Opinion
00 Civ. 2871 (WHP) (RLE)
August 6, 2002
Archie Clarke, Fishkill Haven Correctional Facility, Beacon, New York, Petitioner, Pro Se.
Mona Jha, Assistant Attorney General, Office of the New York State Attorney General, New York, NY, For Respondents.
REPORT AND RECOMMENDATION
I. INTRODUCTION
Pro se petitioner Archie Clarke ("Clarke") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction on May 13, 1996, in New York State Supreme Court, New York County. Clarke was convicted of criminal possession of a controlled substance in the third degree. He was sentenced as a second felony offender to an indeterminate prison term of eight to sixteen years. He is currently serving his sentence at Fishkill Haven Correctional Facility in Beacon, New York.
In his petition filed April 14, 2000, Clarke challenges his conviction and asserts that: (1) his trial counsel was ineffective; (2) his constitutional right to be tried by a jury of the district where the crime was committed was violated; (3) the prosecution presented improper prior crimes evidence to the grand jury; (4) the state court abused its discretion when it refused to provide relevant portions of the grand jury minutes; and (5) he was denied a fair trial because the trial judge and a juror fell asleep during the trial. Petition for Writ of Habeas Corpus ("Pet.") at 5-6a.
Respondent argues that Clarke's second and third claims should be dismissed on procedural grounds. Respondent Memorandum of Law in Opposition to Petitioner's Writ of Habeas Corpus ("Resp. Mem.") at 1-2, 10. Respondent further asserts that: Clarke received effective assistance of counsel; Clarke was not entitled to disclosure of the grand jury minutes since there is no constitutional right to discovery in a criminal case; and Clarke failed to establish that the state court's finding that neither the judge nor a juror fell asleep during the trial was an unreasonable determination. Id. at 8, 16, 20.
II. BACKGROUND
A. Factual History
On November 25, 1994, Sergeant Robert Spottke ("Spottke") testified that he saw an unidentified man approach Clarke on the corner of 126th Street and Fifth Avenue in Manhattan. Trial Transcript ("Tr.") at 15-I. Following a brief conversation, the man handed Clarke money. Id. at 15-I, 21. Clarke put the money away and then reached into his left hand glove, extending a vial of crack cocaine. Id. at 21. Apparently having seen the patrol car, the man abruptly walked away. Id. As Clarke began to walk away, Spottke grabbed him and searched his glove, retrieving three vials of crack cocaine. Id. at 25. Clarke was arrested and brought to the 28th Precinct for processing. Id. at 28-29.
B. Procedural History
1. Pretrial Proceedings
On February 2, 1996, Clarke moved to inspect and disclose the grand jury minutes and to dismiss the indictment. Respondent's Affidavit in Opposition to Petition for a Writ of Habeas Corpus ("Resp. Aff.") at Ex. A, p. 1. Clarke alleged that the evidence presented to the grand jury was insufficient to support the indictment and that the proceeding was deficient within the meaning of New York Criminal Procedure Law ("CPU") § 210.35. Resp. Aff. at Ex. D, p. 5. On February 22, 1996, following an in camera review of the grand jury minutes, the court denied Clarke's motion to dismiss the indictment. Resp. Aff. at Ex. C, p. 1. The court concluded that the grand jury proceedings were "factually, legally and procedurally sufficient." Id. Further, the court denied disclosure to Clarke "with the exception of the minutes of the defendant's own testimony." Id.
2. Trial
Prior to the start of the trial, a juror, after being selected and sworn, told the court that she was "staying with [her] daughter for a while" in New Jersey. Voir Dire Transcript at 24. After an adjournment in the trial, the juror further notified the court that she still had possessions and maintained an address in New York, but was in the process of moving to New Jersey. Tr. at 171-72. Additionally, she told the court that she had been living in New York when she received the notice of jury service. Id. at 171. When the trial resumed, the juror failed to appear and both Clarke and the State consented to replacing her with an alternate. Id. at 177-78. Shortly thereafter, the juror appeared and both Clarke and the State consented to her continuing to sit on the jury. Id. at 180.
On May 13, 1996, Clarke was convicted of criminal possession of a controlled substance in the third degree. Id. at 271. He was sentenced as a second felony offender to an indeterminate prison term of eight to sixteen years. Resp. Aff., p. 5.
