Petitioner Darryl Dickens, pro se, seeks a writ of habeas corpus from his 1996 conviction in Supreme Court, New York County, of second degree robbery. (Dkt. No. 1: Pet. ¶ 4-6.) Dickens' habeas petition asserts six claims: (1) he was deprived of his right to be present at a voir dire sidebar (Pet. ¶ 14); (2) the trial court unreasonably determined that Dickens waived his right to testify before the grand jury (Pet. ¶ 15); (3) the prosecutor violated the "unsworn witness" rule during the pretrial hearing to determine if Dickens waived his right to testify before the grand jury (Pet. ¶ 16); (4) ineffective assistance of counsel in preventing Dickens from testifying before the grand jury and counsel's testimony at the pretrial hearing about whether Dickens waived his right to testify before the grand jury (Pet. ¶¶ 17-18); (5) the trial court improperly sentenced Dickens as a persistent violent felony offender (Pet. ¶ 19); and (6) ineffective assistance of appellate counsel in failing to identify issues to be reviewed by the New York Court of Appeals (Pet. ¶ 20). (See generally Dkt. No. 2: Dickens Br.; Dkt. No. 15: Dickens Reply Br.)

For the reasons set forth below, Dickens' petition should be DENIED.

Dickens' renewed application for appointment of counsel (Dkt. No. 15: Dickens Reply Br. Ex. A: Dickens 9/3/02 Aff. Seeking Appointment of Counsel) therefore should be, and is, denied. (See also Dkt. No. 5: 7/2/02 Order.) The Court notes that Dickens presented substantial, well-written briefs supporting his habeas petition. (See generally Dkt. No. 2: Dickens Br.; Dkt. No. 15: Dickens Reply Br.)

FACTS

The C.P.L. § 190.50 Hearing

Dickens did not testify before the grand jury. (3/15/96 C.P.L. § 190.50 Hearing Transcript ["H."] 9-11.) On January 19, 1996, Dickens filed a pro se motion claiming he was denied his right to testify before the grandjury. (H. 16; see also Ex. A: 1/19/96 Dickens Motion to Dismiss the Indictment Justice Alvin Schlesinger ordered a hearing pursuant to C.P.L. § 190.50 to address the claim.(See H 1.)

Referenced exhibits are attached to the August 8, 2002 affidavit of Assistant Attorney General Beth J. Thomas in Opposition to Petition for a Writ of Habeas Corpus. (Dkt. No. 14.)

Dickens was represented at the C.P.L. § 190.50 hearing by newly assigned counsel, Alfredo Hernandez. (H. 17.) At the § 190.50 hearing, Dickens testified as follows: On October 19, 1995, the date he was arraigned, he informed his original attorney, Richard Armstrong, of his desire to testify before the grand jury. (H. 7-8, 18-19.) On October 19, 1995, Armstrong filed a cross notice indicating Dickens' wish to testify before the grand jury. (H. 19.) On October 23, 1995, while being held in the "Grand Jury Holding Area, " Dickens reaffirmed to attorney Armstrong his desire to testify before the grand jury. (H. 9-10, 19-21.) However, Dickens was never called to testify before the grand jury, which indicted Dickens on October 23, 1995. (H. 9-11; Ex. A: 1/19/96 Dickens Motion to Dismiss the Indictment.) At the C.P.L. § 190.50 hearing, Dickens testified that he repeatedly called Armstrong subsequent to the indictment to discuss his failure to be called to testify before the grand jury. (H. 11.) Dickens testified that Armstrong told him his "right had been waived." (H. 11-12.) Dickens testified that he still wished to testify before the grand jury and that he never told Armstrong that he did not wish to testify before the grand jury. (H. 17.)

Attorney Armstrong testified at the § 190.50 hearing as follows: At arraignment, Dickens was charged with first degree robbery. (H. 37.) At arraignment, Armstrong told Dickens that he had a right to testify before the grand jury, but that because of his prior record and because his grand jury testimony could be used against him at trial, it would not be wise. (H. 38-39, 48.) Dickens nevertheless said he wanted to testify before the grand jury, and so Armstrong filed written notice to that effect. (H. 38-40, 49-51.) On October 23, 1995, the date for the grand jury presentation, Armstrong spoke with the prosecutor, who was the same Assistant District Attorney involved in the C.P.L. § 190.50 hearing. (H. 40-44, 51.) The prosecutor asked Armstrong on October 23 if Dickens would be willing to not testify before the grand jury if the prosecutor sought indictment only for second degree robbery, not first degree robbery. (H. 43-44.) Armstrong met with Dickens and explained the ramifications of this deal and specifically the benefits of being indicted for second degree as opposed to first degree robbery, including the sentencing benefits and likely plea bargain opportunities. (H. 44-46, 52-56.) According to Armstrong, Dickens clearly agreed that he would waive his right to testify before the grand jury in exchange for being indicted on a lesser charge. (H. 45, 56.)

At the conclusion of the § 190.50 hearing, Justice Schlesinger fully credited Armstrong's version of these events. (H. 69; see also H. 65-71.) Justice Schlesinger found "that defendant agreed with Mr. Armstrong that he was waiving his right to appear and testify before the Grand Jury." (H. 70.) The Assistant District Attorney kept his part of the bargain by seeking indictment only for second degree robbery. (H. 70-71.) Justice Schlesinger concluded: "Motion to dismiss is in all respects denied. The defendant was not denied his statutory right to appear before the Grand Jury inasmuch as he waived the same." (H. 71.)

Prior to trial, Dickens filed an Article 78 petition to dismiss the indictment because he was not given the opportunity to testify before the grand jury. (Ex. D: Article 78 Petition.) The First Department denied the petition on September 26, 1996. (Ex. F: 9/26/96 1st Dep't Decision denying Article 78 Petition.)

Voir Dire

On November 21, 1996, at the commencement of voir dire, the trial judge informed Dickens of his rights under People v. Antommarchi, 80 N.Y.2d 247, 250, 590 N.Y.S.2d 33, 35 (1992), as follows: "if any prospective jurors wants to approach the bench with any personal information, that the defendant has the right to hear what he [the prospective juror is saying] unless he [Dickens] wants to waive it. If he wants to waive his right to be at the bench, I then tell the defense attorney whatever the prospective juror said be communicated to the defendant, the prospective juror then returns to the jury box, then after having heard what they say you can ask any questions appropriate." (Voir Dire Tr. ["V."] 12.)

During voir dire, a prospective juror, Ms. Roberta Yancy, elected to discuss her personal issue at the bench. (V. 51.)

COURT: Miss Yancy, you have something you might want to approach the bench about?

(WHEREUPON, the following transpired at a sidebar discussion on the record among the Court and Counsel, outside the hearing of the defendant and sworn jurors:)

MR. CARBONERO [Defense Counsel]: My client says he does not want to approach the bench.

THE COURT: Step up, Miss Yancy. What's your problem?

PROSPECTIVE JUROR: I was — I was on the subway a couple of years ago, my chain was snatched and they did apprehend the individual and wanted me to come in to identify the person and I didn't want to, I felt I had been violated, I didn't get the chain back, didn't make any sense for me to be identifying the individual.

THE COURT: Would that affect your ability to be fair in this case?

PROSPECTIVE JUROR: No, it wouldn't.

THE COURT: Any other questions?

MR. CARBONERO: No other questions.

THE COURT: Thank you.

(WHEREUPON, the prospective juror leaves the sidebar discussion.)

[ADA] HARDING: I want to make it clear that defendant told defense counsel he's not approaching.

THE COURT: He's waiving his Antommarchi.

(V. 51-52, emphasis added.) Dickens was present in the courtroom throughout this proceeding. (V. 51-52.) The Trial Testimony About Dickens' Robbery of Iacone

Ms. Yancy remained on the jury and was appointed foreperson. (See Dkt. No. 2: Dickens Br. at 11; Dkt. No. 12: State Br. at 13, 25.)

Shortly before 5:00 a.m. on October 18, 1995, Nicholas Iacone, a delivery person employed by a subsidiary of The New York Times, was delivering newspapers to a store at 77th Street and Lexington Avenue in Manhattan. (Iacone: Trial Transcript ["Tr."] 30-31, 49.) As Iacone was returning to his truck, Dickens approached and asked for directions. (Iacone: Tr. 31-32, 69.) As Iacone walked into his truck, Dickens pressed an object that felt like a gun into Iacone's back and took $700-$800 from Iacone's pocket. (Iacone: Tr. 32-33, 50-51.) Dickens ran and when Iacone saw that the object in Dickens' hand did not appear to be a gun, he gave chase. (Iacone: Tr. 35, 51-56, 75; see also Westcott: Tr. 92.)

Iacone and two passers by found Dickens hiding under a nearby car. (Iacone: Tr. 36, 57-58.) They removed Dickens from underneath the car, but he started fighting with them and managed to escape. (Iacone: Tr. 36-37, 59.) Iacone went back to the store to notify his supervisor and the police. (Iacone: Tr. 37, 52-53, 63; Westcott: Tr. 79; Murray: Tr. 95; Callahan: Tr. 114.)

The police and Iacone's supervisors arrived and began searching for Dickens and the stolen money. (Iacone: Tr. 37-39; Wescott: Tr. 79-82; Murray: Tr. 95-97; Callahan: Tr. 114, 129; O'Brien: Tr. 132-33.) The supervisors soon found Dickens lying under another car in the same area, and the police took Dickens into custody. (Iacone: Tr. 40, 62-63, 73-74; Wescott: Tr. 82-85, 88-89; Murray: Tr. 96-100; Callahan: Tr. 118, 121-24; O'Brien: Tr. 136-38, 157.) The police found the stolen money underneath the car where Dickens had been hiding. (Iacone: Tr. 41-43; Wescott: Tr. 84-86; Murray: Tr. 101; Callahan: Tr. 118-19; O'Brien: Tr. 145-47.) At the scene, Iacone identified Dickens as the robber. (Iacone: Tr. 43, 46; see also Callahan: Tr. 117-18; O'Brien: Tr. 138-39.) Iacone unequivocally identified Dickens at trial as the robber. (Iacone: Tr. 43, 46.)

At the close of the prosecution's case, defense counsel moved to dismiss the indictment on the ground that Iacone testified that "during the immediate flight [from] the robbery, he knew there was in fact no weapon and that any belief that he might have had that there was a weapon, was immediately dispelled . . . and that therefore, the crime of robbery in the second degree which requires the belief that a weapon exists, even if no actual weapon exists, has not been made out." (Tr. 184-85.) The trial court denied the motion, and the defense rested. (Tr. 186.) In summation, defense counsel told the jury that there was reasonable doubt because of inconsistencies in the testimony e.g. Tr. 96-98) and also stressed Iacone's testimony that when he turned around he saw that what the robber was holding was "dull" and was not a gun ( e.g., Tr. 198-204).

At the conclusion of trial, the jury found Dickens guilty of second degree robbery. (Tr. 291-93.)

Sentence

On December 18, 1996, Dickens was sentenced to twenty years to life imprisonment as a persistent violent felony offender. (12/18/96 Sentence Transcript ["S."] 34.) The prosecution provided Dickens and his counsel with copies of Dickens' 1993 sentencing minutes (S. 2-4), but did not have copies of the 1988 Kings County sentencing minutes (S. 4). The judge read into the sentencing record the colloquy from the 1993 sentencing minutes in which Dickens, represented by counsel, stated that he did not challenge the constitutionality of his 1988 conviction. (S. 15-18.) Dickens' trial attorney on the current case, Joseph Carbonero, argued that Dickens' counsel during the 1993 attempted robbery sentencing was ineffective, and requested to further review the minutes from the 1988 sentencing hearing. (S. 18-20.) The judge denied the request. (S. 20.) Carbonero further objected to the constitutionality of the 1993 plea, arguing that the allocution did not satisfy all the elements of second degree robbery. (S. 21-22.) The judge found Dickens to be a second violent felony offender, based on the 1993 conviction and allocution. (S. 23; see also S. 27-28.) The judge thus sentenced Dickens to twenty years to life imprisonment as a persistent violent felon, this being his fourth felony conviction. (S. 34.)

