Opinion
02-CV-1671 (JBW), 03-MTSC-0066 (JBW)
October 20, 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
This petition was filed on February 19, 2002. Petitioner (sometimes referred to as defendant) claims:
1) The petitioner was denied his Sixth and Fourteenth Amendment rights to due process. To a fair trial when the prosecutor served a defective notice after the grand jury voted and returned a true bill, She (prosecutor) misrepresented the prosecution. She and the trial judge made the indictment defective, and they now attempts to claim the petitioner's issues raised in his motion pursuant to C.P.L. § 440.10(1)(b)(c)(f)(h) on those points inter alia was procedurally barred from appellate review. However, the petitioner will attempt to show his issues are not defaulted. He will attempt to show cause and prejudice because he was denied his right to a fair trial and direct appeal.
2) The prosecutor's failure to fulfill her obligation to turn over Brady/Rosario material, the statements of testifying witnesses and that the complainant observed the petitioner as the person who knocked on the door at 2:45 p.m. and entered right after he knocked at a quarter to 3:00 p.m. and the failure of the prosecutors to give notice that the People intended to use this testimony on direct to prove their case. Petitioner was denied his due process rights and the prosecutor's summations denied petitioner his right to a fair trial.
3) The trial judge's failure to instruct the jury on the essential elements charged in the indictment for the commission of the crime charged for;
"Knowingly entered and remained unlawfully" constituted a constructive amendment of the indictment. The trial judge's failure to submit to the jury the question of "knowingly entered and remained unlawfully" violated the petitioner's right to have a jury determine beyond a reasonable doubt his guilt as to each element of the charged offense. The trial judge removed the factual issue of the scope of "knowingly entered and remained unlawfully" from the jury by instructing the jury on the prosecutor's theory of the case. The trial judge's recital in its jury charge of the wrong part of the statute with respect to the charged offense of "knowingly entered and remained unlawfully" was in nature an jurisdictional error by misrepresentation of the applicable law charged in the indictment, constituted plain error, and the trial judge's ruling denying the petitioner's motion at the close of trial denied him of his right to an impartial and fair trial.
4) The petitioner's South Carolina plea for escape does not constitutes the equivents of a New York felony for an escape, When the statute charged under § 24-13-410 that the petitioner "could only be guilty of a misdemeanor for an escape," the petitioner pleaded guilty under the advise of counsel's reading of the statute and his understanding that he was only pleading guilty to a misdemeanor. However, the trial judge's rulings was bias and partial when he based his decision on erroneous information that the petitioner had pleaded guilty to a felony in South Carolina. The trial judge prejudiced the petitioner by charging him under two provisions of the New York Penal Law §§ 205.15 and 205.10, two different classes of felonies and elements. The petitioner was denied his constitutional right to defend himself against the alleged adequate equivent under New York when he was charged with two different provisions and was denied a felony hearing at sentencing.
5) The petitioner was denied his Sixth and Fourteenth Amendments rights to the effective assistance of counsel's inter alia, failure to object to a defective indictment and the misrepresentation at trial. His failure to prepare for trial, to investigate witnesses, to effective cross-examination on material issues, to request documents, to file motions, to request charging instructions, to inquire about hearings failed to advocate the petitioner at critical stages at trial of his rights, and defense strategy failed to object to improper admission of evidence and improper summations arguments by the prosecutor.
6) The petitioner was denied his Sixth and Fourteenth Amendments rights to the effective assistance of appellate counsel, counsel's failure to argue the petitioner most strongest issues at his request on direct appeal.
The evidence supports the following statements;
On February 7, 1996, at approximately 2:45 p.m., defendant confronted Ann Mercier at the doorway of the apartment she had been sharing with defendant's uncle at 56 East 96th Street in Brooklyn, Defendant asked Mereier to buy a telephone calling card from him. Mercier, who had only met defendant a few times before, asked defendant to wait outside the partially open door. Defendant then entered the apartment and grabbed Mercier by the neck and about the face, and demanded money from her. He forced his hand down Mercier's throat and pulled on her teeth, ripping out two of her front teeth down to their roots, and causing the victim to lose consciousness. When she awoke, Mercier's pocketbook, which contained 8360 and her child's gold chain, was missing.
For these crimes, defendant was charged under Kings County Indictment Number 10432/96 with Burglary in the First Degree (N.Y. Penal Law § 140.30[2]), Burglary in the Second Degree (N.Y. Penal Law § 140.25[2], Robbery in the Second Degree (N.Y. Penal Law § 160.10[2][a]), Assault in the Second Degree (N.Y. Penal Law § 120.05[6]), and Assault in the Third Degree (N.Y. Penal Law § 120.00[1]).
On September 23, 1996, defendant's attorney filed a motion seeking, inter alia, inspection of the Grand Jury minutes by the Court and dismissal of the indictment, a Huntley hearing, discovery, a bill of particulars, minutes of defendant's testimony before the Grand Jury and any information that would adversely reflect upon the complaining witness. The People filed a timely response to the defense motion. On October 18, 1996, the trial court held in part as follows: (a) granting defendant's motion to inspect the Grand Jury minutes in camera, (b) dismissing the eighth count of the indictment charging defendant with Assault in the First Degree (P.L. § 120.10) and retaining all other counts, (c) granting defendant's motion for a bill of particulars and discovery to the extent of the People's response and Voluntary Disclosure Form, (d) denying defendant's motion for a Huntley hearing, (e) ordering, sua sponte, a combined Rodriguez/Dunaway/Wade hearing based on notice served pursuant to N.Y. Criminal Procedure Law § 710.30, and (f) granting a Sandoval hearing. On January 8, 1997, defense counsel waived the combined Rodriguez/Dunaway/Wade hearing ordered, sua sponte, by the trial court.
On March 3, 1997, defendant requested the assignment of new counsel. A new attorney was appointed on March 20, 1907.
On May 5, 1997, after a jury trial, defendant was convicted of Burglary in the First Degree, On June 2, 1998, defendant was adjudicated a second felony offender and was sentenced to a determinate term of imprisonment of twenty years.
On July 20, 1998, defendant moved to vacate his sentence in the New York Supreme Court, Kings County, pursuant to N.Y. Criminal Procedure Law § 440.20. Defendant alleged that he was erroneously adjudicated a predicate felon because his South Carolina conviction for Escape could not have served as a predicate felony in New York because there was no equivalent felony under New York law.
On September 17, 1998, the Supreme Court, Kings County, summarily denied defendant's motion on the ground that it was meritless.
On November 18, 1998, the Appellate Division, Second Department, denied defendant's leave application.
On December 29, 1998, defendant appealed his conviction to the Appellate Division, Second Department. On his direct appeal defendant alleged that the evidence at trial was legally insufficient, the prosecutor's summation was improper, and that be had been erroneously sentenced as a second felony offender based on an out-of-state conviction. On September 13, 1999, the state appellate court affirmed defendant's conviction and sentence, finding all of defendant's claims to be without merit. People v. Brooks, 264 A.D.2d 742, 695 N.Y.S.2d 297 (2d Dep't 1999).
On October 14, 1999, defendant sought leave to appeal the affirmance of his conviction to the New York Court of Appeals. On January 12, 2000, leave was denied. People v. Brooks, 94 N.Y.2d 877, 705 N.Y.S.2d 9 (2000).
On June 25, 2000, defendant moved pro se, in the Supreme Court, Kings County, to vacate the judgment of his conviction, pursuant to N.Y. Criminal Procedure Law 440.10. In that motion, defendant generally alleged that (1) the judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or on behalf of a court or prosecutor in that the People's witnesses were not credible; (2) improper and prejudicial conduct by the People at trial; (3) failure of the People to provide exculpatory evidence and prior statements of its witnesses; and (4) ineffective assistance of trial counsel.
More specifically, defendant argued that (a) the indictment should have been dismissed, due to, inter alia, an alleged inconsistency between the testimony of Mercier before the Grand Jury, regarding defendant's having committed the crime at approximately 4:05 p.m. on February 7, 1996, and at trial, where Mercier, allegedly, testified that said crime occurred at approximately 2:45 p.m., (b) that the People's comments during summation evoked sympathy for Mercier and inflamed the jury, that the People commented on defendant's failure to testify and call his own witnesses and that the People vouched for their witnesses, (c) the introduction into evidence at trial of Mercier's pocketbook was unfair, (d) that defendant did not receive the effective assistance of counsel at trial, (e) that he was entitled to a Wade/Rodriguez hearing, and that notice pursuant to N.Y. Criminal Procedure Law § 710.30(1)(b) was improper, (f) that the People failed to disclose Brady and Rosario material, including material reflecting Mercier's alleged inconsistent testimony as to the exact time of the crime when her trial testimony is compared to that of her Grand Jury testimony, and (g) that the evidence was not legally sufficient nor was he proven guilty beyond a reasonable doubt.
On July 19, 2000, defendant applied pro se for a federal writ of habeas corpus raising three out of the four claims that he had raised in his state motion to vacate judgment and that were still pending before the Supreme Court.
On October 18, 2000, the Supreme Court, Kings County, summarily denied defendant's motion to vacate judgment. The court found that all of defendant's claims that had not been raised on direct appeal could have been raised in that appeal. Consequently, all of these claims were procedurally barred from review pursuant to N.Y. Criminal Procedure Law § 440.10(2)(e). In addition, the state court found all of defendant's claims to be meritless.
On December 11, 2000, defendant sought leave to appeal that denial from the Appellate Division, Second Department.
On April 6, 2001, defendant applied to the Appellate Division, Second Department, for a writ of error coram nobis. Defendant alleged that appellate counsel was ineffective for failing to raise the same grounds that defendant had raised in his state motion to vacate judgment.
On August 6, 2001, the Appellate Division, Second Department, denied the application. People v. Brooks, 286 A.D.2d 340, 728 N.Y.S.2d 693 (2d Dep't 2001).
On September 24, 2001, this court ordered that defendant's pending federal habeas petition be closed for administrative purposes, and that it would "be restored to the pending calendar at written request from the petitioner after he has exhausted his state remedies."
On October 12, 2001, the Appellate Division, Second Department, denied defendant's application for leave to appeal the denial of his state motion to vacate judgment.
Direct appeal was dismissed. Leave to appeal to the Court of Appeals was denied. See Part XIII, B1 infra.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA11), 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 application11 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 in competence." 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 lolling 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 docs "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 wail 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, 168 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) ("All 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 Glean 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.
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. VL 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. ___, No. 02-311, slip op. at S-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 he 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 lest 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. Legal Claims Frequently Raised in Habeas Corpus Applications
For an explication of the law concerning other claims that are frequently raised before this court in applications for a writ of habeas corpus, see Waters v. McGuiness, 99-CV-0615, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y. June 16, 2003) (grand jury claims); Custodio v. Duncans, Nos. 99-CV-2561, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y. June 11, 2003) ( Batson challenges); Reyes v. Irwin, 99-CV-3758, 03-MTSC-0066 (JBW), 2003 U.S. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y. June 20, 2003) ( Wade claims); Brathwaite v. Duncan, 00-CV-0860, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11056, at *4-*5 (E.D.N.Y. June 10, 2003) ( Sandoval claims); Thomas v. Kuhlman, 255 F. Supp.2d 99, 108-09 (E.D.N.Y. 2003) (perjured testimony); Martinez v. Greiner, 99-CV-4663, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11046, at*7 (E.D.N.Y. June 20, 2003) ( Fourth Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003) ( Rosorio claims); Beniquez v. Bennett, 00-CV-0985, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11032, at * 15-* 16 (E.D.N.Y. June 16, 2003) (prosecutorial misconduct). Sevencan v. Herbert, No. 01-2491, slip op. at 6-13 (2d cir. Aug. 7, 2003) (public trial); Cox v. Donnelly, 99-CV-8216, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 9886, at *12-*14 (E.D.N.Y. June 12 2003) (shifting burden of proof); Jelinek v. Costello, 247 F. Supp.2d 212, 266-67 (E.D.N.Y. 2003) (right to self-representation); Stewart v. Senkowski, 00-CV-OS06, 03-MISC-006G (JBW), 2003 U.S. Dist. LEXIS 11028, at *6 (E.D.N.Y. June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz, 98-CV-7837, 00-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11049, at *7-*8 (E.D.N.Y. June 13, 2003) (abuse of discretion in sentencing);
XII. 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).
XIII. Analysis of Claims
A.
Defendant initially contends that the indictment was defective because of an alleged discrepancy between the victim's Grand Jury and trial testimony regarding the time that the victim observed defendant, Moreover, defendant additionally contends that the People withheld Brady and Rosario material by failing to provide formal no lice of the victim's previous identification, All of these claims were raised and decided on the merits in defendant's state motion to vacate judgment pursuant to N.Y. Criminal Procedure Law § 440.10 and are precluded from federal review in an independent and adequate state procedural ground.
In the state court's decision summarily denying all of the defendant's claims in that motion, the state court cited the mandatory statutory bar under N.Y. Criminal Procedure Law § 440.10(2), and found that "[t]he defendant had all this information available to him at the time of his appeal, and moreover, they are claims that are based on the record before the court. They are discoverable and available to the defendant as early as the first appeal to the Appellate Division. Exhibit I, at 4.
The state court's decision denying these claims was based on a well-established state procedural default. Defendant has failed to show any cause and prejudice or a fundamental miscarriage of justice attendant on these claimed errors. This Court is precluded from reviewing these claims. See Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Epps v. Commissioner, 13 F.3d 615 (2d Cir.), cert. denied, 114 S.Ct 1409 (1994), The claims lack merit in any event.
Defendant's third claim is that the trial court allegedly failed 'to instruct the jury on the ['essential elements'] charged in the ['indictment'] for the ['commission'] of the crime ['charged']. . . ." Before a federal court may consider the merits of a claim raised in a habeas corpus petition, the petitioner must have fairly presented the same claims to the state courts. See 28 U.S.C. § 2254(b), (c); Picard v. Conner, 404 U.S. 270, 275 (1971).
Here, defendant's on-the-record claim could have been brought under New York law on direct appeal. Defendant failed to do so and, thus, currently has no other avenue to have the claim reviewed by the state courts, When a claim is unexhausted, a petition should be dismissed so that a defendant can present his federal constitutional claim to the state court. Where it is clear that the state court would hold the unexhausted claim procedurally barred, "the claim is then considered exhausted, but forfeited, and thus, procedurally barred from federal habeas review absent a showing of cause and prejudice," Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1001) (citing Harris v. Reed, 489 U.S. 255, 263 n. 9.109 S. Ct, 1038, 1043 n. 9 [1989]). See Teague v. Lane, 489 U.S. 288, 297-99 (1989).
Defendant has failed to demonstrate cause or prejudice or a fundamental miscarriage of justice attendant on his claimed error. See Coleman v. Thompson, 501 U.S. at 731-32; Epps v. Commissioner, 13 F.3d at 615.
The decision of October 18, 2000 on petitioner's section 440.10 claim is comprehensive in its reasons for rejection. It is adopted by this court ill the present proceeding.
B.
The only issue presented that is not frivolous and that is open to review in this court is the one raised by petitioner's appellate counsel in his letter of October 4, 1999 to the New York Court of Appeals seeking leave to appeal. His letter reads in part as follows., stating the position well (footnotes omitted):
This case presents an interesting and timely legal issue as to what a New York court may consider in determining whether an out-of-state conviction qualifies as a predicate felony in New York. The Appellate Division, Second Department, has now rendered diametrically opposite decisions in cases that are virtually identical.
The South Carolina Statute and Indictment at Issue
Mr. Brooks was adjudicated a second felony offender on this basis of his 1992 South Carolina "escape" conviction under a statute that encompassed both escape and attempted escape:
§ 24-13-410. Escaping or attempting to escape from prison or possessing tools or weapons therefor.
It shall be unlawful for any person, being lawfully confined in any prison or upon the public works of any county or while in the custody of any superintendent, guard or officer, to escape, to attempt to escape or to have in his possession tools or weapons which may be used to facilitate an escape, and any person doing so or so possessing such tools and weapons shall be guilty of a misdemeanor and punished by a sentence of not less than six months nor more than two years . . . (emphasis added).
In addition, § 24-12-410 had been interpreted by the South Carolina Supreme Court to encompass crimes akin to the New York misdemeanor of "Absconding from a. furlough program" (P.L. § 205.18). See State v. Murray, 256 S.E.2d 543 (S.C. 1979), holding that a prisoner who failed to return on time from a 72-hour Christmas furlough, during which he was unaccompanied by any custodial agent, was guilty of "escape" under § 24-13-410, and mat proof of his failure to return from the furlough on time did not constitute a material variance from an indictment charging that, while confined in a specific prison, he did "wilfully and unlawfully escape therefrom."
The South Carolina indictment to which Mr. Brooks pled guilty simply charged that he did "unlawfully escape or attempt to escape from lawful confinement or custody, to with Williamsburg County Jail."The Predicate Felony Adjudication
At arraignment on the predicate felony statement, defense counsel explained that Mr. Brooks did not "believe that it [the South Carolina conviction] should be a predicate felony here for New York State sentencing purposes" (S. 2), The court responded:
Mr. Brooks, you apparently were convicted under section 24-13-410 of the State of South Carolina's Peal Code, And that provides under section B, a person who violates this section is guilty of a felony and upon conviction must be imprisoned not more than 15 years.
The People were provided a xerox of the papers relating to your conviction which indicates that you were sentenced to six months for escaping from a jail facility. Now, the comparable New York law . . . is Penal Law Section 205.10, subdivision 1, which reads: Except in the 2nd degree when, No. 1, he escapes from a detention facility, So, in essence, what you've been convicted of for New York purposes and this sentencing proceeding is a class E, Not a violent felony, but an E felony (S. 405).
Defense counsel responded:
Your Honor, at this time the defendant is contesting the South Carolina conviction and I think we should have a hearing on it. He advises me that he . . . wasn't properly advised of his rights in South Carolina and the collateral consequences of the plea. I think it would be appropriate for us to get the plea minutes from the South Carolina conviction and proceed from there, (S. 5).
The court denied that request, because Mr. Brooks had not challenged the conviction previously (S. 6). The arraignment on the predicate felony statement continued, with Mr. Brooks saying he did not "understand all the crimes since from that [South Carolina] case" (S. 6) and defense counsel stating that he wished to challenge the constitutionality of the prior conviction (S. 6). The court adjudicated Mr. Brooks a second felony offender (S. 7).The Appellate Division's Decision
Before the Appellate Division., Mr. Brooks argued that his South Carolina conviction did not qualify as a predicate felony conviction in New York because the South Carolina crime was broader than the "equivalent" New York felony of escape, and encompassed the New York misdemeanors of attempted escape in the second degree and absconding from a furlough.
In making that argument, Mr. Brooks relied heavily on the Appellate Division's holding in a virtually identical case. People v. Sair, 173 A.D.2d 578 (2d Dept. 1991). Sair had pled guilty under a Florida statute providing that "Any prisoner confined in any prison who escapes or attempts to escape from confinement shall be guilty of a felony. . . ." Id. at 578. The information mirrored the language of the statute, charging that Sair "did unlawfully escape or attempt to escape from confinement." Id. at 578.
