Opinion
97-CV-0539 (TJM/GLS).
February 2, 2000
RICHARD CHALK, Petitioner, Pro Se, Sullivan Correctional Facility, Fallsburg, New York.
HON. ELIOT SPITZER, Attorney General of the State of New York Department of Law, OF COUNSEL, Jeffrey M. Dvorin, Esq., Asst. Attorney General, Albany, New York, Attorney for the Respondent.
REPORT-RECOMMENDATION
This matter has been referred to the undersigned by the Hon. Thomas J. McAvoy, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
Petitioner filed a habeas corpus petition, supporting memorandum of law and a two volume appendix on April 18, 1997. Magistrate Judge Smith issued an Order pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, ordering service of the petition on respondent and requiring service of an answer or other pleading by respondent. Respondent filed an answer, together with the pertinent state court records and a memorandum of law. Petitioner filed a response.
This case was reassigned to the undersigned on November 21, 1997.
The state court records submitted by respondent are listed in the first paragraph of the answer. (Dkt. No. 10).
Petitioner complains of a judgment of conviction rendered against him on November 16, 1988, following a jury trial in Albany County Court, wherein he was convicted of two counts of murder in the second degree, two counts of robbery in the first degree, two counts of burglary in the first degree and criminal possession of a weapon in the second degree. Petitioner was sentenced to an indeterminate aggregate term of 71 and 2/3 years to life imprisonment.
Petitioner filed a motion to vacate the judgment pursuant to Article 440 of the New York Criminal Procedure Law, which was denied by Albany County Court on May 22, 1991. The Appellate Division, Third Department, granted petitioner permission to appeal the County Court's Order as part of his direct appeal.
Petitioner's appellate attorney raised four grounds for relief in her appellate brief, and petitioner raised an additional four points in his pro se supplemental brief. The Appellate Division affirmed the conviction on December 30, 1993, but modified the sentences such that his "weapons sentence must run concurrently with the robbery and burglary sentences which, in turn, run concurrently with the felony-murder sentences". People v. Chalk, 199 A.D.2d 813, 814, 606 N.Y.S.2d 386 (3rd Dep't 1993).
Counsel argued that: 1) the trial court erred in admitting the pre-trial confessions of petitioner's co-defendants into evidence, in violation of his Sixth Amendment confrontation rights; 2) the trial court erred in finding probable cause to support the initial stop, and in admitting petitioner's statement, and the evidence seized; 3) the sentence imposed was harsh and excessive; and 4) the sentencing court erred in imposing consecutive sentences. See Appellate Br. dated January 19, 1993.
Petitioner argued that: 1) the evidence did not establish proof beyond a reasonable doubt; 2) he was denied due process as a result of the indictment being constructively amended by the court's jury charge which added an element to each count that had not been charged to the grand jury; 3) his right to be present at all material stages was violated during jury selection; and, 4) he was denied effective assistance of counsel. See Pet'r's pro se supplemental brief dated June 8, 1993.
This modification reduced petitioner's aggregate sentence from 71 and 2/3 years to life to 50 years to life.
Pursuant to New York Criminal Procedure Law § 460.20(3)(a), petitioner sought a certificate granting leave to appeal to the Court of Appeals by application to a Justice of the Appellate Division, Third Department. The Appellate Division denied petitioner's application on March 21, 1994.
Petitioner raises four grounds in his application for habeas corpus relief. Petitioner alleges that he was: 1) denied his constitutional right to confrontation when the trial court allowed into evidence the confessions of his non-testifying co-defendants; 2) the evidence adduced at trial was insufficient to support the convictions; 3) he was denied due process of law as a result of the indictment being constructively amended by the court's jury charge which added a new theory of liability; and, 4) he was denied effective assistance of trial counsel.