Dickens' Direct Appeal to the First Department

Represented by new counsel, Dolores Kanski (Dickens' fourth attorney in this case), Dickens' direct appeal to the First Department raised, inter alia the following claims: (1) "reversible error occurred when [Dickens] was denied his right to testify before the grand jury" (Ex G: Dickens 1st Dep't Br. at 8; see also id. at 8-13); (2) Dickens "was denied his right to effective assistance of counsel" by Armstrong in connection with the failure to have Dickens testify before the grand jury and in testifying adversely to Dickens at the C.P.L. § 190.50 hearing (id. at 13-17); and (3) at sentencing, "the court improperly found that [Dickens] was a persistent violent felony offender" ( id. at 41; see also id. at 41-49).

The First Department affirmed Dickens' conviction, finding that:

The verdict was based on legally sufficient evidence and there was neither a constructive amendment of the indictment nor a variance between the indictment and the proof . . . .

The record supports the hearing court's credibility determination that defendant consented to his original attorney's sound strategic decision that defendant should not testify before the Grand Jury. In any event, even if we were to find that defendant did not consent, we would find no basis for dismissal of the indictment. We note that defendant's claim of a conflict between himself and his original attorney was rendered moot by the substitution of counsel prior to the CPL 190.50 hearing.

Inasmuch as defendant was adjudicated a second violent felony offender in 1993 without, at that time, raising any constitutional objections to his 1988 conviction, the court had a sufficient basis to find defendant a persistent violent felony offender, without reviewing the 1988 plea minutes. Further, the court provided counsel with sufficient time to review the 1993 plea minutes and to confer with defendant, and counsel's challenges to the 1993 proceeding were groundless.

People v. Dickens, 259 A.D.2d 450, 450-51, 688 N.Y.S.2d 509, 510 (1st Dep't 1999) (citations omitted).

Dickens' appellate counsel requested leave to appeal, which the New York Court of Appeals denied on July 6, 1999. People v. Dickens, 93 N.Y.2d 1002, 695 N.Y.S.2d 748 (1999). The request for leave to appeal merely attached the First Department decision and briefs. (Ex. J: 4/8/99 Request for Leave to Appeal.) However, in his habeas reply brief, Dickens asserts that he separately "submitted pro se correspondences to the New York Court of Appeals dated May 10th and 25th, 1996 [sic], " in which he "requested the [Court of Appeals] to entertain the issues regarding his right to testify before the grand jury and ineffective assistance of counsel claim against Mr. Armstrong." (Dkt. No. 15: Dickens Reply Br. at 9.) Dickens stated that he did not have copies of these letters ( id. at 9 n. 2), but he submitted an August 2, 1999 letter from the Court of Appeals to Dickens acknowledging that his "letters of May 10 and May 25, 1999 were received and considered on the application." (Dickens Reply Br. Ex. C.) The Court therefore credits Dickens' assertion that he exhausted before the New York Court of Appeals his claims that (1) he was denied the right to testify before the grand jury; and (2) that counsel (Armstrong) rendered ineffective assistance regarding Dickens' testifying before the grand jury.

Counsel wrote: "Attached hereto are copies of the Defendant-Appellant's brief, the People's brief, and the decision of the Appellate Division." (Id.)

Dickens' C.P.L. § 440.10 Motion

On March 16, 2000, Dickens filed a pro se motion pursuant to C.P.L. § 440.10 claiming he was denied effective assistance of counsel during the C.P.L. § 190.50 hearing; Dickens alleged that his counsel failed to object when the prosecutor violated the unsworn witness rule by "testifying" during the C.P.L. § 190.50 hearing concerning the agreement between the prosecutor and defense counsel that caused Dickens to not testify before the grand jury. (Ex. L: 3/16/00 Dickens C.P.L. § 440.10 Motion Dickens amended his C.P.L. § 440.10 motion to assert that trial counsel also rendered ineffective assistance by not informing him of his right to be present at the voir dire sidebar and improperly waiving the right in his absence. (Ex. M: 5/19/00 Dickens Amended C.P.L. § 440.10 Motion.)

Dickens had previously filed a pro se motion "pursuant to CPL § 440.10, on January 1, 1998 claiming a violation of his right to be given notes reflecting witness statements, and claiming that his trial counsel was incompetent for failing to seek any remedy for that alleged violation." (Ex. P: 11/22/00 C.P.L. § 440.10 Decision Order at 1 n. 1.) The trial court denied the motion and the First Department denied leave to appeal. (Id.)

On November 22, 2000, the C.P.L. § 440.10 court held that Dickens' ineffective assistance of counsel at the § 190.50 hearing claim "is essentially the same as that which was denied by the Appellate Division [on direct appeal], and is therefore barred. C.P.L. § 440.10(2)(a)." (Ex. P: 11/22/00 § 440.10 Decision Order at 1.) The § 440 court also denied the voir dire sidebar claim, holding that "[d]espite Defendant's contention that he was not properly made aware of his right pursuant to Antommarchi, his awareness of the right is evident from the on-the-record statement by the court advising him of the right. Moreover, despite defendant's contention that he never sought to waive his right pursuant to Antommarchi, his waiver of the right was properly communicated to the court by defense counsel in defendant's absence." (Id. at 3-4.) On March 13, 2001, the First Department denied leave to appeal. (Ex. S.)

Dickens' Coram Nobis Application

Dickens applied to the First Department on or about May 15, 2001 for a writ of error coram nobis on grounds of ineffective assistance of appellate counsel. (Ex. T: 5/15/01 Dickens Coram Nobis Application.) He argued that his counsel's application for leave to appeal to the New York Court of Appeals failed to state with particularity the issues to be reviewed on appeal. ( Id., 5/15/01 Dickens Coram Nobis App. ¶¶ 11-20.) On February 21, 2002, the First Department denied Dickens' coram nobis petition, without opinion. People v. Dickens, 291 A.D.2d 940, 739 N.Y.S.2d 661 (1st Dep't 2002).

Dickens' Federal Habeas Corpus Petition

Dickens' pro se federal habeas corpus petition is dated February 27, 2002 and was received by this Court's Pro Se office on March 8, 2002. (Dkt. No. 1: Pet.) Dickens' federal habeas petition alleges that: (1) he was deprived of his right to be present at a voir dire sidebar (Pet. ¶ 14); (2) the trial court unreasonably determined that Dickens waived his right to testify before the grand jury (Pet. ¶ 15); (3) the prosecutor violated the "unsworn witness" rule during the pretrial hearing to determine if Dickens waived his right to testify before the grand jury (Pet. ¶ 16); (4) ineffective assistance of counsel in preventing Dickens from testifying before the grand jury and counsel's testimony at the pretrial hearing about whether Dickens waived his right to testify before the grand jury (Pet. ¶¶ 17-18); (5) the trial court improperly sentenced Dickens as a persistent violent felony offender (Pet. ¶ 19); and (6) ineffective assistance of appellate counsel in failing to identify issues to be reviewed by the New York Court of Appeals (Pet. ¶ 20).

ANALYSIS

I.THE AEDPA REVIEW STANDARD

For additional decisions authored by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of this Report Recommendation, see Aramas v.Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *6-8 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); Velazquez v. Murray, 02 Civ. 2564, 2002 WL 1788022 at *1244 (S.D.N.Y. Aug. 2, 2002) (Peck, M.J.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *6-7 (S.D.N.Y. July 24, 2002) (Peck, M.J.);Green v. Herbert, 01 Civ. 11881, 2002 WL 1587133 at *9-11 (S.D.N.Y. July 18, 2002) (Peck, M.J.); Bueno v. Walsh, 01 Civ. 8738, 2002 WL 1498004 at *10-11 (S.D.N.Y. July 12, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *14 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *8-9 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *12-13 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Jamison v.Grier, 01 Civ. 6678, 2002 WL 100642 at 8-9 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *4-5 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *7 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.); Rivera v.Duncan, 00 Civ. 4923, 2001 WL 1580240 at *6 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *16 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); James v. People of the State of New York, 99 Civ. 8796, 2001 WL 706044 at *11 (S.D.N.Y. June 8, 2001) (Peck, M.J.), report rec. adopted, 2002 WL 31426266 (S.D.N.Y. Oct. 25, 2002) (Berman, D.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.), aff'd, 303 F.3d411, 417 (2d Cir. 2002); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *10 (S.D.N.Y. May 25, 2000) (Peck, M.J.),aff'd No. 01-2474, 2002 WL 1448474 (2d Cir. June 28, 2002).

Before the Court can determine whether Dickens is entitled to federal habeas relief for his claims, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court 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) . . . 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)(1)-(2).

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519. Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence."Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523. "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] 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 at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 296 F.3d at 135; accord,e.g., DelValle v. Armstrong, 2002 WL 31299838 at *2.

Accord, e.g., Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000);Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 532 U.S. 943, 121 S.Ct. 1404 (2001); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116, 121 S.Ct. 865 (2001).

Accord, e.g., DelValle v. Armstrong, No. 01-2675, 2002 WL 31299838 at *1 (2d Cir. Sept. 5, 2002); Yung v. Walker, 296 F.3d 129, 135 (2d Cir. 2002); Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, No. 02-5336, 2002 WL 1662700 (U.S. Oct. 7, 2002); Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.

Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.

Accord, e.g., DelValle v. Armstrong, 2002 WL 31299838 at *1; Yung v. Walker, 296 F.3d at 135; Kennaugh v. Miller, 289 F.3d at 42; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.

In Williams, the Supreme Court explained that "[u]nder the "unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523. However, "[t]he term 'unreasonable' is . . . difficult to define." Id. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law."Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S.Ct. at 1521. The Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . 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.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)); accord, e.g., Ryan v.Miller, 303 F.3d at 245; Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184. Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45; accord Yung v.Walker, 296 F.3d at 135. Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 296 F.3d at 134.

See also, e.g., DelValle v. Armstrong, 2002 WL 31299838 at * 1 ("With regard to issues of law, therefore, if the state court "s decision was not an unreasonable application of, or contrary to, clearly established federal law as defined by Section 2254(d), we may not grant habeas relief even if in our judgment its application was erroneous.").

Accord, e.g., Ryan v. Miller, 303 F.3d 231, 245 (2d Cir. 2002);Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184;Lurie v. Wittner, 228 F.3d at 128-29.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

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. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

Sellan v. Kuhlman, 261 F.3d at 312; accord, e.g., Ryan v. Miller, 303 F.3d at 245; Aeid v. Bennett, 296 F.3d 58, 62 (2d Cir. 2002); Jenkins v.Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word "denied' — triggered AEDPA deference."); Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001) On the other hand, "[i]f it cannot be determined from the state-court opinion whether the denial of a given claim was based on a procedural ground rather than on the merits, no AEDPA deference is due the state-court decision on that claim." Rudenko v. Costello, 286 F.3d 51, 69 (2d Cir. 2002).

The Second Circuit "recognize[d] that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the "unreasonable application' or "contrary to' tests." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:

We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999).

Sellan v. Kuhlman, 261 F.3d at 314; accord, e.g., Norde v. Keane, 294 F.3d at 410; Aparicio v. Artuz, 269 F.3d at 93.

