Opinion
00 Civ. 5515 (SHS) (RLE).
January 23, 2003.
Yael V. Levy, Assistant District Attorney, Attorney for Respondent.
REPORT AND RECOMMENDATION
I. INTRODUCTION
Pro se petitioner Arismendi Fabian ("Fabian") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction on November 22, 1994, in New York State Supreme Court, Bronx County. Clark was convicted of murder in the second degree, two counts of criminal possession of a weapon in the second degree, and four counts of reckless endangerment in the first degree. He was sentenced to an indeterminate prison term of twenty-five years to life on the murder count, five to fifteen years on each of the weapons counts, and two and one-half to seven years on each of the reckless endangerment counts. He is currently serving his sentence at Green Haven Correctional Facility in Stormville, New York.
Fabian challenges his conviction and asserts that: (1) the trial court improperly consolidated his indictment with that of his co-defendant; and (2) he was afforded ineffective assistance of both trial and appellate counsel.
Respondent argues that: (1) although Fabian did not exhaust his consolidation claim, the claim should be deemed exhausted, but procedurally forfeited, for federal habeas review; and (2) the state court's decision regarding Fabian's ineffective assistance of counsel claims were neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. For the reasons set forth below, I recommend that Fabian's petition be DISMISSED.
II. BACKGROUND
A. Factual HistoryOn January 7, 1992, Reyna Ortega ("Ortega") and Ramon Peguero ("Peguero") were engaged in an argument on the corner of Walton and East Mt. Eden Avenues in the Bronx. See Memorandum of Law ("Resp. Mem.") at 3. Ortega went inside a nearby apartment building and emerged with Fabian, who fired two or three shots at Peguero. Id. Peguero ran down the block, returning fire. Id. On January 9, 1992, Ortega and Peguero renewed their argument, this time with Ortega stabbing Peguero with a knife. Id. Both Ortega and Peguero left the scene, but returned ten to fifteen minutes later. Id. Fabian returned with Ortega. Id. Fabian and Peguero again exchanged gunfire. Id. This time, however, several bullets hit a vehicle containing four area school teachers. Id. Minni Mott, a teacher in the vehicle, was sot in the right arm. Id. Audrey Chasen, another teacher in the same car, was struck in the neck. Id. She lingered in the hospital, paralyzed and comatose, for thirteen days before dying. Id.
B. Procedural History
1. Trial Proceedings
Fabian's trial began on October 4, 1994, and on October 28, 1994, Fabian was found guilty on the charge of murder in the second degree, criminal possession of a weapon in the second degree and reckless endangerment in the first degree. See Affidavit in Opposition ("Resp. Aff.") at Exh. 1. Before the trial began, the state judge severed Peguero's trial from Fabian's, but consolidated Ortega's indictment with Fabian's. Id. During jury selection at Fabian's trial, twelve conferences with prospective jurors were conducted in the trial court's robing room. See Resp. Mem. at 3. Both Fabian and Ortega were in the robing room for each and every conference with the prospective jurors. See Resp. Aff. at Exh. 9. One of the prospective jurors, Mr. Gelfand, a member of the American Federation of Teachers, stated he "vividly" recalled media accounts of the crime, and specifically, that it involved a "drug dispute" because he was familiar with the location. Id. at 4. He also stated that he felt the victims were simply "in the wrong place at the wrong time." Id. The judge admonished Mr. Gelfand by noting that jurors are prohibited from being partial to one side or the other. Id. The judge then asked Mr. Gelfand if he could assure both sides that he could be a fair judge, and he responded, "Yes, I think so . . . yes." Id. Mr. Gelfand stated that he would not be partial to any side, but wanted to see justice done. Id.
2. Post-Trial Proceedings
Following Fabian's first appeal, the Appellate Division, First Department ruled that the trial court properly granted the People's motion for a joint trial, "since defendant failed to demonstrate specifically the codefendant's willingness to testify at a separate trial, the nature of her testimony, and that such testimony would tend to exculpate defendant." People v. Fabian, 653 N.Y.S.2d 294 (1st Dep't 1997). The court also found that Fabian received effective assistance of counsel. Id.
