeal of his conviction.See State v. Ballard, Nov. 20, 1997 Order (citing People v. Ballard, 570 N.Y.S.2d 101).
This finding provides an "independent" state ground for barring these claims in federal court. However, this Court is not convinced that this argument is "adequate" to bar further consideration of these claims. Indeed, the Appellate Division merely decided that the admission of the medical evidence did not cause prejudice, People v. Ballard, 570 N.Y.S.2d at 102; there is no indication that the Appellate Division actually considered the ineffectiveness of trial counsel or whether the prosecutor committed misconduct by acquiring and presenting this evidence. The New York Supreme Court's denial assumes that it was enough that the Appellate Division considered the alleged evidentiary error underlying the claims, rather than the claims themselves. State v. Ballard, November 20, 1997 Order. Rather than consider whether this is a sufficient procedural bar, this Court will instead reach the merits of these claims. See Dunham v. Travis, 313 F.3d 724, 729-30 (2d Cir. 2002) ("[H]urdling the procedural question to reach the merits of a habeas petition is justified in rare situations, `for example, if [the underlying issues] were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law.'") (quoting Lambrix v. Singletary, 520 U.S. 518, 525 (1997)).
Standard of Review
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 the federal court 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). A state court decision is "contrary to" clearly established Federal law where "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 [the Supreme 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). A state court decision involves an "unreasonable determination of the facts" where the state court correctly identifies the governing legal principle from Supreme Court precedent, but unreasonably applies that principle to the facts of the petitioner's case. Id. at 413. Thus, a federal court may only grant habeas relief where the state court's application of clearly established federal law was not only erroneous, but objectively unreasonable. Id. at 409. The federal court may not substitute its judgment for that of the state court.
Federal claims which have not been adjudicated on the merits are reviewed under the de novo pre-AEDPA standard. Washington v. Schriver, 255 F.3d 45 (2d Cir. 2001). This Court finds that under the applicable standards of review, none of Plaintiff's claims may serve as the basis for habeas relief. Sufficiency of the Evidence
Petitioner argues that he was denied due process of law because the prosecution failed to prove his guilt beyond a reasonable doubt. Specifically, he claims that the State's identification witness, Emmanuel, was not credible. The Supreme Court has held that a challenge on the grounds of insufficient evidence is a valid federal constitutional claim. Virginia v. Jackson, 443 U.S. 307, 314 (1979). This claim was adjudicated on the merits by the New York State Appellate Division, which found that the evidence was legally sufficient to establish defendant's guilt and that the jury's verdict was not against the weight of the evidence. This standard of review is consistent with established Federal law. See Id., 443 U.S. at 319 ("[T]he relevant question 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."). The primary evidence against Defendant was the testimony of the surviving victim, Emmanuel. Having reviewed Petitioner's claims and the transcript of Emmanuel's testimony, this Court finds that the jury could reasonably have credited her testimony. Accordingly, there is no ground for habeas corpus relief on this claim.
Admission of Medical Records at Trial
Petitioner argues that he was denied the right to due process and a fair trial when his privileged medical records were improperly admitted into evidence. Petitioner claims that the admission of these records had an impact on the jury's decision to convict, because it bolstered the testimony of the state's identification witness. ("Traverse", at 17.) The relationship between physician and patient is privileged by New York State law, but not by federal law. A state trial court's rulings regarding the admissibility of evidence are a matter of state law. The Appellate Division determined that the records were protected by the physician-patient privilege under New York law and should not have been admitted. However, the Appellate Division found that Defendant was not prejudiced by the error, given the overwhelming evidence of Defendant's guilt.
"[F]ederal habeas corpus relief does not lie for errors of state law."Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Federal habeas review of state court evidentiary rulings are limited to determining whether the alleged error rose to the level of a constitutional violation. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). In order to reach the level of a constitutional violation, the error that occurred must have "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (holding that the harmless-error standard articulated in Kotteakos v. United States, 328 U.S. 750, 776 (1946) was appropriate "to the nature and purpose of collateral review."). The Appellate Division's application of the "harmless error" standard is consistent with established federal law. Accordingly, there is no ground for habeas relief.
Prosecutorial Misconduct
Petitioner further alleges prosecutorial misconduct, on the ground that the state prosecutor abused the subpoena process in acquiring his medical records. This Court reviews the merits of this claim de novo, but finds that it may not serve as the basis for habeas corpus relief. Even under the less deferential pre-AEDPA standard, a petitioner claiming prosecutorial misconduct must show more than mere trial error. Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998). "To constitute a due process violation, the prosecutorial misconduct must be of sufficient significance to result in the denial of the defendant's right to a fair trial." Greer v. Miller, 483 U.S. 756, 765 (1987) (internal quotations omitted).
This claim does not rise to the level of a constitutional violation. Even if, as Petitioner claims, the prosecutor improperly subpoenaed and introduced his privileged medical records, Petitioner has not shown that his conviction was a result of this error. This Court finds that Emmanuel's testimony, if credited by the jury, could provide sufficient evidence for a conviction. Thus, the prosecutor's actions cannot be said to have "had substantial and injurious effect or influence in determining the jury's verdict." Kotteakos v. United States, 328 U.S. at 776. This claim is denied.
