Opinion
05 Civ. 10893 (DLC) (KNF).
January 10, 2007
REPORT and RECOMMENDATION
I. INTRODUCTION
Petitioner Mike Henriquez ("Henriquez") has made an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Henriquez contends his confinement by the state of New York is unlawful because: (1) his trial counsel rendered ineffective assistance to him by failing to file a motion to set aside the jury's verdict, by failing to conduct an adequate pretrial investigation and by failing to recognize that the petitioner's trial posture was a signal that he was tendering a nolo contendere plea to the charges made against him. Furthermore, Henriquez alleges his trial counsel rendered ineffective assistance to him by failing to make a statement, on the petitioner's behalf, at his sentencing proceeding; (2) applicable New York law, that permitted him to be sentenced to a longer period of incarceration, after trial, than might have been imposed had Henriquez accepted a plea bargain and, thereby, avoided a trial, is unconstitutional; (3) improper jury instructions given by the trial court rendered the trial unfair; (4) the trial court was biased against him, as was made evident through the numerous rulings it made that favored the prosecution; (5) the trial court committed reversible error by admitting into evidence witness testimony, the weapon used to commit the charged crimes, inculpatory written and oral statements the petitioner gave to law enforcement representatives and photographs of the crime victim and crime scene; (6) in the circumstance of the instant case, the petitioner's sentence constitutes cruel and unusual punishment; (7) New York's failure to recognize nolo contendere as a plea available in a criminal action is contrary to clearly established federal law and rules; and (8) the use, at his trial, of inculpatory written and videotaped statements the petitioner gave to law enforcement representatives made him a witness against himself and, to the extent the prosecution showed, at his trial, that those statements were not completely truthful, the prosecution used false evidence to secure his conviction.
The respondent opposes Henriquez's application for the writ. According to the respondent, several of the claims raised in the instant petition are unexhausted for purposes of habeas corpus review and, with respect to those claims that are exhausted, they lack merit. Consequently, the respondent contends the petitioner's application for a writ of habeas corpus should be denied.
II. BACKGROUND
The petitioner was convicted in the New York State Supreme Court, Bronx County, following a jury trial, for murder in the second degree, criminal possession of a weapon in the second degree, and endangering the welfare of a child. The conviction arose out of the fatal shooting by the petitioner of the mother of his infant child, while she and child were together on a bed in the apartment they shared with the petitioner. After the shooting, the petitioner exited the apartment with the child. As he walked through the rain with the child, Henriquez encountered a police officer seated in an unmarked police vehicle. Henriquez approached the officer and asked to enter the vehicle with the child. The officer exited the vehicle and, in a brief conversation with the petitioner, learned that Henriquez had killed the child's mother. The officer prevented Henriquez from making any additional statements to him, and then summoned additional police personnel to the scene.
The petitioner and his child were removed to the local police precinct. There, after being administered Miranda rights by a detective assigned to investigate the death of his child's mother, Henriquez recounted the events that led to the shooting. Henriquez's statement was reduced to a writing, which he signed. Thereafter, Henriquez agreed to be interrogated by a Bronx County assistant district attorney. That interrogation was recorded on videotape.
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
A Bronx County grand jury returned an indictment against Henriquez. Following his indictment, the petitioner made an application for a pretrial hearing, in order to challenge the propriety of permitting the prosecution to use, as evidence at his trial, the written and videotaped statements he provided to the detective and the assistant district attorney at the police precinct. The application was granted and a hearing was held. At the conclusion of the hearing, the trial court determined to permit the prosecution to use the two statements as evidence at the petitioner's trial.
Henriquez elected to absent himself from the courtroom during the jury selection process. At the point in the trial when opening statements would typically be made, Henriquez instructed his attorney to refrain from doing anything during the trial, including, inter alia, making an opening statement, cross-examining witnesses presented by the prosecution, presenting defense witnesses, raising objections and making a closing argument to the jury. The petitioner's trial counsel believed that he was obligated to follow his client's instructions. Therefore, outside the jury's presence, he informed the trial court of the constraints the petitioner had placed on him and asked the court to relieve him of the obligation of continuing to represent the petitioner. Through colloquy with the petitioner, the trial court satisfied itself that: (a) the circumstance was as Henriquez's counsel had described it; (b) Henriquez understood that he would be waiving certain rights through his directive to his trial counsel, including, among others, the right to examine the trial witnesses, to make evidentiary objections, and to present evidence in defense of the charges; and (c) notwithstanding Henriquez's directive to his counsel, that the attorney do nothing at the trial, Henriquez informed the court that he did not want to represent himself during the trial proceedings. Armed with that information, the trial court denied counsel's request to be released from the obligation of representing his client.
The trial court urged Henriquez to reconsider his position and to permit his counsel to defend his interests at the trial. Henriquez refused to do so. Convinced that Henriquez was empowered to control completely his attorney's ability to exercise his professional judgment and act as an advocate at the trial, the court declared "it is your right, to restrict your lawyer in the way he defends you." Consequently, as the trial unfolded, no opening or closing statements were made on Henriquez's behalf and no challenge, by way of an objection, was made to the evidence offered by the prosecution to support the charges made against Henriquez. Furthermore, the petitioner did not review the trial court's proposed jury instructions and, although the court invited Henriquez to authorize it to instruct the jury on the defense of "extreme emotional disturbance," a defense that the court recognized, sua sponte, could be asserted on the petitioner's behalf even though he had not participated in the trial and had not allowed his counsel to do so, Henriquez refused to advise the court whether an instruction concerning that defense should be delivered to the jury.
