Opinion
9:13-CV-00101 (NAM/TWD)
12-22-2015
RAYMOND CLYDE, Petitioner, v. DAVID ROCK, Respondent.
APPEARANCES: RAYMOND CLYDE 96-A-2453 Petitioner pro se Upstate Correctional Facility P.O. Box 2001 Malone, New York 12953 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Respondent 120 Broadway New York, New York 10271 OF COUNSEL: PRISCILLA STEWARD, ESQ. LEILANI RODRIGUEZ. ESQ. Assistant Attorneys General
APPEARANCES: RAYMOND CLYDE
96-A-2453
Petitioner pro se
Upstate Correctional Facility
P.O. Box 2001
Malone, New York 12953 HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Respondent
120 Broadway
New York, New York 10271 OF COUNSEL: PRISCILLA STEWARD, ESQ.
LEILANI RODRIGUEZ. ESQ.
Assistant Attorneys General THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER and REPORT-RECOMMENDATION
I. INTRODUCTION
This matter has been referred to this Court for Report and Recommendation, pursuant to 28 U.S.C. § 636(b) and Northern District Local Rule 72.3(c), by the Hon. Norman A. Mordue, Senior United States District Judge.
A. Challenged Conviction
Presently before this Court is the timely pro se Petition of Petitioner Raymond Clyde, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) Petitioner brings this proceeding challenging a judgment of conviction entered on March 24, 2008, following a December 2007 jury trial in Cayuga County Court, the Hon. Robert B. Wiggins, Acting County Court Judge, presiding. (Dkt. No. 14-3 at 1.) On December 7, 2007, Petitioner was convicted of attempted rape in the first degree (Penal Law §§ 110.00,130.35(1)); two counts of assault in the second degree (Penal Law § 120.05(7)); one count of unlawful imprisonment in the first degree (Penal Law § 135.10); and one count of promoting prison contraband (Penal Law § 205.25). (Dkt. No. 14-26 at 453-56.) After the verdict was rendered by the jury, Judge Wiggins issued a trial order granting Petitioner's motion to dismiss the attempted rape in the first degree charge on the grounds of legal insufficiency of the evidence. Id. at 239-40, 481-82, 493-94; Dkt. No. 14-27 at 135-37.
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
B. Sentence Imposed
On March 24, 2008, Petitioner was sentenced as a persistent felony offender to an aggregate of thirty-seven years to life in prison. (Dkt. No. 14-26 at 480, 496.) An indeterminate sentence of twenty-five years to life was imposed on the assault in the second degree conviction involving V.W., a civilian employee at Auburn Correctional Facility, with the sentence to run consecutive to any existing term presently being served by Petitioner. Id. at 496-97. Petitioner was sentenced to twelve years to life on the assault in the second degree conviction involving another Auburn Correctional Facility civilian employee Anthony Rebich ("Rebich"), with the sentence to run consecutively to existing terms being served by Petitioner and to the sentence imposed on the other assault in the second degree conviction. (Dkt. No. 14-26 at 497.) On promoting prison contraband in the first degree, Petitioner was sentenced to an indeterminate three and a half to seven year term to run concurrently with the assault in the second degree conviction. Id. at 498. The sentence imposed on the unlawful imprisonment in the first degree conviction was two to four years indeterminate, concurrent with the existing sentence. Id.
The victim is identified herein as V.W. in order to protect her privacy.
C. State Court Appeals
1. Initial Appeals to the Appellate Division Fourth Department
Petitioner, who had represented himself at trial, pursued a counseled appeal from the conviction to the Appellate Division Fourth Department ("Appeal No. 1"). (Dkt. No. 14-27 at 8.) The People appealed from Judge Wiggin's dismissal of the attempted rape in the first degree charge ("Appeal No. 2"). Id. at 5-6. On April 30, 2010, the Appellate Division affirmed in part and reversed in part. People v. Clyde, 899 N.Y.S.2d 757 (4th Dep't 2010). On Appeal No. 1, the Appellate Division, with one dissent, ordered that the judgment of conviction be reversed on the law and a new trial be granted on all of the charges except for the attempted rape in the first degree charge that had been dismissed by Judge Wiggins. Id. at 758. The ground for the reversal was the County Court's failure to articulate a reasonable basis on the record for its determination to restrain Petitioner in shackles during the trial. Id. On Appeal No. 2, the Appellate Division affirmed the County Court's grant of Petitioner's motion for a trial order of dismissal with respect to the attempted rape in the first degree charge. Id. The affirmance was based upon the Appellate Division's conclusion that the evidence of Petitioner's intent to rape the victim by the use of forcible compulsion was legally insufficient. (Dkt. No. 14-27 at 758.)
Petitioner also submitted a pro se Brief in response to the People's Brief on the appeal to the Appellate Division. (Dkt. No. 14-3.)
2. Appeal to the New York Court of Appeals
The People moved in the Appellate Division for a certificate granting leave to appeal the Court's Order on Appeal Nos. 1 and 2 to the New York Court of Appeals. (Dkt. No. 14-6 at 2-3.) The motion was opposed by Petitioner's appointed appellate counsel and Petitioner. (Dkt. Nos. 14-7; 14-8.) The People were granted leave to appeal to the Court of Appeals. (Dkt. No. 14-9.) On November 22, 2011, the Court of Appeals, in a 4-3 Decision, reversed the Order of the Appellate Division in Appeal No. 1 reversing the County Court's judgment of conviction. The Court of Appeals remitted the case to the Appellate Division for consideration of the facts and issues raised but not determined on the appeal to that Court from the judgment. The Court of Appeals also reversed the Appellate Division's Order on Appeal No. 2, which had affirmed the County Court's Order dismissing the attempted rape in the second degree charge against Petitioner. People v. Clyde, 938 N.Y.S.2d 243, 250 (2011). Petitioner's counseled petition for a writ of certiorari was denied by the United States Supreme Court on April 16, 2012. See Clyde v. New York, ___ U.S. ___ 132 S.Ct. 1921 (2012).
3. Remittitur to the Appellate Division on Appeal No. 1
On December 30, 2011, the Appellate Division unanimously affirmed the judgment of the County Court. People v. Clyde, 935 N.Y.S.2d 795 (4th Dep't 2011). The Appellate Division rejected Petitioner's claim that the County Court had violated his constitutional rights by permitting him to represent himself. Id. at 797. The Appellate Division further found that the County Court had not erred in sentencing Petitioner as a persistent violent felony offender, and that the sentence imposed by the County Court was not unduly harsh or severe. Id. The Court of Appeals denied leave to appeal. People v. Clyde, 950 N.Y.S.2d 354 (2012).
The Appellate Division did not have Appeal No. 2 dealing with the dismissal of the attempted rape in the first degree conviction before it. See People v. Clyde, 935 N.Y.S.2d 795, 797 (4th Dep't 2011).
4. Remittitur to the County Court on Appeal No. 2
On Appeal No. 2, the Court of Appeals remitted the matter to the County Court for sentencing on the reinstated conviction for attempted rape in the first degree. People v. Clyde, 938 N.Y.S.2d 243, 250 (2011). According to Respondent, Petitioner was sentenced to twenty-five years to life on the attempted rape in the first degree charge, with the sentence to run concurrently with Petitioner's previously imposed sentences. (Dkt. No. 13-1 at 5.) On June 28, 2013, the Appellate Division summarily affirmed the judgment rendered by Judge Wiggins on February 1, 2012. People v. Clyde, 967 N.Y.S.2d 862 (4th Dep't 2013).
D. Grounds For Habeas Review
Petitioner has asserted four grounds for habeas review:
(1) Trial court's violation of Petitioner's rights under the Fifth, Sixth and Fourteenth Amendments by denying assigned counsel an adjournment to properly prepare for trial to provide effective assistance of counsel (Dkt. No. 1 at 5);
(2) Trial court's denial of Petitioner's rights under the Fifth, Sixth and Fourteenth Amendments by failing to conduct a sufficiently searching inquiry before allowing Petitioner to waive his right to counsel, id. at 6;
(3) Trial court's denial of Petitioner's rights under the Fifth, Sixth and Fourteenth Amendments by requiring him to be shackled in leg irons throughout the trial, id. at 8; and
(4) Denial of Petitioner's rights under the Fifth, Sixth and
Fourteenth Amendments based upon a finding of guilt on the charge of attempted rape in the first degree with insufficient evidence. Id. at 9.