3. Posttrial
On September 3, 1997, Clarke moved pro se pursuant to CPL § 440.10 to vacate the judgment. Resp. Aff. at Ex. H: Notice to Vacate Judgment, p. 1. Clarke raised three separate grounds: (1) his counsel was ineffective by failing to properly investigate the facts of the case and prepare an adequate defense; (2) he was denied a fair trial because the trial judge and a juror fell asleep during portions of the trial; and (3) he was highly prejudiced by the district attorney during the grand jury proceedings. Resp. Aff. at Ex. H: Defendant's Memorandum of Law, pp. 1, 6, 11. On July 15, 1998, the trial court denied Clarke's motion to vacate. Resp. Aff. at Ex. I, p. 11. The court determined that Clarke's trial counsel had provided effective assistance throughout the trial, and that there was no merit to the claim that the trial judge and one of the jurors fell asleep during the trial. Id. at 10-11. The court further held that the grand jury proceeding had already been found "factually, legally, and procedurally sufficient" in a pretrial motion, and thus, additional review was precluded pursuant to CPL § 440.10(3)(b). Id. at 11. On November 24, 1998, the Appellate Division, First Department, denied Clarke's leave to appeal the denial of his motion to vacate. Resp. Aff., p. 9.
Clarke appealed his conviction to the Appellate Division, First Department. Resp. Aff. at Ex. D: Appellate Brief for Defendant, p. 44. In his appeal, he raised the following three claims: (1) his constitutional right to be tried by a jury of the district where the crime was committed was violated; (2) the court abused its discretion and deprived Clarke of his rights to effective assistance of counsel and due process when it refused to provide appellate counsel with relevant portions of the grand jury minutes; and (3) Clarke's sentence should be reduced in the interest of justice. Id. at 2.
On November 24, 1998, the Appellate Division, First Department, affirmed Clarke's conviction. People v. Clarke, 680 N.Y.S.2d 837, 255 A.D.2d 241 (App.Div. 1998). Clarke's first claim was denied because he failed to preserve the issue for appeal, and the court declined to review this claim in the interest of justice." Id. Further, the court held that Clarke had expressly consented to the continued service of the juror. Id. The court denied Clarke's second claim, adhering to the court's previous decision to deny Clarke's motion to enlarge the record. Id. Finally, the court perceived "no abuse of sentencing discretion." Id. On April 5, 1999, the Court of Appeals denied leave to appeal. People v. Clarke, 93 N.Y.2d 898, 689 N.Y.S.2d 710 (1999).
III. DISCUSSION
A. Exhaustion of Claim
To obtain relief under 28 U.S.C. § 2254 a habeas petitioner must demonstrate that he is in state custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). Further, a federal court may not consider a petition for habeas corpus unless the petitioner has exhausted all state judicial remedies. 28 U.S.C. § 2254 (b)(1)(A); Picard v. Conner, 404 U.S. 270, 275 (1971); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997). This requirement of exhaustion is "based on considerations of comity between federal and state courts, ensuring that the state courts have an opportunity to consider and correct any violations of their prisoners' federal constitutional rights." Warren v. McClellan, 942 F. Supp. 168, 170 (S.D.N.Y. 1996) (citing Picard, 404 U.S. at 275).
The Supreme Court has clarified this principle by holding that petitioners are required to "give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerekel, 526 U.S. 838, 845 (1999). The standards for presenting federal constitutional claims to the state courts are not so stringent as to require the recitation of "book and verse on the federal constitution." Picard, 404 U.S. at 278 (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)). However, the state courts must have been apprised of "both the factual and the legal premises of the claim [the petitioner] asserts in federal court." Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (quoting Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 191 (2d Cir. 1982) (in banc), cert. denied, 464 U.S. 1048 (1984)). The exhaustion requirement is fulfilled when the federal claims have been presented to "the highest court of the pertinent state." Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) (quoting Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990)). Petitioners can ensure that state courts are "alerted to the fact that [they] are asserting claims under the United States Constitution," Duncan v. Henry, 513 U.S. 364, 365-66 (1995), by presenting their claims in a fashion demonstrating:
(a) reliance on pertinent federal cases employing constitutional analysis,
(b) reliance on state cases employing constitutional analysis in like fact situations,
(c) [an] assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, [or] (d) [an] allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Daye, 696 F.2d at 194; Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir. 1984). Evidentiary rulings, such as admissibility of evidence, are decisions based on state law and are not cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991).
