Summary
denying a motion to amend for failing to comply with Local Rule 7.1
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9:97-CV-0606 (DNH)(GLS).
October 31, 2000
DAVID J. DONATO, Petitioner, Pro Se, Upstate Correctional Facility, Malone, NY.
HON. ELIOT SPITZER, Office of the Attorney General, State of New York, The Capitol, OF COUNSEL, DARREN O'CONNOR, ESQ., GREGORY J. RODRIGUEZ, ESQ. Ass't Attorney Generals, Albany, NY, FOR THE RESPONDENT.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner, pro se, David J. Donato ("petitioner" or "Donato") filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on April 28, 1997. Then-Magistrate Judge David N. Hurd issued an order pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, directing, inter alia, the Office of the Attorney General for the State of New York ("Attorney General") to file a response to Donato's petition. Docket No. 3. At the request of the Attorney General, then-Magistrate Judge Hurd granted the respondent permission to file a motion to dismiss the petition (Docket No. 8). See Docket No. 9. By Report-Recommendation filed April 8, 1998, then-Magistrate Judge Hurd recommended that the petition be denied and dismissed as time-barred under the one-year statute of limitations applicable to petitions brought under 28 U.S.C. § 2254. Then-Chief Judge Thomas J. McAvoy accepted the Report-Recommendation and dismissed the petition (Docket No. 14). However, that Order was vacated, and this case was re-opened after the Second Circuit issued its decision in Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), which established new guidelines controlling the timeliness of habeas petitions in light of the AEDPA.
The respondent thereafter filed an answer and memorandum of law in support of his request that this court dismiss Donato's petition. Docket Nos. 27 and 28. Petitioner then filed a traverse. Docket No. 29.
On October 4, 1999, nearly two and one-half years after Donato commenced this action, and eight months after the respondent filed his answer to the petition, Donato filed a motion to amend his petition. Docket No. 32.
The Clerk characterized this submission as "Petitioner's supplemental traverse." Docket No. 32. However, the document states that Donato seeks "permission to amend" Donato's petition. Id. at 1. Moreover, upon review of this document, it is clear that this submission is a motion to amend.
II. Discussion
(A) Motion to amend
Looking first to Donato's motion to amend, he seeks to amend his petition so as to assert several new Grounds, including claims that: (i) the District Attorney improperly introduced documentary evidence, including handwritten statements of petitioner and documents relating to a prior conviction of Donato, at the trial; (ii) there was insufficient evidence to sustain the indictment; and, (iii) the District Attorney was improperly allowed to introduce hearsay testimony at Donato's trial. Docket No. 32 at 2.
Donato also seeks to assert new theories in support of his existing claims that he received ineffective assistance of counsel and that his petition should be granted due to prosecutorial misconduct. Id.
Donato's motion must be denied. Local Rule 7.1(a)(4) of the Local Rules of Practice of this District provides, in pertinent part:
An unsigned copy of the proposed amended pleading must be attached to a motion brought under Fed.R.Civ.P. 14, 15, 19-22. Except as provided by leave of court, the proposed amended pleading must be a complete pleading which will supersede the original pleading in all respects. No portion of the prior pleading shall be incorporated into the proposed amended pleading by reference.
The motion must set forth specifically the proposed amendments and identify the amendments in the proposed pleading.
One of the purposes of the requirement that motions to amend be accompanied by a copy of the complete, proposed amended pleading is to eliminate the confusing nature of "piecemeal" amended pleadings. See Rodriguez v. Tedford, No. 95-CV-745, slip op. at 2 (N.D.N.Y. Nov. 7, 1995) (Hurd, M.J.).
Donato failed to include a copy of a complete, proposed amended petition along with his motion to amend, see Docket No. 32. Therefore, his request may be denied on this basis alone. However, the motion must also be denied because petitioner unduly delayed the filing of his motion. In support of his application, petitioner states that "when I prepared my Habeas Corpus, the law clerk rushed me in preparring [sic] my petition of Habeas Corpus and left out important issues." See letter in support of motion to amend (attached to Docket No. 32).