For the reasons discussed below, the Court recommends that Petitioner's Petition (Dkt. No. 1) be denied and dismissed in its entirety.
II. BACKGROUND
A. Relevant Pretrial Matters
1. Indictment
On February 22, 2007, Petitioner was indicted on one count of attempted rape in the first degree, two counts of assault in the second degree, and one count of unlawful imprisonment in the first degree, and promoting prison contraband in the first degree in a sealed indictment issued by a Cayuga County grand jury. (Dkt. Nos. 14-27 at 22-23, 143.) All of the charges, with exception of the charge for promoting prison contraband, arose out of an incident that occurred on July 7, 2006, at the Auburn Correctional Facility where Petitioner was an inmate. Id. The charge of attempted rape in the first degree, the first of the two assault in the second degree charges, and the unlawful imprisonment in the first degree charge involved Petitioner's alleged attack on V.W. Id. The other charge of assault in the second degree involved the assault of Auburn Correctional Facility civilian employee Rebich. Id.
2. Arraignment
Petitioner was arraigned in Cayuga County Court before the Hon. Mark H. Fandrich, Acting County Court Judge, on March 20, 2007. (Dkt. No. 14-24 at 1-7.) Petitioner appeared at the arraignment with appointed counsel Douglas Bates, Esq., ("Bates"), who represented Petitioner throughout the pre-trial proceedings. Id. at 2.
3. Shackling at Trial
Oral argument on omnibus motions was held before Judge Fandrich on May 15, 2007. (Dkt. No. 14-24 at 8-23.) Petitioner's counsel moved for an order directing that Petitioner be allowed to appear in street clothes and not be seen by the jury in shackles and handcuffs at trial. Id. at 10; Dkt. No. 14-27 at 58, 61-62. Cayuga County District Attorney, James B. Vargason ("Vargason"), noted that Petitioner had numerous prior convictions for robbery, rape, sodomy, and burglary and expressed concern that he was a "supremely dangerous individual with a great risk of flight." Id. at 13. Vargason advised the court that he had no objection to Petitioner wearing street clothes and having his handcuffs removed at trial. Id. However, he suggested that the issue of shackles be left until trial when the sitting judge, in connection with escorts from the Department of Corrections and Community Supervision ("DOCCS"), could determine the risk level and their comfort level in removing Petitioner's shackles. Id. Judge Fandrich agreed to allow Petitioner to wear street clothes at trial but left issues regarding shackling and control of Petitioner to be decided by the trial judge. Id. at 21-22; Dkt. No. 14-27 at 13.
Prior to the start of jury selection, Bates raised the shackling issue again. (Dkt. No. 14-24 at 114.) Bates noted that Judge Wiggins, the trial judge, had indicated that if Petitioner wished, the court would require that a curtain be installed around the defense table to hide the shackles. Id. Bates expressed concern that Petitioner would be precluded from attending side-bar conferences because the jury could not help but notice the shackles if Petitioner walked to the bench. (Dkt. No. 14-24 at 114-15.) Judge Wiggins asked Petitioner if he wanted to be able to attend side-bar conferences and noted that there would be no value in having a curtain around the defense table if Petitioner was going to be walking to the bench. Id. at 115-16. Petitioner responded in the affirmative and agreed to waive the curtain. Id. at 116.
4. Transfer of Petitioner Closer to Cayuga County for Trial Preparation
On October 5, 2007, Judge Fandrich granted Bate's request for an order providing for Petitioner to be transferred from Upstate Correctional Facility ("Upstate") in Malone, New York, where he was being housed, to a facility closer to Cayuga County at least three or four weeks before trial so that he and Petitioner could prepare for trial. (Dkt. No. 14-24 at 94.) Judge Fandrich agreed to issue an order having Petitioner transferred to Five Points Correction Facility ("Five Points") thirty days before trial. Id.
At a pretrial conference held before Judge Wiggins on October 19, 2007, Bates informed the Court that he and Petitioner were ready for trial. (Dkt. No. 14-24 at 101.) Bates also told Judge Wiggins that Judge Fandrich had agreed to issue an order directing that Petitioner be moved to prison facilities more proximate to Auburn Correctional Facility within thirty days of trial. Id. at 100. On November 7, 2007, Judge Wiggins issued an order indicating that the matter was scheduled for trial on December 3, 2007, in Auburn, and that it appeared that effective assistance of counsel required that Petitioner, who was still being housed at Upstate, be transferred to a closer facility until the conclusion of the trial or issuance of a subsequent order. Id. at 119-20. The order directed DOCCS to transfer Petitioner on or about November 3, 2007, to the nearest correctional facility in the proximity of Auburn, after taking due consideration for the needs of security, safety, and control of Petitioner. (Dkt. No. 14-27 at 119-20.)
5. Petitioner's Request for An Adjournment of the Trial
On the morning of December 3, 2007, the date Petitioner's trial was scheduled to commence, Bates informed Judge Wiggins that despite his transfer order, Petitioner had not been transferred to Five Points until November 29, 2007. (Dkt. No. 14-24 at 111, 119.) Petitioner was not available to receive visitors until November 30, 2007, which left only three days before trial for preparation. Id. Bates explained to the court that he had spoken to Petitioner every time he had appeared in court but wanted it noted in the record that discussions on those occasions were always in the presence of corrections officers. Id. at 120. Bates did not believe Petitioner felt at liberty to speak freely in the presence of the officers. Id. Bates informed the court that Petitioner believed that the late transfer and lack of sufficient time presented a denial of his constitutional right to effective assistance of counsel and that he wanted an adjournment of the trial. Id.
Vargason objected inasmuch as Bates had been earnestly and aggressively engaged in Petitioner's defense since his arraignment; had engaged in significant motion practice on Petitioner's behalf; had been to Vargason's office on more than one occasion to discuss the case; made all of the appropriate motions to suppress the identification of the Petitioner; participated in a Wade Hearing; and had attended a number of pretrial conferences. Id. at 120-21.
Judge Wiggins stated that he did not perceive the late transfer as a question of effective assistance of counsel but rather as a question of availability based on failure to transfer. Id. at 121. Petitioner was allowed to speak to the issue and stated that since his arraignment, he had only been able to speak to Bates for ten to fifteen minutes prior to court appearances. (Dkt. No. 14-24 at 122.) According to Petitioner, Bates had not come to Malone to discuss the facts pertaining to the case despite numerous requests by Petitioner, telling Petitioner that it was too soon for trial preparation, and that he would ask that Petitioner be transferred prior to trial so that they could meet for preparation. Id.
Petitioner told the court that when he met with Bates after his transfer, he told Bates he wanted certain witnesses subpoenaed for trial. Id. at 123. Petitioner claims to have asked Bates if he had an investigator and a medical expert to go over medical documents pertaining to injuries sustained, and that Bates responded that he did not know what he could do about it because of the trial date. Id. at 124. According to Petitioner, Bates told him that they could go to court and ask for an adjournment. Id. Petitioner informed the court that he and Bates had no trial strategy as far as documents and had not really spoken about witness testimony or Petitioner testifying. Id. Plaintiff also told the court that Bates had told him that he was not prepared to try the case. Id. Petitioner also mentioned that Bates had informed him that Vargason's term expired at the end of December, so that if the trial was adjourned for more than a short time, Vargason would not be in a position to try the case. Id. at 125.
Bates, stating that he was speaking as an officer of the court, informed Judge Wiggins that he had not told Petitioner he was unprepared for trial. Id. at 126. Judge Wiggins, noting that the matter had been scheduled for trial some time ago, and that neither the court or counsel was responsible for the failure to comply with the court's transfer order, denied Petitioner's request for an adjournment. Id.