In addition to the exhaustion requirement, "a petitioner who procedurally defaults on his state court remedies is barred from obtaining federal habeas relief[.]" Jones, 126 F.3d at 414 (citing Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994)); see Coleman v. Thompson, 501 U.S. 722, 750 (1991). By failing to meet the State's procedural requirements, he "has deprived the state courts of an opportunity to address those claims in the first instance." Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (quoting Coleman, 501 U.S. at 732). The petitioner can overcome this obstacle if he "can demonstrate cause for the default and actual prejudice . . . or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; see also Harris v. Reed, 489 U.S. 255, 258 (1989). The Supreme Court has defined "cause" as a showing that "some objective factor external to the defense impeded counsel's efforts' to raise the claim in state court." McCleskey v. Zant, 499 U.S. 467, 493 (1991) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). A claim of ineffective assistance of counsel may be used to demonstrate "cause" to excuse a procedural default. The ineffective assistance of counsel claim is itself, however, an "independent constitutional claim" for which cause must be shown if it is procedurally defaulted. Edwards, 529 U.S. at 451. Additionally, the prejudice component requires that the petitioner show that there was a "reasonable probability that the result of the trial would have been different" absent the errors of which the petitioner complains. Strickler v. Greene, 527 U.S. 263, 289 (1999). The fundamental miscarriage of justice exception "is only available where the petitioner can supplement his constitutional violation with a `colorable showing of factual innocence.'" Washington v. Superintendent, Otisville Correctional Facility, 1997 WL 178616, at *7 (S.D.N.Y. Apr. 11, 1997) (quoting McCleskey, 499 U.S. at 494); see also Schlup v. Delo, 513 U.S. 298, 322 (1995).
Examples include: "(1) outside interference that makes compliance with state procedural rules impracticable; (2) a showing that the factual or legal basis for a claim was not reasonably available to counsel; and (3) [i]neffective assistance of counsel." Washington v. Superintendent, Otisville Correctional Facility, 1997 WL 178616 at *6 (S.D.N.Y. Apr. 11, 1997) (quoting McCleskey, 499 U.S. at 494 (citing Murray, 477 U.S. at 488)).
Similarly, federal courts are generally procedurally barred from habeas review of federal claims when those claims have been defaulted "in state court pursuant to an independent and adequate state procedural rule[.]" Coleman, 501 U.S. at 750; Jones, 126 F.3d at 415. In other words, federal courts must not consider a federal law issue on direct review from a state court judgment "if that judgment rests on a state law ground that is both `independent' of the merits of the federal claim and an `adequate' basis for the court's decision." Harris, 489 U.S. at 260. Such review is foreclosed "even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). Further, where the last state court to adjudicate the claim issues a summary order upholding a previous "reasoned opinion" it is presumed that such an order rests on the same procedural grounds relied upon by the trial court. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
1. Clarke's First Claim — Ineffective Assistance of Counsel
Clarke claims that his trial counsel was ineffective because: (1) he failed to base the motion to dismiss the indictment on the improper instructions given to the grand jury regarding Clarke's prior narcotics convictions; and (2) he did not investigate the facts of the case and prepare adequately for the trial. Pet. at 6. Clarke did not raise the first ground on direct appeal to the Appellate Division. Resp. Aff. at Ex. D: Appellate Brief for Defendant, p. 2. Therefore, he did not provide the state courts with an opportunity to remedy any violations of his rights. Picard, 404 U.S. at 275. Further, Clarke cannot raise the first ground in a motion to vacate because it is based on evidence in the record. People v. Byrdsong, 651 N.Y.S.2d 903, 903, 234 A.D.2d 468, 469 (App.Div. 1996) ("[P]ursuant to CPL 440.10(2)(c), a court must deny a post judgment motion to vacate a conviction when sufficient facts appear in the record so that an issue may be adequately reviewed on direct appeal."). Thus, by failing to raise the first ground on direct appeal, Clarke forfeited his chance to raise it here and his initial claim is procedurally defaulted. Jones, 126 F.3d at 414. Additionally, since Clarke has failed to demonstrate either cause or prejudice for the default, or that a fundamental miscarriage of justice would result from the default, he is "barred from obtaining federal habeas relief." Ellman, 42 F.3d at 147.
On direct appeal, Clarke claimed the trial court abused its discretion and thus deprived Clarke of his right to effective assistance of counsel. However, the claim was based on judicial misconduct and not ineffective counsel. Resp. Mem. at Ex. D: Appellate Brief for Defendant, p. 30.