Henriquez maintains that his determination to have his trial counsel refrain from doing anything at his trial, except attend the proceedings, was a manifestation of his exercise of his constitutional right to remain silent, to avoid self-incrimination and was a means to ensure that he would not be a witness against himself at his trial. According to Henriquez, his conduct and his directive to his trial counsel, that he do nothing at the trial, should have signaled to the court and to his attorney that a plea of nolo contendre was being tendered by him, although such a plea is not authorized for use in a criminal action, under New York law.
After the jury reported its verdict, the trial court fixed a date for Henriquez's sentencing proceeding. On that date, the petitioner's trial counsel declined to make a statement to the court, on Henriquez's behalf, in mitigation of the sentence to be imposed. Henriquez alleges that the prior restraint he had imposed upon his counsel was no longer in effect at the sentencing proceeding and, therefore, his trial counsel should have addressed the court on his behalf at that proceeding. After hearing from the prosecutor concerning the sentence to be imposed upon the petitioner, Henriquez was sentenced to two concurrent terms of imprisonment of 25 years to life, based on his conviction for murder in the second degree and his conviction for criminal possession of a weapon in the second degree, and to a one-year term of imprisonment, for endangering the welfare of a child.
A notice of appeal was filed on the petitioner's behalf by his trial counsel. However, before Henriquez's appellate counsel perfected his appeal, Henriquez began to petition the trial court and the state appellate courts, pro se, for relief from the judgment of conviction and sentence. Among the many applications Henriquez made, was a request that the trial court provide him a copy of the prosecution's response to a pretrial omnibus motion that had been filed on his behalf by his former trial counsel. The application was denied. The trial court explained that the motion was moot because Henriquez had already received a copy of the prosecution's response to the omnibus motion.
In February 1999, Henriquez made a motion in the New York State Supreme Court, Appellate Division, First Department, inter alia, for "reconsideration" or, alternatively, for an order vacating the judgment of conviction because the sentence he received was excessive. The Appellate Division denied Henriquez's motion. Henriquez sought leave to appeal from the Appellate Division's determination on that motion to the New York Court of Appeals. That request was denied after an associate judge of that court determined that the order entered by the Appellate Division, in response to Henriquez's motion, was not appealable under New York procedural law.
In March 1999, Henriquez sought an order from the trial court, pursuant to New York Criminal Procedure Law ("CPL") § 440.10, vacating the judgment of conviction that had been entered against him. Through that motion, Henriquez alleged that he had been mentally incompetent at the time of the shooting and at the time of his trial. Furthermore, according to Henriquez, the written and videotaped statements he provided to a detective and to an assistant district attorney were not made by him voluntarily. In addition, Henriquez claimed that the prosecution's response to the pretrial omnibus motion that had been made on his behalf constituted newly discovered evidence warranting the court in vacating the judgment of conviction. Henriquez also alleged that his trial counsel had rendered ineffective assistance to him by: (a) failing to provide him with a copy of the prosecution's response to the omnibus motion; (b) failing to request, pursuant to CPL § 730.30, that a proceeding be held to determine whether the petitioner was mentally competent to proceed to trial; and (c) encouraging Henriquez not to plead guilty.
Approximately one month later, Henriquez applied to the trial court, pursuant to CPL § 440.20, for an order setting aside the sentence he received, due to his status as a persistent violent felony offender. Henriquez urged the court to grant the motion because, in his view, the sentence subjected him, illegally, to continued punishment for prior convictions he had garnered.
After considering the motions made by the petitioner, pursuant to CPL §§ 440.10 and 440.20, the trial court determined to deny them. The court explained that, in some instances, the petitioner failed to make factual allegations that supported the claim(s) he was raising. In other instances, the court found that the claim(s) was either record-based and, therefore, subject to review by the Appellate Division on direct appeal from the judgment of conviction, or was not supported by the record evidence. The court found that the petitioner's claim, that a mental defect prevented him from understanding and participating in his trial, was baseless, since his competence to stand trial had been determined, pretrial, through a proceeding held in accordance with applicable New York law. The trial court noted that Henriquez's assertion, that he had uncovered new evidence, lacked merit. The court explained that this was so because the new evidence, the prosecution's response to the petitioner's pretrial omnibus motion, was part of the official court record and, consequently, had been available to Henriquez. Moreover, even if the prosecution's response to the motion was new evidence, the court concluded that it was not of a character that created a probability that its receipt into evidence at the trial would have resulted in a verdict more favorable to Henriquez. The trial court also explained that, to the extent Henriquez was claiming his counsel withheld the prosecution's response to the omnibus motion from him and, thus, rendered ineffective assistance to him, the claim would have to be rejected because if the allegation were true, such conduct would not rise to the level of ineffective assistance of counsel. The trial court also found Henriquez's assertion that the sentence imposed upon him, due to his status as a persistent violent felony offender, was illegal, because it subjected him to continued punishment for prior convictions he suffered, failed to provide the court with a legal basis for granting Henriquez any relief from the sentence.
