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finding no ineffectiveness of counsel for not pursuing intoxication charge because defendant's required testimony would have been "extremely risky"
Summary of this case from Miller v. GrahamOpinion
02-CV-04602 (JBW), 03-MISC-0066 (JBW)
October 29, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
This petition was filed on July 15, 2002, Petitioner (sometimes referred to as "defendant") claims:
Ground One: Petitioner was denied effective assistance of appellate counsel.
Supporting Facts: Counsel failed to raise two meritorious issues which would of warranted a reversal of conviction.
Ground Two: Trial counsel's failure to challenge the competency of his client to stand trial.
Supporting Facts: Petitioner was heavily medicated on the day of trial and counsel did not know the effects of such medication.
Ground Three: Appellate counsel, also, failed to raise trial counsel's failure to utilize the intoxication defense in favor of Petitioner.
Supporting Facts: The Petitioner was intoxicated when he allegedly committed the same crime.
The evidence supports the following statement;
Shortly before midnight on the evening April 28, 1997, while carrying a plastic container filled with gasoline, petitioner took a taxicab to the Syosset, New York home of his in-laws and deliberately set fire to their house. Petitioner's estranged wife, his five-year old daughter, and his mother — and father-in-law were sleeping in the house at that time. At the time of the fire, petitioner's wife had a Family Court order of protection in effect against petitioner. Following his arrest on the afternoon of April 30, 1997, petitioner said he was mad at his wife and mother-in-law for destroying his business and that his daughter was just like her mother.
For setting this fire, petitioner was charged, by Nassau County Indictment 3119N-97, with arson in the second degree (NY Penal Law § 150, 15) and criminal contempt in the first degree (NY Penal Law § 215.51 [d]).
On July 9, 1997, petitioner was ordered to undergo a psychiatric examination pursuant to N.Y. Criminal procedure Law (hereinafter "C.P.L.") § 730, 30. That examination was completed in September 1597. Petitioner was found competent to proceed to trial and petitioner did not contest that determination.
Prior to trial, the court held a pretrial hearing in response to defense counsel's motion to suppress identification testimony and petitioner's pretrial statements. Following the hearing, petitioner's motion was denied. The court held that petitioner's statements made during the trial and after his arrest were either spontaneous or made in response to pedigree questions.
Photographic arrays, shown to the cab driver who drove petitioner to the crime scene and the police officer who saw and spoke to petitioner earlier in the evening, were found not to be unduly suggestive.
On April 6, 1998, immediately preceding jury selection, the following colloquy took place:
MR. BRAY (defense counsel): So the Court's aware, I'm having conversations with the defendant preparatory to begin the trial.
He has just informed me that he has taken medication. He has taken Thorazine. I don't know what it's for. He has been in the hospital several times. Just so now it's on the record that the defendant is under medication. He's able to communicate with me. He has an interpreter. I understand what he's saying. He apparently understands what I'm saying, and he understood what the Court said through the interpreter. But I want it on the record that he was medicated before he got here.
THE COURT: If you wish, I can have the slip, when he is sent back, that medical attention is requested so that the doctor can keep an eye on him.
Would you like that?
MR. BRAY: I don't want him taken off the medication, I don't want anything to happen to him, I want the record to be clear that he was medicated.
(T. 12-13).
On April 8, 1998, petitioner was convicted, after a jury trial, of arson in the second degree and criminal contempt in the first degree. On May 6, 1998, petitioner was sentenced to concurrent indeterminate terms of incarceration of twelve and one-half to twenty-five years and one and one-third to four years, respectively. He was ordered to pay restitution in the amount of $158,482.93.
On October 7, 1998, the Appellate Division granted petitioner leave to appeal from his judgment as a poor person and assigned counsel to represent him on his appeal.
On or about August 24, 1999, counsel for petitioner filed a brief raising two claims: 1) petitioner was denied a fair trial because the fire marshal impermissibly invaded the province of the jury when he testified that the fire was caused by an "open flame," and 2) petitioner's sentence was excessive.