Although leave to amend "shall be freely given when justice so requires," Fed.R.Civ.Proc. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962), the Supreme Court has stated that undue delay on the part of the movant in bringing the motion is a proper basis for denying a motion to amend. Id. at 182. Donato unduly delayed the filing of his motion to amend; it was filed nearly two and one-half years after Donato filed his petition. Donato himself concedes that he was aware of the grounds/theories he now seeks to assert when he originally filed his petition, but claims that he was "rushed" into filing his petition in April of 1997. However, Donato has not provided the court or the respondent with any explanation as to why he waited nearly two and one-half years to file his motion. For this reason, Donato's motion to amend is denied. See e.g., Smith v. Angelone, 111 F.3d 1126 (4th Cir.) (affirming district court's denial of motion to amend where petitioner unduly delayed filing of motion), cert. denied, 521 U.S. 1131 (1997). Accordingly, the court looks to the substance of the original petition in determining whether petitioner is entitled to the relief he seeks.
The Federal Rules of Civil Procedure apply to habeas corpus proceedings. See Fed.R.Civ.P. 81(a).
B. State-Court Proceedings Below
On August 20, 1992, an Onondaga County Grand Jury returned an indictment against Donato which charged him and a co-defendant, Christopher K. Peak ("Peak"), with burglary in the second degree and grand larceny, criminal possession of stolen property, and criminal mischief, all in the fourth degree. Those charges arose from a burglary of the home of Robert and Margaret McDonald in East Syracuse, New York, on February 11, 1992. Trial Tr. of David J. Donato (11/16-20/92) ("Tr.") at 11.
The trial testimony revealed that as Ms. McDonald was returning to her home at about 8 a.m. on February 11, 1992, she saw a car leaving her driveway. Id. at 257. She saw two men with long hair wearing hats in the car as it drove away. Id. at 258-59. Ms. McDonald noted the number on the license plate at that time. Id. at 259. When she entered her home, she discovered that her house had been burglarized, and that numerous personal items, including eight guns, had been stolen. Id. at 262. Ms. McDonald contacted the Onondaga County Sheriff's Department ("Sheriff's Department") and provided it with the license plate number. Id. at 264.
As part of his investigation, Richard Woolley, a detective with the Sheriff's Department, discovered that the number on the license plate belonged to a vehicle registered to Donato. Id. at 316-17. Through research, Woolley learned that Peak was an associate/friend of Donato. Id. at 320-21. Woolley went to Peak's address and noticed Donato's car in a parking lot across the street from Peak's residence. Id. at 321-22. Woolley then noticed a soft blue gun case matching the description of one of the items stolen from McDonald's residence in that car. Id. at 322. On February 13, 1992, after obtaining a search warrant, Woolley searched the car and located the guns that were stolen from the residence, as well as a blanket that was also stolen from the McDonald house which was used to bundle the guns. Id. at 327-28, 45.
In March of 1992, Ms. McDonald went to the Sheriff's Department to identify some of the property that had been recovered. At that time, she identified the guns that had been stolen as well as other items. Id. at 269. Arrest warrants were thereafter obtained for Donato and Peak who were both arrested in April of 1992. Id. at 334.
The Hon. Kevin J. Mulroy presided over a jury trial of Donato and Peak. The jury found Donato guilty of burglary in the second degree and grand larceny, criminal possession of stolen property, and criminal mischief, all in the fourth degree. Id. at 771-72.
On February 8, 1993, Judge Mulroy sentenced Donato to an indeterminate term of twenty years to life imprisonment on the burglary conviction as a persistent violent felony offender. Sentencing Tr. at 31. The sentences on the other convictions were to run concurrent with the burglary sentence. Id. at 31-32.
Donato appealed his conviction to the Appellate Division, Fourth Department ("Appellate Division"). In his appeal, Donato claimed that he was denied: (i) a fair trial due to prosecutorial misconduct; and, (ii) effective assistance of counsel. The Appellate Division considered the merits of both of these claims and unanimously affirmed the conviction. People v. Donato, 202 A.D.2d 1010 (4th Dep't 1994). Donato's application for leave to appeal was denied by the Court of Appeals. People v. Donato, 613 N.Y. 132 (1994).
C. Merits of the Petition
(1) Grounds One and Three
Ground One of the petition alleges that Donato received ineffective assistance due to his counsel's failure to introduce at trial the testimony of an alibi witness, Dale Swank ("Swank"). Docket No. 1 at ¶ 12(a). The Third Ground in petitioner's application restates this same argument, claiming that he received ineffective assistance because the trial court found that his counsel failed to give the prosecution adequate notice relating to the proposed testimony of Swank. Id. at ¶ 12(c).