Henriquez made a subsequent application to the trial court through which he requested that his sentence, as a persistent violent felony offender on the weapon possession conviction, be set aside. The court denied the application and referred Henriquez to the earlier decision it had rendered on a similar application the petitioner had made. Aggrieved by the failure of the trial court to grant him relief, Henriquez sought leave to appeal from the determinations made by the trial court on his CPL §§ 440.10 and 440.20 motions and his subsequent application to have his sentence set aside. A justice of the Appellate Division declined to grant Henriquez's motion. He explained that, based on the record that had been generated, "there [was] no question of law or fact presented" which ought to be reviewed by the Appellate Division.
In April 2001, the petitioner submitted a motion to the trial court, pursuant to CPL § 440.10. In that motion, he resurrected some of the claims that had been presented to the court in prior collateral attacks upon the judgment of conviction. In his motion, the petitioner alleged that the deceased victim was still alive and, therefore, the judgment of conviction was procured by fraud and misrepresentation. Henriquez also alleged he was mentally incompetent to stand trial and, furthermore, that the trial court coerced him into proceeding to trial and, as a result, the judgment was secured while Henriquez was under duress. According to Henriquez, this was so because the trial court had bickered with him over the sentence that would have been imposed had Henriquez elected to plead guilty. Henriquez claimed that he was prevented from pleading guilty by the three lawyers who represented him at various times while the criminal charges were pending against him and that he received ineffective assistance from those attorneys.
In September 2001, the trial court denied Henriquez's motion. Thereafter, proceeding pro se, Henriquez sought leave to appeal to the Appellate Division from the September 2001 decision of the trial court. Once again, a justice of the Appellate Division declined to grant Henriquez leave to appeal to that court because the justice determined, based upon the record, that no questions of law or fact had been presented that warranted the Appellate Division's review.
Henriquez's direct appeal from the judgment of conviction entered against him in the trial court was made in November 2002. Henriquez urged the Appellate Division to upset his conviction because his Sixth Amendment right to the effective assistance of counsel had been violated when his trial counsel failed to fulfill his obligation, as an advocate, to defend Henriquez due to counsel's mistaken belief that he was required to comply with the petitioner's directive that he do nothing at the trial. In addition, Henriquez alleged that the trial court violated his Sixth Amendment right to have a criminal trial in which the allegations made by the state are tested by the adversarial process. He explained that the trial court had failed to do anything more than ensure that Henriquez's trial counsel complied fully with Henriquez's directive that counsel do nothing to defend him during the trial proceedings.
For its part, the state argued to the Appellate Division that the petitioner received the trial that he demanded. According to the state, Henriquez made a strategic choice to prevent his trial counsel from advocating on his behalf during the trial proceedings. Accordingly, inasmuch as Henriquez determined not to have the state's case tested by the adversarial process, he should not be heard to claim that his Sixth Amendment rights were violated.
The Appellate Division affirmed the petitioner's conviction unanimously. See People v. Henriquez, 307 A.D.2d 863, 763 N.Y.S.2d 466 (App.Div. 1st Dep't 2003). In doing so, the court explained that "[t]he record establishes that [Henriquez] knowingly, intelligently and voluntarily waived, inter alia, the rights to make opening and closing statements, to cross-examine witnesses, to testify or call witnesses on his own behalf, to make objections, and to raise any sort of defense." People v. Henriquez, 307 A.D.2d at 863, 763 N.Y.S.2d at 467. The court observed that Henriquez chose not to represent himself "[and having] insisted, despite the [trial] court's extensive warnings and efforts to persuade him to change his mind, that his attorney do nothing to defend him, is solely responsible for the manner in which his trial was conducted, and both his attorney and the court acted properly in all respects." Id.
Although represented by counsel, Henriquez made an application, pro se, for leave to appeal to the New York Court of Appeals from the determination of the Appellate Division. He indicated that he was "not inclined to trust any lawyer" and, therefore, wanted to submit, on his own, an "affidavit or brief to the Court of Appeals." Henriquez's appellate counsel also sought leave to appeal from the determination of the Appellate Division to the New York Court of Appeals. The New York Court of Appeals determined to entertain Henriquez's challenge to the Appellate Division's decision affirming his conviction.
The petitioner's appellate counsel submitted a brief to the New York Court of Appeals in which he argued that Henriquez's Sixth Amendment right to a criminal trial, in which the state's case is tested by the adversarial process, was denied to him because: (a) Henriquez's trial counsel felt bound by his client's directive that he do nothing, other than attend the trial; and (b) the trial court abdicated its responsibility to ensure that Henriquez received a fair trial, when it made sure that the petitioner's trial counsel complied fully with Henriquez's instruction to him.