6. Petitioner's Decision to Represent Himself at Trial
Following the court's denial of Petitioner's request for an adjournment and an off-the-record conference between Petitioner and Bates, Bates informed the court that Petitioner wanted to represent himself at trial. (Dkt. No. 14-24 at 132.) Judge Wiggins reminded Petitioner of the seriousness of the charges against him and described giving up the assistance of a highly experienced attorney who appeared to be receptive to his suggestions and to conversing with him as "an extremely dangerous step for [him] to make." Id. at 132-33. Vargason had indicated the People's intent to have Petitioner sentenced as a persistent felony offender in the event of a determination of guilt at trial, and the court reminded Petitioner of the huge downside risk of a persistent violent felon conviction. Id. at 133. Judge Wiggins directed Petitioner to take five minutes to discuss self-representation with Bates because the magnitude of the decision was extreme, and the court needed Petitioner to explore it thoroughly with his attorney before he shot from the hip as to pro se representation and regretted it down the road. Id.
After speaking with Bates, Petitioner advised Judge Wiggins that he still wished to represent himself at trial. Id. at 134. Judge Wiggins cautioned Petitioner that the court would not give him any more latitude as to trial protocol and rules, and that he would be held to the same standards as Bates. Id. The court asked Petitioner if he had been given enough time to consider the issue of self-representation and then questioned him regarding his educational background; physical and mental condition; employment history; understanding of the charges against him; understanding of the function of the court and jury at trial; whether he had prior experience that would enable him to conduct proper examination of witnesses; and whether he understood that he would not be able to give speeches during trial and would have to conduct cross-examination in a professional manner. (Dkt. No. 14-24 at 134-40.)
Judge Wiggins then asked Petitioner if he had any difficulty understanding his attorney's advice, to which he responded he had not. Id. at 140. The Court asked Petitioner why he wanted to represent himself, to which he responded that he and Bates had not had enough time to prepare, and he did not believe Bates was ready for trial. Id. The court proceeded to advise Petitioner of the dangers of self-representation, including the lack of legal training, which could lead to the conviction of an accused who was not guilty. Id. at 141-42. Judge Wiggins also cautioned Petitioner that most pro se representations were unsuccessful. Id.
Judge Wiggins instructed Petitioner that if he chose self-representation, he would not be entitled to aid from an attorney throughout the proceedings, including with his own testimony if he elected to testify. Id. at 143. When Petitioner indicated that he did not understand, Judge Wiggins explained that although he would mandate that Bates be available through trial, and that Bates would be available if Petitioner needed his advice, it would not be the same as an attorney-client relationship. Id. Bates would not be calling the shots, making decisions, or advising Petitioner on strategy. Id.
The court continued to caution Petitioner that he would be held to the same legal standards as an attorney; that he would not be entitled to any special breaks or rulings; and that there might well be legal terms of art he did not understand and, as a result, Petitioner would not have a good understanding of what was happening. Id. at 144. Judge Wiggins cautioned Petitioner that legal professionals incorporated entire legal concepts in case names, and that a layman might not understand what the cases stood for when used during trial. Id. at 144-45. The court went on to explain the complexities of the rules of evidence and that Petitioner would be subject to those rules despite not being an attorney, and that he would run the risk of having evidence precluded because of his inability to provide legal explanations for its admissibility. (Dkt. No. 14-24 at 145-46.)
Judge Wiggins told Petitioner that he would be required to do his own opening and closing at trial without the advice of an attorney and noted that he would be going up against Vargason, who was highly trained and highly experienced and had been the District Attorney for sixteen years. Id. at 147. The court cautioned Petitioner that Vargason would not be easy on him or forego making objections he would make were Bates representing him. Id. at 148. The court reminded Petitioner that he would be giving up the benefits of Bates' courtroom experience and legal training and his ability to communicate with a jury. Id.
Judge Wiggins then asked Petitioner if he believed he was capable of representing himself and if he still wanted to represent himself, and Petitioner responded in the affirmative to both questions. Id. at 148-49. The court warned Petitioner that if he did not conduct himself in every way as if he were an attorney and undermined the fair and orderly presentation of the issues at trial, he would be removed from the courtroom. Id. at 149-50.
At Vargason's suggestion, the court then gave Petitioner an opportunity to speak with Bates and think about his decision to represent himself. Id. at 150. After that opportunity, Petitioner informed the court he still wanted to represent himself and executed a Waiver of Assigned Counsel asserting his desire to waive his right to counsel and proceed pro se. Id. at 151; Dkt. No. 14-27 at 121.
B. People's Case
1. V.W.
V.W. began working as a civilian motor vehicle operator at Auburn Correctional Facility in 1995 and was at the facility working in that capacity on Friday, July 7, 2006. (Dkt. No. 14-26 at 166-67.) After lunch, V.W. left the facility to pick up the UPS packages. Id. at 179. V.W. then drove back to the facility to make her deliveries. Id. at 180. After making deliveries in the industry storage area, V.W. headed towards the facility storehouse. Id. After going through a security gate, V.W. drove down an alleyway where the back of the mess hall dock is located, made a right and backed her truck up to the storehouse. (Dkt. No. 14-26 at 180.)
At about 12:15pm, V.W. locked the truck, put the keys in her pocket, and headed into the storehouse because it was not quite time for the storehouse inmates to come back from lunch to unload the UPS packages. Id. at 181-82. V.W. saw Auburn Correctional Facility civilian employees Greg Schramm ("Schramm" ) and Rebich in the storehouse. Id. at 182. V.W. asked Rebich to phone the recreation area to have the storehouse inmates come back, and she got the storehouse keys used to open big double doors to get to the corridor leading to the recreation area from Rebich so that she could escort the inmates back to the storehouse. Id. at 183. After leaving the storehouse, V.W. went through the double doors, leaving them open as was the practice, and walked down a long corridor. Id. at 184. At the end of the corridor was a big metal gate that blocked the corridor from the mess hall. Id. The gate was always locked and an officer had the key. Id.
V.W. waited alone in the corridor by the mess hall gate for the escort officer to bring the storehouse inmates to the gate. (Dkt. No. 14-26 at 185-87.) There were a number of inmates going from the recreation area to the mess hall in the corridor on the other side of the gate, and there was a lot of inmate commotion. Id. After about five minutes of waiting, V.W. concluded that either Rebich had neglected to call for the storehouse inmates or the inmates were not ready to come back. Id. at 187. V.W. decided to walk back to the storehouse. Id.
On her way down the hallway back to the storehouse, V.W. stopped to retrieve a cart to use to unload UPS packages from her truck. Id. at 189-90. V.W. turned around to grab the cart when she was suddenly jumped from behind. Id. at 189. Immediately a hand came over her mouth and nose, and she couldn't breathe. Id. at 189. Her attacker was holding her in a headlock, very tightly and very, very close to him. Id. V.W. was able to say "please don't hurt me" to him. Id. V.W. asked him what he wanted and her attacker would not answer her. Id.
After the two had wrestled a little and gotten turned back around towards the kitchen, V.W.'s attacker slammed her up against the wall. Id. Her attacker started shoving a terry cloth textured item she thought to be a sock or towel ("cloth") into V.W.'s mouth so that she could not breathe. Id. at 188, 202. V.W. was able to get the cloth out of her mouth and scream for help. Id. Her attacker told her to "shut the fuck up or I'll kill you," and at the same time shoved his fist hard against her kidney. Id. at 189-90. They got turned around again and the cloth went back into her mouth. Id. at 190. He shoved her down on her knees onto the floor. Id. Because her attacker was behind her, she could not see him. Id.
Her attacker then yanked the back of her head and her hair, and he yanked her neck as far back as he could get it. Id. He kept shoving the cloth down V.W.'s throat as far as it would go and then covered her mouth and nose completely so that she could not breathe at all. Id. V.W. could feel her eyes rolling in the back of her head, and thought she was going to pass out. (Dkt. No. 14-26 at 190.) V.W. was able to get enough air in to say in a small voice, "okay, just don't hurt me, whatever you want." Id. V.W.'s attacker them shoved her to the floor, and her face bounced off the cement. Id. The cloth item came out of her mouth again, and she tried to get some oxygen because she could not breathe. Id.
V.W. tried to scream and her attacker shoved the cloth into her mouth again. Id. V.W. attempted to bite him as he was shoving the cloth down her throat. Id. at 195. She latched on to whatever part of his hand was in her mouth and bit him as hard as she could. Id. V.W. thought that the only reason she could not bite through her attacker's hand was that he had leather gloves on. Id. at 196. Her attacker pulled his hand out of her mouth when she bit him. Id. at 204.