On November 1, 1998, Fabian, pro se, sought leave to appeal to the New York Court of Appeals, but only on the ground of ineffective assistance of counsel. See Resp. Aff. at Exh. 3. On December 22, 1998, the Court of Appeals denied Fabian's leave application. See People v. Fabian, 92 N.Y.2d 1031 (1998). On May 24, 1999, Fabian moved pro se for a writ of error coram nobis, alleging that his appellate counsel was ineffective for failing to raise claims regarding: (1) "the issue of prospective jurors outside of petitioner's presence about the prejudicial effects of media reports they had seen about this case" and (2) "the court's denial of a defense challenge for cause to a prospective juror who remembered media coverage of the incident `vividly' and could not forget his emotional reaction to it because he and people he knew often passed by the location, because he — like the victims — was a teacher, and because he recalled the incident resulted from a drug dispute." Resp. Aff. at Exh. 11. By order dated October 5, 1999, the Appellate Division, First Department denied Fabian's application. Id. at ¶ 18. On July 26, 2000, Fabian initiated the instant application.
III. ANALYSIS
A. Exhaustion of Claims and Procedural Default
Pursuant to 28 U.S.C. § 2254(b), as amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a federal court may not consider a petition for habeas corpus unless the petitioner has exhausted all state judicial remedies. 28 U.S.C. § 2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275 (1971); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997). This requirement of exhaustion is "based on considerations of comity between federal and state courts, ensuring that the state courts have an opportunity to consider and correct any violations of their prisoners' federal constitutional rights." Warren v. McClellan, 942 F. Supp. 168, 170 (S.D.N.Y. 1996) (citing Picard, 404 U.S. at 275).
To satisfy the exhaustion requirement, a habeas petitioner must have "fairly presented" his claims to the state court. Picard, 404 U.S. at 275. The Supreme Court has clarified this principle by holding that petitioners are required to "give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The standards for presenting federal constitutional claims to the state courts are not so stringent as to require the recitation of "book and verse on the federal constitution." Picard, 404 U.S. at 278 (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)). However, the state courts must be apprised of "both the factual and the legal premises of the claim [the petitioner] asserts in federal court." Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (quoting Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 191 (2d Cir. 1982) (in banc), cert. denied, 464 U.S. 1048 (1984)). The exhaustion requirement is fulfilled when the federal claims have been presented to "the highest court of the pertinent state." Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) (quoting Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990)). Petitioners can ensure that state courts are "alerted to the fact that [they] are asserting claims under the United States Constitution," Duncan v. Henry, 513 U.S. 365, 365-66, (1995), by presenting their claims in a fashion demonstrating:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) [an] assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, [or] (d) [an] allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye, 696 F.2d at 194; Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir. 1984).
In addition to the constraints that the exhaustion requirement places on a petitioner's claim, procedural default and procedural bar may thwart his ability to pursue a claim on its merits. "[A] petitioner who procedurally defaults on his state court remedies is barred from obtaining federal habeas relief[.]" Jones, 126 F.3d at 414 (citing Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994)); Coleman v. Thompson, 501 U.S. 722, 750 (1991). By failing to meet the state's procedural requirements, he "has deprived the state courts of an opportunity to address those claims in the first instance." Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (quoting Coleman, 501 U.S. at 732). Federal habeas review is thus precluded where the petitioner fails to properly raise objections or fails to appeal to the state courts, unless the petitioner "can demonstrate cause for the default and actual prejudice . . . or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; see also Harris v. Reed, 489 U.S. 255, 258 (1989). The Supreme Court has defined "cause" as a showing that "`some objective factor external to the defense impeded counsel's efforts' to raise the claim in state court." McCleskey v. Zant, 499 U.S. 467, 493 (1991) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). The "fundamental miscarriage of justice" exception "is only available where the petitioner can supplement his constitutional violation with a `colorable showing of factual innocence'" in the form of newly adduced evidence of innocence. Washington v. Superintendent, Otisville Correctional Facility, 1997 WL 178616, at *7 (S.D.N.Y. Apr. 11, 1997) (quoting McCleskey, 499 U.S. at 494); see also Schlup v. Delo 513 U.S. 298, 332 (1995).