In a supplemental brief submitted pro se, Henriquez asked the New York Court of Appeals to consider whether: (1) he asserted "constitutional guarantees prohibiting self-incrimination and [exercised] the right to remain silent [at his trial] and/or whether [the petitioner's] stance at trial was a plea of nolo contendere;" (2) the trial court and the petitioner's trial counsel denied him "the full power and effect of his constitutional right to remain silent and not to incriminate himself" on each occasion when either the trial court or his trial counsel "solicited an answer and/or opinion, and/or uttered any word in reference to [the petitioner's] trial and trial stance;" (3) the trial was conducted in accordance with the petitioner's wishes, to wit, that the proceeding go forward as if he and his trial counsel were not present in the courtroom; (4) "the trial court performed the legal definition of 'extrapolation,' and chose to limit how much authority and weight of the constitution [the petitioner] could fully aver before that court;" (5) "the trial court exhibited criminal coercion, malicious abuse of legal process, judicial 'coercement,' sentencing entrapment, duress, and judicial bias, to a degree surpassing harmless error;" (6) "the trial court committed reversible error and deprived [the petitioner] of a fair judicial proceeding by admitting several photographs of the victim and the crime scene, the weapon, [the petitioner's] two statements, [the petitioner's] examination into his competence to stand trial, and witness testimony into evidence;" and (7) whether the prosecution knowingly and intelligently submitted evidence it knew was false through witness testimony.
In a reply brief, Henriquez's appellate counsel sought to crystallize the issue the New York Court of Appeals was being asked to resolve. According to Henriquez's counsel, the issue before the court was whether the trial court and the petitioner's trial counsel had violated Henriquez's Sixth Amendment rights by allowing him to be convicted in a "non-adversarial proceeding that failed to test the evidence of guilt."
A divided New York Court of Appeals affirmed the Appellate Division's determination. The court rejected the petitioner's assertion "that his constitutional right to a fair trial was violated because the trial court and defense counsel respected his desire to refrain from presenting a defense. [The court explained that] [t]his argument is premised on defendant's claim that he never waived nor forfeited his Sixth Amendment right to the effective assistance of counsel. Defendant therefore contends that his attorney was ethically obligated to mount a defense and the trial court, by allowing counsel to remain mute, failed to insure that defendant's guilt be determined only after an adversarial proceeding." People v. Henriquez, 3 N.Y.3d 210, 214, 785 N.Y.S.2d 384, 386-387 (2004). The court explained further that:
in this case, the trial court was confronted with a defendant attempting to abuse the process. . . . In cases where defendants have refused self-representation and restricted the participation of counsel, many courts have viewed defendants who adopt such postures as having voluntarily waived the right to the effective assistance of counsel. See United States ex rel. Testamark v. Vincent, 496 F.2d 641, 643-644 [2d Cir. 1974], cert. denied, 421 U.S. 951, 95 S. Ct. 1685 [][1975]). . . . Our precedent also leads to this conclusion.
* * *
Defendant's desire to prevent counsel's participation, coupled with his adamant refusal to represent himself, translates into an intentional failure to avail himself of his constitutional "right to a fair opportunity to defend against the State's accusations" (Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038 [] [1973]). "That defendant now questions the wisdom of his decision cannot relieve him of the consequences of his request," (People v. Petrovich, 87 N.Y.2d 961, 964, 641 N.Y.S.2d 592 [][1996]) and counsel cannot be charged with failing to provide meaningful or effective representation that right was waived by defendant.
Defendant's remaining contentions, including those raised in his pro se brief, are unavailing.People v. Henriquez, 3 N.Y.3d at 215-217, 387-389.
After the New York Court of Appeals rendered its decision, the petitioner submitted the instant application for a writ of habeas corpus.
III. DISCUSSION
Exhaustion
The petitioner has raised a multiplicity of claims he contends entitle him to habeas corpus relief. The respondent maintains that Henriquez has not exhausted his remedies with respect to several of the claims he has raised in the instant application for a writ of habeas corpus. The Court agrees.
Ordinarily, for a federal court to entertain a habeas corpus petition on behalf of a state prisoner, the petitioner must first exhaust his or her available state remedies. See 28 U.S.C. § 2254(b) and (c). To satisfy the exhaustion doctrine, a habeas corpus petitioner must, inter alia, "fairly present" his or her federal claim to the highest state court from which a decision can be rendered. Daye v. Attorney General of New York, 696 F.2d 186, 190-191 n. 3 (2d Cir. 1982) (en banc). However, a district court confronted with a "mixed" petition, that is, a petition for habeas corpus relief in which a state prisoner has presented claims that have been exhausted in the state courts and others that have not, has several options. See Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528 (2005). Among others, the court may stay the mixed petition and permit the petitioner to return to state court in order to present the unexhausted claims in that forum for adjudication. Thereafter, if necessary, the petitioner must return to federal court and combine the newly exhausted claims with the claims held in abeyance so that all claims can be reviewed by the habeas corpus court. Another option available to a federal court confronted with a mixed petition is to deny the petition on the merits even though it contains unexhausted claims. See 28 U.S.C. § 2254(b)(2); Pratt v. Greiner, 306 F.3d 1190, 1196-97 (2d Cir. 2002).