On February 28, 2000, petitioner's judgment of conviction was affirmed. People v. Gssime, 269 A.D.2d 605 (2d Dept, 2000), The Appellate Division held that petitioner's claim concerning the fire marshal's testimony was unpreserved and, in any event, the testimony was not improper. The appellate court further held that petitioner's sentence was not excessive.
By letter dated September 19, 2000, petitioner filed a pro se application for leave to appeal to the New York Court of Appeals, In that letter, petitioner raised two issues that he sought to have reviewed by the Court of Appeals: First, petitioner argued that his trial counsel was ineffective because he failed to request a second competency examination, after petitioner was declared fit to proceed to trial; second, petitioner claimed that the fire marshal's testimony improperly invaded the province of the jury. On December 8, 2000, petitioner's application for leave to appeal to the Court of Appeals was denied. People v. Gssime, 95 N.Y.2d 960 (2000).
In February 2002, petitioner brought a motion for a writ of error coram nobis, claiming that he was denied the effective assistance of appellate counsel. See People v. Bachert, 69 N.Y.2d 593 (1987), Petitioner argued that appellate counsel was ineffective because he failed to claim on appeal that his trial counsel was ineffective because he failed to challenge petitioner's competency to stand trial after learning that he was taking Thorazine, and for failing to pursue an intoxication defense at trial.
On July 29, 2002, the Appellate Division dented petitioner's application for a writ of error of coram nobis. People v. Gssime, 296 A.D.2d 581 (2d Dept. 2002).
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may giant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)), Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently man this Court has on a set of materially indistinguishable facts," Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J, concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case," Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable," Id. at 411, In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark: as to suggest judicial incompetence," Francis S v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Berbary v. Torres, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear" and convincing evidence." 28 U.S.C. § 2254(e)(1).
III. Limitations Period
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment, See 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS (5745, at *22 (2d Cir. 2003); see also Sup, Ct R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion." Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be beard before dismissing on such ground." Id
In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted. . . ." 28 U.S.C. § 2244(d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements, Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998), But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law," Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review 'within the meaning of 28 U.S.C. § 2244(d)(2)'" and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition," 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably, Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling, . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA," Baldayaque v. United States, No. 02-2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition, As the court of appeals has explained,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations.Warren v. Gamin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 158 F.3d 762, 780 (5th Cir. 1999)).
IV. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims-so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at * 10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
V. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedural 1y barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 0 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required," Id.
VI Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence. Id, at 321, "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful," Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding,"), A habeas court is, in short, concerned "`not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.'" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances).
VII. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant" shall enjoy the right . . . to have the Assistance of Counsel for his defense," U.S. Const, amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result," Strickland v. Washington, 466 U.S. 658, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured tinder "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also Wiggins v. Smith, 539 U.S. ___, No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002), A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . ., that course should be followed," Id, at 697, In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001), The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome," Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland., 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 20 03 U.S. App. LEXIS 251, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it, See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994), Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a federal or a state law claim that was Improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance," Id, (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. (52, 68 (1991), Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA. See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).