In DeLuca v. Lord, 77 F.3d 578 (2nd Cir.), cert. denied, 519 U.S. 824 (1996), the Second Circuit discussed the burden on a habeas petitioner who alleges ineffective assistance of counsel. The DeLuca court noted that:
A convicted defendant asserting a claim of ineffective assistance must meet a difficult two-part test. The defendant must first show that counsel's performance was objectively unreasonable under prevailing professional standards.
* * *
Second, even if counsel's performance is found wanting under this standard, there is no violation of the Sixth Amendment unless counsel's deficient performance was prejudicial to the defendant's case.
Id. at 584 (citing Strickland v. Washington, 466 U.S. 668 (1984)).
While not entirely clear from his petition, Donato appears to argue that his counsel erred by his failure to timely advise the prosecution of his intention to call Swank as an alibi witness.
At a hearing before Judge Mulroy as to whether Swank should be permitted to testify, Donato's counsel indicated that he had only recently become aware of Swank as a potential witness, after the time he was required to give the prosecution notice of any alibi witnesses. Tr. at 589. Swank had failed to appear at an earlier appointment to discuss her possible testimony with defense counsel, Id. at 599, and Donato's counsel was only able to question her as to her potential testimony the night before she was to testify. Id. at 589, 599. Despite the foregoing, Donato's counsel attempted to convince the trial judge that the witness should be allowed to testify on behalf of Donato. Indeed, petitioner noted in his petition that his counsel attempted to argue that the prosecution would not be prejudiced if this witness were to testify, Pet. at attached P. 1, and after Judge Mulroy decided to preclude the witness from testifying, "defense counsel continued [to] attempt to convince the court to alter its decision." Id. at attached PP. 2.
See N.Y.Crim.Proc.L. ("CPL") § 250.20.
CPL § 250.20(3) authorizes the trial court to allow an alibi witness to testify even where the requisite notice is not given by defense counsel.
In assessing the reasonableness of counsel's performance, "[j]udicial scrutiny of counsel's performance must be highly deferential." DeLuca, 77 F.2d at 584. In order to demonstrate that his counsel's performance was objectively unreasonable under prevailing professional standards, petitioner is required to prove that his attorney's performance was "so deficient and riddled with errors so serious that counsel was not functioning as the 'counsel' guaranteed the [petitioner] by the Sixth Amendment." Anwar v. U.S., 648 F. Supp. 820, 826 (N.D.N.Y. 1986) (Munson, C.J.) (citing Strickland, 466 U.S. at 687, 694; Cuevas v. Henderson, 801 F.2d 586, 589-90 (2d Cir. 1986)), aff'd, 823 F.2d 544 (2nd Cir. 1987).
The court finds that petitioner has failed to establish this first prong of the Strickland test. None of the documents submitted by petitioner indicate that his counsel was at fault when he discovered that Swank could be an alibi witness only after the time he was required to disclose any alibi witnesses to the prosecution. In fact, the trial transcript reveals that Swank herself failed to meet with Donato's counsel at an earlier date. Tr. at 599. Donato indicates that his counsel zealously sought to have the court nevertheless consider allowing the witness to testify under CPL § 250.20(3). Pet. at attached P. 2. Thus, the court finds that petitioner has failed to establish that his attorney's conduct was objectively unreasonable.
Additionally, petitioner has failed to demonstrate that "but for the deficiency, the likely outcome of the proceeding would have been different." U.S. v. Best, 219 F.3d 192, 201 (2nd Cir. 2000) (citing Strickland, 466 U.S. at 687-96).
Petitioner claims that this witness would have testified that he was at Swank's house the morning of the burglary. Pet. at attached P. 1. However, the prosecution offered testimony of petitioner's girlfriend, Carol Powers ("Powers"), who stated that Donato asked Powers to "back him up in saying that he was at [Powers'] house" the morning of the burglary, and to "get a couple of friends to testify to that, too." Tr. at 204-05. Thus, even had Swank testified, her testimony would have been directly contradicted by the testimony of Donato's girlfriend. Additionally, the victim clearly identified Donato's car leaving her driveway the morning of the burglary. Id. at 259, 271.
Tr. at 190 (indicating relationship between Powers and Donato).
In light of the fact that Donato has failed to demonstrate that: (i) his counsel's conduct was objectively unreasonable; and, (ii) the likely outcome of his trial would have been different, the court recommends that Grounds One and Three of the petition be dismissed.