Examples include: "(I) outside interference that makes compliance with state procedural rules impracticable; (2) `a showing that the factual or legal basis for a claim was not reasonably available to counsel'; and (3) `[ineffective assistance of counsel.'" Washington v. Superintendent, Otisville Correctional Facility, 1997 WL 178616, at *6 (S.D.N.Y. Apr. 11, 1997) ( quoting McCleskey, 499 U.S. at 494 ( citing Murray, 477 U.S. at 488)).
Similarly, federal courts are generally procedurally barred from habeas review of federal claims when those claims have been defaulted "in state court pursuant to an independent and adequate state procedural rule[.]" Coleman, 501 U.S. at 750; Jones, 126 F.3d at 415. In other words, federal courts must not consider a federal law issue on direct review from a state court judgment "if that judgment rests on a state-law ground that is both `independent' of the merits of the federal claims and an `adequate' basis for the court's decision." Harris, 489 U.S. at 260. Such review is foreclosed "even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). Therefore, a state court decision premised on an independent and adequate state ground, such as a procedural default, will bar federal habeas review of the federal claim. See Harris, 489 U.S. at 262; see also Jones, 126 F.3d at 414.
By not raising the issue on his petition to the Court of Appeals, Fabian failed to exhaust his claim of improper consolidation of his indictment with Ortega. Therefore, this Court cannot review this claim unless Fabian can demonstrate both cause for his failure to exhaust and a resulting prejudice, or a fundamental miscarriage of justice. Fabian's claims of ineffective assistance of counsel were presented to the Appellate Division and the Court of Appeals. Resp. Aff. at Exh. 1, 3, 11. Because Fabian has exhausted all of his state remedies as to this claim, it is reviewable by this Court. Picard, 404 U.S. at 275; Bossett, 41 F.3d at 828.
B. The Improper Consolidation Claim
Fabian's petition only alleges a cause for his failure to exhaust. He does not attempt to demonstrate resulting prejudice, nor a fundamental miscarriage of justice. Fabian's only justification as to why he did not exhaust this claim is "petitioner's inability to speak or comprehend the English language, would unequivocally be handicapped with the lack of any understanding of american legal traditions, and coupled with the absence of any counsel to assist him in the preparation of a relevant leave application." Petition for Writ of Habeas Corpus, Attachment ("Att.") at 8. However, this does not satisfy the standard for cause as set forth by the Supreme Court. See supra note 2. Further, even if it could be argued that Fabian's cause was ineffective assistance of counsel, this still would not satisfy the cause requirement. Fabian failed to raise this claim in his coram nobis petition, and therefore it may not be considered "cause" for purposes of failure to exhaust. See Lugo v. Kuhlmann, 68 F. Supp. 347, 365 n. 1 (S.D.N.Y. 1999). Because Fabian has not presented any evidence to demonstrate cause and prejudice for the default, or that a fundamental miscarriage of justice would result from his default, Fabian is barred from obtaining federal habeas relief. Ellman, 42 F.3d at 147.
C. Ineffective Assistance of Counsel Claims
1. Standard of Review
The Supreme Court has recently ruled that pursuant to 28 U.S.C. § 2254(d), as amended by the AEDPA, a writ of habeas corpus may only issue if one of two conditions is satisfied: "the state-court adjudication resulted in a decision that (1) was contrary to clearly established Federal law, as determined by the Supreme Court of the United States, or (2) involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." Williams v. Taylor, 529 U.S. 362, 412 (2000) (citations omitted). A state court decision is "contrary to" federal law "if the state court arrives at a conclusion opposite to that reached by [the] Court on a question of law" or if it "decides a case differently than [the] Court has on a set of materially indistinguishable facts." Id. at 413. It involves an "unreasonable application" of Supreme Court precedent "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case" Id. Finally, "clearly established Federal law, as determined by the Supreme Court of the United States" refers only to Supreme Court "holdings, as opposed to the dicta, of [the] Court's decisions as of the time of the relevant state-court decision." Id. at 412.