X. Verdict Against the Weight of the Evidence
To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, Jackson v. Virginia., 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997), To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
XI. Legal Claims Frequently Raised in Habeas Corpus Applications
For an explication of the law concerning other claims that are frequently raised before this court in applications for a writ of habeas corpus, see Waters v. McGuiness, 99-CV-0615, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y. June 16, 2003) (grand jury claims); Custodio v. Duncans, Nos. 99-CV-2561, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y. June 11, 2003) ( Batson challenges); Reyes v. Irwin, 99-CV-3758, 03-MTSC-0066 (JBW), 2003 U.S. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y. June 20, 2003) ( Wade claims); Brathwaite v. Duncan, 00-CV-0860, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11056, at *4-*5 (E.D.N.Y. June 10, 2003) ( Sandoval claims); Thomas v. Kuhlman, 255 F. Supp.2d 99, 108-09 (E.D.N.Y. 2003) (perjured testimony); Martinez v. Greiner, 99-CV-4663, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11046, at *7 (E.D.N.Y, June 20, 2003) ( Fourth Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003) ( Rosario claims); Beniquez v. Bennett, 00-CV-0985, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11032, at * 15-* 16 (E.D.N.Y, June 16, 2003) (prosecutorial misconduct); Sevencan v. Herbert, No. 01-2491, slip op. at 6-13 (2d Cir. Aug. 7, 2003) (public trial); Cox v, Donnelly, 99-CV-8216, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 9886, at *12-*14 (E.D.N.Y. June 12 2003) (shifting burden of proof); Jelinek v. Costello, 247 R Supp.2d 212, 266-67 (E.D.N.Y. 2003) (right to self-representation); Stewart v. Senkowski, 00-CV-0806, 03-MISC-0060 (JBW), 2003 U.S. Dist. LEXIS 11028, at *6 (E.D.N.Y. June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz, 98-CV-7837, 00-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11049, at *7-*8 (E.D.N.Y. June 13, 2003) (abuse of discretion in sentencing);
XII. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice," Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for oases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No. 01-2694, 2003 U.S. App. LEXIS 8326, at *92 (2d Cir. May 1, 2003).
XIII. Analysis of Claims
A.
Petitioner contends that he was denied his constitutional right to the effective assistance of appellate counsel because counsel failed to raise two claims on direct appeal that were stronger than those he did raise; and which may have resulted in a reversal of petitioner's conviction. The two claims that petitioner states should have been raised are: 1) trial counsel was ineffective because he failed to challenge petitioner's competency to stand trial after learning that he was taking Thorazine and 2) trial counsel was ineffective for failing to pursue the defense of intoxication.
The state court's denial of petitioner's claims in his coram nobis application, citing Jones v. Barnes, 463 U.S. 745 (1984), did not result in a decision that was "contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1); Williams v, Taylor, 529 U.S. 362, 404-05 (O'Connor, J., concurring). The denial of petitioner's claims in state court was consistent with Supreme Court precedent governing the effective assistance of counsel. Appellate counsel's performance was not deficient and petitioner suffered no prejudice from counsel's representation. See Strickland v. Washington, 466 U.S. 668, 694 (1984).
In a case with overwhelming evidence of guilt, appellate counsel filed a brief that fully summarized the trial facts and presented claims attacking the fairness of petitioner's trial and sentence. The record is devoid of any evidence to support petitioner's claims and, in New York, appellate courts can only rely on facts reviewable from the record when examining claims raised on direct appeal, The Appellate Division's rejection of petitioner's coram nobis application, where he raised the same claims raised here, is evidence that petitioner suffered no prejudice from counsel's failure to raise those claims before that court on direct appeal.
In order to prevail on a claim of ineffective assistance of counsel, a habeas corpus petitioner must demonstrate both that counsel's performance was deficient and that the petitioner was prejudiced as a result of that defiant performance. See St. Strickland v. Washington, 466 U.S. at 694 see also Murray v. Carrier, 477 U.S. 478, 488 (1986) (standard applies to appellate counsel's failure to raise claim on direct appeal), A reviewing court should make very effort to eliminate' "the distorting effects of hindsight" in assessing counsel's performance and should "indulge a strong presumption that counsel's conduct falls within the wide range or reasonable professional assistance." Strickland, 466 U.S. at 689; United States v. Cronic, 466 U.S. 648, 658 (1984). "Strategic choices made after thorough investigation of law and facts relevant to plausible options arc virtually unchallengeable" Strickland, 466 U.S. at 690) and professional judgments by appellate counsel as to what claims are most promising on appeal should not be second guessed. See Jones v. Barnes, 463 U.S. 745 (1984). Appellate counsel is under no obligation to raise every nonfrivolous issue that is available on the record. Id. Here, petitioner's claim must fail because he has not satisfied either prong of the Strickland test. Because his allegations regarding trial counsel's performance were not supported by the record, those claims could not be raised, or succeed, on direct appeal.