Clarke's second ground of ineffective assistance of counsel is based on evidence outside the record, and therefore, was properly raised in a motion to vacate. People v. Santiago, 602 N.Y.S.2d 732, 733, 197 A.D.2d 756, 757 (App.Div. 1993); Oppenheimer v. Kelly, 1999 WL 435159, at *2-3 (S.D.N.Y. June 24, 1999). The motion was denied, and the Appellate Division denied leave to appeal. Resp. Aff., p. 9. Consequently, Clarke exhausted all the available avenues of appellate review within the state court system, and therefore, the second ground of his ineffective assistance of counsel claim should be reviewed on the merits.
2. Clarke's Second Claim — Right to a Jury of the District Where the Crime was Committed
Clarke claims that his constitutional right to be tried by a jury of the district where the crime was committed was violated because a juror from New Jersey deliberated on the trial. Pet. at 5. Clarke presented this claim on direct appeal to the Appellate Division and when seeking leave to appeal from the Court of Appeals. Resp. Aff. at Ex. D: Appellate Brief for Defendant, p. 2; Pet, at 3. Nevertheless, Clarke's claim is precluded from federal review because a New York State court has already denied it relying "clearly and expressly" on an independent and adequate state procedural ground. Harris, 489 U.S. at 263. The Appellate Division, pursuant to New York State procedural law, denied Clarke's claim based on his failure to raise an objection to the juror's residence at the time of the trial, thus failing to preserve the issue on appeal. Clarke, 680 N.Y.S.2d 837, 255 A.D.2d 241 (App.Div. 1998) (citing People v. Cosmo, 98 N.E. 408, 410, 205 N.Y. 91, 99-100 (1912); People v. Mikell, 583 N.Y.S.2d 266, 266-67, 183 A.D.2d 411, 411-12 (App.Div. 1992)).
The Appellate Division further held that Clarke's claim had no legal merit since Clarke "expressly consented to the continued service of a juror who was in the process of moving to New Jersey and had not yet completed the move." Id. The court's rejection of the merits of this claim as an alternative holding does not preclude reliance on the adequate and independent state procedural ground. Velasquez, 898 F.2d at 9. Consequently, the federal court is barred from reviewing Clarke's claim.
In order to overcome the bar, Clarke would have to demonstrate either "cause for the default and actual prejudice . . . or that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. In his reply to respondent's opposition papers, Clarke states his counsel "did not understand [Clarke's] right to be tried by a jury of [his] district." Pet. Reply at 7. However, even if this statement is interpreted as a claim of ineffective assistance of counsel, the claim itself would be an "independent constitutional claim," and therefore, must be procedurally exhausted. Edwards, 529 U.S. at 451. A review of the record indicates that Clarke failed to raise this claim in the state court system, thus precluding it from federal habeas review. Picard, 404 U.S. at 275. Therefore, in the absence of any showings of cause or arguments demonstrating that a fundamental miscarriage of justice would result from the default, Clarke's second claim is procedurally barred and should be DISMISSED.
3. Clarke's Third and Fourth Claims — Grand Jury Proceedings
Clarke raises two claims related to the grand jury proceedings. First, he claims that the state court abused its discretion when it refused to disclose relevant portions of the grand jury minutes. Pet. at 5. Clarke had requested the disclosure in pretrial and posttrial motions in order to "effectively assess whether the integrity of the Grand Jury was impaired." Resp. Aff. at Ex. D, p. 131; see also Pet. at 5; Resp. Aff. at Ex. A, p. 1. Second, Clarke claims the prosecution presented improper prior crimes evidence to the grand jury, resulting in undue prejudice. Pet. at 6.
As a threshold matter, in order for a federal habeas court to examine a claim, the claim must be federal or constitutional in nature. Jones, 126 F.3d at 413. There is no federal or constitutional right to discovery in a state criminal proceeding. Moe v. Walker, 1999 U.S. Dist. LEXIS 1099, at *9 (S.D.N.Y. 1999) (citing Gray v. Netherland, 518 U.S. 152, 168 (1996)). As for Clarke's second claim, evidentiary rulings are decisions based on state law and are not cognizable on federal habeas review. Estelle, 502 U.S. at 72. Moreover, errors in a state grand jury proceeding cannot be raised after a petit jury has convicted the defendant. Counts v. Portuondo, 2002 WL 562646, at *9 (S.D.N.Y. April 16, 2002) ("For purposes of a federal habeas petition, any claims of impropriety concerning a state grand jury proceeding are rendered harmless when a trial jury returns a verdict of guilt.") (citing Lopez v. Riley, 865 F.2d 30, 32-33 (2d Cir. 1989)). Accordingly, Clarke's claims related to the grand jury proceeding should be DISMISSED.