Where the Appellate Division states that the claims are "'either unpreserved for appellate review or without merit,'" but it is clear from the record that a claim was preserved so that the decision must have been on substantive grounds, the Second Circuit "read[s] the state court's opinion as having adjudicated [the petitioner's] claim on its merits [and] [t]hus, the unreasonable application standard of AEDPA applies." Ryan v. Miller, 303 F.3d at 246 (citations omitted).

Here, the First Department's decision on Dickens' direct appeal was not based on any procedural ground. (See page 8 above.) The C.P.L. § 440 court's decision on Dickens' sidebar claim also was merits based. (See page 10 above.) Accordingly, the AEDPA's deferential review standard will apply to all of Dickens' habeas claims.

The § 440 court denied Dickens' ineffective assistance claim on procedural grounds, since it was the same claim he had raised on direct appeal. (See page 10 above.) "Since, however, [petitioner] had raised the same ineffective assistance claim on direct appeal and the First Department ruled on the merits of that claim, the trial court's decision on the § 440 motion does not preclude this Court's habeas review of the claim's merits. And since the First Department ruled on the merits, this Court must employ the AEDPA's deferential standard." Aramas v. Donnelly, 2002 WL 31307929 at *9 (citing cases; fn. omitted).

II. DICKENS' VOIR DIRE CLAIM SHOULD BE DENIED BECAUSE THERE IS NO FEDERAL CONSTITUTIONAL RIGHT TO BE PRESENT AT SIDEBAR DURING VOIR DIRE AND, IN ANY EVENT, DICKENS WAIVED ANY RIGHT TO BE PRESENT

Dickens alleges that a voir dire sidebar was conducted in his absence, violating his constitutional right to be present at all material stages of trial. (Dkt. No. 1: Pet. ¶ 14; Dkt. No. 2: Dickens Br. at 22-25.)

A defendant in a state criminal trial "has a right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v. California, 422 U.S. 806, 819 n 15, 95 S.Ct. 2525, 2533 n. 15 (1975); accord, e.g., Bryant v. Bennett, 00 Civ. 5692, 2001 WL286776 at *3 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Benitez v.Senkowski, 97 Civ. 7819, 1998 WL 668079 at *8 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.). Further, "[i]t is well established that the impaneling of the jury is one such stage." Tankleff v. Senkowski, 135 F.3d 235, 246 (2d Cir. 1998); accord, e.g., Cohen v. Senkowski, 290 F.3d 485, 489 (2d Cir. 2002); Sanchez v. Duncan, 282 F.3d 78, 81 (2d Cir.), cert. denied, No. 01-10399, 2002 WL 1174739 (U.S. Oct. 7, 2002);Bryant v. Bennett, 2001 WL 286776 at *3; Moe v. Walker, 97 Civ. 4701, 1998 WL 872417 at *3 (S.D.N.Y. Dec. 15, 1998) (Cote, D.J.); Benitez v.Senkowski, 1998 WL 668079 at *8.

Under New York law, a defendant is entitled to be present at sidebar discussions when the merits of the case are discussed or where "prospective jurors' backgrounds and their ability to weigh the evidence objectively" are discussed. People v. Antommarchi, 80 N.Y.2d 247, 250, 590 N.Y.S.2d 33, 35 (1992).

See also, e.g., Bryant v. Bennett, 2001 WL 286776 at *3; McKnight v. Superintendent Albauch, 97 Civ. 7415, 2000 WL 1072351 at *6 (S.D.N.Y. Aug. 2, 2000); Gaiter v. Lord, 917 F. Supp. 145, 151-52 (E.D.N.Y. 1996).

However, "'[f]ederal standards regarding a defendant's presence at a side bar are less stringent than New York's standards.'" McKnight v.Superintendent Albauch, 2000 WL 1072351 at *6 (quoting Nichols v. Kelly, 923 F. Supp. 420, 425 (W.D.N.Y. 1996)); accord, e.g., Bryant v. Bennett, 2001 WL 286776 at *3 "Indeed, the Federal Constitution generally "does not require a defendant's presence at sidebar conferences.'" McKnight v.Superintendent Albauch, 2000 WL 1072351 at *6 (quoting Gaiter v. Lord, 917 F. Supp. at 152); accord, e.g., United States v. Feliciano, 223 F.3d 102, 111 (2d Cir. 2000) (noting that the Court has found no case "in which an appellate court has found a structural defect where a defendant was present throughout but unable to hear a circumscribed portion of voir dire, and whose counsel was allowed to consult with him about the limited questioning outside his hearing."), cert. denied, 532 U.S. 943, 121 S.Ct. 1405, 1406 (2001); Persaud v. Mantello, 99 CV 1861, 2002 WL 1447484 at *2 (E.D.N.Y. July 2, 2002) ("district courts in this circuit have held that there is no right to be present at a sidebar conference during voir dire") (citing cases); Johnson v. McGinnis, 99 Civ. 11231, 2001 WL 740727 at *3 (S.D.N.Y. June 29, 2001) ("The right to be present at sidebar during voir dire derives from New York state statutory law. Since a federal court on habeas review is limited to considering only violations of the federal Constitution or federal statutory law, I am procedurally barred from considering this claim.") (citations omitted); Bryant v. Bennett, 2001 WL 286776 at *3 (the federal constitution does not require a defendant's presence at a voir dire sidebar); Benitez v. Senkowski, 1998 WL 668079 at *8 ("However, there is no Constitutional right to appear at sidebar conferencing for peremptory challenges; at most, there is a more limited right to presence during the formal exercise, in open court, of peremptory jury challenges.") (citing cases), cited with approval in Cohen v. Senkowski, 290 F.3d at 490;James v. Senkowski, 97 Civ. 3327, 1998 WL 217903 at *8 (S.D.N.Y. Apr. 29, 1998) (Cote, D.J. Peck, M.J.) ("'there is not now and never has been a right guaranteed in the federal Constitution that a defendant be present at a sidebar voir dire.'").

See also, e.g., Brown v. Edwards, 96 Civ. 3444, 1998 WL 1286349 at *5 (S.D.N.Y. Jan. 15, 1998) ("there is no right guaranteed in the federal Constitution that a defendant be present at sidebar voir dire"); Nichols v. Kelly, 923 F. Supp. at 426; People v. Sprowal, 84 N.Y.2d 113, 119, 615 N.Y.S.2d 328, 332 (1994) ("the doctrinal underpinning of the right to be present at voir dire sidebars [is] one of State, not Federal, law");cf. Sanchez v. Duncan, 282 F.3d at 81-83 n. 4 (holding that "any alleged error at trial related to [petitioner's] absence from voir dire bench conferences was harmless" and thus "[i]n view of our holding, there is no need for us to decide whether [petitioner] in fact had a "clearly established' federal constitutional right to be present at the voir dire sidebars in this case.").

In any event, even if a federal right to be present at sidebar during jury selection existed, it is subject to waiver, so long as the waiver is knowing and voluntary. See, e.g., Cohen v. Senkowski, 290 F.3d at 491;Polizzi v. United States, 926 F.2d 1311, 1319 (2d Cir. 1991); Giles v.Kuhlmann, No. 98-CV-7368, 2002 WL 1751401 at *4 (E.D.N.Y. July 11, 2002) (if the right to be present at a jury sidebar exists, it is subject to waiver); Persaud v. Mantello 2002 WL 1447484 at *2; Johnson v. McGinnis, 2001 WL 740727 at *3 The waiver may be made by the defendant or by defense counsel See e.g., Polizzi v. United States, 926 F.2d at 1322;Giles v. Kuhlmann, 2002 WL 1751401 at *5; Persaud v. Mantello, 2002 WL 1447484 at *2;Moe v. Walker, 1998 WL 872417 at *3. Waiver also may be found through defendant's conduct, such as his failure to object to the procedure. E.g., Cohen v. Senkowski, 290 F.3d at 491, 492 ("when a defendant is fully apprised of the nature of the [sidebar] procedure, makes no objection to the procedure, and has counsel present for the duration of the [sidebar procedure], a knowing waiver of the right to be present occurs.") (citing cases); United States v. Torres, No. 98-1075, 98-1115, 98-1372, 199 F.3d 1324 (table), 1999 WL 1022488 at *2 (2d Cir. Oct. 25, 1999), cert. denied, 531 U.S. 1170, 121 S.Ct. 1137 (2001);Giles v. Kuhlmann, 2002 WL 1751401 at * 5 (petitioner's conduct can supply the evidence that a waiver was knowing and voluntary); Moe v.Walker, 1998 WL 872417 at *3 ("The right may impliedly be waived when the defendant fails to invoke the right to be present at a [voir dire sidebar] conference that he knows is taking place.").

The trial judge made Dickens aware of his state right to be present at a voir dire sidebar as provided in People v. Antommarchi, 80 N.Y.2d 247, 250, 590 N.Y.S.2d 33, 35 (1992). (V. 12.) His attorney notified the court that Dickens had waived this right (V.51) and the prosecutor and judge re-confirmed this waiver with Dickens' attorney at the conclusion of the short sidebar (V. 52). Dickens remained sitting in the courtroom during the entire voir dire process and expressed no desire to attend this sidebar. (V. 51-52.) In denying Dickens' C.P.L. § 440.10 motion, the trial court held that Dickens' "awareness of the right [underAntommarchi] is evident from the on-the-record statement by the court advising him of the right . . . [and] his waiver of the right was properly communicated to the court by defense counsel . . . ." (Ex. P: 11/22/00 § 440.10 Decision Order at 4; see pages 4-5 10 above.) The First Department denied leave to appeal. (Ex. S: 3/13/01 1st Dep't Order.)

Pursuant to the AEDPA, "'a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.'" Boyette v. Lefevere, 246 F.3d 76, 88 (2d Cir. 2001) (quoting 28 U.S.C. § 2254(e)(1)); see also, e.g., Taylor v.Kuhlmann, 36 F. Supp.2d 534, 552 (E.D.N.Y. 1999). Dickens cannot meet that burden here. Indeed, even if there were no presumption of correctness and this Court were deciding the issue de novo, the Court would find that Dickens waived his right to attend the voir dire sidebar.

Dickens concedes that he was aware of his right to attend the sidebar. (Dkt. No. 15: Dickens Reply Br. at 2.) Rather, he contends that he "was not aware of the substance of the side-bar" (Dickens Reply Br. at 2), i.e., what Ms. Yancy said. While counsel should have conferred with Dickens about what the potential juror said at sidebar, the standard is whether the defendant knew of the right to be present at sidebar not whether he knew what the juror said at sidebar.

Dickens' claim that he was denied his constitutional right to be present during a voir dire sidebar is not cognizable on federal habeas review and, even if it were cognizable, is without merit since he waived any right to be present. Dickens' voir dire sidebar habeas claim, therefore, should be denied.

III. DICKENS' CLAIMS THAT HIS RIGHTS WERE VIOLATED BECAUSE HE WAS (1) DENIED THE RIGHT TO TESTIFY BEFORE THE GRAND JURY, AND (2) THE PROSECUTOR VIOLATED THE "UNSWORN WITNESS" RULE DURING THE C.P.L. § 190.50 REARING SHOULD BE DENIED BECAUSE TILE TRIAL JURY'S CONVICTION OF DICKENS RENDERED ANY GRAND JURY ERROR HARMLESS

Dickens argues that the indictment should have been dismissed on two grounds. First, Dickens asserts that he intended to testify before the grand jury, but he was never given the opportunity to do so, and the C.P.L. § 190.50 court's finding of waiver was not supported by the evidence. (Pet. ¶ 15; see also Dkt. No. 2: Dickens Br. at 22-25; Dkt. No. 2: Dickens Aff. ¶¶ 15-18.) Second, Dickens asserts that the prosecutor violated the "unsworn witness" rule at the C.P.L. § 190.50 hearing when the prosecutor allegedly effectively testified about certain pre-indictment events through his cross-examination of Dickens' former attorney. (Pet. ¶ 16; Dickens Br. at 26-30. Specifically, Dickens alleges that during the § 190.50 hearing, the prosecutor made statements about the events that took place prior to the grand jury hearing and the credibility of Dickens' former attorney's testimony. (Dickens Br. at 27.) Dickens maintains that this was unfair because there was no opportunity to cross-examine the prosecutor, and asserts that the prosecutor should have withdrawn from the case because of this involvement. (Id. at 26-28.)