The Court has considered the various options available, in the circumstance of the instant case, and has determined that staying the petition and directing Henriquez to return to the state court for the purpose of presenting his unexhausted claims in that forum would be inefficient and unnecessary because the Court finds that the unexhausted claims, which are addressed below in accordance with 28 U.S.C. § 2254(b)(2), lack merit. Unexhausted Claims a. Ineffective Assistance of Counsel
The gravamen of Henriquez's application for the writ is that he received ineffective assistance from his trial counsel. The assistance Henriquez's trial counsel rendered to him was also the focus of Henriquez's direct appeal from the judgment of conviction. However, in the instant petition, Henriquez has made several claims concerning his trial counsel's deficiencies that were not previously raised by him in the numerous applications for relief he has made to the state courts. According to Henriquez, his trial counsel rendered ineffective assistance to him because counsel: (a) had never tried a murder case before undertaking to represent the petitioner at his murder trial; (b) failed to file a post-conviction motion, pursuant to CPL § 330.30(l)(3), demanding redress from the trial court for the issues asserted by the petitioner in the application for the writ that is before the Court; and (c) failed to conduct an adequate pretrial investigation.
The respondent maintains that Henriquez has also asserted that his trial counsel was a "shyster" and, consequently, rendered ineffective assistance to him. Given that the petitioner is a pro se litigant, the Court has been mindful that his pleadings "are [to be] held 'to less stringent standards than formal pleadings drafted by lawyers.'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 176 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595 [1972]). In keeping with that charge, the Court has read the petition liberally and has interpreted it to raise the strongest arguments that it suggests. See Dibbs v. Roldan, 356 F. Supp. 2d 340, 348 (S.D.N.Y. 2005) (quoting McPherson v. Coombe, 174 F.3d 276, 280 [2d Cir. 1999] [citations omitted]). Even applying a liberal interpretation to the characterization Henriquez employed to describe his trial counsel, the Court does not find, as the respondent apparently does, that the allegation that the petitioner's trial counsel was a "shyster" is an "unexhausted claim," as that phrase is used in the context of a habeas corpus proceeding. Rather, the Court finds that it is no more than an expression of Henriquez's unfavorable opinion of his trial counsel. Therefore, no analysis of that "claim" has been made by the Court.
Henriquez's allegations that his trial counsel rendered ineffective assistance to him because counsel lacked experience conducting murder trials, is not supported by the record before the Court. In any event, even if Henriquez's attorney had not handled a murder trial prior to undertaking responsibility for representing the petitioner, his lack of experience conducting such a trial, standing alone, would not mean that he rendered ineffective assistance to Henriquez. See United States v. Cronic, 466 U.S. 648, 665, 104 S. Ct. 2039, 2050 (1984).
The petitioner also ascribes error to his trial counsel for failing to make a motion, pursuant to CPL § 330.30, so that the claims made in the instant petition for a writ of habeas corpus could have been addressed by a state court. A motion made pursuant to CPL § 330.30 must be made prior to the imposition of sentence. If relief is not sought through the motion prior to the imposition of sentence, the relief sought may be obtained either via appeal or through an appropriate post-judgment motion made pursuant to CPL Article 440. A motion made pursuant to CPL § 330.30(1) must be made before the discharge of the jury and such a motion is directed solely to an error of law not fact. See People v. Colon, 65 N.Y.2d 888, 890, 493 N.Y.S.2d 302, 303 (1985); People v. Carter, 63 N.Y.2d 530, 536, 483 N.Y.S.2d 654, 657 (1984). The claims raised by Henriquez in the instant petition are not addressed solely to errors of law and, consequently, the petitioner's trial counsel could not have used a CPL § 330.30(1) motion to present the claims made in this petition to the trial court. Therefore, he did not render ineffective assistance to the petitioner by failing to make a CPL § 330.30(1) motion post-verdict and pre-sentence.
CPL § 330.30(3) advises that a motion to set aside a verdict in a criminal action, premised upon the discovery of new evidence, must be made after a verdict of guilty is rendered and prior to the date on which a sentence is imposed. The claims made by Henriquez, through his application for a writ of habeas corpus, are not based solely on evidence that he alleges was discovered post-verdict and pre-sentence. Accordingly, the petitioner's attorney could not have rendered ineffective assistance to him by failing to make a CPL § 330.30(3) motion as Henriquez alleges. Furthermore, to the extent the petitioner contends the newly discovered evidence is the prosecution's response to a pretrial omnibus motion made on the petitioner's behalf, that issue was presented to the state courts by the petitioner and rejected by those courts.
Henriquez's remaining allegation, that his trial counsel failed to conduct an investigation in preparation for the trial, is unsupported. Consequently, the allegation, without more, is not a basis for granting habeas corpus relief.
For the reasons set forth above, the specific allegations of ineffective assistance of counsel made by Henriquez and discussed above lack merit and do not entitle him to the relief he seeks through the instant petition.