V.W.'s attacker then punched her in the face as hard as he could, leaving her dazed. Id. at 190. V.W.'s hands were in front of her, and her attacker said "give me your fucking hands." Id. at 191. V.W. gave her attacker one hand, and he had it hard behind her back and was wrapping a cord or something behind it. Id. He asked for the other hand, and when V.W. did not give it to him, her attacker straddled her, sitting on her back. Id. He eventually got both of V.W.'s hands behind her back. Id. Petitioner did not remove any of V.W.'s clothing, put his hands under her clothing, or grope her body. Id. at 198, 205, 210.
Just then, the doors were flung open, and Rebich screamed at V.W.'s attacker and began running towards V.W. Id. at 191-92. V.W.'s attacker jumped off of her and began running towards Rebich, who tripped the attacker to try to get him down. Id. at 192. V.W. jumped up, got the string or rope or cord off her hands and ran to the gate screaming for help. Id. V.W. was never able to see her attacker's face but could see enough out of the corner of her eye to tell that he was Black and had a white shirt on. (Dkt. No. 14-26 at 194-95.) When her attacker ran away up the hall, she could tell he was wearing mess hall whites. Id. at 195.
V.W. was initially treated at the Auburn Correctional Facility by Registered Nurse Susan Lennox ("Lennox") before being transferred to the hospital emergency room. Id. at 156, 159. V.W. told Lennox that she thought her attacker had tried to rape her. (Dkt. No. 14-26 at 208.) Lennox documented a cut over V.W.'s left eyebrow, a bruised right cheek, an abrasion on the right side of her mouth, and a cut lower lip. Id. at 159-60. There was some redness on her torso, and V.W. complained that her neck and shoulder on the right side of her body hurt. Id. at 160. There was a cut on the palm of her left hand and bruising on top of her left hand. Id. V.W. also had cuts on her right lower shin area. Id. Lennox described V.W. as "a wreck," "very upset," "crying," and "totally distraught." Id.
At the hospital emergency room, V.W. was treated by Dr. Barbara Connor who observed multiple bruises on V.W.'s right hand, right knee, and left knee and lower leg as well as abrasions to V.W.'s elbows and palms, legs and face, including a black eye. (Dkt. No. 14-26 at 220.) Dr. Connor also observed that V.W. had abrasions, tenderness and bruising about her jaw and mouth and cuts in her mouth. Id. V.W. also had areas of tenderness in her back and neck and pain on movement and muscle spasms in her neck. Id.
Based upon Dr. Connor's physical examination of V.W., her clinical impression was that V.W. had significant injury from attempted choking and attempted asphyxiation, and that V.W. had clearly struggled against her attacker and had been forced on her hands and knees. Id. Dr. Connor also concluded that V.W. had suffered an injury to her airway as a result of her attacker attempting to shove the cloth in her mouth, and with pulling back on her neck there was serious risk of asphyxiation and cutting off her oxygen that would lead to possible respiratory arrest and cardiac arrest and death. Id at 221.
2. Rebich
Rebich has been principal store clerk, facility storehouse, a civilian position, at Auburn Correctional Facility since around 1994. (Dkt. No. 14-25 at 66.) He was working in that capacity in the facility storehouse on July 7, 2006. (Dkt. No. 14-25 at 66.) Schramm, who normally works in the business office as inventory control clerk was working with him in the storehouse that day. Id. at 68.
Rebich explained that the main point of ingress to the storehouse area was through the south mess hall, through the back of the kitchen, up an L-shaped hallway, and through the double doors into the storehouse. (Dkt. No. 14-25 at 66.) The correction officer working there, the mess hall staff, and Rebich had keys to the double doors. Id. Inmates would never be allowed to have keys. Id. at 69. There were four or five inmates working in the facility storehouse on July 7, 2006. Id. at 69. Petitioner was not a part of the inmate crew in the facility storehouse and to Rebich's knowledge did not have access to the storehouse and would not have been permitted in the storehouse on July 7, 2006. Id. at 69-70.
A double door at the main loading dock and a roll up overhead door at the secondary loading dock also provided access to the storehouse. Id. at 70. Normally, especially in the summer when it was hot, the double doors and overhead door were left open to get air flow. Id. That was the case on July 7, 2006. Id. Inmates were not allowed in the area where the doors were located without an escort. Id. at 71.
Rebich saw V.W. at around 12:15pm on July 7, 2006. Id. at 74. Part of her duties once she finished her outside driving was to come to the storehouse to bring the UPS down and to give them a hand in the storehouse. Id. at 75-76. V.W. obtained the keys to the double door and gate in the mess hall kitchen from Rebich and went to the mess hall kitchen recreation area to get the storehouse inmates who would unload the van with the UPS packages or whatever else was in it. Id. at 78-80.
Rebich was doing paper work and heard a noise that sounded as though someone was startled. (Dkt. No. 14-25 at 80.) It was a woman's voice. Id. The noise was coming from the hallway to the kitchen. Id. Rebich went back to his work and a couple of seconds later heard another noise that sounded more like a muffled scream coming from the hallway, at which point Rebich went to check it out. Id. Rebich grabbed his cordless phone which had a built in alarm. Id. at 81. When Rebich left the office, he saw that the doorway to the hallway was closed, which was odd since V.W. would be coming right back up through the hallway to the storehouse. Id. at 81-82. The doors were not locked. Id. at 82.
Rebich opened the door and when he looked into the security mirror in the far corner of the first leg of the hallway, he saw V.W. just around the corner. Id. at 82-83. She was laying on her stomach, and Rebich saw an inmate wearing a white mess hall shirt and pants trying to tie her hands behind her back with strips of cloth. Id. at 84. V.W. was struggling, and Rebich heard her scream at her attacker "please don't do this to me or why are you doing this to me." Id. Rebich activated the phone alarm. Id. Rebich headed towards V.W. and yelled "hey" to the inmate who got up and started running towards Rebich with his right hand behind his back. Id. at 84-85. Rebich stuck his leg out, hit the attacker on the back and knocked him to the floor. Id. When the attacker got up, he came back towards Rebich and hit Rebich between the right eye and right temple with his fist. (Dkt. No. 14-25 at 85.) Rebich was knocked unconscious for a short time. Id. at 85-86 When Rebich regained consciousness, he chased the attacker up the hallway towards the store house. Id. at 85. The attacker went through the double doors to the secondary loading dock and jumped off the lot, turned left and headed around the side of the mess hall. Id. at 86.
Rebich then went back to V.W., who was screaming for help. Id. at 87. According to Rebich, V.W. was absolutely hysterical. Id. at 87. She had her hands up and was shaking like a leaf. Id. She kept saying that her attacker had tried to rape her. Id. A medical team came to the storehouse office, and Rebich was able to get V.W. calmed down enough to walk to his office. Id. at 88.
Rebich, who initially declined medical treatment in the infirmary on the day of the attack awoke with a pounding headache the next morning, a Saturday, and slept excessively and experienced blurred vision over the weekend. Id. at 93-4. He went to the hospital emergency room on Monday morning and was diagnosed with a concussion by Dr. Mervyn Whelen. Id. at 95; Dkt. No. 11-26 at 81-83. Rebich also suffered an aggravation of a pre-existing rotator cuff injury. (Dkt. No. 14-25 at 95-96.) Rebich missed ten weeks of work as a result of his injuries. Id. at 96.
3. Gregory Schramm
Schramm was in the facility storehouse setting up the computer for inventory control on July 7, 2006. (Dkt. No. 14-25 at 146.) He saw V.W. come into the storehouse at around 12:30pm and heard her ask Rebich for the keys and tell him she was going to get the inmates. Id. at 148. According to Schramm, after V.W. left to get the inmates he heard some muffled noises, and his first thought was that V.W. had fallen and twisted her ankle. Id. at 151. He assumed it was V.W. because the noise was coming from the direction to which she departed, and she was the only woman down there. (Dkt. 14-25 at 151.) It sounded as though she was crying in a low, muffled voice, and Schramm told Rebich he should go check on her. Id. at 153.