Dickens also asserts grand jury related ineffective assistance of counsel claims which are addressed in the next section.

Dickens' grand jury claims are meritless. A jury conviction transforms any defect connected with the grand jury's charging decision into harmless error, because the trial conviction establishes probable cause to indict and also proof of guilt beyond a reasonable doubt. See e.g.,United States v. Mechanik, 475 U.S. 66, 68, 106 S.Ct. 938, 940 (1986) ("The petit jury's verdict of guilty beyond a reasonable doubt demonstrates a fortiori that there was probable cause to charge the defendants with the offenses for which they were convicted. Therefore, the convictions must stand despite the [grand jury] rule violation.");Davis v. Mantello, No. 01-2264, 42 Fed. Appx. 488, 490-91, 2002 WL 1032687 at *2 (2d Cir. May 22, 2002) ("Claims of deficiencies in state grand jury proceedings are not cognizable in a habeas corpus proceeding in federal court.") (citing cases); Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) ("If federal grand jury rights are not cognizable on direct appeal where rendered harmless by a petit jury, similar claims concerning a state grand jury proceeding are a fortiori foreclosed in a collateral attack brought in federal court."); James v. United States, 00 Civ. 8818, 2002 WL 1023146 at *12 (S.D.N.Y. May 20, 2002)(§ 2255 petition; "It is well established that a guilty verdict at trial remedies any defects or errors in the grand jury indictment."); Lemons v.Parrott, 01 Civ. 9366, 2002 WL 850028 at *5-6 (S.D.N.Y. May 2, 2002);Barnes v. Giambruno, 01 Civ. 8965, 2002 WL 850020 at *7 (S.D.N.Y. May 2, 2002); Burgess v. Bintz, 00 Civ. 8271, 2002 WL727Oll at *4 (S.D.N.Y. Apr. 24, 2002) (Cote, D.J.);McMoore v. Miller, No. 9:98CV1915, 2002 WL 975305 at *8 (N.D.N.Y. Apr. 19, 2002); Ballard v. Costello, No. 01-CV-1000, 2001 WL 1388297 at *2 (E.D.N.Y. Nov. 2, 2001); Davis v.Portuondo, 00 Civ. 8928, 2001 WL 1273801 at *6 (S.D.N.Y. Oct. 23, 2001) ("[A]n error in grand jury proceedings is necessarily rendered harmless by a trial jury's subsequent finding of guilt beyond a reasonable doubt."); Bramble v. Smith, 96 Civ. 5905, 1998 WL395265 at *18 (S.D.N.Y. July 15, 1998) ("claims of error relating to state grand jury proceedings are not cognizable on federal collateral review."); Spulka v. Walker, 97 Civ. 1879, 1998 WL 274287 at *2 (S.D.N.Y. May 27, 1998) (Cote, D.J.) ("[T]he guilty verdict of the petit jury cured any defect in the grand jury proceeding.").

See also, e.g., Green v. Artuz, 990 F. Supp. 267, 273 n. 8 (S.D.N.Y. 1998) ("The right to testify before a grand jury is a state statutory right, and is not of constitutional dimension."); Velez v.People of the State of New York, 941 F. Supp. 300, 315-16 (E.D.N.Y. 1996); Mirrer v. Smyley, 703 F. Supp. 10, 11-12 (S.D.N.Y.) (Petitioner's "first claim, that the state grand jury proceeding was unlawful, " alleges that the prosecutor failed to re-call him to finish testifying before the grand jury. "However, there is no federal constitutional right to a grand jury in a state criminal proceeding. The right to a grand jury is a matter of New York State law and as such is not reviewable on a petition for habeas corpus."), aff'd, 876 F.2d 890 (2d Cir.), cert. denied, 493 U.S. 850, 110 S.Ct. 148 (1989).
In any event, the C.P.L. § 190.50 court heard evidence from Dickens and from his former counsel, Armstrong. (See pages 2-4 above.) Dickens' argument is that the court should have believed him rather than Armstrong. (Dickens Br. at 22-25.) His argument that Armstrong was an "interested" witness at the C.P.L. § 190.50 hearing (Dickens Br. at 25) is amusing, since it ignores the fact that as the defendant, Dickens was more "interested" in the outcome of that hearing. (See Dkt. No. 12: State Br. at 22.) In any event, under the AEDPA this Court must defer to the State court's findings of fact see 28 U.S.C. § 2254(e)(1) (state factual determination is "presumed to be correct"), and Dickens has not rebutted that "presumption of correctness by clear and convincing evidence." Id.

Because the C.P.L. § 190.50 hearing was solely concerned with determining whether any error occurred during the grand jury process, an issue not cognizable on habeas review, any error committed during the § 190.50 hearing could only raise state law issues and not any federal constitutional issue cognizable on habeas review. Cf Velez v.People of State of New York, 941 F. Supp. at 315-16 (claim that counsel was ineffective for inter alia, failing to file a timely § 190.50 motion to dismiss the indictment held not cognizable on habeas review).

In any event, even if cognizable on habeas review, Dickens' claim that the prosecutor violated the "unsworn witness" rule lacks merit. "An attorney acts as an unsworn witness when" he has "first-hand knowledge of the events presented at trial. . . . Moreover, his role as advocate may give his client an unfair advantage, because the attorney can subtly impart to the jury his first-hand knowledge of the events without having to swear an oath or be subject to cross examination." United States v.Locascio, 6 F.3d 924, 933 (2d Cir. 1993) (emphasis added), cert. denied, 511 U.S. 1070, 114 S.Ct. 1645, 1646 (1994). The unsworn witness rule "generally stands for the proposition that the prosecutor may not inject his own credibility into the trial. . . . [T]he rule is founded upon the possible danger that the jury, impressed by the prestige of the office of the District Attorney, will accord great weight to the beliefs and opinions of the prosecutor." People v. Paperno, 54 N.Y.2d 294, 300-01, 445 N.Y.S.2d 119, 123 (1981) (emphasis added). Because, however, the rule is founded on the danger that a jury will accord undue weight to the prosecutor's remarks, the rule has no application at a pretrial hearing outside the jury's presence. See In re Catherine K., 256 A.D.2d 1025, 1026, 682 N.Y.S.2d 700, 701-02 (3d Dep't 1998) (unsworn witness rule has no "reasonable application in a nonjury Family Court proceeding"). In any event, on habeas review, such "trial errors" require reversal only if the error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 1721-22 (1993); See, e.g., Morales v. Miller, 41 F. Supp.2d 364, 378 (E.D.N.Y. 1999) (reviewing alleged violation of "unsworn witness rule" under Brecht standard, and finding error harmless); Nimmons v. Walker, 92 Civ. 5782, 1995 WL 373446 at*3-4 (S.D.N.Y. June 21, 1995) (same). Any error here was harmless.

The Court has carefully reviewed the C.P.L. § 190.50 hearing transcript. The prosecutor did not "testify." Indeed, the first question he asked concerning Armstrong's discussion with the prosecution was asked in a fashion to not identify the questioning ADA as that prosecutor:

Q. [BY ADA HARDING]: Okay. And on the 180.80 day did you have any conversations with the assigned assistant on that case?

A. [BY ARMSTRONG]: Yeah, in fact I had conversations with you prior to the 180.80 date and on the 180.80 date.

(H. 40-41, emphasis added.) Once Armstrong's answer disclosed the prosecutor's personal involvement, his subsequent questions asked for the substance of the conversations. (H. 41-46.) The questions were open-ended, not leading questions (H. 41-46) e.g., "What was the conversation you had with me?" — H. 41). Moreover, the key issue was what Dickens said to Armstrong, not the discussions between Armstrong and the prosecutor, and obviously the prosecutor had no information about the Dickens-Armstrong conversations.

In arguing the motion, the prosecutor did not go beyond Armstrong's testimony. (H. 63-64.)

In short, there was no violation of the "unsworn witness" rule and, in any event, any error would be harmless for two reasons: (1) the prosecutor's questions at the C.P.L. § 190.50 hearing were open-ended and not leading, and (2) any error would only go to Dickens' right to have testified at the grand jury, an issue not cognizable on habeas review.

IV. PRETRIAL COUNSEL WAS NOT INEFFECTIVE UNDER THE STRICKLAND V. WASHINGTON STANDARD

Dickens asserts that his pretrial counsel rendered ineffective assistance (Pet. ¶¶ 17-18), as follows: (1) attorney Richard Armstrong prevented Dickens from testifying before the grand jury and did not apprise him of all of the consequences of waiving that right (Dkt. No. 2: Dickens Br. at 31, 32-33), and testified against him at the C.P.L. § 190.50 hearing (Pet. ¶ 17; Dickens Br. at 32-33); and (2) attorney Alfredo Hernandez failed to move to disqualify the prosecutor at the C.P.L. § 190.50 hearing because of the unsworn witness rule and failed to adequately prepare for the § 190.50 hearing (Pet. ¶ 18; Dickens Br. at 31, 34-36) A. The Strickland v. Washington Standard On Ineffective Assistance of Counsel

The state read Dickens' brief as also raising an unexhausted claim of ineffective trial counsel. (Dkt. No. 2: Dickens Br. at 36-37 n. 8; Dkt. No. 2: Dickens Aff. ¶ 15; Dkt. No. 12: State Br. at 36-38.) Dickens' Reply Brief made clear that he was not raising a claim of ineffective trial counsel. (Dkt. No. 15: Dickens Reply Br. at 7-8.) Dickens explained that his position throughout, including on habeas, was "that he actually participated in the crimes, but he did not have a weapon at all." (Dickens Reply Br. at 7.)

For additional decisions authored by this Judge discussing theStrickland v. Washington standard for ineffective assistance of counsel in language substantially similar to this section of this Report Recommendation, see Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *9-11 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *16-19 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *9-11 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *15-17 (S.D.N.Y. May 8, 2002) (Peck, M.J.);Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *9 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *15-16 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *11 (S.D.N.Y. May 25, 2000) (Peck, M.J.); Dukes v. McGinnis, 99 Civ. 9731, 2000 WL 382059 at *8 (S.D.N.Y. Apr. 17, 2000) (Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *16 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 370 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Santos v.Greiner, 99 Civ. 1545, 1999 WL 756473 at *7 (S.D.N.Y. Sept.24, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 133-34) (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 277 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Boyd v. Hawk, 965 F. Supp. 443, 449 (S.D.N.Y. 1997) (Batts, D.J. Peck, M.J.).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064. This performance is to be judged by an objective standard of reasonableness. Id. at 688, 104 S.Ct. at 2064; accord, e.g., Bell v.Cone, 122 S.Ct. 1843, 1850 (2002).

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065 (citation omitted); accord e.g., Bell v. Cone, 122 S.Ct. at 1852; Aparicio v.Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001).

Second, the defendant must show prejudice from counsel's performance.Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. at 2068-69. Put another way, the "defendant must show 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, 104 S.Ct. at 2068.

