Opinion
02-CV-6120 (JBW), 03-MISC-0066 (JBW)
October 24, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
This petition was filed on November 14, 2002. Petitioner (sometimes referred to as defendant) claims:
Petitioner was denied his constitutional right to due process of law when there was insufficient evidence to establish petitioner's guilt beyond a reasonable doubt because of the extremely suggestive questioning of the complainant and the pervasive inconsistencies in the complainant's testimony.
Petitioner was denied his constitutional right to due process of law when there was insufficient evidence to establish petitioner's guilt beyond a reasonable doubt because the crucial necessary element of Sodomy in the First Degree was not proven by the testimony at trial.
Petitioner was denied his constitutional right to due process of law when he was denied effective assistance of trial counsel because counsel ineptly handled the cross-examination of the complainant, his elicitation of gravely prejudicial testimony on cross-examination of an expert witness, and his failure to object to the prosecutrix's elicitation of the testimony that rendered the anal-sodomy count duplicitous.
Petitioner was denied his constitutional right to due process of law when he was denied effective assistance of trial counsel because counsel notified the court that he could not continue to properly represent petitioner because petitioner had run out of funds to continue to pay counsel, failed to make an omnibus motion before trial to suppress petitioner's identification by the complainant while he was in handcuffs and between two armed police officers and then, waited until the colloquy on the charge to the jury to raise the question of petitioner's post arrest identification.
Petitioner was denied his constitutional right to due process of law when he was denied effective assistance of trial counsel because his closing argument failed to review the evidence, consisted mostly of his irrelevant personal opinion of the meaning between innocent and not innocent which he articulated in such a way as to prejudice petitioner in the eyes of the jury, and failed to point out the weakness of the case against petitioner.
Petitioner was denied his constitutional right to due process of law when he was denied effective assistance of trial counsel because counsel cross-examined the witnesses in this case be developed more adverse information than positive information and it was totally prejudicial to petitioner.
Petitioner was denied his constitutional right to due process of law when he was denied effective assistance of trial counsel when counsel failed to object to the misconduct in the prosecutrix's summation to the jury.
Petitioner was denied his constitutional right to due process of law when he was denied effective assistance of trial counsel when counsel failed to ensure petitioner's presence at all material stages of his trial.
Petitioner was denied his constitutional right to due process of law when he was denied effective assistance of trial counsel when counsel failed to investigate this case prior to trial and call Det. Faustmann as a witness to impeach Talma Gardner with her prior statement provided to him.
The evidence supports the following statements:
On January 20, 1997, Martin Luther King Day, when public schools were closed, six-year old Tremaine Chavous, his brother, Terrance, and his cousins, Talma and Ebony Gardner, visited the apartment of their neighbor, Lisa Spell man, who lived in the same building as they did, at 280 Frost Street, in Brooklyn.
Defendant was also in the Spellman apartment that day and had moved a television into the room of six-year-old Starasia Spellman, Tremaine, his nine-year-old cousin Talma, Talma's eight-year-old sister Ebody, and Starasia all went into Starasia's room. While Ebody and Starasia played in the closet, Talma sat on the edge of the bed, watching the television.
Behind Talma, defendant lay on the bed under the covers with Tremaine. Defendant pulled Tremaine to him and kissed him on the mouth, While defendant and Tremaine were under the covers on Starasia's bed, defendant pulled down Tremaine's red "long johns" and put his penis in the child's anus. After he was done, he told the child not to tell anyone.
When he got home later that evening, Tremaine ran into the bathroom and complained that his "butt hurt" but did not tell his mother why it hurt. After learning from a neighbor that a man with a reputation for abusing children was staying in the Spellman home, Tremaine's mother awakened Tremaine in the middle of the night and asked him if defendant had done anything to him. Tremaine told her that defendant had put his penis into his "butt" and his mouth, and had kissed him.
For these acts, defendant was charged, by Kings County Indictment Number 1021/97 with two counts of sodomy in the first degree and other crimes.
On October 14, 1997, defendant was convicted in New York State Supreme Court, Kings County, after a jury trial, of sodomy in the first degree (P.L. § 130.50[3]), and sentenced to a definite term of imprisonment of twenty-five years (Marrus, J., at trial, and sentence).
Defendant appealed his conviction to the New York Stale Supreme Court, Appellate Division, Second Department (hereinafter, "Appellate Division"). Defendant's appellate counsel filed a brief on defendant's behalf, asserting the following claims:
i. that the State had not proved defendant's guilt beyond a reasonable doubt and that the verdict was against the weight of the evidence;
ii. that the indictment was rendered duplicitous by the complainant's testimony about a second incident of sodomy;
iii. and that defendant's trial counsel was ineffective for;
a. not cross-examining the complainant about his statement to detective that allegedly gave a different version of events than he testified to at trial;
b. not anticipating an unfavorable answer from the State's medical expert on cross-examination;
c. not being aggressive enough about questioning the complainant regarding his susceptibility to suggestion by his mother; and
d. for failing to protest the prosecutor's questions which elicited the testimony that the complainant had been sodomized twice.