Schramm, who stayed behind in the storehouse, heard Rebich yelling pretty loudly and looked through the windows of his office and saw Rebich with V.W.'s attacker. Id. at 154. Schramm, who was approximately twenty-five to thirty feet away, saw the attacker throw Rebich against the wall and then throw him against the other wall, and Schramm jumped out of the office to intercede. Id. at 154-55. Schramm was able to observe the attacker and get a good look at his face while he was fighting with Rebich. Id. at 160. According to Schramm, the attacker was Black. Id.
Schramm ran towards the attacker in an attempt to distract his attention away from Rebich. Id. at 155. The attacker immediately stopped and looked at Schramm and ran up the hallway at him. Id. However, just at the time he got to Schramm, the attacker took a left and went out the storehouse dock into a large open area with an alleyway leading to the back of the mess hall. Id. at 157-58.
4. Petitioner's Activities on July 7, 2006
Sergeant Brian Brown ("Brown"), who was working as second officer in the kitchen area of the mess hall on July 7, 2006, and was familiar with Petitioner, testified that Petitioner generally arrived for work in the portion room located in the back of the mess hall around 6:00am in morning. (Dkt. No. 14-25 at 226-27.) Brown saw Petitioner in the mess hall on July 7, 2006, probably when he came in and at times during the day. Id. at 528. Petitioner, like all inmates working in the mess hall, wore mess hall whites while working in the portions room. Id.
Petitioner was not allowed to leave the work area during his detail without speaking with an officer. (Dkt. No. 14-25 at 227.) Petitioner did not speak with Brown about leaving on July 7, 2006, and Brown did not see him leave. Id. Brown did not learn that Petitioner had left the mess hall until after the attack on V.W. Id. at 230-31. However, at approximately 7:30am, Sergeant Craig Diego ("Diego"), who was working in the south control center on July 7, 2006, observed Petitioner on a camera located in the control center as Petitioner was lingering in a secluded alleyway near the bathroom. Id. at 262-64. Petitioner was wearing mess hall whites. Id. at 268. Inmates were not allowed in the back alleyway when the mess hall was not running. Id. at 263. Diego had also observed Petitioner in the alleyway the day before and asked him why he was out there since he was not supposed to be. Id. That was the first day Diego had seen him out there. Id. at 267.
When Diego saw Petitioner in the alleyway a second time on July 7, 2006, he told him to come over to the control center and asked him why he was there since Diego had counseled him against being there the day before. Id. at 265. Petitioner told Diego he had lost his hat during the feed up or something like that. Id. Diego told Petitioner he was not to come out the back of the mess hall, only the front door. Id. The alleyway was used by teachers going to the school and civilian workers going to the shops, and according to Diego, inmates, especially mess hall inmates, were not supposed to be back there. Id. at 267.
The second time Diego saw Petitioner in the alleyway on July 7, 2006, Petitioner went off camera for a brief period of time. Id. at 269. Petitioner went over to the left which was near the bathhouse door. Id. Petitioner was still in his mess hall whites the second time Diego saw him in the alleyway. Id. at 269.
After the attack on V.W. was over, inmates in Brown's assigned work area were taken to the recreation area inside the kitchen area and then to the south mess hall. (Dkt. No. 14-25 at 231.) They were frisked and checked for wounds on their hands. Id. Petitioner was not among the inmates in the south mess hall after the incident. Id. He was found in the yard. Id. As far as Brown knew, Petitioner had not been given permission to be in the yard. Id. at 232. There would have been no reason for an inmate on portions duty to be in the yard unless he had a call out. Id.
When Corrections Officer John Exner ("Exner") found Petitioner in the main yard area outside the gate that led to the south mess hall, Petitioner was acting nervously, and his mess hall whites were soaked in sweat. Id. at 248-49. According to Exner, there should not have been any mess hall workers there. Id. Petitioner told Exner he was on PK pickup. Id. at 249. However, PK pickup had already been completed. Id.
5. Identification of Petitioner as V.W.'s Attacker
Rebich and Schramm were asked by a Sergeant to go to the south mess hall to see if they could identify the inmate who had attacked V.W. (Dkt. No. 14-25 at 88.) When they got to the mess hall, Rebich saw V.W.'s attacker sitting at one of the tables. Id. at 89. Rebich recognized him right away. Id. at 90. Rebich looked around to see if there was anyone else who might resemble the inmate because he wanted to be sure, but no one else even came close. Id. When they got back to where the inmate had been sitting, he had moved forward at least one row of tables and at least two tables to the right. Id. The inmate was still wearing mess hall whites. Id. Rebich identified Petitioner as the attacker to the corrections officers in the mess hall and identified him as V.W.'s attacker again at trial. Id. at 91.
Schramm also identified Petitioner as the inmate who had attacked V.W. (Dkt. No. 14-25 at 161.) Schramm saw the attacker sitting at a table still wearing his white jacket and pants. Id. According to Schramm, he and the attacker made direct eye contact, and the attacker looked nervous. Id. Schramm pointed him out to Rebich, and by the time he and Rebich returned to the table where the attacker had been sitting, he had moved to another table between a couple of inmates. Id. at 162. Schramm pointed Petitioner out to the Sergeant as the attacker and identified Petitioner as the attacker at trial. Id.
6. Forensic Evidence
After being identified as V.W.'s attacker, Petitioner was examined by Auburn Correctional Facility Registered Nurse Patrick Furnia ("Furnia"). (Dkt. No. 14-26 at 112, 116-120.) Furnia examined Petitioner's hands, arms, face and neck, upper torso, and legs. Id. at 117-18. Petitioner was found to have a lot of superficial injuries on his hands, arms, and upper arms. Id. at 118. The injuries included tiny nicks on his pinkies, scratches on his wrist, bruising on his right palm, and a superficial injury to his right bicep. Id. at 118. Furnia described the cuts, abrasions, and nicks as recent. Id. at 119.
John Stubbe ("Stubbe"), an experienced criminal scene investigator with the New York State Police, arrived at Auburn Correctional Facility at around 4:51pm the afternoon of the attack on V.W. to investigate the crime scene. (Dkt. No. 14-25 at 322-25.) Stubbe recovered a green towel, a white sock, an eyeglass lens and an arm to a set of glasses, a red pen, a roll of tape without the cardboard spindle, a torn ribbon to a sheet, and a broken watch from the corridor where V.W. had been attacked. Id. at 329-42, 351-362. Stubbe also found a pair of brown leather work gloves and a watch battery. Id. at 332, 353.
Forensic testing showed the presence of seminal fluid that matched Petitioner's DNA profile inside the palm area of both leather gloves and on the green towel found at the scene of the attack. (Dkt. No. 14-26 at 51-58, 63-64.) Petitioner was also a major contributor of DNA found on the sock, and blood on the heel of the sock matched the DNA of the victim V.W. Id. at 65.
Petitioner's single occupant cell in the Special Housing Unit was packed and frisked by corrections officers following the attack on V.W. (Dkt. No. 14-25 at 43, 436.) All of Petitioner's property was placed in draft bags and his property was brought to the administration building as directed by a facility captain. Id. at 436-37. The corrections officers were instructed to look for any contraband in the cell. Id. at 438. Corrections officers found the cardboard spindle from the role of tape found at the scene of the attack on V.W. in Petitioner's cell. Id. at 363-64, 439-40. The corrections officers also found that strips of Petitioner's bed sheet had been torn away, and it was subsequently determined that the torn sheet had the same thread count and cotton polyester blend as the strips of cloth found at the scene of the attack. Id. at 365, 441, 508-09.
C. Defense Case
Petitioner did not call any witnesses nor did he testify on his own behalf. (Dkt. No. 14-26 at 235.)
III. STANDARD OF REVIEW
A. Exhaustion Requirement under the Antiterrorism and Effective Death Penalty Act of 1996
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs applications of incarcerated state court defendants seeking federal habeas corpus relief. See 28 U.S.C. § 2254. Before a federal court may consider an application for habeas corpus relief pursuant to 28 U.S.C. § 2254, the petitioner must generally have exhausted all the remedies available in the courts of the state in which he or she was convicted. 28 U.S.C. § 2254(b)(1)(A); see also Cullen v. Pinholster, 563 U.S. 170, 182 (2011) ("Section 2254(b) requires that prisoners must ordinarily exhaust state remedies before filing for federal habeas relief."); Jones v. Murphy, 694 F.3d 225, 246-47 (2d Cir. 2012), cert. denied, ___ U.S. ___, 133 S.Ct. 1247 (2013) ("Under AEDPA, a prisoner in custody pursuant to a state court judgment must generally exhaust state court remedies before seeking federal habeas corpus review.").