4. Clarke's Fifth Claim — Denied a Fair Trial Because the Trial Judge and a Juror Allegedly Fell Asleep
Clarke claims he was denied a fair trial because the trial judge and a juror fell asleep during portions of the trial. Pet. at 6(a). Clarke did not object to the misconduct at trial and failed to raise the claim on direct appeal. Resp. Aff. at Ex. D: Appellate Brief for Defendant, p. 2. Clarke initially presented this claim in his motion to vacate. Resp. Aff. at Ex. H: Notice to Vacate Judgment, p. 6. However, New York law requires a direct appeal when there are sufficient facts in the record. Byrdsong, 651 N.Y.S.2d at 903, 234 A.D.2d at 469. Thus, Clarke raised the claim in the wrong state forum and it is unexhausted. See Bentley v. Scully, 851 F. Supp. 586, 603 (S.D.N.Y. 1994), rev'd on other grounds, Bentley v. Scully, 41 F.3d 818 (2d Cir. 1994); see also Rosaria v. U.S., 2001 WL 1006641, at *5 (S.D.N.Y. Aug. 30, 2001) (citing Reed, 468 U.S. at 14). Further, New York law states that defendants may be issued leave to appeal only once. CPL § 440.10(2)(c) Therefore, this claim is procedurally defaulted. Clarke claims that his trial counsel failed to make the misconduct a part of the record. Pet. Reply at 21. However, Clarke failed to raise this claim in the state court system, thus precluding it from federal habeas review. Picard, 404 U.S. at 275. Therefore, in the absence of any showing of cause or argument demonstrating that a fundamental miscarriage of justice would result from the default, Clarke's fair trial claim is procedurally barred and should be DISMISSED.
C. Standard for Assessing Merits
The standard for review of a habeas petition challenging a state court decision depends on whether the petition presents a question of law, a question of fact, or a mixed question of law and fact. Rodriquez v. Bennett, 1998 WL 765180, at *3 (S.D.N.Y. Nov. 2, 1998). State judicial determinations are afforded even more deference than before the passage of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Id. Pursuant to 28 U.S.C. § 2254 (d), as amended by the AEDPA, a writ of habeas corpus may not be granted unless the federal court finds that the claim which was adjudicated on the merits:
(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) (West Supp. 2001). A state court decision is "contrary to" federal law if the state court applies a "conclusion opposite to that reached by [the] Court on a question of law" or if it "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite" to that of the Court. Williams v. Taylor, 529 U.S. 362, 405 (2000). It involves an "unreasonable application" of Supreme Court precedent if it "identifies the correct governing legal rule . . . but unreasonably applies it to the facts" of a particular case or if it "either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407. Section 2254(d)(1) "defines the standard of review to be applied to questions of law and mixed questions of law and fact," Rodriquez, 1998 WL 765180, at *3, such as claims for ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, this Court will apply the standard set forth in that section in considering Clarke's claim.
1. Merits of the Ineffective Assistance of Counsel Claim
Under Strickland, in order to establish an ineffective assistance of counsel claim, a defendant must show: (1) "that counsel's performance was deficient," in that the attorney made such serious errors that the representation fell below "an objective standard of reasonableness," and (2) "that counsel's errors were so serious as to deprive the defendant of a fair trial." Id. at 687-88. There must be a reasonable probability that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694; see also Kieser v. New York, 56 F.3d 16, 18 (2d Cir. 1995); Cowan v. Artuz, 96 F. Supp.2d 298, 306 (S.D.N.Y. 2000). Trial counsel "will not be deemed unreasonable merely because [he] failed to `advance every nonfrivolous argument.'" Urena v. People of the State of New York, 2001 U.S. Dist. Lexis 4291 at *13 (S.D.N.Y. Apr. 10, 2001) (quoting Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Similarly, "counsel may focus on key issues and `winnow out weaker arguments.'" Urena, at *13 (quoting Jones v. Barnes, 463 U.S. 745, 751 (1983). "Among the `virtually unchallengeable' tactical decisions left to the judgment of trial counsel are determinations regarding the defense strategy adopted at trial." Gluzman v. United States of America, 124 F. Supp.2d 171, 174 (S.D.N.Y. 2000) (citing United States v. Simmons, 923 F.2d 934, 956 (2d Cir. 1991). Furthermore, "[j]udicial scrutiny of counsel's performance must be highly deferential." Cowan 96 F. Supp.2d at 314 (citing Strickland, 466 U.S. at 689); United States v. Mocombe, 2000 WL 488464, at *2 (S.D.N.Y. Apr. 24, 2000) (citing Strickland, 466 U.S. at 689). Thus, in reviewing counsel's performance, "[t]he court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690.