The Appellate Record contained insufficient evidence to support a claim that petitioner was not competent to proceed to trial or that his attorney was ineffective for failing to challenge his fitness to proceed. Thus, Appellate Counsel was not ineffective for failing to raise this claim on appeal.
This claim has no merit.
B.
The record does not support petitioner's claim that he was unfit to proceed to trial, or that he had any difficulty understanding the proceedings and assisting in his own defense. There was no basis to argue on appeal that trial counsel was ineffective for not requesting a second competency healing.
Following an examination to determine petitioner's competency, held in September 1997, petitioner was found competent to proceed to trial. Defense counsel did not challenge that determination and petitioner has never claimed that counsel erred in that regard, Petitioner's present claim is premised on trial counsel's failure to request a second competency hearing when, on the first day of trial, petitioner advised him that he was on the medication Thorazine. Because there is no evidence in the record that the Thorazine impaired petitioner's judgment, prevented him from understanding the proceedings, impeded his communication with his attorney, or otherwise kept him from assisting in his defense see Dusky v. United States, 362 U.S. 402 [I960])., there is no reason to conclude that petitioner was incompetent to stand trial, or that counsel had any reason to request another competency examination.
The fact that petitioner was taking Thorazine, without more, does not give rise to an inference that he was incompetent to stand trial, It is more likely, not less, that petitioner's medication was helping him cope with his psychological or psychiatric problems. See United States v. Gome, 289 F.3d 71 (2d Cir. 2002) (in certain circumstances court may order psychotropic medication for incompetent defendant to render him competent to stand trial). Moreover, to the extent that the record speaks at all to petitioner's mental condition at the time of his trial, it reflects that he was not rendered incompetent by either the Thorazine or any under lying psychological problems.
After advising the court that petitioner was taking Thorazine, counsel assured the court that he was able to communicate with petitioner through the court interpreter, and that petitioner understood what he and the court were saying:
He's able to communicate with me. He has an interpreter, I understand what he's saying. He apparently understands what I'm saying and he understood what the Court said through the interpreter. . . . .
I don't want him taken off the medication. I don't want anything to happen to him.
(T. 12-13). This representation by counsel is significant because, as the Court of Appeals for the Second Circuit has recognized, "since incompetency involves an inability to assist in the preparation of a defense or rationally to comprehend the nature of the proceedings, failure by trial counsel to indicate the presence of such difficulties provides substantial evidence of the defendant's competence." United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986), See also Sell v. United States, 156 L.Ed.3d 197 (2003).
Just prior to counsel's representation that petitioner understood the proceedings and could communicate with him, petitioner proved this point himself when he answered the court's questions regarding his Antommarchi rights People v. Antommarchi 80 N.Y.2d 247 [defendant has right to be present during sidebar discussions with potential jurors concerning their ability to be fair and impartial]). After counsel advised the court that he had spoken to petitioner about his Antommarchi rights and stated that petitioner wished to waive them, the court questioned petitioner about whether he had discussed these rights with counsel and whether he truly wanted to waive them. It was apparent that petitioner understood the court, and that he knowingly wished to waive his right to be present during side-bar discussions with prospective jurors (T. 3-5).