"Exhaustion of state remedies requires that a petitioner fairly present federal claims to the state courts in order to give the state the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Cornell v. Kirkpatrick, 665 F.3d 369, 375 (2d Cir. 2011) (citation and internal quotation marks omitted); Daye v. Attorney General of State of N.Y., 696 F.2d 186, 191 (2d Cir. 1982) (en banc) (proper exhaustion requires that both the factual and legal premises of claim be "fairly presented" to the state court). Passage through the state courts, in and of itself, "is not sufficient." Picard [v. Connor, 404 U.S. 270, 275 (1971)]. To provide the State with the necessary 'opportunity,' the prisoner must fairly present his claim in each appropriate state court (including a state supreme court with powers of discretionary review), alerting that court to the federal nature of the claim and "giv[ing] the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." Wilens v. Superintendent of Clinton Correc. Fac., No. 11-CV-1938 (JFB), 2014 WL 28995, at *5, 2014 U.S. Dist. LEXIS 182111, at *13 (E.D.N.Y. Jan. 2 2014) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)) (internal quotation marks omitted).
Copies of unreported cases cited herein will be provided to Petitioner. See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Petitioner bears the burden of proving exhaustion. Colon v. Johnson, 19 F.Supp. 2d 112, 119-20 (S.D.N.Y. 1998) (citations omitted). Respondent has acknowledged Petitioner's exhaustion as to all of his habeas claims (Dkt. No. 13-1 at 26-27), and the Court agrees that the claims have been exhausted.
B. Review of State Court Decisions on the Merits Under the AEDPA
Under the AEDPA, an application for a writ of habeas corpus:
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless 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). Recognizing the principle that "[s]tate courts are adequate forums for the vindication of federal rights . . . , AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, ___ U.S. ___, 134 S.Ct. 10, 15-16 (2013); see also Cullen, 563 U.S. at 181 ("This is a difficult to meet [ ] . . . and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt . . . .") (citation and internal quotation marks omitted).
"For the purposes of AEDPA deference, a state court 'adjudicate[s]' a state prisoner's federal claim on the merits when it (1) disposes of the claim 'on the merits,' and (2) reduces its disposition to judgment." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). Under the AEDPA, a summary disposition by a state court constitutes a disposition on the merits. Harrington v. Richter, 562 U.S. 86, 99 (2011). Where AEDPA's deferential standard of review applies, "[a] state court's determination of a factual issue is presumed to be correct, and may only be rebutted by clear and convincing evidence." Bierenbaum v. Graham, 607 F.3d 36, 48 (2d Cir. 2010) (citing 28 U.S.C. § 2254(e)(1)), cert. denied, 131 S.Ct. 1693 (2011). "[A] state court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 291 (2010).
In determining whether a state court has adjudicated a claim "on the merits," a federal habeas corpus court must classify the state court decision as either (1) fairly appearing to rest primarily on federal law or to be interwoven with federal law; or (2) fairly appearing to rest primarily on state procedural law. Jimenez v. Walker, 458 F.3d 130, 145 (2d Cir. 2006). Decisions in the first category are deemed to have been made "on the merits" of the federal claim. Id.
A decision "on the merits" is contrary to clearly established federal law when it is either contrary to Supreme Court precedent on a question of law or opposite to a relevant Supreme Court case with materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). "Section 2254(d)(1)'s 'clearly established' phrase refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decisions." Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (citation and internal quotation marks omitted). "[F]ederal law, as defined by the Supreme Court, may be either a generalized standard enunciated in the Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir. 2002). "[C]ircuit precedent does not constitute clearly established Federal law, as determined by the Supreme Court . . . [and] cannot form the basis for habeas relief under AEDPA." Parker v. Matthews, ___ U.S. ___, 132 S.Ct. 2148, 2155 (2012) (citation and internal quotation marks omitted).
A state court unreasonably applies federal law when it correctly identifies the governing legal rule in a particular case but applies the rule to the facts in an "objectively unreasonable" manner. Lockyer, 538 U.S. at 75. An erroneous application of federal law is not necessarily an unreasonable one. Williams, 529 U.S. at 413. "Under § 2254(d)(1), 'a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond an possibility for fairminded disagreement.'" White v. Wheeler, ___ U.S. ___, ___ S.Ct. ___, No. 14-1372, 2015 WL 8546240, at *2, 2015 U.S. LEXIS 7998, * 5-6 (Dec. 14, 2015) (per curiam) (quoting White v. Woodall, ___ U.S. ___, 134 S.Ct. 1697, 1702 (2014), see also Nevada v. Jackson, ___ U.S. ___, 133 S.Ct. 1990, 1992 (2013) (per curiam) ("It is settled that a federal habeas corpus may overturn a state court's application of federal law only if it is so erroneous that 'there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents.'") (quoting Richter, 562 U.S. at 101). "[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." Lockyer, 538 U.S. at 75-76.
Federal habeas corpus review is limited to determining whether petitioner is in custody in violation of the Constitution, laws, or treaties of the United States. See 28 U.S.C. §§ 2241(c), 2254(a); see also Wainwright v. Goode, 464 U.S. 78, 83 (1983) ("[F]ederal courts may intervene in the state judicial process only to correct wrongs of a constitutional dimension."). Federal habeas relief does not "lie for errors of state law." Swarthout v. Cooke, 562 U.S. 216, 219 (2011). Petitioner has the burden of proving by a preponderance of the evidence that he is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); see also Smalls v. Batista, 191 F.3d 272, 278 (2d Cir. 1999). "Section 2254(d) reflects the view that habeas corpus is a 'guard against extreme malfunctions in the state criminal justice system,' not a substitute for ordinary error correction through appeal." Richter, 131 S.Ct. at 786. Where a claim has been adjudicated on the merits by a state court, federal habeas review is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen, 131 S.Ct. at 1398.
IV. ANALYSIS
A. Trial Court's Denial of Petitioner's Request for a Adjournment of the Trial Date
Petitioner contends that the trial court's refusal to grant his December 3, 2007, request for an adjournment of his trial that was scheduled to begin that day violated his constitutional right to due process and the effective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments. (Dkt. No. 1 at 5.) On remittitur from the Court of Appeals on Appeal No. 1, the Appellate Division, affirming Petitioner's conviction on the charges before it, noted that while Petitioner claimed that he had to represent himself at trial because his attorney had told him he was not prepared, his attorney had denied telling Petitioner he was not prepared. People v. Clyde, 935 N.Y.S.2d 795, 797 (4th Dep't 2011). The Court also focused on Petitioner's comment to Judge Wiggin's that District Attorney Vargason's term in office would expire in a few weeks, and he would not try the case on an adjourned date, and concluded that "'[w]here, as here, the defendant's request for an adjournment sought a tactical advantage, the court properly denied the request. Id.
It is "well established as a fundamental matter of due process that the defendant in a criminal case has the right to present a defense, that is, to present to the jury admissible evidence that might influence the determination of guilt." Grotto v. Herbert, 316 F.3d 198, 205-06 (2d Cir. 2003). However, "[n]ot every restriction on counsel's time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant's Sixth Amendment right to counsel." Morris v. Slappy, 461 U.S. 1, 11 (1983). A ruling on a request for an adjournment is "traditionally within the discretion of the trial judge." Ungar v. Sarafite, 376 U.S. 575, 589 (1964); see also Grotto, 316 F.3d at 206 ("The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel.") (quoting Ungar, 376 U.S. at 589).
The Supreme Court has recognized that trial judges bear the burden of "assembling the witnesses, lawyers, and jurors at the same place a the same time," and "this burden counsels against continuances except for compelling reasons." Morris, 461 U.S. at 11. "Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay'" violates due process." Id. at 11-12 (quoting Ungar, 376 U.S. at 589). "There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." Ungar, 376 U.S. at 589; see also Grotto, 316 F.3d at 206.