See also, e.g., Bell v. Cone, 122 S.Ct. at 1850; Aparicio v.Artuz, 269 F.3d at 95; Sellan v. Kuhlman, 261 F.3d at 315; DeLuca v.Lord, 77 F.3d 578, 584 (2d Cir.), cert. denied, 519 U.S. 824, 117 S.Ct. 83 (1996).

The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S.Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id. The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697, 104 S.Ct. at 2069.

Accord, e.g., Smith v. Robbins, 528 U.S. 259, 286 n. 14, 120 S.Ct. 746, 764 n. 14 (2000).

In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 690-91, 104 S.Ct. at 2066.

See also, e.g., Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("In reviewing Strickland claims, courts are instructed to 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to 'second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (a reviewing court "may not use hindsight to second-guess [counsel's] strategy choices"), cert. denied, 513 U.S. 820, 115 S.Ct. 81 (1994).

As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard." Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).

For purposes of this Court's AEDPA analysis, "the Strickland standard . . . is the relevant 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Aparicio v.Artuz, 269 F.3d at 95 n. 8 (quoting 28 U.S.C. § 2254(d)(1));see also, e.g., Bell v. Cone, 122 S.Ct. at 1852; Sellan v. Kuhlman, 261 F.3d at 315. "For AEDPA purposes, a petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also 'clearly established.'" Aparicio v.Artuz, 269 F.3d at 95 n. 8. "For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. . . . Rather, he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v.Cone, 122 S.Ct. at 1852.

B. Application of the Strickland Standard to Dickens' Pre-Trial Counsel Ineffectiveness Claims

1. Dickens' Ineffective Assistance Claims About His Failure to Testify Before the Grand Jury Should Be Denied

Dickens testified at the C.P.L. § 190.50 hearing that he informed his attorney, Richard Armstrong, of his desire to testify before the grand jury and was ready to do so, but that his attorney waived his rights without his consent. (H. 9-12 17; see pages 2-3 above.) Dickens now asserts that his attorney waived his right to testify without his consent, and also that counsel should have better informed him of the benefits and drawbacks of the deal offered by the prosecutor, and been better prepared. (Pet. ¶ 17; Dkt. No. 2: Dickens Br. at 31-32; Dkt. No. 2: Dickens Aff. ¶¶ 8-15.)

Dickens' claim is meritless for several reasons. First and foremost, there is no federally-cognizable ineffective assistance claim concerning advice regarding the state grand jury process. As the Second Circuit explained:

We also reject the petitioner's argument that his claim should be interpreted as a claim for ineffective assistance of counsel based on his attorney's failure to secure his right to testify before the grand jury. . . . A defendant's right to testify before the grand jury is not a constitutional right; rather, it is a statutorily created right. N.Y. Crim. Proc. Law § 190.50(5). New York courts have consistently held that counsel's failure to ensure that the defendant testifies before the grand jury does not amount to ineffective assistance of counsel.

Davis v. Mantello, No. 01-2264, 42 Fed. Appx. 488, 491 n. 1, 2002 WL 1032687 at *2 n. 1 (2d Cir. May 22, 2002) (emphasis added; citing cases); see also, e.g., Lemons v. Parrott, 01 Civ. 9366, 2002 WL 850028 at *6 (S.D.N.Y. May 2, 2002) (petitioner's "ineffective assistance claim is denied because his failure to testify in front of the grand jury did not prejudice his defense" since he was convicted by the trial jury);Ballard v. Costello, No. 01-CV-1000, 2001 WL 1388297 at *2-3 (E.D.N.Y. Nov. 2, 2001); Davis v. Portuondo, 00 Civ. 8928, 2001 WL 1273801 at *6 (S.D.N.Y. Oct. 23, 2001); Thompson v. Kelly, No. 97-CV-258, 1999 WL 166820 at *2 (W.D.N.Y. Feb. 4, 1999) (because "claims of error relating to state grand jury proceedings are not cognizable on federal habeas corpus review, . . . [i]t necessarily follows as a matter of law that [petitioner] cannot establish that any errors made by his trial counsel with respect to the grand jury proceeding prejudiced him, thereby foreclosing the possibility of a Sixth Amendment violation."); Bramble v. Smith, 96 Civ. 5905, 1998 WL 395265 at *18 (S.D.N.Y. July 15, 1998) ("even if counsel failed to inform Petitioner of his right to testify before a grand jury, this does not state a claim for ineffective assistance of counsel under Strickland because Petitioner cannot show prejudice, " since "[u]nder federal law, a jury conviction transforms any grand jury defect connected with the charging decision into harmless error because the trial conviction establishes not only probable cause to indict, but proof of guilt beyond a reasonable doubt."); Velez v. People of the State of New York, 941 F. Supp. 300, 316 (S.D.N.Y. 1996); cf Boyd v. Hawk, 965 F. Supp. 443, 451 (S.D.N.Y. 1997) (Batts, D.J. Peck, M.J.) ("[Petitioner] fails to allege or show prejudice, i.e., he presents no argument that if he had appeared before the grand jury, the grand jury's action would have been any different. . . . Given the overwhelming evidence of [his] guilt, including his admission to participating in a scheme to defraud, and the low burden of proof for obtaining an indictment, it is unlikely that the grand jury would have voted not to indict [him] if he had appeared before them.").

Second, even if there were an ineffective assistance claim regarding grand jury testimony, Dickens' claim still would fail as a matter of fact. Dickens' argument that Armstrong's waiver of Dickens' right to testify without his consent was ineffective is contradicted by the state court's factual findings (see pages 4, 8 above), upheld by this Court (see pages 21-23 above), that Armstrong in fact obtained Dickens' consent. See also, e.g., McMoore v. Miller, No. 9:98CV1915, 2002 WL 975305 at *8 (N.D.N.Y. Apr. 19, 2002) (Petitioner's "ineffectiveness claim concerning his failure to testify before the grand jury fails for two reasons. First, he has not presented clear and convincing evidence which indicates that [the state courtjudge] erred when he found that [petitioner] ultimately agreed with counsel's advice not to testify before the grand jury. Since [counsel] offered a strategic reason for this advice, [petitioners] ineffectiveness claim on this theory must fail.") (citations omitted); Ballard v. Costello, 2001 WL 1388297 at *3 (trial court credited counsel's testimony that she advised petitioner of right to testify before grand jury, and petitioner has not rebutted state court's findings); Davis v. Portuondo, 2001 WL 1273801 at *6 (same).

While Dickens also claims that Armstrong failed to adequately advise him of the drawbacks in not testifying before the grand jury, that argument only would make sense if Dickens claimed that he did agree to waive the right to testify but that he did so based on faulty advice. However, Dickens to this day maintains that he never waived his right to testify before the grand jury. (See, e.g., Dkt. No. 2: Dickens Aff. ¶¶ 10, 14.) Thus, Armstrong's alleged failure to advise Dickens of the detriments in not testifying is irrelevant since Dickens asserts he wanted to testify.

Third, the Court cannot say that Armstrong's advice to Dickens, that he should not testify before the grand jury (especially in light of the prosecutor's agreement to seek an indictment only for second rather than first degree robbery if Dickens did not testify) was objectively unreasonable advice. See, e.g., Sam v. Brown No. 00-CV-4170, 2002 WL 31102644 at *4 (E.D.N.Y. Sept. 10, 2002) ("Subjecting a target in [petitioner's] position to interrogation before the grand jury is an extremely risky tactic. There is often little to be gained by it and much to lose. Moreover, [petitioner] has not shown that he would not have been indicted by the grand jury had he testified. . . . [In light of police testimony, it] is improbable that [petitioner's] testimony at the grand jury would have kept him from being indicted, or eventually convicted." Thus, counsel not ineffective.); McMoore v. Miller, 2002 WL 975305 at *8 (quoted on page 32 above); Bramble v. Smith, 1998 WL 395265 at *18 (no ineffective assistance claim for failing to inform petitioner of right to testify before the grand jury, "because Petitioner cannot show prejudice" since he was convicted at trial);Green v. Artuz, 990 F. Supp. 267, 273 (S.D.N.Y. 1998) (counsel did not err by withdrawing grand jury notice without petitioner's consent, because had petitioner testified, the prosecutor would have been able to cross examine petitioner with respect to his prior convictions, potentially damaging his case at trial);Waterman v. Scully, 92 Civ. 5176, 1993 WL 127967 at *2 (S.D.N.Y. Apr. 20, 1993) ("Trial counsel could reasonably have concluded that petitioner had little to gain by testifying before the grand jury. . . . Trial counsel knew that the prosecutor would have had the strategic advantage of learning the details of petitioner's version of the events . . . .")

This is especially so since Dickens has stated that he would have admitted to the robbery but denied that he had a weapon. (Dkt. No. 15: Dickens Reply Br. at 7; Dkt. No. 2: Dickens Aff. ¶ 11.) Thus, to convince the grandjury to indict for third degree robbery (See Dickens Reply Br. at 7; Dickens Aff. ¶¶ 11-12), Dickens would have admitted to third degree robbery; and the jury still could have indicted for second (or even first) degree robbery based on the grand jury testimony of lacone and/or the police. Strategically, it would make more sense to raise the no weapon defense at trial by cross-examining Iacone, as trial counsel did (See page 7 above), or also possibly having Dickens testify at trial. Thus, it was a reasonable strategic choice to not have Dickens testify before the grand jury. Cf. United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992) ("It was a reasonable tactical decision to rely exclusively on attacking the Government's witnesses . . . rather than to subject [defendant] to all of the risk attendant on cross-examination."); Mitchell v. Scully, 746 F.2d 951, 954-55 (2d Cir. 1984) (counsel not ineffective for failing to present a "play pistol" defense to first degree robbery, since defendant "'would have been forced to take the witness stand, and to concede to the burglary and robbery, in order to present his "play pistol" claim to the trier of fact.'"), cert. denied, 470 U.S. 1056, 105 S.Ct. 1765 (1985).

Finally, Dickens' claim that Armstrong rendered ineffective assistance by testifying adversely to him at the C.P.L. § 190.50 hearing is frivolous. As the First Department correctly noted, Armstrong was no longer Dickens' counsel at the time of that hearing. People v. Dickens, 259 A.D.2d 450, 451, 688 N.Y.S.2d 509, 510 (1st Dep't 1999). Dickens' argument, if accepted, would make it impossible for counsel to testify at a C.P.L. § 190.50 hearing or any other hearing (unless testifying favorably for the defendant), and obviously that is not the law See e.g., Chang v. United States, 250 F.3d 79, 80, 85-86 (2d Cir. 2001) (dismissing § 2255 habeas claim based on former counsel's affidavit contradicting petitioner's assertion that he had been prevented from testifying at trial); Davila-Bajana v. United States, No. 01 CV 7329, 2002 WL 2022646 at *4 (E.D.N.Y. June 26, 2002) (Raggi, D.J.) (based on attorney affidavit contradicting petitioner's account, court rejected § 2255 petitioner's claim that his attorney ignored his request to file a notice of appeal); Adama v. United States, 99 CR 1177, 01 Civ. 5539, 2001 WL 1568809 at *1 (S.D.N.Y. Dec. 7, 2001) ("Petitioner's contention that he received ineffective assistance of counsel because counsel did not file a notice of appeal as requested is directly contradicted by an affidavit from his prior counsel who states that no such request was made."); Gutierrez-Fernandez v. United States, 97 CR. 1173, 99 Civ. 4484, 2000 WL 1559945 at *4 (S.D.N.Y. Oct. 18, 2000) (same); People v. Rodas, 252 A.D.2d 594, 594-95, 677 N.Y.S.2d 797, 797 (2d Dep't 1998) ("At the hearing on the motion to withdraw his plea of guilty, the defendant's former attorney . . . expressly contradicted the defendant's testimony"), appeal denied, 92 N.Y.2d 1053, 685 N.Y.S.2d 431 (1999); People v. Jacques, 136 A.D.2d 756, 756-57, 523 N.Y.S.2d 214, 215-16 (3d Dept) (based on former defense counsel's testimony at § 440 hearing, court properly dismissed defendant's ineffective counsel claim), appeal denied, 71 N.Y.2d 969, 529 N.Y.S.2d 80 (1988); People v. Lewis, 165 Misc.2d 814, 815, 630 N.Y.S.2d 605, 607 (Sup.Ct. Kings Co. 1995) (based on testimony of former counsel, denying defendant's motion to "vacate his plea on the grounds of coercion and misrepresentation by defense counsel").