Ineffective Assistance of Trial Counsel
Petitioner argues that he was denied the effective assistance of trial counsel because trial counsel failed to prevent the admission of the medical records into evidence. To prevail on a claim of ineffective assistance of counsel, a petitioner must satisfy the stringent two-pronged standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that counsel's performance was deficient by demonstrating that counsel's assistance fell below an objective standard of reasonableness under "prevailing professional norms." Id. at 687-88. Second, a defendant must show that the deficient performance prejudiced the defendant. In so doing, a defendant must establish that there was "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" Id. at 694.
In making the first determination, courts must not utilize hindsight, but rather view the facts as of the time of counsel's conduct. Id. at 690. Moreover, since a fair assessment of attorney performance is inherently difficult, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" or might be considered sound trial strategy under the circumstances. Id. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Additionally, a court need not determine whether counsel's performance was deficient before considering whether the defendant suffered any prejudice as a result of the attorney's conduct. Id. at 697.
Reviewing this claim de novo, the Court finds that Petitioner fails to meet the first prong of the Strickland test. The record shows that trial counsel did object to the admission of the records, on the ground that their admission would violate the physician-patient privilege. (Trial Transcript, at 564-65, 568.) This objection was overruled by the trial court. (Trial Transcript, at 565.) Petitioner now argues that Counsel also should have objected on the grounds that (a) the Prosecutor's acquisition of the medical records was an abuse of the subpoena process, (b) the introduction of the records was a violation of petitioner's Fifth Amendment right against self-incrimination, and (c) the state failed to give notice of the subpoena. (Traverse, at 19-20.) These claims are without merit. The Court finds that it was reasonable for Counsel to focus his objections on the admissibility of the medical records. The Appellate Division belatedly acknowledged that Counsel's objection was correct: the records should have been excluded on the basis of the physician-patient privilege, as Counsel argued. Counsel cannot be blamed for the improper admission of the records, over his objections.
On the other hand, Petitioner's suggested additional objections were less likely to have been sustained by the trial court. Petitioner has alleged no set of facts to support his claim that the records were obtained through an abuse of the subpoena process or in violation of the notice requirement. Nor has Petitioner shown that the introduction of the medical records violated his Fifth Amendment rights. The Fifth Amendment "proscribes only compelled self-incrimination, and, whatever may be the pressures exerted upon the person to whom a subpoena is directed, the subpoena surely does not `compel' anyone else to be a witness against himself." S.E.C. v. Jerry T. O'Brien. Inc., 467 U.S. 735, 742 (1984), Thus, where the records were acquired from a third party, the introduction of the records did not compel Defendant to incriminate himself and, therefore, did not violate his rights under the Fifth Amendment.
The Court finds that Counsel was reasonable in objecting on the basis of privilege, and had no reason to bring these other objections. Thus, the Court finds that Petitioner fails to satisfy the first prong of the Strickland test. The ineffective assistance of trial counsel claim is denied.
Ineffective Assistance of Appellate Counsel
Petitioner also argues that Appellate counsel was ineffective because he failed to argue on appeal the ineffectiveness of trial counsel or that the introduction of the records violated defendant's Fifth Amendment right against self-incrimination. The Court has already addressed both of these potential bases for appeal, and found them to be without merit. Accordingly, the Court finds that Appellate Counsel was reasonable in not raising issues that were without merit.
Requests for Discovery and Appointment of Counsel
Petitioner has made several requests for discovery, pursuant to Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts. Petitioner proposed specific interrogatories directed to trial Judge Juviler, trial counsel David Jacobs, appellate counsel Lawrence Vogelman, and Assistant District Attorney R. Baer. These proposed interrogatories concern the State's acquisition of Petitioner's medical records, notification of the intent to use the records at trial, and presentation of the records to the grand jury and at trial.
Petitioner argues that discovery of these questions will provide evidence in support of his claims that the records were unlawfully seized and that their seizure and use demonstrated prosecutorial misconduct and the ineffectiveness of trial and appellate counsel. However, the Court believes that additional evidence, in the form of a hearing or interrogatories, would be unavailing. Assuming that Petitioner could demonstrate that his medical records were improperly acquired through the abuse of the subpoena process, this state law error would not rise to the level of a federal constitutional violation, for the reasons discussed above. Accordingly, Petitioner's request for further development of the record is denied.
Petitioner's request for the assignment of counsel to depose these potential witnesses is also denied.
CONCLUSION
For the foregoing reasons, Petitioner's application for a writ of habeas corpus is denied. The Clerk of the Court is directed to close this case. Because Petitioner has not made a substantial showing of the denial of any constitutional right, a certificate of appealability will not be issued. See Miller-El v. Cockrell 537 U.S. 322, 336 (2003) (reiterating the standard for issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253(c)). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith.
SO ORDERED.