Respondent seeks dismissal of the petition on the grounds that it is barred by the applicable statute of limitations. Alternatively, respondent argues that petitioner procedurally defaulted on each of the grounds raised in the petition and that, in any event, the petition fails on the merits. This court finds that petitioner's application is not barred by the applicable statute of limitations, but for the following reasons, agrees with the respondent and recommends that the petition be denied and dismissed.
1. Facts
Petitioner's conviction resulted from an incident that occurred on March 9, 1988, wherein two men were shot and killed in a drug-related robbery and burglary at 57 First Street, Albany, New York. Petitioner's motion for severance was denied, and he was jointly tried with five co-defendants.
At approximately 7:30 a.m., co-defendants Lance Sessoms, Roy Bolus, Alexander Pugh, and Alphonse Riley-James forcibly entered the apartment of two drug dealers, George Jones Moseley and William Patterson, intending to rob them. On the third floor, Sessoms and Pugh took cash, clothing and jewelry from the two men and their girlfriends, Laura Amos and Elizabeth Thompson. Moseley and Patterson were instructed to lie face down on the floor. In front of Amos and Thompson, Sessoms shot each man in the back of the head with an Uzi-type semi-automatic weapon. (Trial transcript [hereinafter "T."] at 139-140; 289-290).
Laura Amos testified that her boyfriend's name was William Patterson, not William Patterson Moseley. (T. 268).
At trial, Laura Amos and Elizabeth Thompson identified Sessoms as the man who shot their boyfriends in the head with a machine gun, and Pugh as the man present, who was holding the shotgun. (T. 142-144; 290-291).
Meanwhile, on the second floor, co-defendants Roy Bolus and Alphonse Riley-James tied up Eric Smith and Al Graham, taking their jewelry and items of clothing. (T. 924; 1031; 1034; 1039). Smith and Graham managed to escape. Smith testified that he saw four men chase after Graham and heard two shots fired. (T. 1050). Smith ran down the street and asked a neighbor to call the police. (T. 1048).
Francis Judge testified that he was leaving his house at 7:45 a.m. when a barefooted black man in his pajamas came running down the street and asked him to call the police. (T. 246).
Around 9:00 a.m., New York State Trooper Rodriguez observed a car heading south on the New York State Thruway, that matched a broadcast description of a vehicle and its occupants that had been involved in a shooting incident. (T. 532). When the car was apprehended at the New Paltz exit of the Thruway, three of the six occupants fled. (T. 540). Rodriguez chased the driver whom he identified as petitioner. (T. 542). Rodriguez saw petitioner throw something, and recovered a magazine clip containing four bullets approximately one foot away from petitioner's right hand. (T. 544). A New York State Thruway toll ticket was near petitioner's left hand. (T. 549). In his possession, petitioner also had an "ammo-pouch" and ammunition for several weapons. (T. 743-743).
Rodriguez spotted the car approximately 50 miles south of Albany. (T. 532).
At 7:05 a.m., Francis Judge noticed a tannish Chevrolet with five black males inside parked about 75 feet away from his home at 75 First Avenue. (T. 243-244; 263). The car was parked on the wrong side of the street. Judge testified that when he saw the car that had been apprehended in New Paltz on the evening news, he recognized it as the car he saw on First Avenue that morning. (T. 256).
The "ammo-clip" was minus four rounds of 7.65 mm ammunition. (T. 742).
After obtaining a search warrant, the police recovered a blue duffel bag from the trunk that contained three weapons: a 12-gauge shotgun, a nine-millimeter weapon resembling a submachine gun, and a .32 caliber shotgun. (T. 474-475).
After being advised of their Miranda rights, each defendant gave a statement. The redacted statements of five of the six co-defendants were admitted into evidence at trial. (T. 834-840; 922-925; 980-981; 1272-1276; 1378-1380). Petitioner spoke with Detective James Tuffey but refused to give a written statement. (T. 1375). At trial, Tuffey testified regarding petitioner's redacted statement. According to Tuffey, petitioner admitted driving the car but denied involvement in anything that might have been done. (T. 1378).