Thus, Dickens' claim that he was denied effective assistance of pretrial counsel by Armstrong should be denied.

2. Dickens Was Not Prejudiced By His Second Pretrial Attorney's Decision Not to Move to Disqualify the Prosecutor at the § 190.50 Hearing

Dickens alleges that during the C.P.L. § 190.50 hearing, the prosecutor violated the unsworn witness rule" by offering his own personal account of prior proceedings, and that his second pretrial counsel, Hernandez, was ineffective for failing to move to disqualify the prosecutor at the C.P.L. § 190.50 hearing, thus allowing the prosecutor to violate the "unsworn witness" rule. (Pet. ¶ 18; Dkt. No. 2: Dickens Br. at 31, 34-35.)

The Strickland standard, however, requires Dickens to prove that prejudice resulted from his attorney's conduct. See Point IV.A above.) Here, as discussed in Point III above, Dickens' argument that the prosecutor was an "unsworn witness" lacks merit. Thus, any error by counsel in failing to move to disqualify the prosecutor from conducting the C.P.L. § 190.50 hearing could not have prejudiced Dickens. (See cases cited at pages 24-25 above.) Moreover, as noted above, any error regarding the grand jury proceedings was rendered harmless by Dickens' conviction by the trial

jury. (See page 22 above.) Dickens' ineffective assistance claim against attorney Hernandez should be denied for failure to show prejudice.

V. DICKENS' DUE PROCESS RIGHTS WERE NOT VIOLATED WHEN HE WAS SENTENCED AS A PERSISTENT VIOLENT FELONY OFFENDER

Dickens alleges that he was improperly adjudicated a persistent violent felony offender because: (1) his 1988 conviction was unconstitutional; and (2) his 1993 conviction was invalid because there was not enough force to constitute second degree robbery. (Pet. 19; Dkt. No. 2: Dickens Br. at 38-42; Dkt. No. 2: Dickens Aff. ¶¶ 16-22; Dkt. No. 15: Dickens Reply Br. at 13-15.) Dickens specifically alleges that his due process rights were violated when the court at sentencing refused to allow Dickens' attorney, Joseph Carbonaro, to review the minutes from his 1988 conviction. (Dickens Br. at 39.) Further, he alleges that he should not have been adjudicated a persistent violent felon because he never admitted or denied the allegations in the 1993 predicate statement, and because in the 1993 plea allocution, "Dickens did not admit sufficient force to constitute second degree robbery." (Dickens Br. at 38-39; see also Dickens Reply Br. at 14.)

A. The 1988 and 1993 Convictions and the Rule of Lackawanna v. Cross

The Supreme Court has held that "once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained." Lackawanna County District Attorney v. Cross, 532 U.S. 394, 403-04, 121 S.Ct. 1567, 1574 (2001) (citation omitted); accord, e.g., White v. Kapture, No. 01-2490, 42 Fed. Appx. 672, 673-74, 2002 WL 857741 at *2 (6th Cir. May 3, 2002); Jackson v. Miller, 260 F.3d 769, 773-74 (7th Cir. 2001), cert. denied, 122 S.Ct. 1799 (2002); Cary v. Ricks, 00 Civ. 8926, 01 Civ. 1181, 2001 WL 1035141 at *5 (S.D.N.Y. Sept. 7, 2001) ("[T]he misdemeanor claim is not cognizable here. Due to the requirement that petitioners must be in custody to bring habeas corpus claims, a prior expired sentence used to enhance a still undischarged sentence is presumed valid and may not be collaterally attacked pursuant to § 2254 unless it was obtained without the assistance of counsel.").

Here, both Dickens 1988 and 1993 convictions were no longer open to direct or collateral attack, and thus could be used to enhance his sentence in the present case without challenge.

The Supreme Court in Lackawanna recognized an exception to this general rule where "the prior conviction used to enhance the sentence was obtained where there was a failure to appoint counsel in violation of the Sixth Amendment." Lackawanna County District Attorney v. Cross, 532 U.S. at 404, 121 S.Ct. at 1574. This exception has no applicability here, since Dickens was represented by counsel on his 1988 guilty plea (see Dkt. No. 2: Dickens Aff. ¶¶ 16-17) and for his 1993 guilty plea (Ex. Z: 5/20/93 Dickens Plea Allocution at 1; see also Dkt. No. 2: Dickens Aff. ¶¶ 18-19). Four Justices in Lackawanna also recognized the possibility of an exception to the general rule where (1) a state court unjustifiably refused to rule on an earlier constitutional claim that had been properly presented to it, or (2) "[a]lternatively, after the time for direct or collateral review has expired, a defendant may obtain compelling evidence that he is actually innocent of the crime for which he was convicted, and which he could not have uncovered in a timely manner." Lackawanna County District Attorney v. Cross, 532 U.S. at 405, 121 S.Ct. at 1575 (plurality opinion). Neither exception applies to Dickens' 1988 or 1993 convictions. The state courts did not "unjustifiably refuse" to rule on any constitutional claim regarding the 1988 or 1993 convictions; Dickens did not raise any such claim until his sentencing here. Nor has Dickens claimed he has new evidence that he was "actually innocent" of the 1988 or 1993 crimes. While Dickens claims he was innocent in 1988 (Dkt. No. 2: Dickens Aff. ¶ 16-17), his claim is not based on newly discovered evidence; rather, he claims he told the court and his attorney in 1988 that he was innocent, but he was convinced to plead guilty. (Id.) Nor has Dickens claimed he was actually innocent of the 1993 offense.

Accordingly, Dickens has not made out any exception to Lackawanna's general rule, and he cannot challenge his 1988 or 1993 convictions in this habeas proceeding.

B. In Addition, Dickens' Challenge to His 1988 Convictions Is Foreclosed By His 1993 Guilty Plea Allocution

Since Dickens did not challenge his 1988 convictions at the time of his 1993 conviction and sentencing, he was barred from doing so at his sentencing in this case. New York Criminal Procedure Law provides:

Subsequent use of predicate felony conviction finding. Where a finding has been entered pursuant to this section, such finding shall be binding upon that defendant in any future proceeding in which the issue may arise.

C.P.L. § 400.21(8); accord, C.P.L. §§ 400.15, 400.16, 400.20. At Dickens' 1993 guilty plea allocution, the court arraigned Dickens on his predicate felonies, and after consultation with counsel, he chose not to challenge the prior felonies:

See e.g., People v. Catalanotte, 72 N.Y.2d 641, 649, 536 N.Y.S.2d 16, 21 (1988) (C.P.L. § 400.21 "provides that claims of unconstitutionality with respect to prior convictions are waived if not asserted at the predicate felony hearing."), cert. denied, 493 U.S. 811, 110 S.Ct. 55 (1989); People v. Dickerson, 202 A.D.2d 247, 247, 608 N.Y.S.2d 463, 463 (1st Dep't) ("Defendant's failure to challenge the constitutionality of a prior 1975 violent felony conviction at the time of his 1982 second violent felony offender hearing constitutes a waiver of his right to challenge the 1975 conviction at this time."), appeal denied, 83 N.Y.2d 966, 616 N.Y.S.2d 19 (1994); People v. Seifert, 209 A.D.2d 555, 556, 619 N.Y.S.2d 86, 87 (2d Dep't 1994), appeal denied, 85 N.Y.2d 914, 627 N.Y.S.2d 337 (1995); People v. Harris, 199 A.D.2d 102, 103, 605 N.Y.S.2d 865, 865 (1st Dep't 1993); People v. Omaro, 197 A.D.2d 711, 712, 602 N.Y.S.2d 922, 923 (2d Dep't) ("the defendant had previously been adjudicated a second violent felony offender based upon his 1979 conviction, and was, therefore, bound by that adjudication in this proceeding, " where he was adjudicated a persistent felony offender), appeal denied 82 N.Y.2d 900, 610 N.Y.S.2d 167 (1993); People v. Williams, 133 A.D.2d 871, 871-72, 520 N.Y.S.2d 424, 425 (2d Dep't 1987), appeal denied, 70 N.Y.2d 1012, 526 N.Y.S.2d 947 (1988); People v.Evans, 123 A.D.2d 328, 328-29, 506 N.Y.S.2d 221, 223 (2d Dept), appeal denied, 68 N.Y.2d 1000, 510 N.Y.S.2d 1032 (1986).

THE COURT: . . . Arraign each defendant on the predicate, please.

COURT CLERK: Darryl Dickens, a statement has been filed by the District Attorney stating that you have previously been convicted of a felony.

This statement says that on July 5th, 1988, in the Supreme Court of Kings County, you were convicted of the felony of attempted robbery, in the second degree; and on July 5th, 1988, in the Supreme Court of Kings County you were convicted of the felony of attempted robbery, in the second degree.

That one is under Indictment 9211 of'87 and the first conviction was under Indictment 5691 of'88.

Have you been given a copy of this statement and have you read this statement?

THE DEFENDANT DICKENS: Yes, ma'am.

COURT CLERK: If you wish to controvert any allegation made in this statement you must specify the particular allegation or allegations.

Any uncontroverted allegation will be deemed to be admitted by you.

You may also challenge a previous conviction on the grounds it was unconstitutionally obtained.

If you do not make such a challenge at this time, it is deemed a waiver of such a challenge.

Do you wish to controvert a specific allegation or allegations, or challenge your previous conviction on the grounds it was unconstitutionally obtained?

You may confer with your attorney.

(Off the record discussion between Mr. Wachtel and the Defendant Dickens.)

THE DEFENDANT DICKENS: Well. I don't have no real challenges.

I just like to state that the crimes was never — were not Class A felonies.

THE COURT: The arraignment, Mr. Dickens, under the law is either a Class A felony or a violent felony offense.

It is quite clear that those two charges, attempted robbery, in the second degree, in 1988, were, indeed, Class C violent felony offenses.

You do admit you are the person who is named in that information?

THE DEFENDANT DICKENS: Yes.

THE COURT: On the basis of those admissions and statements. I declare you to be a second violent felony offender.

(Ex. Z: 5/20/93 Dickens Guilty Plea Allocution at 32-35, emphasis added.)

Dickens claims that in 1993, he thought he "could only challenge whether [he] was the person named in the [1988] predicate felony [and he] never knew or understood [his] right to contest the constitutionality of [his] 1988 conviction." (Dkt. No. 2: Dickens Aff. ¶ 18.) The 1993 plea allocution clearly refutes this claim — the court clerk advised Dickens that he could "challenge a previous conviction on the grounds it was unconstitutionally obtained." (Ex. Z: 5/20/93 Dickens Guilty Plea Allocution at 33-34.)