In contract to all the indications that petitioner was fit to proceed to trial, including the presumption under state law that he was competent ( People v. Tortorici, 92 N.Y.2d 757, 765; see also Medina v. California, 505 U.S. 437, 449 [presumption of competency does not violate due process]), petitioner's coherent and responsive answers to the court regarding his Antommarchi waiver, and defense counsel's affirmative statement that petitioner understood the court and could communicate with counsel, there was no evidence in the record indicating that petitioner was incompetent, The fact that petitioner had a history of mental illness did not call into question his competence to stand trial See United States v. Vamos, 797 F.2d at 1150,
Other than that he was taking Thorazine, petitioner points to nothing in the record that supports his claim that trial counsel should have moved for a second competency examination. In his state coram nobis application, petitioner argued that trial counsel knew or should have known of his past history of mental illness, alcohol abuse and suicide attempts, and that those factors should have alerted counsel that petitioner was mentally ill, but that argument does nothing to support petitioner's instant claim. Even assuming petitioner's assertion is correct, it does not demonstrate that his appellate attorney was ineffective, Appellate counsel would not necessarily be privy to everything trial counsel knew about petitioner's background and, even if he was, that information was dehors the record and could not be used to support an argument on direct appeal that trial counsel was ineffective for not requesting a second competency examination, See People v. Blaylock, 266 A.D.2d 400 (2d Dept. 1999), As appellate counsel notes in his accompanying affidavit, he found "insufficient evidence in the record to suggest that Mr. Gssime was incapable of understanding the proceedings. . . ." Barbuto affidavit at para 6.
Based on controlling state precedent, appellate counsel could reasonably have concluded that the evidence was insufficient to overcome the presumption that trial counsel acted rationally in not requesting a second competency hearing (see Tortorici, 92 N.Y.2d at 768 [failure to request competency hearing may be based on sound trial strategy]) and, therefore, this would not have been a strong claim to raise on appeal, In this case, trial counsel may have well believed that petitioner's belated disclosure, made moments before jury selection, was intended as a tactic to delay the trial, or counsel may have simply determined that petitioner was competent to proceed and that he did not have a good-faith basis to ask for another competency examination. After learning that petitioner was taking Thorazine, counsel specifically advised the court that he did not want "anything to happen" to petitioner (T. 13). He did not want petitioner taken off his medication, nor did he want a second competency examination.
Because nothing in the record indicated that trial counsel acted unreasonably in failing to request a second competency examination, it cannot be fairly said that appellate counsel was ineffective for failing to raise this issue on appeal.
This claim has no merit.
C.
Petitioner claims that there was an abundance of evidence establishing his intoxication on the night of the crime, and that trial counsel was ineffective because he did not pursue an intoxication defense to negate the intent element in the arson charge. There was virtually no evidence of intoxication in the record and none that would have supported an intoxication charge to the jury, Regardless of whether petitioner was intoxicated when he committed this crime, whether trial counsel was aware of his alleged intoxication, and whether his level of intoxication was sufficient to support an intoxication defense and jury instruction, appellate counsel was certainly not ineffective in failing to question trial counsel's strategy in not raising this defense, As with the issue of petitioner's competency, appellate counsel could not rely on dehors-the-record facts to raise an ineffective assistance of counsel claim on petitioner's direct state appeal see People v. Simon, 196 A.D.2d 851 [2d Dept. 1993]), and the facts available from the record did not support such a claim. Appellate counsel states in his affidavit that in his view, there was insufficient evidence in the record to conclude that trial counsel was ineffective for not pursuing an intoxication defense, See Barbuto affidavit at para. 5.
None of the witnesses who testified at trial indicated that petitioner was intoxicated at or about the time this crime was committed. Although petitioner was drinking when he was arrested, at approximately 5:30 p.m. on April 30, 1997, this was almost two days after the crime was committed. His purported intoxication at that time shed no light on his state of mind during the commission of the crime, Although Police Officer Venezia saw petitioner standing in the street waving at cars, while holding a container of gasoline, on two occasions several hours prior to the fire, he never testified that petitioner was or appeared to be intoxicated. He merely recounted petitioner's somewhat plausible explanation that he had run out of gas and was looking for his car. The cab driver who drove petitioner to his in-laws' home, where petitioner started the fire, never testified that petitioner appeared intoxicated. Petitioner did not supply any evidence of intoxication and nothing else in the record provided a basis to conclude that petitioner's mental capacity was sufficiently diminished by the use of intoxicants to affect his ability to form the necessary criminal intent. See People v. Rodriguez, 76 N.Y.2d 918, 920 (1990) (discussing when intoxication charge is warranted under New York law). Thus, regardless of what trial counsel actually knew or should have known about petitioner's mental state at the time of the crime, appellate counsel had no basis to argue that trial counsel ignored or overlooked a meritorious defense and was therefore ineffective.