State judicial determinations are afforded even more deference than before the passage of the AEDPA. Rodriguez v. Bennett, 1998 WL 765180 *3 (S.D.N.Y. 1998). In reviewing state court factual determinations, the Court "must apply a presumption of correctness . . . unless rebutted by clear and convincing evidence." Id. Further, "[w]hen reviewing a mixed question of law and fact, the federal court must defer to the judgment of the state court provided the state court determination does not constitute an `unreasonable application' of clearly established federal law as determined by the Supreme Court." Id.
The Supreme Court has established a two-pronged test for ineffective assistance of counsel claims. "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." Strickland v. Washington, 466 U.S. 668, 687 (1984). For the second prong of the test, "the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Id. "This two-prong test applies to the evaluation of appellate counsel as well as trial counsel." Clark v. Stinson, 214 F.3d 315, 321 (2d Cir. 2000). The burden is on the petitioner to establish both prongs of the test. Id. at 688. Further, "[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id. The Court has admonished that "[j]udicial scrutiny of counsel's performance must be highly deferential . . . 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." Id. at 689.
2. Merits of Ineffective Assistance of Trial Counsel
Fabian's first claim is that trial counsel did not adequately prepare and investigate two witnesses, John Affronti ("Affronti") and Michael Jackson ("Jackson"). See Att. at 4. Jackson was a high school student at the scene of the shooting. See Resp. Mem. at 15. Jackson was unable to identify Fabian in a police lineup after the shooting. Id. Trial counsel for Fabian set up interviews with Jackson twice, but on both occasions had to cancel because of illness. Id. at 16. Two weeks before the trial, Jackson relocated to Mississippi, and was unavailable for trial. Id. The parties thereafter entered into a stipulation, which was read into the record, which detailed Jackson's inability to identify Fabian in a lineup after the shooting. Id. As the Supreme Court has noted, a court must determine "whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. This Court cannot conclude that trial counsel's conduct with respect to Jackson was outside the range of professionally competent assistance. Therefore, with respect to Jackson, trial counsel's assistance was indeed effective.
Affronti was another witness at the scene. See Att. at 4. Affronti saw Peguero fire at Fabian first, and also saw Fabian chasing Peguero with a knife earlier. See Resp. Mem. at 15. Neither party makes clear what the alleged defect was in trial counsel not calling Affronti. Fabian claims that trial counsel should have interviewed Affronti and possibly called him. See Att. at 5. However, he later states that Affronti was called by his co-defendant, and once on the stand, implicated Fabian. Id. Because Affronti was called by his co-defendant, Fabian cannot allege his trial counsel was ineffective for failing to call him. With regards to Fabian's first set of allegations regarding the calling of witnesses, the conduct alleged fails the first prong of the Strickland test.
Fabian also alleges that trial counsel was ineffective due to a failure to argue the defenses of justification and mis-identification alternatively. See Att. at 6. As courts within this district have noted, "[g]enerally, the decision whether to pursue a particular defense is a tactical choice which does not rise to [the] level of a constitutional violation . . . [T]he habeas court `will not second guess trial strategy simply because the chosen strategy failed'" Franza v. Stinson, 58 F. Supp.2d 124, 155 (S.D.N.Y. 1999) (citing Jones v. Hollins, 884 F. Supp. 758, 765-66 (W.D.N.Y. 1995)). Fabian claims that he urged trial counsel to pursue a defense of misidentification (thus obviating the need to call Affronti as a witness). See Att. at 6-7. However, trial counsel instead pursued a defense of justification, and only mentioned misidentification. Id. at 7. This type of tactical decision is afforded wide latitude by reviewing courts. See Strickland, 466 U.S. at 689. Therefore, this claim also fails the first prong of Strickland. The writ should be denied as to Fabian's claims of ineffective assistance of trial counsel.
3. Merits of Ineffective Assistance of Appellate Counsel
Fabian's first claim for his ineffective assistance of appellate counsel claim is that appellate counsel failed to raise on appeal that he was deprived of his state-conferred right to be present during the robing room questioning of several prospective jurors about the impact of media coverage upon their ability to be impartial. See Att. at 9. Ineffective assistance of appellate counsel claims must also pass the two-pronged Strickland test. See Clark, 214 F.3d at 321. Even if Fabian has a colorable argument to pass the first prong of the Strickland test, his claim fails the second prong. See Strickland, 466 U.S. at 692 ("As error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment."). Fabian's claim that he was not present during voir dire was effectively litigated in his co-defendant Ortega's appeals.