Unconstitutional Trial
The petitioner maintains that he did not receive a fair trial because the trial court failed to instruct the jury about jury nullification. In addition, the petitioner contends the trial court was biased against him because its rulings favored the prosecution. Furthermore, Henriquez has challenged "the constitutionality of the trial" without stating, with particularity, in what manner the trial was unconstitutional.
a) Jury Nullification
A jury has the power, if it wishes to exercise it, to ignore the law as given to it by the court so that it can deliberate and render a verdict. However, a court has no obligation to instruct a jury that it may ignore the oath it has taken to follow the law, as given to it by the court, in reaching its verdict. See Sparf v. United States, 156 U.S. 51, 101, 15 S. Ct. 273, 293 (1895); United States v. Edwards, 101 F.3d 17, 19 (2d Cir. 1996). Since there is no requirement that a trial court tell a jury that it is free to ignore the law in reaching its verdict, Henriquez's claim, that the failure of the trial court to instruct the jury concerning the concept of jury nullification deprived him of a fair trial, is baseless.
b) Judicial Bias
Henriquez asserts, as noted above, that the trial court was biased against him. According to Henriquez, this was made clear through the court's rulings that favored the prosecution. The petitioner has failed to identify the specific rulings that he contends exhibit judicial bias. Furthermore, he has not demonstrated that any of the rulings, about which he now protests, were erroneous. Moreover, according to Henriquez, the judicial rulings, about which he is complaining, were approved by the state appellate courts that reviewed them. The Supreme Court has explained that adverse judicial rulings, standing alone, are not probative of judicial bias. See Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994). As a result, the Court finds that Henriquez's claim of judicial bias premised upon adverse rulings made by the trial court, without more, is a meritless claim that does not support granting habeas corpus relief to him.
c) Unconstitutional Trial
Like the claim of judicial bias, the petitioner's vague claim that his trial was unconstitutional is so lacking in specificity that it too fails to provide any basis upon which habeas corpus relief could be granted.
Unconstitutional Sentence
Henriquez alleges the sentence imposed upon him, following his conviction, amounts to "cruel and unusual punishment. . . . under the facts of [his] particular case." In addition, Henriquez maintains the sentence imposed upon him, after trial, was greater than the sentence he might have received had he pleaded guilty pursuant to a plea bargain agreement.
Henriquez's Eighth Amendment claim, that the sentence imposed upon him was cruel and unusual punishment, can garner him no relief through the instant petition because the sentence he received was within the range prescribed by state law. See New York Penal Law §§ 700.00(2)(a)(3)(a)(i), 70.08(2)(3)(b), 70.15(1), 125.25(1), 260.10(1), 265.03. No federal constitutional issue exists when the sentence imposed by a court is within the statutory range fixed by the state Legislature. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Furthermore, absent a showing of actual vindictiveness on the part of the trial court — and none has been made by Henriquez — the fact that the petitioner received a harsher sentence than that which he believes could have been attained through a plea bargain agreement, does not render the sentence imposed unconstitutional. See Corbitt v. New Jersey, 439 U.S. 212, 219, 223, 99 S. Ct. 492, 497, 499-500 (1978). The record before the Court does not indicate that the trial judge suggested in any way that the sentence imposed upon Henriquez was based upon his determination to refuse a plea bargain offer. Therefore, the Court concludes that the challenges made by Henriquez to his sentence, as described above, are meritless. Inculpatory Statements Admitted Into Evidence
Henriquez alleges he pleaded "guilty on several occasions." To the extent that the petitioner is challenging the constitutionality of his imprisonment, based upon the failure of the trial court to enforce a plea bargain Henriquez accepted at the time that he tendered a concomitant plea of guilty, the Court finds that the record does not support such an assertion. The record before the Court makes clear that no plea of guilty was accepted by the trial court, since Henriquez proceeded to trial before a jury, which convicted him. Consequently, any habeas corpus relief sought by Henriquez premised upon the enforcement of an agreement extracted from him in return for his tender of a plea of guilty would be to no avail since no plea of guilty was accepted from him by the trial court.
Henriquez challenges the propriety of the use, as evidence at his trial, of a written statement and a videotaped statement he gave to law enforcement officials shortly after shooting the mother of his child. Henriquez contends the use of his statements made him a witness against himself and violated his right to remain silent at his trial.
Henriquez made an application, pretrial, for a hearing to determine whether the two inculpatory statements he gave to law enforcement officials should be excluded from his trial because the two statements were extracted from him in violation of the Constitution. A hearing was held and, upon its conclusion, the trial court determined that no constitutional violation had occurred and that the prosecution could use the statements as evidence against Henriquez at his trial.
The Court has reviewed the transcript of the pretrial suppression hearing. The record generated at the hearing demonstrates that Henriquez had a full and fair opportunity to establish that a Fifth Amendment violation occurred when he gave the two statements. He failed to do so. The hearing transcript makes clear that Henriquez's statements were taken in conformity with the requirements of Miranda. In addition, the circumstances under which the statements were provided by Henriquez, based upon the Court's review of the hearing record, support a conclusion that the conduct of the law enforcement representatives who obtained the statements was not overbearing and did not cause Henriquez to make statements that he had not determined to make freely. See Rogers v. Richmond, 365 U.S. 534, 544, 81 S. Ct. 735, 741 (1961).