Here, there was neither an arbitrary denial of Petitioner's request for an adjournment of the trial nor an unreasonable insistence on expeditiousness. Moreover, the circumstances surrounding Petitioner's representation by appointed defense counsel Bates leading up to trial indicate that Petitioner was not prejudiced by the trial court's denial of his request for an adjournment.
Bates represented Petitioner from the time of his arraignment on March 20, 2007, until December 3, 2007, the day Petitioner's trial was scheduled to commence. (Dkt. No. 14-24 at 2, 132.) Following Petitioner's arraignment, Bates was aggressively engaged in Petitioner's defense and filed and appeared in court on a comprehensive omnibus motion, id. at 8-23; 14-27 at 59-65; received a bill of particulars from the prosecution, id. at 9; moved to dismiss the indictment (Dkt. No. 14-27 at 39-41); requested and appeared at a Wade hearing on Petitioner's behalf (Dkt. Nos. 14-24 at 25-96; 14-27 at 65); went to Vargason's office on more than one occasion to discuss the case, id. at 120-21; and appeared at a number of pre-trial conferences. (Dkt. No. 14-27 at 12-14.)
Although DOCCS failed to comply with Judge Wiggin's order and did not move Petitioner closer to Auburn until November 29, 2007, Bates still had three days to meet with Petitioner to prepare for trial. (Dkt. No. 14-24 at 119-120.) Significantly, Bates told Judge Wiggins that he had not told Petitioner, who was aware that Vargason's term as District Attorney was ending soon, that he was not prepared to go forward with the trial as Petitioner claimed. (Dkt. No. 14-24 at 126.)
Bates had, in fact, informed Judge Wiggins that he and Petitioner were ready for trial when they appeared at a pretrial conference on October 19, 2007. (Dkt. No. 14-24 at 101.)
Furthermore, the trial had been scheduled to begin on December 3, 2007, since at least November 7, 2007, when Judge Wiggins issued the transfer order. (Dkt. No. 14-27 at 119-20.) The prospective jurors were already at the courthouse when Petitioner requested the adjournment. (Dkt. No. 14-24 at 111.)
In light of the foregoing, and given the broad discretion given trial court judges in ruling on adjournment requests, it is evident that the Fourth Department's affirmance of the trial court's denial of Petitioner's request for an adjournment was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent. Accordingly, the Court recommends that Petitioner's claim that his rights to due process and effective assistance of counsel were violated by the denial of his request for an adjournment be denied.
B. Trial Court's Handling of Petitioner's Decision to Proceed Pro Se at Trial
Petitioner claims that his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments were violated by the trial court's failure to conduct a sufficiently searching inquiry before allowing him to proceed pro se at trial. On remittitur from the Court of Appeals on Appeal No. 1, the Appellate Division, affirming Petitioner's conviction on the charges before it, concluded that "[t]he record establishes that the court conducted an exceedingly thorough and searching inquiry to ensure that defendant's waiver of the right to be represented by counsel was knowing, voluntary and intelligent." People v. Clyde, 935 N.Y.S.2d 795, 797 (4th Dep't 2011).
"The Sixth Amendment secures to a defendant who faces incarceration the right to counsel at all 'critical stages' of the criminal process." Iowa v. Tovar, 541 U.S. 77, 87 (2004) (quoting Maine v. Moulton, 474 U.S. 159, 170 (1985)). The Sixth Amendment right to assistance of counsel also "embodies a correlative right to dispense with a lawyer's help." Faretta v. California, 422 U.S. 806, 814 (1975).
Clearly established Supreme Court precedent requires that before permitting a criminal defendant to proceed pro se, a court determine that the waiver of counsel is "knowing, voluntary and intelligent." Tovar, 541 U.S. at 88 (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). The Supreme Court has described a waiver of counsel as intelligent when the defendant "knows what he is doing and his choice is made with eyes open." Tovar, 541 U.S. at 88 (citation and internal quotation marks omitted). The determination of whether there has been an intelligent waiver of rights depends on the circumstances of the case, "including the defendant's education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding." Id. at 88 (citing Johnson, 304 U.S. at 464).
The Supreme Court has not "prescribed any formula or script to read to a defendant who states that he elects to proceed without counsel." Id. However, before a defendant is permitted to proceed pro se, he must be "warned specifically of the hazards ahead," including the "dangers and disadvantages of self-representation[.]" Id. at 88-89.
Judge Wiggins questioned Petitioner regarding his education, physical and mental condition, his employment history and his understanding of the charges against him, function of the court and jury, and his experience. (Dkt. No. 14-24 at 134-40.) In addition, Judge Wiggins covered in exhaustive detail the dangers and disadvantages of self-representation and cautioned Petitioner against it, particularly in light of the availability of highly skilled counsel who had represented him throughout the case to defend him at trial. (See Dkt. No. 24-14 at 132-50.) Judge Wiggins gave Petitioner an opportunity to discuss the issue of self-representation with Bates both before and after he had advised him of the significant pitfalls of self-representation. Id. at 133, 150. Petitioner nonetheless decided to waive counsel and proceed to trial pro se. Id. at 151; Dkt. No. 14-27 at 121. While allowing Petitioner to proceed pro se, the trial court mandated that Bates be available through trial if Petitioner needed his advice. (Dkt. No, 24-14 at 143.)
The Court agrees with the Appellate Division finding that the trial court conducted "an exceedingly thorough and searching inquiry" to determine whether Petitioner's waiver of counsel was knowing, voluntary and intelligent, People v. Clyde, 935 N.Y.S.2d at 979, and also finds that the trial court did a very thorough job of advising Petitioner of the dangers and disadvantages of representing himself at trial. Therefore, the Court finds that the Appellate Division decision on the issue of Petitioner's self-representation was not contrary to or an unreasonable application of clearly established Supreme Court precedent and recommends that Petitioner's claim be denied.
C. Shackling of Petitioner at Trial
Petitioner claims that the trial court violated his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments by requiring him to be shackled in leg irons throughout the trial. (Dkt. No. 1 at 8.) The Appellate Division agreed in Appeal No. 1, with one dissent, and ordered that the judgment of conviction on the charges before it be reversed because of the trial court's failure to articulate a reasonable basis on the record for requiring Petitioner to be restrained in shackles. People v. Clyde, 899 N.Y.S.2d 757 (4th Dep't 2010). The Court of Appeals, in a 4-3 decision, reversed the Appellate Division determination on the shackling on harmless error grounds. People v. Clyde, 938 N.Y.S.2d 243, 250 (2011).
In Deck v. Missouri, 544 U.S. 622, 629 (2005), abrogated on other grounds, Fry v. Pliler, 551 U.S. 112 (2007), the Supreme Court concluded that "the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial." In Deck, 544 U.S. at 631, the Supreme Court identified the three fundamental legal principles underlying its determination on shackling as the presumption of innocence, which is undermined by shackling; the right to secure a meaningful defense, which is diminished by physical restraints that interfere with an accused's ability to confer with counsel and ability to participate in his own defense; and maintenance of a dignified judicial process. Deck, 544 U.S. at 630-32.
The Supreme Court noted in Deck that "visible shackling undermines the presumption of innocence and the related fairness of the factfinding process . . . and suggests to the jury that the justice system itself sees a need to separate a defendant from the community at large." Deck, 544 U.S. at 630 (citation and internal quotation marks omitted).
The Supreme Court recognized in Deck that there will be instances where shackling at trial is unavoidable, and noted that "[w]e do not underestimate the need to restrain dangerous defendants to prevent courtroom attacks, or the need to give trial courts latitude in making individualized security determinations." Deck, 544 U.S. at 632. However, the Court made it clear that the trial court must justify the use of visible shackles by a case specific security determination reflecting particular concerns such as special security needs or escape risks, with individualized findings on the record. Id. at 633.
There is nothing in the state court record setting forth Judge Wiggin's rationale for requiring Petitioner to be shackled at trial. "Where a court, without adequate justification [articulated on the record], orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation." Deck, 544 U.S. at 635. Thus, the Court of Appeals correctly found that requiring Petitioner to be shackled in a manner visible to the jury during trial without an adequate justification appearing on the record constituted a violation of his right to due process. People v. Clyde, 938 N.Y.S.2d at 248.