Defendant then sought and received permission to file a pro se supplemental brief In his pro se brief, defendant argues that the verdict was against the weight of the evidence and raised claims of ineffective assistance of trial counsel, enumerated in five points of his brief, including claims that:
a) counsel did not properly time his motions;
b) counsel's motion to dismiss lacked specificity;
c) counsel's summation was inadequate and prejudicial;
d) counsel's cross-examination elicited information which was prejudicial to defendant.
e) counsel failed to make timely objections to prosecutor's summation; and
f) counsel did not insure defendant's presence at all material stages of the trial.
On March 11, 2002, the Appellate Division affirmed defendant's conviction in all respects. People v. Collazo, 292 A.D.2d 462, 738 N.Y.S.2d 877 (2d Dep't 2002). It found that jury verdict was not against the weight of the evidence. Id. At 462. It also expressly rejected defendant's claim that he had received ineffective assistance of counsel, stating that "[u]nder the totality of the circumstances, the defendant received the effective assistance of counsel." Id.
On May 10, 2002, defendant, by his attorney, sought leave to appeal the Appellate Division's affirmance of his conviction in the Court of Appeals, On July 15, 2002, the New York State Court of Appeals denied defendant's application for leave to appeal. People v. Collazo, 98 N.Y.2d 695, 747 N.Y.S.2d 414 (2002).
In papers dated May 7, 2002, defendant sought, pro se, to vacate his judgment of conviction, pursuant to N.Y. Crim. Pro, Law § 440.10. In that motion, defendant claimed that he was denied effective assistance of trial counsel. Defendant asserted that his trial counsel was ineffective for failing to question the complainant's cousin Talma about a police report which allegedly contradicted her trial testimony on one point.
In a written decision dated July 26, 2002, the Supreme Court, Kings County, denied defendant's motion on the merits, noting that although defendant claimed there was a discrepance between Talma's statement to the police and her trial testimony, there is no "apparent material contradiction" between the two accounts. (Decision of 7/25/2002, at 1).
Defendant sought leave to appeal the trial court's denial of his motion to vacate, On October 8, 2002, the Appellate Division denied defendant's leave application.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 19% ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)), Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts," Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case," Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111(2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context," Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence, Berbary v. Torres, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003), Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence," 28 U.S.C. § 2254(e)(1).
III. Limitations Period
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review," Id. § 2244(d)(1)(A). A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Rosy v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion." Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground." Id.
In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted. . . ." 28 U.S.C. § 2244(d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is ` properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar," (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Arms, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause, See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements, Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998), But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law." Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition," 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time," Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, No. 02-2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the Court of Appeals has explained,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations,Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 158 F.3d 762, 780 (5th Cir. 1999)).
IV. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991), The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court," Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement," Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
V. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law., or demonstrate that failure lo consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750, In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harm v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and men rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996), When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000), Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits," Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 20 03)), This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence. Id., at 321. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence arc rarely successful," Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding."). A habeas court is, in short, concerned "`not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.'" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances).
VII. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant" shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const, amend, VI. This right to counsel is "the right to effective assistance of counsel," McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result," Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also Wiggins v. Smith, 539 U.S. ___, No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at (594.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed," Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support," Strickland, 466 U.S. at 696, "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome," Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter., strategic choices made by counsel after a thorough investigation of the facts and law arc "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91, Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The Court of Appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, 46( 5 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No, 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel, See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance." Id. (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have dented him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976), The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA. See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).
X. Verdict Against the Weight of the Evidence
To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979), Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
XI. Legal Claims Frequently Raised in Habeas Corpus Applications
For an explication of the law concerning other claims that are frequently raised before this court in applications for a writ of habeas corpus, see Waters v. McGuiness, 99-CV-0615, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y. June 16, 2003) (grand jury claims); Custodio v. Duncans, Nos. 99-CV-2561, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y. June 11, 2003) ( Batson challenges); Reyes v. Irwin, 99-CV-3758, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y. June 20, 2003) ( Wade claims); Brathwaite v. Duncan, 00-CV-0860, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11056, at *4-*5 (E.D.N.Y. June 10, 2003) ( Sandoval claims); Thomas v. Kuhlman, 255 F. Supp.2d 99, 108-09 (E.D.N.Y. 2003) (perjured testimony); Martinez v. Greiner, 99-CV-4663, 03-MISC-00(56 (JBW), 2003 U.S. Dist. LEXIS 11046, at *7 (E.D.N.Y. June 20, 2003) ( Fourth Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MTSC-0066 (JBW), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003) ( Rosario claims); Beniquez v. Bennett, 00-CV-0985, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11032, at * 15-* 1(5 (E.D.N.Y. June 16, 2003) (prosecutorial misconduct); Sevencan v. Herbert, No. 01-2491, slip op. at 6-13 (2d Cir. Aug. 7, 2003) (public trial); Cox v. Donnelly, 99-CV-8216, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 9886, at *12-*14 (E.D.N.Y. June 12, 2003) (shifting burden of proof); Jelinek v. Costello, 247 F. Supp.2d 212, 266-67 (E.D.N.Y. 2003) (right to self-representation); Stewart v. Senkowski, 00-CV-0806, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11028, at *6 (E.D.N.Y. June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz, 98-CV-7837, 00-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11049, at *7-*8 (E.D.N.Y. June 13, 2003) (abuse of discretion in sentencing);
XII. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No. 01-2694, 2003 U.S. App. LEXIS 8326, at *92 (2d Cir. May 1, 2003).