Clarke claims that he was denied effective assistance of counsel because his attorney failed to investigate the facts of the case and prepare adequately for trial. Pet. at 6. His claim is centered on two grounds: (1) his attorney failed to take pictures of the crime scene at night, which would have demonstrated the difficulty of witnessing the alleged drug transaction; and (2) his attorney failed to contact two witnesses. Affidavit in Reply to the People's Opposition ("Rep. Aff.") at 2, 3.
A review of the record, however, indicates that his attorney did address the issue of the difficulty of witnessing the alleged drug transaction by hiring an investigator to take pictures of the crime scene, Rep. Aff. at 2, and attempting to enter into evidence Clarke's videotape of the crime scene, which was taken at night. Tr. at 129, 138. Further, Clarke's trial counsel thoroughly cross-examined Sergeant Spottke regarding his ability to see the drug transaction, considering the size of the vial of crack cocaine, the time of night, the lighting conditions, and his distance and angle from Clarke and the man purchasing the drugs. Id. at 39-43, 47-49, 55, 60. Additionally, he referred to these problems in his summation. Id. at 194-96, 199-200. Trial counsel's decisions on how to discredit the officer's ability to witness the drug transaction "fall squarely within the ambit of trial strategy." United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992). Thus, Clarke has failed to show "deficient" performance under the first prong of Strickland.
As for Clarke's second ground, Clarke repeatedly told both his attorney and the court that he would locate and produce the two witnesses. Suppression Hearing Transcript ("Supp. Tr."), Days 1 and 2 at 3, 92-93, 99; Tr. at 127, 134, 137-8, 148-153. Consequently, during the pretrial suppression hearing the judge granted two separate adjournments to give Clarke additional time to locate the witnesses, Supp. Tr., Days 1 and 2 at 93, 103, and later issued a subpoena for one of the witnesses. Id. at 92, 103. Nevertheless, Clarke failed to produce the witnesses. Supp. Tr., Day 3 at 2. Similarly, during the trial, the judge granted two additional adjournments to give Clarke more time to produce the witnesses. Tr. at 136-37, 143, 155-56. Moreover, although the trial judge was initially leaning towards revoking Clarke's bail at the close of the State's case, he reconsidered after Clarke pleaded with the court, indicating that only he could persuade the witnesses to testify. Id. at 147-49. Clarke, however, not only failed to produce either of the witnesses for trial, but in addition, failed to show up in court the next day and was subsequently arrested for absconding. Id. at 160-61, 175-76.
From this review of the record, the Court finds that Clarke has failed to demonstrate that by not contacting the two witnesses his counsel was deficient and "made errors so serious" that his representation fell below "an objective standard of reasonableness." Strickland, 466 U.S. at 687. Rather, the evidence demonstrates that Clarke himself was delinquent in failing to follow through on his repeated promises to locate and produce the witnesses and in failing to even appear for trial. Tr. at 160-61, 175-76.
Because this Court will not use "hindsight to second-guess [counsel's] strategy choices," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994), and the record does not show that Clarke's counsel was deficient in contacting the two witnesses, this Court finds that Clarke has failed the first prong of the Strickland test, and therefore, cannot support an ineffective assistance of counsel claim. Eisen, 974 F.2d at 265. Having decided that Clarke has failed to demonstrate the first prong of the Strickland test, this Court need not address the second prong. Strickland, 466 U.S. at 697. This Court, therefore, recommends that Clarke's claim of ineffective assistance of counsel be DISMISSED.
IV. CONCLUSION
Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable William H. Pauley, III, 40 Centre Street, Room 234, and to the chambers of the undersigned, 500 Pearl Street, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); 28 U.S.C. § 636 (b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).