Dickens challenges the validity of New York's rule that once a defendant has been found to be a predicate felon, that finding is binding in the future. (Dkt. No. 2: Dickens Br. at 40.) This Court, and other Judges in this Circuit, however, have upheld New York's rule, which really is just a specific application of the collateral estoppel doctrine. See, e.g., Diaz v. Mantello, 99 Civ. 12275, 2002 WL 2031615 at *34 (S.D.N.Y. Sept. 4, 2002) ("'unless good cause be shown for such failure to make timely challenge, ' a defendant who waives a challenge to a previous conviction used as a predicate during a second felony offender hearing thereby waives the right to challenge its validity "in any future proceeding in which the issue may arise."'); Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *18 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.) (state court could properly "rely on [petitioner's] 1989 adjudication as a second violent felony offender in adjudicating him a persistent violent felony offender and habeas relief is unavailable to [petitioner] on the basis that his current sentence was enhanced by his allegedly unconstitutional 1984 conviction."); Phelps v. McLellan, 95 Civ. 7868, 1998 WL 470511 at *1 (S.D.N.Y. Aug. 11, 1998) (The cause the judge involved in the 1985 Conviction determined that Petitioner had a predicate felony conviction by virtue of the 1981 Conviction, and because Petitioner did not contest the validity of the 1981 Conviction at the time of his sentencing in the 1985 Conviction, Petitioner is precluded from disputing the validity of the 1981 Conviction in the instant motion" arising from his 1988 conviction); Lawlor v. Scully, 93 Civ. 2985, 1996 WL 641635 at *4 (S.D.N.Y. Oct. 22, 1996) (petitioner's claim that he was improperly adjudicated a persistent violent felony offender on basis of allegedly unconstitutional 1983 conviction barred from habeas review where, at 1984 sentencing, petitioner "accepted his designation as a second felony offender and expressly waived any attack on the validity of his 1983 felony conviction"); see also e.g., People v. Levine, 257 A.D.2d 478, 478, 684 N.Y.S.2d 520, 520 (1st Dep't) ("Defendant was not entitled to a hearing when he raised constitutional challenges to each of his two prior convictions. Defendant was precluded from contesting the use of his 1983 conviction as a predicate conviction since he had previously been adjudicated a second violent felony offender in 1988 based on that conviction and failed to seek review of that adjudication by direct appeal or appropriate post-judgment motion."),appeal denied, 93 N.Y.2d 900, 689 N.Y.S.2d 712 (1999); cases cited at pages 38-39 n. 29 above.

Accordingly, Dickens' challenge to his 1988 convictions is foreclosed because of the 1993 finding that he was a second violent felony offender.

C. Dickens' Additional Challenges to the 1993 Conviction, and the Conduct of the Current Sentencing Hearing. Lack Merit

Dickens asserts that his attorney should have been given more time to review the minutes of the 1993 plea and to address the constitutionality of that plea. (Dkt. No. 2: Dickens Br. at 39; Dkt. No. 15: Dickens Reply Br. at 13-14.) Trial courts, however, are afforded great discretion as to whether to grant a continuance. See, e.g., Morris v. Slappy, 461 U.S. 1, 18, 103 S.Ct. 1610, 1620 (1983) (holding that the trial judge did not abuse his discretion when he denied a motion for a continuance based on defendant's view that his trial counsel was not adequately prepared);Martinez v. Mancusi, 409 U.S. 959, 965, 93 S.Ct. 273, 277 (1972) ("'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 . . . .'"); People v. Hardy, 294 A.D.2d 516, 516, 742 N.Y.S.2d 562, 562 (2d Dep't) ("Under the circumstances of this case, the County Court providently exercised its discretion in denying the defendant's request for an adjournment of the sentencing hearing."),appeal denied, 98 N.Y.2d 697, 747 N.Y.S.2d 416 (2002); People v. Moran, 287 A.D.2d 328, 329, 731 N.Y.S.2d 374, 374 (1st Dep't 2001) ("The court properly exercised its discretion in denying defendant's request for an adjournment of sentencing for the purpose of investigating alleged juror misconduct during deliberations."), appeal denied, 97 N.Y.2d 707, 739 N.Y.S.2d 108 (2002); People v. Schnackenberg, 269 A.D.2d 618, 619, 704 N.Y.S.2d 161, 163 (3d Dep't) ("With regard to the denial of defendant's request for an adjournment of sentencing, adjournment is a matter left to the sound discretion of the trial court . . ."), appeal denied, 94 N.Y.2d 925, 708 N.Y.S.2d 365 (2000); People v. Anthony, 247 A.D.2d 397, 397, 667 N.Y.S.2d 924, 924 (2d Dep't 1998) ("The court did not improvidently exercise its discretion in denying the defendant's request for a further adjournment of sentencing to allow him to obtain private counsel."); People v. Ippolito, 242 A.D.2d 880, 880-81, 662 N.Y.S.2d 881, 881 (4th Dep't) ("Defendant contends that his sentence was illegally imposed because County Court denied his request for an adjournment to consider whether to withdraw his guilty plea after the previously imposed sentence was found to violate the Penal Law. . . . The determination whether to grant an adjournment of sentencing proceedings rests within the sound discretion of the court and, from our review of the record, we conclude that the court did not abuse its discretion in denying defendant's request. . . . Although the court refused to grant the adjournment, the court informed defense counsel prior to sentencing that it would entertain a motion to vacate the plea and sentence but defendant never availed himself of that opportunity."), appeal denied, 91 N.Y.2d 874, 668 N.Y.S.2d 573 (1997); People v. Alpern, 217 A.D.2d 853, 855, 630 N.Y.S.2d 106, 108-09 (3d Dep't) ("The granting of an adjournment [of sentencing] is a matter left to the discretion of the trial court. . . . The relevant inquiry is whether defendant has been afforded an opportunity to refute those aggravating factors which may have negatively influenced the court."'), appeal denied, 87 N.Y.2d 897, 641 N.Y.S.2d 227 (1995)

Cf. People v. Gines, 284 A.D.2d 134, 134, 725 N.Y.S.2d 846, 846 (1st Dep't 2001) ("Since defendant controverted his persistent felony offender status and did not receive copies of his predicate violent felony offender statements until the day of sentencing, he was statutorily entitled to an adjournment of the hearing for at least two days upon his request.") (citing CPL §§ 400.15(6); 400.16(2)); People v. Jones, 227 A.D.2d 982, 982, 643 N.Y.S.2d 833, 834 (4th Dep't 1996) ("County Court abused its discretion in denying the application of defendant for a brief adjournment of sentencing to investigate the possibility that his mental condition at the time of his plea may have rendered the plea involuntary."); People v. Shabazz, 104 A.D.2d 776, 776-77, 480 N.Y.S.2d 878, 878 (1st Dep't 1984) (Vacating sentence: "thePeople concede that they failed to provide defendant with a copy of the persistent violent felony offender statement until the day of sentencing. Defendant, who, through counsel, wished to controvert at least one aspect of the statement, was thus entitled to an adjournment, as requested, of no less than two days before proceeding with a hearing on the challenged allegation."). Dickens did not raise the statutory issue in state court or here, and it is, in any event, purely a state law question.

The First Department here found that the sentencing "court provided [Dickens] counsel with sufficient time to review the 1993 plea minutes and to confer with defendant. People v. Dickens, 259 A.D.2d 450, 451, 688 N.Y.S.2d 509, 510 (1st Dep't 1999). Under the AEDPA, that finding is entitled to deference (see page 15 above), and even if this Court were reviewing the matter de novo, the Court cannot say that the sentencing judge abused his discretion in denying a continuance where defense counsel was given time to read the 1993 transcript and confer with Dickens at the time of the 1996 sentencing. See S. 5-6.)

At the 1996 sentencing hearing, Dickens' counsel objected to the constitutionality of Dickens 1993 guilty pleas, stating that "it appears to me that the [1993 plea] allocution was insufficient, in that there was not sufficient force admitted to by Mr. Dickens . . . to constitute robbery in the second degree." (S. 21.) It is not clear whether Dickens is pursuing that issue here ( see Dkt. No. 2: Dickens Br. at 38), but if he is, it is without merit. The First Department correctly held that "counsel's challenges to the 1993 proceeding were groundless." People v.Dickens, 259 A.D.2d at 451, 688 N.Y.S.2d at 510. The First Department decision was not contrary to or an unreasonable application of Supreme Court precedent. (See Point I above.) Indeed, it clearly was ruling on an issue of state law (the elements of an offense), and its ruling was correct. During the 1993 plea allocution, Dickens admitted that he shoved the victim to commit the robbery. (Ex. Z: 5/20/93 Dickens Plea Allocution at 29.) Under the Penal Law, a person is guilty of robbery in the second degree when "he forcibly steals property" and "is aided by another person actually present." Penal Law § 160.10(1). In 1993, it is undisputed that Dickens stole the victim's wallet and was aided by his co-defendant. (Ex. Z: 5/20/93 Dickens Plea Allocution at 28-30.) As to "forcibly steals, " Dickens admitted to having "shoved" the victim (id. at 29), and a shove is sufficient to be "force" under the Penal Law.People v. Green, 277 A.D.2d 82, 83, 716 N.Y.S.2d 22, 23 (1st Dep't 2000) ("Defendant's use of force to retain the shoplifted property was established by evidence . . . defendant pushed a security guard"), appeal denied, 96 N.Y.2d 784, 725 N.Y.S.2d 648 (2001); People v. Brown, 266 A.D.2d 77, 77, 698 N.Y.S.2d 625, 626 (1st Dep't 1999) ("There was ample evidence of force, including defendant's act of pushing the victim and knocking him down."), appeal denied, 95 N.Y.2d 794, 711 N.Y.S.2d 162 (2000); People v. Spencer, 255 A.D.2d 167, 167-68, 680 N.Y.S.2d 225, 226 (1st Dep't 1998) ("The Grand Jury could readily infer that defendant's action in standing "chest to chest' with the victim, moving in unison with the victim until the latter was backed up against a subway pole, was meant to intimidate the victim and was indicative of the threat of force, " justifying second degree robbery prosecution), appeal denied, 93 N.Y.2d 879, 689 N.Y.S.2d 441 (1999); People v. Watson, 245 A.D.2d 87, 87-88, 666 N.Y.S.2d 131, 131 (1st Dep't 1997) (Defendant "snatched" the victim's walkman, "shoved the victim," and "display[ed] a gun while fleeing, in order to prevent further pursuit by the victim," sufficient to show use of force for second degree robbery conviction); Peoplev.Read, 228 A.D.2d 304, 304-05, 644 N.Y.S.2d201, 201-02 (1st

Dep't) (Evidence sufficient to prove second degree robbery where defendant "and his accomplices approached the victim and positioned themselves in front and to the side of him, essentially forming a human wall", . . , one of defendant's accomplices then physically blocked the victim from walking past the group by placing her hand on the victim's stomach, and . . . defendant then removed the victim's chain from around his neck and took the victim's wallet and watch. Clearly, defendant and his accomplices at the least threatened the use of force by the manner in which they surrounded defendant and prevented his movement. . . . Defendant's use of force was also shown by the evidence that he pushed the victim while the victim repeatedly pleaded for the return of his possessions."), appeal denied, 88 N.Y.2d 1071, 651 N.Y.S.2d 415 (1996). Thus, the claim Dickens' counsel raised in 1996 about the sufficiency of the 1993 plea was meritless.

For all of these reasons, Dickens' claim that his sentence was improperly enhanced by his prior convictions is not cognizable on habeas review, and, in any event, is without merit.

VII. DICKENS' INEFFECTIVE APPELLATE COUNSEL CLAIM SHOULD BE DENIED BECAUSE HE HAD NO SIXTH AMENDMENT RIGHT TO COUNSEL ON 1115 APPEAL TO THE NEW YORK COURT OF APPEALS

Dickens claims that his appellate counsel was ineffective because his request for leave to appeal to the Court of Appeals (Ex. J: 4/8/99 Request for Leave to Appeal) failed to describe with particularity the claims being appealed. (Pet. ¶ 20; see Dkt. No. 2: Dickens Br. at 43-49.) Dickens alleges that because his appellate counsel failed to exhaust his claims before the Court of Appeals, his claims may now be considered defaulted in federal court. (Pet. ¶ 20; Dickens Br. at 43-44, 47-49.) See, e.g., Grey v. Hoke, 933 F.2d 117, 119-20 (2d Cir. 1991) (where defendant expressly raised one claim in letter to Court of Appeals, and attached to the letter the defendant's First Department brief raising two other claims, the two claims not expressly raised in the letter were deemed unexhausted for federal habeas purposes); accord,e.g., Figueroa v. Greiner, 02 Civ.2 126, 2002 WL 31356512 at *12-14 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.) ( cases cited therein).

The Strickland test, discussed at Point IV.A above, applies to appellate as well as trial counsel. See, e.g., Smith v. Robbins, 528 U.S. at 285, 120 S.Ct. at 764. A petitioner alleging ineffective assistance of appellate counsel must prove both that (1) appellate counsel acted objectively unreasonable in failing to raise a particular issue on appeal, and (2) absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful before the state's highest court. E.g., Smith v. Robbins, 528 U.S. at 285, 120 S.Ct. at 764; Aparicio v. Artuz, 269 F.3d at 95; Mayo v. Henderson, 13 F.3d at 533-34.

Accord, e.g., Evitts v. Lucey, 469 U.S. 387, 396-97, 105 S.Ct. 830, 836-37 (1985); Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001);Sellan v. Kuhlman, 261 F.3d 303, 319 (2d Cir. 2001); McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 513 U.S. 820, 115 S.Ct. 81 (1994); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 508 U.S. 912, 113 S.Ct. 2347 (1993); Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990).
For additional decisions authored by this Judge discussing theStrickland v. Washington standard for ineffective assistance of appellate counsel see Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *16 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *10 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.);Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *12 (S.D.N.Y. May 25, 2000) (Peck, M.J.); Dukes v. McGinnis, 99 Civ. 9731, 2000 WL 382059 at *9 (S.D.N.Y. Apr. 17, 2000) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 371 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 135 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Torres v. Irvin 33 F. Supp.2d 257, 277 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Ehinger v. Miller, 942 F. Supp. 925, 932 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.);Benn v. Stinson, 917 F. Supp. 202, 205 (S.D.N.Y. 1995) (Stein, D.J. Peck, M.J.).

Dickens claim of ineffective appellate counsel should be denied on two independent grounds. First, this Court has accepted Dickens' assertion that he filed separate pro se submissions with the New York Court of Appeals expressly raising all of his claims; this Court thus has deemed all of Dickens' claims to be fully exhausted in state court and has considered such claims on the merits. (See page 9 above.) Because, therefore, Dickens can assert no prejudice from appellate counsel's failure to particularize claims before the New York Court of Appeals, Dickens' claim of ineffective appellate counsel should be dismissed.

Second, Dickens cannot claim ineffective appellate counsel, because there is no federal constitutional right to counsel on appeal to the New York Court of Appeals. In Douglas v. California, 372 U.S. 353, 356-58, 83 S.Ct. 814, 816-17 (1963), the Supreme Court held that the Fourteenth Amendment due process clause requires appointment of counsel to indigent defendants on their first criminal appeal as of right. In Ross v.Moffitt, 417 U.S. 600, 610, 94 S.Ct. 2347, 2443 (1974), the Supreme Court held that the due process clause does not require a state to provide an indigent criminal defendant with counsel on his or her discretionary appeal to the State's highest court. Accord, e.g., Veras v. Strack, 58 F. Supp.2d 201, 202, 206-10 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.) ( cases cited therein). New York law provides for appeal as of right to the New York Court of Appeals only in death penalty cases; otherwise, the New York Court of Appeals retains the discretionary authority to grant leave to appeal. N.Y. Const. Art. VI, § 3(b); C.P.L. §§ 450.70, 450.80, 450.90, 460.20; see also Veras v. Strack, 58 F. Supp.2d at 208.

As noted above, Dickens' claim is that his appellate counsel was ineffective in connection with his discretionary appeal to the New York Court of Appeals. (Pet. ¶ 20; Dkt. No. 2: Dickens Br. at 43-44, 47-49.) However, the law is clear that where, as here, there is no right to counsel for a discretionary appeal, there can be no federal constitutional habeas claim of ineffective assistance of counsel. See,e.g., Coleman v. Thompson, 501 U.S. 722, 757, 11 S.Ct. 2546, 2568 (1991) ("Because [petitioner] had no right to counsel to pursue his appeal in state habeas, any attorney error that led to the default of [petitioner's] claims in state court cannot constitute cause to excuse the default in federal habeas."); Evitts v. Lucey, 469 U.S. 387, 396 n. 7, 105 S.Ct. 830, 836 n. 7 (1985) ("the right to effective assistance of counsel is dependent on the right to counsel itself, " citing Wainwright v. Torna); Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 1301 (1982) ("Since respondent had no constitutional right to counsel [for discretionary state appeals], he could not be deprived of the effective assistance of counsel by his retained counsel's failure to file the application timely."); Oliver v. Greiner, 01 Civ. 4223, 2002 WL 1758915 at *4-5 (S.D.N.Y. July 30, 2002) ("Appellate counsel's failure to make a proper application for leave to appeal [to the N.Y. Court of Appeals] is the primary cause for failure to exhaust offered by petitioners in cases similar to the one at hand. It is well-settled, however, that there is no constitutional right to effective assistance of counsel with respect to the filing of a discretionary appeal.") (citations omitted); Alston v. Senkowski, 210 F. Supp.2d 413, 420-21 n. 2 (S.D.N.Y. 2002) ("just as in Coleman, there is no constitutional right to the effective assistance of counsel with respect to the act that [petitioner's] counsel was called upon to perform: the filing of a discretionary appeal" to the New York Court of Appeals);Silverman v. Edwards, No. 99-CV-7792, 2002 WL 257820 at *11 (E.D.N.Y. Jan 28, 2002) ("Because there is no such constitutional right [to pursue a discretionary appeal to the N.Y. Court of Appeals], "petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings."'); Letizia v. Walker, No. 97-CV-0300, 2001 WL 1117164 at *3 (W.D.N.Y. Sept. 18, 2001) ("because leave to appeal to the New York Court of Appeals is discretionary-N.Y. Crim. Proc. Law § 450.90 — and the Supreme Court has specifically declined to extend the right to counsel to post conviction discretionary appeals, " petitioner cannot claim ineffective appellate counsel for failure to raise a particular claim); Kelly v. Artuz, 98 Civ. 7943, 2001 WL 88227 at *2 (S.D.N.Y. Jan. 31, 2001) ("The essence of [petitioner's] claim of ineffectiveness is that appellate counsel failed to present his claims properly to the New York Court of Appeals in his application for leave to appeal. But this claim fails at the threshold: The Supreme Court has held that since "a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals [beyond the first appeal as of right], ' a defendant "could not be deprived of the effective assistance of counsel by his retained counsel's failure to [perform effectively in seeking such review]."') (brackets in original; citations omitted);George v. Garvin, No. 99-CV-3448, 2000 WL 1897345 at *3 (E.D.N.Y. Dec. 7, 2000); Marziale v. Walker, No. 97CV0512, 2000 WL 33767753 at *6n. 14 (N.D.N.Y. May 4, 2000); Chalk v. Kuhlmann, No. 97CV0539, 2000 WL 33767626 at *4 (N.D.N.Y. Feb. 2, 2000); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 375-76 (S.D.N.Y. Oct. 7, 1999) (Patterson, D.J. Peck, M.J.) (Petitioner "had no constitutional right to counsel for a state collateral attack. . . . Thus [his] counsel cannot be ineffective for failing to bring a CPL § 440.10 collateral attack on the ground of newly discovered evidence."); Veras v. Strack, 58 F. Supp.2d 201, 208-09 (S.D.N.Y. July 20, 1999) (Baer, D.J. Peck, M.J.) ("Since [petitioner] had no federal Constitutional right to counsel for his discretionary appeal to the New York Court of Appeals, counsel's alleged ineffectiveness on such an appeal does not violate any federal Constitutional right to counsel (i.e., only where the federal Constitution mandates appointment of counsel does counsel's ineffectiveness deprive a criminal defendant of Constitutional rights).") ( cases cited therein), certificate of appealability denied, 2000 WL 8249 at * 1 (S.D.N.Y. Jan. 4, 2000) ("The petitioner's allegation in the present case that his counsel was ineffective during the discretionary appeal [to the N.Y. Court of Appeals], and thus constitutionally deprived him of his right to counsel, is therefore simply not debatable, as petitioner had no constitutional right to counsel during that appeal.").

See also, e.g., Atkins v. Miller, 18 F. Supp.2d 314, 321 (S.D.N.Y. 1998); Garcia v. Keane, 973 F. Supp. 364, 371-72 (S.D.N.Y. 1997); Dorst v. Coombe, No. CV-95-2874, 1996 WL 733072 at *3 n. 1 (E.D.N.Y. Dec. 11, 1996); Stewart v. Hanslmaier, No. 95 Civ. 0790, 1996 WL 449285 at *3 (E.D.N.Y. July 29, 1996).

Dickens' claim that his appellate counsel was ineffective for failing to allege with particularity the issues to be reviewed by the New York Court of Appeals has no merit and should be denied.

CONCLUSION

For the reasons set forth above, Dickens' habeas petition should be DENIED in all respects and a certificate of appealability should not issue.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Denise L. Cote, 500 Pearl Street, Room 1040, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Cote. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994);Roldan v. Racette, 984 F.2d 85, 89 (2dCir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

Dickens v. Filion

Summary

Opinion

REPORT AND RECOMMENDATION

FACTS

Voir Dire

Sentence

ANALYSIS

IV. PRETRIAL COUNSEL WAS NOT INEFFECTIVE UNDER THE STRICKLAND V. WASHINGTON STANDARD

V. DICKENS' DUE PROCESS RIGHTS WERE NOT VIOLATED WHEN HE WAS SENTENCED AS A PERSISTENT VIOLENT FELONY OFFENDER

VII. DICKENS' INEFFECTIVE APPELLATE COUNSEL CLAIM SHOULD BE DENIED BECAUSE HE HAD NO SIXTH AMENDMENT RIGHT TO COUNSEL ON 1115 APPEAL TO THE NEW YORK COURT OF APPEALS

CONCLUSION

Dickens v. Filion

Dickens v. Filion

Case Details

Citations

Citing Cases

Dickens v. Filion

Summary

Opinion

REPORT AND RECOMMENDATION

FACTS

Voir Dire

Sentence

ANALYSIS

IV. PRETRIAL COUNSEL WAS NOT INEFFECTIVE UNDER THE STRICKLAND V. WASHINGTON STANDARD

V. DICKENS' DUE PROCESS RIGHTS WERE NOT VIOLATED WHEN HE WAS SENTENCED AS A PERSISTENT VIOLENT FELONY OFFENDER

VII. DICKENS' INEFFECTIVE APPELLATE COUNSEL CLAIM SHOULD BE DENIED BECAUSE HE HAD NO SIXTH AMENDMENT RIGHT TO COUNSEL ON 1115 APPEAL TO THE NEW YORK COURT OF APPEALS

CONCLUSION

Dickens v. Filion

Dickens v. Filion

Case Details

CitationsCopy Citation

Citing Cases

Citations