The Appellate Division noted in Sair that, while escape in the second degree (escape from a detention facility) is a felony, an attempt to do so is only a misdemeanor. It concluded:
Since the Florida accusatory instrument did not state whether the defendant merely attempted to escape or actually did escape, the court erred in adjudicating the defendant a second felony offender based upon his conviction upon his plea of guilty to the Florida accusatory instrument.
Id. at 579. It vacated Sair's sentence and remitted the case for resentencing as a first felony offender. Id. at 578.
Nevertheless, faced with virtually identical facts and a virtually identical statute in the instant case, the Appellate Division affirmed.The Issue Presented
The Appellate Division did not indicate why it reached a decision in Mr. Brooks's case that was diametrically opposed to its prior decision in Sair. However, it apparently accepted the People's argument that the determination of whether an out-of-state predicate is the equivalent of a New York felony can turn on the out-of-state plea minutes.
In People v. Gonzalez, 61 N.Y.2d 586, 590-591 (1984), the Court held that, when a foreign statute renders criminal more than one act, and one or more of the acts are the equivalent of a felony in New York but others are not, it is permissible to go beyond the statute and look to the accusatory instrument to determine of what act the defendant was convicted. However, if the accusatory instrument does not provide the necessary clarification, it appears that the foreign conviction cannot constitute a predicate felony in New York even if the facts the defendant admitted at his guilty plea in the sister state would establish the equivalent of a New York felony. Id. at 591; People ex rel. Goldman v. Denno, 9 N.Y.2d 138 (1961).
Here, of course, the indictment was unavailing, since — as in Sair — by tracking the language of the statute itself, it encompassed all the conduct punishable under that statute.
Thus, the People had to look elsewhere to argue that Mr. Brooks was convicted of the equivalent of a New York felony. In response to Mr. Brooks's 440 motion, they relied on an affidavit in support of an arrest warrant in the South Carolina case. On appeal, they abandoned that argument, instead relying on a selective reading of portions of the South Carolina plea minutes, which contained the following colloquy:
OFFICER GRAYSON: He along with four other inmates managed to overtake the jailer, locking him up in the cell. And escaped from jail, He was apprehended shortly after he had left the jail.
THE COURT: How far did you get?
THE DEFENDANT: I was going to the store.
THE COURT: Going to the store? It seems like you would have headed to the river swamp instead of going to the store.
MR. BROOKS: Was as I say, when they came up, I was going to the store, I ain't never see — the other boys done already left.
THE COURT: Sir?
MR. BROOKS: The other ones had done already left, I got back there way after that (S.C. Plea Minutes 304).
Defense counsel explained that Mr. Brooks knew at the time that the charges for which he was in jail were going to be dropped the following week (S.C. Plea Minutes 5-6)., and explained further:
. . . then the door opened that night. He actually, the jail [sic: jailor?] was locked up. And he told the jailor that he would go around and get some help or whatever. Well he ended up going down to McDonald's or whatever. I don't think he had real intention of going anywhere.
THE COURT: In other words, you didn't leave with the rest of them?
MR. BROOKS: No, sir.
THE COURT: Did you put the jailor in the cell?
MR. BROOKS: No, sir, I didn't touch him (Plea Minutes 6).
The court sentenced Mr. Brooks to six months, noting, "He's probably already made the time: (S.C. Plea Minutes 7).
The People relied primarily on a trial level case. People v. Hanlon, 589 N.Y.S.2d 426 (Sup, Ct., N.Y. Co. 1993), but also cited two Appellate Division cases, for the proposition that the court could look to Officer Gray son's allegations at the start of the plea colloquy to "determine the precise nature" of the South Carolina conviction (Resp. Br., pp. 36-38), Acceptance of such an analysis would work a dramatic change in the New York law regarding out-of-state predicate felonies, as well as result in patent unfairness.