(2) Ground Two
In this Ground, petitioner contends that the prosecution's re-direct examination of Officer Woolley improperly brought out testimony that Donato had been previously convicted of a robbery/burglary with co-defendant Peak. Pet. at ¶ 12(b) and attached PP. 2-6.
Respondent contends that this claim is without merit, and the record demonstrates that the prosecution's conduct was proper. Docket No. 28 at 8.
The standard of review for a claim of prosecutorial misconduct on a writ of habeas corpus is "the narrow one of due process, and not the broad exercise of supervisory power." Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). Petitioner must establish that the conduct had a substantial and injurious effect or influence in determining the outcome of his trial. Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994). The Bentley court noted that three factors determine whether prosecutorial misconduct has risen to the level of a due process violation: (1) the severity of the misconduct; (2) the measures taken by the trial court to remedy the misconduct; and, (3) the certainty of conviction absent the improper conduct. Id.
During cross-examination, Woolley testified that he was waiting near the vehicle identified by the victim as the one leaving her house after the burglary. Woolley stated that he was watching the car because he thought the suspects, Donato and Peak, might return to the vehicle. The following exchange then took place during defense counsel's questioning of Woolley:
Q. Okay. And you didn't know who [the suspects] were?
A. Not with one hundred percent certainty, no.
Q. How many percent certainty were you?
A. In my own mind, my own opinion?
Q. Yes.
A. I put it low nineties, maybe.
Q. Low nineties that you knew who was in that vehicle?
A. My opinion, yes.
Tr. at 368.
On re-direct examination, the prosecutor sought additional information from this witness as to why Woolley was approximately ninety percent certain that Donato and Peak had committed the burglary and would return to the car. Defense counsel for both Donato and Peak objected to this line of questioning; the prosecution argued that by asking the witness for his opinion, Donato's counsel had opened the door for the proposed re-direct. The Judge sustained the objections as to the form of the question, but noted that he "would allow [the prosecution] to ask it in another form." Id. at 410-11. The prosecution then asked what other factors Woolley had considered in arriving at his opinion, and Woolley testified that the two had been arrested together and convicted together for committing another burglary/robbery. Id. at 411-12. At the end of this line of questioning, the trial judge immediately gave an instruction to the jury which advised them on two separate occasions that they were not, under any circumstances, to draw inferences or conclusions as to the defendants' guilt or innocence based upon the past conviction referred to by Woolley. Id. at 412-13.
In this case, the line of questioning by the prosecution that petitioner claims was unfairly prejudicial merely provided the jury with the full basis for Woolley's opinion as to whom he believed committed the crime, and would therefore return to the vehicle identified by the victim. This redirect examination only came after Donato's own counsel specifically requested that the witness provide an estimate, with a degree of certainty, as to whom he believed were the suspects. Moreover, the trial judge immediately gave a precise, clear, limiting instruction to the jury. Under the circumstances, courts are to presume that the jury understood the instruction and followed it. Martelly v. New York City Health and Hospitals Corp., ___ N.Y.S.2d ___, 2000 WL 1543573, at *1 (1st Dep't Oct. 19, 2000); U.S. v. Salameh, 152 F.3d 88, 144-45 (2nd Cir. 1998) (citation omitted), cert. denied sub nom. 525 U.S. 1112 (1999).
After considering all of the evidence, the court finds that petitioner has failed to demonstrate that the prosecution's conduct had a "substantial and injurious effect or influence in determining the outcome of his trial." Bentley, 41 F.3d at 824. Specifically, the court finds that the prosecution's line of questioning that forms the basis of this Ground was not improper and that the trial judge immediately gave the jury an instruction which clearly described the legal basis for the line of questioning. Moreover, the court finds that even absent the allegedly improper conduct, petitioner's guilt was certain based upon the other evidence presented at trial. Therefore, the court recommends that Ground Two of the petition be denied.
WHEREFORE, based upon the above, it is hereby
ORDERED, that petitioner's motion to amend (Docket No. 32) is DENIED, and it is further
RECOMMENDED, that petitioner's habeas petition be DENIED and DISMISSED, and it is further
ORDERED, that the Clerk serve a copy of this Order upon the parties by regular mail, and it is further
ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings, who has agreed to make them available for any appellate review.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have ten (10) days within which to file written objections to the foregoing report-recommendation. Objections shall be filed with the clerk of the court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.
IT IS SO ORDERED.