In September, 1996, Ortega appealed to the Appellate Division, First Department, alleging, among other things, that she was not present while prospective jurors were questioned in the judge's robing room. See Resp. Mem. at Exh. 6. On February 27, 1997, the First Department found that the record was ambiguous as to whether Ortega had been present during the questioning of the prospective jurors and remanded the matter to the trial court for a reconstruction hearing. See People v. Ortega, 655 N.Y.S.2d 336 (1st Dep't 1997). On June 25 and September 15, 1997, a reconstruction hearing was held before the trial judge. See Resp. Aff. at ¶ 12. By order dated October 27, 1997, the trial judge found that "both [Fabian] and [Ortega] were in the robing room for each and every conference with prospective jurors." Id. at Exh. 9. Ortega subsequently withdrew her claim that she was not in the robing room. Id. at Exh. 10. Although these events took place subsequent to Fabian's appeal, had Fabian's appellate counsel raised the claim Fabian advances before this Court, the chain of events which occurred in Ortega's appeal would have similarly happened in Fabian's appeal. Therefore, this claim fails the second prong of the Strickland test.
Fabian also contends that appellate counsel was ineffective for not advancing a due process argument on appeal. See Att. at 9. Fabian alleges that Gelfand's comments to court while he was still a prospective juror led to a violation of his due process rights when Gelfand was placed on the jury. Id. This same issue has been addressed in this district in Ortega's petition for a writ of habeas corpus. See Resp. Aff. at Exh. 17, Exh. 18. In deciding Ortega's writ, the magistrate judge looked specifically to the exchange between the trial court and Gelfand. Id. at Exh. 17. The Court noted that when the trial court asked Gelfand whether he had made any judgments regarding Fabian and Ortega's guilt, Gelfand responded "No." Id. The court then instructed Gelfand that jurors are not permitted to be partial to either side, and when asked if he could be impartial, Gelfand responded "Yes, I think so . . . yes." Id.
This Court has noted that both Fabian and Ortega's trial counsel vigorously questioned Gelfand about his ability to remain impartial. Id. In particular, Ortega's counsel asked Gelfand if he could put aside what he had read and give both defendants a fair trial, to which Gelfand responded "Yes." Id. Fabian's counsel also questioned Gelfand about his ability to remain impartial and Gelfand responded that he was "sitting in the middle." Id. The trial court finally asked Gelfand on last time whether he could truly remain impartial, to which Gelfand responded, "if I'm picked as a judge, I will consider the evidence and nothing else. That's all I can do." Id.
"A trial court's findings of juror impartiality may be overturned only for manifest error." Mu'Min v. Virginia, 500 U.S. 415, 428 (1991) (citations omitted). Further, in habeas review of a trial court's findings of juror impartiality, the "question is not one of mixed law and fact. Rather, it is plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed." Patton v. Yount, 467 U.S. 1025, 1036 (1984). As this Court has already observed of Gelfand's remarks, "it is apparent that his hesitancy [is] related to the difficulty (if not impossibility) of obliterating from his memory the newspaper coverage of the incident and his reaction to it." Resp. Aff. at Exh. 17. However, "when he was asked whether he could impartially judge the guilt or innocence of [Fabian and Ortega], he concluded- and testified unhesitatingly- that he could." Id. The trial court, which is entitled to substantial deference, believed Gelfand could be impartial. See Patton, 467 U.S. at 1037-39. This Court finds that appellate counsel was justified in not raising this issue on appeal. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983) (noting that appellate counsel is not required to raise every colorable argument).
IV. CONCLUSION
For the foregoing reasons, I recommend that the petition be DISMISSED.
Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Sidney H. Stein, 500 Pearl Street, Room 1010, and to the chambers of the undersigned, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); 28 U.S.C. § 636(b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).