Since no coercive methods were used to induce Henriquez to make the two statements about which he now complains, the prosecution was free, following the pretrial hearing, to use, as evidence at the trial, the inculpatory statements given by Henriquez voluntarily. Apparently, the petitioner misapprehends the protection afforded by the Fifth Amendment. The Self-Incrimination Clause is designed to guard against compelling a person in a criminal case to be a witness against himself. Henriquez was neither compelled to be a witness against himself at his trial nor compelled to make statements to the law enforcement representatives shortly after he shot the mother of his child. Any claim to the contrary by Henriquez is unavailing.
For all the reasons outlined above, the unexhausted claims made by the petitioner lack merit and provide no basis for granting him the habeas corpus relief he seeks. Exhausted Claims Ineffective Assistance of Counsel
As noted above, the central claim made by Henriquez in his application for the writ is that he received ineffective assistance from his trial counsel. The Sixth Amendment guarantees a criminal defendant the "right to effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984). To determine whether counsel's assistance was effective, the Supreme Court devised a two-part test. See id. at 687-96, 2064-69. First, a criminal defendant must show that his counsel's performance was deficient, that is, that it fell below an "objective standard of reasonableness," measured according to "prevailing professional norms." Id., at 687-88, 2064-65. Second, the criminal defendant must affirmatively demonstrate prejudice.Id. at 694, 2068. Prejudice is rarely presumed, and so the defendant generally must prove that "there is a reasonable probability that but for counsel's [error], the result of the proceeding would have been different." Id.; see also United States v. Javino, 960 F.2d 1137, 1145 (2d Cir. 1992). A reasonable probability has been defined as "a probability sufficient to undermine confidence in the outcome." See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Considerable deference is accorded counsel's performance, as counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 2066.
However, the Supreme Court has explained that "the right to the assistance of counsel has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process that has been constitutionalized in the Sixth and Fourteenth Amendments." Herring v. State of New York, 422 U.S. 853, 857, 95 S. Ct. 2550, 2553 (1975). Accordingly, "[t]he right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted — even if defense counsel may have made demonstrable errors — the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated." Cronic, 466 U.S. at 656-657, 104 S. Ct. at 2045-2046. Therefore, in a circumstance where criminal defense counsel fails entirely "to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of the Sixth Amendment rights that makes the adversary process itself presumptively unreliable." Cronic, 466 U.S. at 659, 104 S. Ct. at 2047.
Henriquez's Sixth Amendment claim, that his trial counsel rendered ineffective assistance to him at his trial by following his directive to do nothing during the trial proceedings, was adjudicated on the merits by the New York Court of Appeals. Where a state court has adjudicated the merits of a claim raised in a petitioner's federal habeas corpus petition, the Antiterrorism and Effective Death Penalty Act of 1996 requires that the writ be denied unless the state court's adjudication resulted in a decision that: (1) 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. See 28 U.S.C. § 2254(d) ("§ 2254"); Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000).
A state court determination may be an unreasonable application of federal law "if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d 36, 45 (2d Cir. 2002); see also Ramdass v. Angelone, 530 U.S. 156, 166, 120 S. Ct. 2113, 2120 (2000) (plurality opinion) ("A state determination may be set aside under this standard if, under clearly established federal law, the state court was unreasonable in refusing to extend the governing legal principle to a context in which the principle should have controlled.")
In the case at bar, the Court finds that the New York Court of Appeals failed, unreasonably, to apply applicable federal law, as defined by the Supreme Court in Cronic, when it reviewed Henriquez's appeal from the judgment of conviction entered against him in the Bronx County, Supreme Court.
At his trial, Henriquez made clear to the trial court that he did not wish to represent himself, but wanted to be represented by his trial counsel. The respondent's suggestion to the contrary is not supported by the record. Once this fact was made known to the court and to the petitioner's trial counsel, it should have been clear to them that acquiescing in Henriquez's demands that prevented his attorney from acting as an advocate at the trial proceedings, and exercising his independent professional judgment in the management of the defense was an error of constitutional magnitude. The Supreme Court has advised that a criminal defendant "has 'the ultimate authority' to determine 'whether to plead guilty, waive a jury, testify in his or her own behalf, or to take an appeal.'" Florida v. Nixon, 543 U.S. 175, 187, 125 S. Ct. 551, 560 (2004) (quoting Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312; Wainwright v. Sykes, 433 U.S. 72, 93 n. 1, 97 S. Ct. 2497, 2510 n. 1 [1977] [Burger, C.J., concurring]). Matters of trial strategy and the conduct and management of the defense are reserved to criminal defense counsel. See Taylor v. Illinois, 484 U.S. 400, 417-418, 108 S. Ct. 646, 657 (1988). Moreover, although criminal defense counsel is required to consult with the accused client, obtaining approval of every tactical decision is not required before criminal defense counsel exercises his or her professional judgment in conducting the defense at trial. See id.
The failure of Henriquez's trial counsel and the trial court to recognize that governing Supreme Court precedent required Henriquez's trial counsel to engage the prosecution in a true adversarial proceeding, notwithstanding Henriquez's directive to his trial counsel that he do nothing at the trial, resulted in counsel's failure to perform in an objectively reasonable manner,see Strickland, 466 U.S. at 687-88, 104 S. Ct at 2064-65, and in Henriquez being deprived of his Sixth Amendment right to have his trial counsel serve in the role of an advocate, on the petitioner's behalf, at his trial. See Anders v. California, 386 U.S. 738, 743, 87 S. Ct. 1396, 1399 (1967).