XIII. Analysis of Claims
Because petitioner's claims are somewhat overlapping, some are combined for analysis, Those not dealt with explicitly are frivolous.
Under federal law, a state prisoner's habeas petition will not be granted based on a claim that was "adjudicated on the merits" in a state court proceeding unless the adjudication of the claim "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." 28 U.S.C. § 2254(d)(1). Defendant's claims that his guilt was not proven beyond a reasonable doubt and he was denied his right to effective assistance of counsel were explicitly rejected by the Appellate Division in its affirmance of defendant's conviction.People v. Collazo, 252 A.D.2d 462, 738 N.Y.S.2d 877 (2d Dep't 2002). Another of defendant's claims of ineffective assistance was presented in his state motion to vacate judgment and was rejected on the merits by the trial court. None of those adjudications "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," 28 U.S.C. § 2254(d)(1).
A.
Defendant's Claim that His Guilt Was Not Proven Beyond a Reasonable Doubt
The law applied when determining whether a defendant's guilt has been proved beyond a reasonable doubt is set out in Jackson v. Virginia, 443 U.S. 309 (1979). An identical standard is used under New York Slate Law. The verdict of a jury must be affirmed if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Conies, 60 N.Y.2d 620, 621 (1983), quotingJackson v. Virginia, 443 U.S. at 319 (1979).
The six-year-old complainant testified that defendant had sodomized him while the boy was visiting a neighbor's home where defendant was staying. His testimony was corroborated by that of his older cousin, who observed defendant under the covers of a bed with the child, kissing the child on the mouth, and who then observed defendant get up from the bed and zip up his pants, and by the testimony given by the complainant's mother, who revealed that the child had, immediately upon returning home, claimed that "his butt was hurting" and had later reported that defendant had "kissed me and he put his penis in my butt,"
This claim has no merit.
B.
Defendant's Claim that He Was Denied the Effective Assistance of Counsel
Defendant claims lack of effective trial and appellate counsel. Where, like the claims defendant raises here, a defendant's claim that he was denied the effective assistance of counsel is not governed by "any case in which the Supreme Court encountered a `materially indistinguishable set of facts[,]'" this court's review of a state court's decision is limited to determining whether the state court's application of constitutional law was unreasonable. Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2002) (quoting Williams v. Taylor, 529 U.S. at 405); See Loliscio v. Goord, 263 F.3d 178, 193 (2d Cir. 2001) (review of ineffective assistance of counsel claim limited to determining whether state court applied Strickland unreasonably).
A defendant seeking to establish a deprivation of effective assistance of counsel must meet the two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984), The defendant must show that "counsel's performance fell below an objective standard of reasonableness" and that "the deficient performance prejudiced the defense," Strickland, 466 U.S. at 688, 687; Bell v. Cone, 122 S.Ct. 1843, 1850-52, (2002).
To prevail on the first Strickland prong, that counsel's performance was objectively unreasonable, the defendant must overcome a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, To prevail on the second prong, that he suffered prejudice, the defendant must establish that there is a reasonable probability that the outcome of the proceeding would have been different but for counsel's alleged errors, 466 U.S. at 694. In evaluating a claim of ineffective assistance of counsel, the two components of the Strickland test need not be considered in a particular order, but a defendant must establish both prongs or his claim will fail. 466 U.S. at 700; see also Jackson v. Leonardo, 162 F.3d 81 (2d Cir. 1998) (applying theStrickland test). The state test is essentially the same.
In the instant case, the state courts reasonably ruled that defendant had failed to demonstrate that he had been dented the effective assistance of counsel. Addressing the claims of ineffective assistance in defendant's main and supplemental briefs on appeal — which constitute the bulk of the claims defendant raises before this court — the Appellate Division held that, "[u]nder the totality of the circumstances, the defendant received the effective assistance of counsel," Collazo, 292 A.D.2d at 462. In denying defendant's subsequent motion to vacate his judgment of conviction, the state trial court found that "[n]othing in the defendant's application to this court warrants a finding which would contradict the decision of the Appellate Division" (Decision of July 26, 2002 at 2).
The record at trial and the briefs on appeal reveal responsible and professional defense of petitioner's rights.
This claim has no merit.
C.
No other claim rises above the frivolous.
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
A certificate of appealability is granted. These child sex abuse cases are troublesome because of the possibility of trumped up charges through children and horror of juries at the offense. A certificate of appealability is granted on the issue of proof beyond a reasonable doubt.
Petitioner made no other substantial showing of the possible denial of a constitutional right. He may as already indicated, seek a further certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.