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Petitioner informed Tuffey that he had been told that there was a "need for some tools" to "take care of business in Upstate" that had to "do with G's," or thousands of dollars. (T. 1405). Petitioner reported that he "went to Flatbush, met someone named Itael and got a .32 and a nine-millimeter for a $500 marker," and some "ammo with the guns." (T. 1379). Petitioner told Tuffey that he wrapped the guns in a towel and put them in a Red Cross bag. (T. 1379).
A Red Cross bag was also recovered from the trunk of the car.
After calling someone on a beeper, petitioner gave the guns to someone on Ninth Avenue in Manhattan. Petitioner admitted that he knew that the guns were going to Albany by bus. (T. 1393). Petitioner left for Albany around midnight. (T. 1379). Petitioner claimed that he did not know why any of the men in the car were going to Albany (T. 1396), and that he slept the entire trip. Petitioner told Tuffey he awoke when they arrived at the Greyhound bus station in Albany, but then fell back asleep. (T. 1379).
Petitioner told Tuffey that he got out of the car at the "Mercy House," at which point the car drove away. (T. 1379). Petitioner claimed that he walked around looking for the car, and when he found it, he got back in. Petitioner pushed the release for the trunk and went to the trunk. When petitioner got back into the car, he saw a man run past the back of the car. Petitioner drove the car from First Street onto the Thruway. (T. 1380).
Petitioner claimed that he put a clip from the gun into his coat pocket when he was in the car, and that someone asked him to hold the "ammo." (T. 1380; 1396). Petitioner told Tuffey that he was given a one hundred dollar bill for gas and tolls. (T. 1380).
2. Statute of Limitations
On April 24, 1996, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132. The AEDPA provides that an application for a writ of habeas corpus from a person in custody pursuant to a State court judgment must be filed within one year from the latest of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. . . ." AEDPA § 101, 28 U.S.C. § 2244(d)(1)(A) ("subsection (A)").
However, in Ross v. Artuz, 150 F.3d 97, 101 (2d Cir. 1998), the Second Circuit set forth a bright line rule providing prisoners whose convictions became final prior to the enactment of the AEDPA a one-year period after the effective date of AEDPA in which to file a first § 2254 petition or a first § 2255 motion. Petitioner's conviction became final on March 23, 1994, when he was denied permission to appeal to the New York Court of Appeals, or certainly no later than June 23, 1994, which marks the conclusion of the ninety days during which he could have sought certiorari in the United States Supreme Court. See Hughes v. Irvin, 967 F. Supp. 775, 778 (E.D.N.Y. 1997) (citing Rule 13 of the Rules of the Supreme Court of the United States); see also, Figueroa v. Kelly, 1997 WL 833448, at *3 (E.D.N.Y. Dec. 19, 1997). Since petitioner's conviction became final before the effective date of the AEDPA, he was statutorily afforded until April 24, 1997, to file his habeas corpus petition. Ross, 150 F.3d 97. Petitioner's application was filed with the court on April 18, 1997, and was thus timely filed.
In Ross, 150 F.3d at 103, the Court concluded that
[. . .] in light of the importance of the subject matter of habeas petitions and § 2255 motions, the grace period should be clear; and in light of Congress's selection of one year as the limitations period, we conclude that prisoners should have been accorded a period of one year after the effective date of AEDPA in which to file a first § 2254 petition or a first § 2255 motion.
3. Exhaustion and Procedural Default
A federal court may consider a petition for a writ of habeas corpus only if "the applicant has exhausted the remedies available in the courts of the state." 28 U.S.C. § 2254. A petitioner has exhausted his state court remedies when he has fairly presented his federal constitutional claims to the state's highest court. See Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 124 (2d Cir. 1995).