Henriquez was entitled to effective assistance of counsel at his trial. That is, counsel who would act as an advocate exercising independent professional judgment in managing most of the aspects of the defense mounted at the trial and testing, in an adversarial way, the evidence presented against Henriquez before the jury. Where, as here, no meaningful adversarial testing occurred at the trial, owing to: (a) trial counsel's failure to render legal services to Henriquez by advocating on his behalf at that proceeding; and (b) the trial court's endorsement of counsel's behavior, no specific showing of prejudice needs to be made to establish that ineffective assistance was rendered to the petitioner. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Henriquez's counsel's de facto absence from the trial was constitutional error "of the first magnitude." Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 1111 (1974). Habeas corpus relief is warranted.
Nolo Contendere Plea
The Court has considered the petitioner's contention that the posture he affected at his trial should have been recognized by his counsel and the trial court as an attempt by him to tender a plea of nolo contendere. The plea of nolo contendere is not recognized as a plea in a criminal action in New York. See People v. Daiboch, 265 N.Y. 125, 128 (1934). Based on the record before the Court, it is not reasonable to conclude that the petitioner's trial counsel, without more information from the petitioner, would have determined that the petitioner was attempting to resolve a criminal action in New York by tendering a plea that is not recognized in that jurisdiction. It would be equally unreasonable to conclude, in such a circumstance, that the petitioner's counsel rendered ineffective assistance to him. However, inasmuch as the Court finds that Henriquez's Sixth Amendment right to effective assistance of counsel was violated, no detailed analysis of this theory upon which Henriquez seeks habeas corpus relief is necessary.
Sentence Disparity
Henriquez contends the trial court committed reversible error through its failure to entertain his solicitation of a plea bargain through which a sentence of 15 years to life imprisonment would have been imposed upon him in return for his tender of a plea of guilty. Furthermore, Henriquez maintains that an unidentified New York statutory provision, which allowed the trial court to enhance the sentence imposed upon him is unconstitutional. Since the instant claim is one that was addressed on the merits by the New York Court of Appeals, 28 U.S.C. § 2254(d) requires that the petitioner demonstrate that the adjudication of the claim by the New York Court of Appeals resulted in a decision that was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court or 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. This Henriquez has not done. Inasmuch as the petitioner has failed to meet the burden imposed upon him by 28 U.S.C. § 2254(d), he is not entitled to obtain habeas corpus relief based upon this claim.
Evidence Admitted into the Trial Record
Henriquez also alleges that the trial court committed reversible error by permitting the prosecution to offer as evidence at his trial, the weapon used to commit the homicide with which the petitioner was charged, the pretrial statements the petitioner made to law enforcement representatives, photographs depicting the victim and the crime scene, as well as witness testimony. A prosecutor may use photographs and tangible evidence to prove the criminal culpability of an accused. See Old Chief v. United States, 519 U.S. 172, 187-188, 117 S. Ct. 644, 653-654 (1997). A prosecutor may also elicit witness testimony to support the charges made against an accused and, in a case such as this, where a trial court has determined that statements elicited from an accused were provided voluntarily, those statements may be offered by the prosecution and received in evidence by the trial court. Evidentiary rulings, such as those Henriquez challenges here, are a matter of state law and present no federal constitutional issue. See Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y. 1995). Since federal habeas corpus relief is not available for errors of state law, see Estelle v. McGuire, 502 U.S. 62, 67, 112 S. Ct. 475, 480 (1991), Henriquez is not entitled to the relief he seeks through the instant application based upon the claim made here.
In several instances, the petitioner made allegations that were unintelligible. For example, he alleged the trial was a "malicious abuse of legal process," due to, inter alia, sentencing entrapment, sentence factor manipulation and the failure of the trial court to interpret accurately and apply the law to the petitioner's trial stance of nolo contendere. In addition, according to Henriquez, the trial court assisted the prosecution by failing to interpret accurately and apply the law to his nolo contendere trial stance. Moreover, Henriquez contends the trial court performed "extrapolation." These allegations and others of which these are exemplars were not accompanied by sufficiently detailed facts to enable the Court to analyze the allegations in accordance with the statutory standards applicable to applications for the writ. See 28 U.S.C. § 2254, passim. In any event, to compensate for the Court's inability to discern in every instance the precise claim being asserted as noted above, the Court has endeavored to interpret Henriquez's petition to raise the strongest arguments that it suggest, see Dibbs, supra, and to analyze the petition accordingly.
IV. RECOMMENDATION
For the reasons set forth above, the Court recommends that Henriquez's unexhausted claims be denied because they lack merit. Furthermore, the Court recommends that Henriquez's application for a writ of habeas corpus be granted because his Sixth Amendment right to the effective assistance of counsel was violated and, when the New York Court of Appeals adjudicated this issue on the merits, it failed, unreasonably, to apply applicable federal law as it has been determined by the Supreme Court.V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Denise L. Cote, United States District Judge, 500 Pearl Street, Room 1040, New York, New York 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Cote. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988);McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).