To establish that a defense attorney was ineffective based on his failure to pursue a specific strategy or defense, a defendant must first overcome the strong presumption that counsel acted reasonably and prove the absence of strategic or other legitimate explanations for counsel's alleged shortcomings. See Strickland v. Washington, 466 U.S. at 689-90; accord People v. Rivera, 71 N.Y.2d 705, 709 (1988). In this case, appellate counsel could not have met this demanding standard.
Even if petitioner had advised trial counsel that he had been intoxicated when he set the fire, counsel's decision to pursue a defense based on the notion that the fire was caused by someone or something else was not unreasonable. See Santos v. Greiner., 1999 WL 756473, *1G (S.D.N.Y. 1999), The evidence demonstrated that petitioner's estranged wife had smoked a cigarette outside on the patio a few hours before the fire was discovered, The evidence further showed that the fire started outside the garage, where two vehicles were parked, and that the fire was fueled by gasoline. In view of this evidence, it was not unreasonable for trial counsel to advance a defense premised on the notion that the fire was not incendiary, as the State contended, and that the traces of gasoline found in the soil outside the garage came from the vehicles parked inside or other machinery commonly found in or around a typical garage.
Under New York law, to assert an intoxication defense, petitioner would have had to present evidence that his mental capacity was so diminished through the use of intoxicants that he could not form the necessary criminal intent to commit the crime of arson in the second degree. See Rodriguez, 76 N.Y.2d at 920, Because no other evidence in the case established petitioner's intoxication, he would have had to testify to establish the amount of alcohol he consumed, when he consumed it, and the effect it had on him. See People v. Games, 83 N.Y.2d 925, 927 (1994) (evidence of intoxication requires more than hare assertion by defendant that he was intoxicated). Even if petitioner could have elicited from Police Officer Venezia that he appeared to he drunk or high, that testimony, standing alone, would have been insufficient to warrant an intoxication charge. Id. (police officer's statement that defendant had glassy eyes and alcohol on breath insufficient to wan ant intoxication charge).
Putting petitioner on the stand to establish an intoxication defense would have been extremely risky because it might have weakened his argument that the State failed to prove his involvement in the fire. Petitioner likely would have testified to being present at the scene of the fire and starting it accidently. Although, theoretically, petitioner could have asserted an intoxication defense while still arguing that he was not present at the fire or had no involvement in setting it, presenting such inconsistent defenses would have been a dangerous tactic, and his attorney should not be faulted or deemed ineffective for failing to pursue such a strategy, Courts have recognized the danger in proceeding in such a manner. See, e.g., White v. Singletary, 972 F.2d 1218, 1221 (11th Cir. 1992) (" [a]lthough inconsistent and alternative defenses may be raised, competent trial counsel know that reasonableness is absolutely mandatory if one hopes to achieve credibility with the jury") (quoting Harich v. Duger, 884 F.2d 1464 [11th Cir. 1988] [overruled on other grounds]); People v. Bradley, 88 N.Y.2d 901 (1996) ("the interposition of inconsistent defenses is a `hazardous tactic' because it creates a risk of juror confusion and `may well taint a defendant's credibility in the eyes of the jury" (quoting People v. DeGina, 72 N.Y.2d 768, 777).
This claim has no merit.
D.
Ground two of the petition states: "Trial counsel's failure to challenge the competency of his client to stand trial," While on its face this may appear to state an ineffective assistance of trial counsel claim, when this ground for relief is read in conjunction with grounds one and three, it appears that this is one of the two claims that petitioner asserts appellate counsel should have raised on appeal.
In any event, trial counsel competently handled the case. There was no point in a further challenge to competency in the facts,
This claim has no merit.
E.
The defense of intoxication was, as already noted, not viable, Trial counsel, properly, did not raise it.
This claim has no merit.
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted. Petitioner has made no substantial showing of the possible denial of a constitutional right. He may, as already indicated, seek a certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.