Although each claim raised in his petition was presented to the Appellate Division for review, appellate counsel chose not to advance all of the petitioner's claims in the application seeking permission to appeal to the Court of Appeals. In her application, appellate counsel specifically stated that Court of Appeals review was being sought on two issues: 1) whether the County Court was required to grant a hearing before determining the merits of petitioner's Article 440 motion; and, 2) whether the sentencing court abused its discretion by imposing consecutive sentences on the two murder convictions. See Affirmation in Support of Notice of Application, dated January 28, 1994, at ¶ 4(c).
The claims were either in the brief submitted by counsel or in petitioner's pro se supplemental brief.
By not raising the other claims in his application seeking permission to appeal to the state's highest court, petitioner failed to fulfill the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A). Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) (citations omitted); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). Since petitioner's failure to present these issues to the Court of Appeals precludes further consideration in the New York courts, Bossett, 41 F.3d at 829 (citing N.Y. Court Rules § 500.010(a)), these claims are deemed exhausted but are procedurally defaulted. See e.g., O'Sullivan v. Boerkel, 526 U.S. 838, 119 S.Ct. 1728, 1734, 144 L.Ed.2d 1 (1999) (citing Coleman v. Thompson, 501 U.S. 722, 731-732, 111 S.Ct. 2546, 2554-2555, 115 L.Ed.2d 640 (1991); Engle v. Isaac, 456 U.S. 107, 125-126, n. 28, 102 S.Ct. 1558, 1570, n. 28, 71 L.Ed.2d 783 (1982)).
Federal courts may address the merits of a claim that was procedurally defaulted in state court only upon a showing of cause for the default and prejudice to the petitioner. Bossett, 41 F.3d at 829 (citing Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-2507, 53 L.Ed.2d 594 (1977)). Cause may be demonstrated if the procedural default is a result of ineffective assistance of counsel. Bossett, 41 F.3d at 829 (citing Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (citations omitted)).
Petitioner first claims that Grey v. Hoke, 933 F.2d 117 (2d Cir. 1991), is inapplicable because he did not directly seek leave from the Court of Appeals, but from the same panel which affirmed his conviction. Petitioner claims that the Appellate Division, as a "matter of practice considers each and every issue raised in the briefs to determine whether leave should be granted," and as such each and every claim has been exhausted. See Pet'r's Resp. at p. 7. This court does not agree. Petitioner's application for a certificate granting leave to appeal specifically limited the questions for which review was being sought.
Alternatively, petitioner admits that appellate counsel failed to include all of the claims presented in his appellate brief in her application seeking leave to appeal, and asserts ineffective assistance of appellate counsel as cause for his procedural default. See Pet'r's Resp. at p. 9. However, "it has long been recognized that a defendant's constitutional right to counsel extends to the first appeal of right." Veras v. Strack, 2000 WL 8249, at *1 (S.D.N.Y. Jan. 4, 2000) (citing Evitts v. Lucy, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985)). Since petitioner "`does not have a constitutional right to counsel to pursue discretionary state appeals . . . he could not be deprived of the effective assistance of counsel by his retained counsel's decision not to pursue certain arguments." Stewart v. Hanslmaier, 1996 WL 449285, at *3 (E.D.N.Y. July 29, 1996) (quoting Wainwright v. Torna, 455 U.S. 586, 587-588; 102 S.Ct 1300, 1301, 71 L.Ed.2d 475 (1982) (other citations omitted)).
Since petitioner has not shown cause for his procedural default, and the state court records do not suggest that he is actually innocent, it is unnecessary for this court to determine whether he has suffered actual prejudice. Stepney v. Lopes, 760 F.2d 40, 45 (2d. Cir. 1985).
As such, this court finds that the petition should be dismissed.
WHEREFORE, based on the findings in the above Report, it is
RECOMMENDED that the petition be DENIED and DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have TEN DAYS (10) within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e), and it is
ORDERED that the state court records herein be returned directly to the office of the Assistant Attorney General at the conclusion of these proceedings. He has agreed to make them available for any appellate review. It is further
ORDERED that the Clerk of the Court serve a copy of this Report-Recommendation upon the parties by regular mail.