The reason for looking to the foreign accusatory instrument, but not beyond it, is that, when a defendant pleads guilty, "he pleads to an indictment (or information) or to a count thereof, not to a part of the one or the other," People ex rel. Goldman v. Denno, supra at 142. A defendant may well be guilty of a crime, as charged broadly in the indictment, without having committed the specific acts someone claims he committed. Therefore, his plea may be perfectly valid even though he denies many of the supposed "facts" of the crime.
The instant case provides a striking example of the reasoning behind the rule, Mr. Brooks never admitted committing an "escape" in the classic sense. Rather, he admitted leaving the jail, after promising to summon assistance for the trapped jailor, and then making a detour to McDonald's. He never admitted trying — or intending — to run away or hide, and he adamantly denied the accusation that he had participated in locking up the jailor or was even present when other inmates did so.
Had the South Carolina statute required acts that would constitute escape in New York, that factual allocution would have been patently insufficient. It was sufficient only because the South Carolina statute was so broad as to encompass all sorts of attempts to look in a vacuum at the allegations made orally at the start of the plea proceeding and ignore the breadth of the statute, the breadth of the accusatory instrument (a form that simply mirrored the broad statutory language), and Mr. Brooks's specific denials of those oral allegations, would be grossly unfair and would completely undermine the basis analysis which New York has long used in assessing out-of-state convictions.
I respectfully submit that this is a leave worthy issue for several reasons; The instant case represents a major change in the analysis New York has traditionally applied in the area. The Appellate Division has now decided virtually identical cases and reached diametrically opposite results. Many cases involve a determination of whether an out-of-state conviction is the equivalent of a New York felony, thus making the issue one likely to recur. And applying the correct analysis is more important than ever, since New York's predicate felony laws have become increasingly harsh in recent years.
I am enclosing a copy fo the sentencing minutes in the instant case; the South Carolina statute, indictment, and pica minutes; and the Florida statute involved in Sair.
This issue is preserved for review as a matter of law by Mr. Brooks's specific protest that he did not believe his South Carolina conviction "should be a predicate felony here for New York State sentencing purposes" (S. 2).
The respondent's letter of October 28, 1999 does not respond to the merits, but is based on the contention that the issue was not preserved in the trial court. The Court of Appeals did not explain its decision denying leave.
The argument of defense counsel is persuasive.
The issue is at least arguably preserved. Since Judge Field's opinion in People v. Olah, 300 N.Y. 96, 89 N.E.2d 329 (1989), the law of New York in multiple offender cases has been to rely on the operative words of the statute, not the indictment, and certainly not the statements made by a foreign state official. The argument of defense counsel is persuasive. The decision of the Appellate Division abandons the high level of legal analysis of Judge Fuld and the New York courts, Nevertheless, interpretation of state sentencing statutes should be left to the state. This court is bound by the state courts' decisions, Sentencing issues normally are not to be raised in habeas proceedings.
If the federal courts defer to the state's interpretation of its law in the instant case, this claim has no merit.
C.
In his letter to the Court of Appeals, counsel mentioned in passing two other points in the following way:
Leave is also sought on the other two issues raised in our e Division brief: Whether the People failed to establish Mr. Brooks's guilt beyond a reasonable doubt (Point 1) and whether Mr. Brooks was denied due process by the prosecutor's misconduct (Point II).
Both these points are frivolous. The evidence more than sufficed to prove guilt.
There was no misconduct in the summation of the prosecutor that tainted the trial. The argument properly responded to the defense summation. See summations beginning at p, 148 of May 5, 1997 transcript, Objections were properly ruled upon. Id. 169, 170. The summation was short, based upon the evidence, and appropriate.
These claims are frivolous. All other claims not brought to the attention of the Court of Appeals are barred.
Defense counsel at trial and on appeal did a satisfactory job for petitioner. The trial was fair.
D.
No other claim is more than frivolous.
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
A certificate of appealability is granted with respect to the issue of petitioner's multiple offender status for sentencing purposes, petitioner having made substantial showing of a denial of a constitutional right. He may, as already indicated, seek a further certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.