However, a Deck error is not grounds for reversal if it did not affect the verdict because as the Supreme Court confirmed in Deck, the harmless error analysis applies to the use of physical restraints on a criminal defendant at trial. Deck, 544 U.S. at 635. A habeas court assessing the prejudicial impact of a constitutional error in a state court trial must apply the harmless error standard articulated in Brecht v. Abrahamson, 507 U.S. 619, 638 (1993) (constitutional error requires reversal only if it "had [a] substantial and injurious effect or influence in determining the jury's verdict."). See Fry, 551 U.S. at 121-22 (in habeas proceedings under the AEDPA, "a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the 'substantial and injurious effect' standard set forth in Brecht, supra, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the harmless beyond a reasonable doubt standard set forth in Chapman [v. California, 386 U.S. 18, 24 (1967)].") (internal quotation marks omitted).
The Court of Appeals held that the harmless error analysis was applicable. People v. Clyde, 938 N.Y.S.2d at 244-45. However, the Court recited the requirement set forth in Chapman and followed in Deck that the State prove "beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained," and concluded that the Court's job was to "decide whether the proof of Clyde's guilt was overwhelming and whether there [was] no reasonable possibility that the jury would have acquitted him were it not for the shackling error." Id. at 247 (citing Deck, 544 U.S. at 635). The majority concluded that considering the DNA evidence, the identification testimony, and evidence that items found at the scene of the attack matched items in Petitioner's cell, the evidence of guilt was overwhelming and there was no reasonable possibility of acquittal by the jury had Petitioner not worn shackles. Id. at 248.
This Court likewise concludes that the evidence of Petitioner's guilt was overwhelming and acquittal not a reasonable possibility absent the shackles, and applying "the substantial and injurious effect" in Brecht, as it is required to do, finds that the trial court's failure to articulate its reasons for requiring shackling on the record was harmless error. Therefore, the Court recommends that Petitioner's shackling claim be denied.
The three judge dissent in People v. Clyde, 938 N.Y.S.2d 243, 250-52 (2011) also applied the Chapman beyond a reasonable doubt standard for harmless error rather than the substantial and injurious effect standard in Brecht and concluded that although the evidence was overwhelming as to some of the charges, it was not overwhelming with respect to the attempted rape in the first degree charge reinstated by the majority. Id. at 250. This Court finds that even if the evidence on the attempted rape charge was arguably less "overwhelming" than on the other charges, considering the totality of the evidence at trial on all of the charges, the shackling did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 638. Furthermore, it had to have been obvious to the jury from the evidence at trial that Petitioner was incarcerated in the DOCCS system at the time of the crimes for which he was on trial, and the jurors could as likely as not have assumed his incarceration was the reason for the shackling. See Walker v. Martel, 709 F.3d 925, 942 (9th Cir. 2013) (although jury became aware of knee restraint on defendant's leg under his clothing during trial, "it only suggested [his] custody status, not a proclivity for violence, as his hands were unencumbered.")
D. Legal Insufficiency of the Evidence on the Attempted Rape in the First Degree Charge
Petitioner claims that his conviction on attempted rape in the first degree was based upon legally insufficient evidence and properly dismissed by Judge Wiggins despite the jury's finding of guilt. (Dkt. Nos. 1 at 9; 14-26 at 453-56, 481-82, 493-94.) The Appellate Division affirmed the dismissal in Appeal No. 2., People v. Clyde, 899 N.Y.S.2d 757 (4th Dep't 2010), and the Court of Appeals reinstated the conviction. People v. Clyde, 938 N.Y.S.2d 243 (2011).
The dissent in People v. Clyde, 938 N.Y.S.2d 243 (2011) was limited to the shackling issue. --------
In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court made it clear "that it is the responsibility of the jury not the court to decide what conclusions should be drawn from the evidence admitted at trial." Cavazos v. Smith, ___ U.S. ___, 132 S.Ct. 2, 4 (2011). A reviewing court may set aside a jury's verdict on the ground of insufficient evidence only "if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324; see also Hoffler v. Bezio, 726 F.3d 144, 162 (2d Cir. 2013) ("A defendant challenging the sufficiency of the evidence bears a heavy burden because . . . [the court] must view the evidence in the light most favorable to the prosecution, and doing so, must uphold the jury verdict as long as 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'") (quoting Jackson, 443 U.S. at 319) (emphasis in original).
Furthermore, "a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was 'objectively unreasonable.'" Cavazos, 132 S.Ct. at 4 (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)) (internal quotation marks omitted).
Under Jackson, a habeas court is required to first look to state law for the substantive elements of the crime at issue. Jackson, 443 U.S. at 324 n.16. Penal Law §130.35(1) provides in relevant part that "A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person: 1. By forcible compulsion." Penal Law § 110.00 provides that "A person is guilty of an attempt to commit a crime when, with the intent to commit a crime, he engages in conduct which tends to effect the commission of a crime." Under Penal Law § 110.00, the accused's "conduct must have passed the state of mere intent or mere preparation to commit a crime," and the accused must have "engaged in conduct that came 'dangerously near' commission of the completed crime." People v. Naradzay, 872 N.Y.S.3d 373, 377 (2008) (citations and internal quotation marks omitted). "The 'dangerously near' standard does not, however, mandate that the defendant take 'the final step necessary' to complete the offense." Id. (citing People v. Mahboubian, 544 N.Y.S.2d 769, 777 (1989)). "[T]he boundary where preparation ripens into punishable conduct depends greatly on the facts of the particular case." Mahboubian, 544 N.Y.S.2d at 777.
As noted above, the Supreme Court has made it clear that it is the jury rather than the court that is responsible for deciding what conclusions should be drawn from the evidence. See Cavazos, 132 S.Ct. at 4 (citing Jackson, 443 U.S. 307). In this case the jury found Petitioner guilty on the attempted rape in the first degree charge. (Dkt. No. 14-26 at 453-56.) The majority in the Court of Appeals concluded that a "rational jury could have concluded that the attack was carried forward to a point that came within dangerous proximity to forcible sexual intercourse." People v. Clyde, 938 N.Y.S.2d at 249. The Court of Appeals based its determination regarding sufficiency of the evidence on testimony that Petitioner was lurking in an alleyway that civilian employees walked often along; he attacked a female victim in a corridor that was otherwise empty; he brought items that could silence and restrain a person; he tried to incapacitate V.W.; he did not ask V.W. to help him escape or direct her to do anything other than be quiet; he forced V.W. to the floor and straddled her; he was in the process of binding her hands when Rebich appeared; and evidence was presented from which the jury could infer that he ejaculated before fleeing the scene. Id.
This Court notes that Petitioner not only brought items that could be used to silence V.W., he actually forced either the sock or towel found at the scene into V.W.'s mouth to silence her, presumably to keep her from screaming for assistance. (Dkt. No. 14-26 at 189-90.) In addition, the Court notes that V.W. testified that she had the keys to both the truck she had been driving and the storehouse in her pocket, and there is no evidence suggesting that Petitioner attempted to take the keys to aid in an escape attempt. Id. at 181-82, 209.
The evidence of attempted rape would presumably have been stronger had Petitioner removed some of V.W.'s clothing, put his hands under her clothing, or groped her before Rebich appeared. Id. at 198. Even though he did not, given the trial evidence discussed above, this Court cannot conclude that a rational jury could not have determined that the attack was carried forward to a point that came within dangerous proximity to forcible sexual intercourse. Therefore, the Court finds that the Court of Appeals' reinstatement of the jury's finding of guilt on the charge of attempted rape in the first degree was not contrary to or an unreasonable application of clearly established Supreme Court precedent and recommends that Petitioner's claim be denied.
WHEREFORE, it is hereby
RECOMMENDED, that the Petition for a writ of habeas corpus (Dkt. No. 1) be DENIED and DISMISSED. The Court finds that Petitioner has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2) (2006) ("A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right."); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). Therefore, the Court recommends that no certificate of appealability issue with respect to any of Petitioner's claims; and it is hereby
ORDERED, that the Clerk's Office provide Petitioner with copies of all unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen days 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 FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: December 22, 2015
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge