Opinion
00-CV-4857 (JBW), 03-MISC-0066(JBW)
August 19, 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
In 1994, petitioner and two codefendants went into a social club in Brooklyn with shotguns and knives. They took money and jewelry from patrons. One of the men threw a chair at a patron's head; another patron was hit with a gun. They were arrested at the scene.
Petitioner was charged with two counts of first degree robbery, six counts of second degree robbery, one count of third degree robbery, five counts of fourth degree grand larceny, one count of second degree assault, one count of third degree assault, three counts of fourth degree criminal possession of a weapon, and three counts of fifth degree possession of stolen property. was sentenced to consecutive terms of 7 to 21 years in prison for each of the two first degree robbery convictions and 5 to 15 years in prison for one of the second degree robbery convictions. The remaining sentences were to run concurrently with these, for an aggregate sentence of 19 to 57 years in prison.
Petitioner's convictions were affirmed on direct appeal by the Appellate Division. Leave to appeal to the New York Court of Appeals was denied.
Petitioner moved to vacate judgment before the trial court, alleging primarily that trial counsel was ineffective for failing to advise him properly with respect to a plea offer. The motion was denied. Leave to appeal to the Appellate Division was denied. No other state collateral proceedings were initiated.
In the instant, timely application for a writ of habeas corpus, petitioner claims (1) that he was denied the effective assistance of trial counsel when he was allegedly misadvised about the maximum sentencing exposure he faced should he go to trial and be convicted; (2) that the evidence presented by the prosecution was legally insufficient to establish his guilt of first and second degree robbery of one of the complaining witnesses, Dorothy Bennett; and (3) that the trial court's jury instruction concerning "recent and exclusive possession of the proceeds of the crime" invaded the province of the jury and amounted to a directed verdict.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on 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). 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 Ck. 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. 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 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).
IV. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court "says that a claim is `not preserved for appellate review' and then ruled `in any event' on the merits, such a claim is not preserved." Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining 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. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
V. 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 defence." 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, United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in 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, 321 F.3d at 136 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
VI. Certificate of Appealability
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)." See also Shabazz v. and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
VII. Analysis of Claims
Petitioner first claims that he was denied the effective assistance of trial counsel when he was allegedly misadvised about the maximum sentencing exposure he faced should he go to trial and be convicted. The prosecutor offered petitioner a sentence of 5 to 15 years in prison if he were to plead guilty lieu of going to trial. According to petitioner, his counsel had informed him that the maximum sentence he could receive if he went to trial and were convicted was 8-1/3 to 25 years in prison, and that based on this representation he decided to go to trial rather than accept the plea offer, He claims that his counsel provided him erroneous information and therefore ineffective representation.
The claim appears to be procedurally barred. It was never raised in state court and, because petitioner has already brought an unsuccessful motion to vacate judgment, there is no forum in which the claim may now be raised. The claim is thus effectively exhausted but procedurally barred, with the effect that this court may not consider the substance of the claim. See Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994). Nonetheless, the trial court, in denying petitioner's motion to vacate judgment, sua sponte addressed the issue of counsel's erroneous computation of petitioner's possible sentence. Under these circumstances, review on the merits under the deferential standards of AEDPA seems proper. already imposed. In an affidavit submitted in opposition to petitioner's motion to vacate judgment, petitioner's trial counsel states that he informed petitioner "that if convicted after trial, he could receive a sentence of eight and one-third to twenty-five years on each count of Robbery in the First Degree." Aff. in Opp. to Mot. to Vacate J. at 1. Petitioner went to trial and received an aggregate sentence of 19 to 57 years in prison. Although counsel's affidavit did not state whether he advised petitioner concerning the sentencing effect of convictions on the remaining charges, the trial court concluded that counsel had misinformed petitioner about his potential sentence. The trial court nonetheless concluded, in light of petitioner's assertion to trial counsel "that he was innocent and that he did not want to accept any plea offers," id., that there was no reasonable probability that but for counsel's unprofessional errors the result of the proceeding would have been different, and that petitioner therefore was not prejudiced by the error. The conclusion of the trial court was neither contrary to nor an unreasonable application of Strickland. Habeas corpus relief is not warranted.
Petitioner next claims that the evidence presented by the prosecution was legally insufficient to establish his guilt of the first and second degree robbery of one of the complaining witnesses, Dorothy Bennett. Petitioner raised this claim in a supplemental pro se brief on direct appeal. It is exhausted and was not procedurally barred. Review proceeds under the deferential standards of AEDPA. 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 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.
Petitioner asserts that proof of his guilt of the robbery counts concerning Ms. Bennett was not established because her testimony at trial was unworthy of belief. In particular, he notes that Ms. Bennett, in describing the somewhat chaotic scene at the nightclub where the robbery occurred, seems to have confused petitioner with one of his codefendants as the man who held a knife to her. Although her testimony was open to attack on this point, Ms. Bennett also clearly identified petitioner in court as one of the men who forcibly took property from her. This evidence alone was sufficient to allow the jury to conclude that petitioner was guilty of the robbery counts. In addition, petitioner was charged in all counts with acting in concert with his codefendants. Because there was overwhelming evidence that the four codefendants were armed with guns and knives, it is irrelevant whether petitioner was or was not one of the perpetrators holding a knife while Ms. Bennett was robbed. Habeas relief on this ground is not warranted.
Finally, petitioner claims that the trial court's jury instruction concerning "recent and exclusive possession of the proceeds of the crime" invaded the province of the jury and amounted to a directed verdict. This claim was raised on direct appeal and rejected by the Appellate Division. It is exhausted and review may proceed under the deferential standards of AEDPA, "In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only from an allegedly improper charge, a reviewing court must view the instruction in its total context. Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). The question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147.
Petitioner's complaint concerns the trial court's instruction to the jury that it could infer, from the defendants' possession of stolen property, that the defendants' were the thieves. According to petitioner, the trial court did not sufficiently qualify its instruction by repeating that property was only "allegedly" found on the defendants and that it was only "allegedly" stolen. The claim is utterly without merit. The trial court repeatedly advised the jury that it was the factfinder, and that it was required to determine whether the property was found on the defendants and whether it was stolen from the alleged victims. In the body of the contested portion of the jury charge, the trial court made this point repeatedly with clarity. Rote repetition of phrases is not necessary where the meaning of the instruction is plain and clear. The contested portion of the charge is as follows:
In order to establish some or all of the essential elements of these crimes, the People contend that, in addition to the other evidence, that within a short time after the commission of the crime defendant Rosa was found to be in possession of the ring allegedly stolen from Dorothy Bennett and keys allegedly stolen from Linford Lambey, and defendant Frazier was found to be in possession of two rings allegedly stolen from Dorothy Bennett. Under our law, when a defendant is proved to be in unexplained and exclusive possession of recently stolen property, such proof is a circumstance from which a jury may, but is not required to, draw an inference that such possession was guilty possession.
However, before you may draw such an inference of guilty possession, the People are required to establish to your satisfaction beyond a reasonable doubt all of the following:
Two: That the property which was found in the possession of Rosa and Frazier was in their exclusive possession. A person has exclusive possession of property when he possesses it either on his person or on his property under circumstances where he can, at any time, exercise full dominion or control over such property, or use or dispose of it as he wishes.
Three: That Rosa and Frazier's possession of the property was recent after the commission of the crime.
The proof in this case is that the allegedly stolen property was found in the possession of Rosa and Frazier within a short time of the theft of same property from Dorothy Bennett and Linford Lambey. The term "recent" has no fixed meaning. It is a relative term, depending on such factors as the nature of the property, the purpose for which it was stolen, whether for retention, disposal or profit, whether such property is of a kind which is readily disposable, et cetera. I instruct you, however, that the longer the period of time that has elapsed from the robbery and the finding and the possession of Rosa and Frazier, the more doubtful should become any inference that may reasonably be drawn from such possession.
Four: That such possession is unexplained or falsely explained. No inference of guilty possession may be drawn from the possession of the property by Rosa and Frazier if you find there is any explanation of such possession other than guilty possession. In deciding whether there exists any explanation other than guilty possession, you must consider all of the evidence in the case, from whatever source produced, relevant to any explanation of such possession.
If the People fail to prove to your satisfaction beyond a reasonable doubt that the property found on the defendant's possession was, in fact, stolen property, and that such possession by Rosa and Frazier was exclusive, recent and unexplained, as I have defined those terms to you, then you must not draw any guilty inference from the possession.
On the other hand, only if the proof satisfies you beyond a reasonable doubt that Rosa and Frazier, in fact, possessed the stolen property, that such possession was exclusive, recent and unexplained, are you then permitted to draw an inference of guilty possession.
If you decide that an inference of guilty possession is warranted, such decision constitutes only part of your function. You must then further determine whether the evidence justifies you in drawing an inference of guilt for the crimes of robbery in the first and second degree as charged in the indictment, or only an inference of guilt in the crime of criminal possession of stolen property in the fifth degree as charged in the indictment.
I remind you that the proof shows that Rosa and Frazier were found in possession of the stolen property within a short time of the commission of the drawn from the guilty possession by Rosa and Frazier in this case is that they are persons who committed the crimes of robbery in the first and second degrees.
On the other hand, depending upon the evidence, a person found in guilty possession of property recently stolen may not be the thief. Instead, he may be a person who receives the property from the thief. In such a case, the only reasonable inference which the jury may draw is that Rosa and Frazier criminally possessed such property, knowing that it was stolen property. In determining whether this latter inference should be drawn, you should consider all of the evidence.
In summary, once you have determined that the People have proved Rosa and Frazier's possession to be guilty possession, it becomes your further function as judges of the facts to decide which inference such guilty possession supports, whether an inference that Rosa and Frazier are the persons who stole the property during the commission of the robbery in the first and second degrees, or an inference that Rosa and Frazier criminally possessed the stolen property knowing that it was stolen.
Whichever inference you decide the evidence in this case supports, I remind you that before you may find Rosa and Frazier guilty of either crime of robbery in the first and second degree charged in the indictment or the crime of criminal possession of stolen property in the fifth degree as charged in the indictment, the People must establish to your satisfaction beyond a reasonable doubt each and every element of such crimes as I have previously defined such elements to you. If the People fail to establish beyond a reasonable doubt the essential elements of robbery in the first and second degrees or criminal possession of stolen property in the fifth degree, you must find Rosa and Frazier not guilty of such crimes.
Trial Tr. at 1551-56.
Looked at in context, the jury was repeatedly instructed that it was responsible for finding all facts and that the court was not. The jury was sufficiently advised of its duty to determine whether the property was recovered from the defendants and whether it was stolen. Habeas relief on this claim is not warranted.
VIII. Conclusion
The petition for a writ of habeas corpus is denied. petitioner having made no substantial showing of the denial of a constitutional right.
SO ORDERED.