Opinion
05 Civ. 10893 (DLC).
March 16, 2007
For Petitioner: Mike Henriquez, pro se, Comstock, NY 12821.
For Respondent: Robert T. Johnson, District Attorney, Joseph N. Ferdenzi, Peter D. Coddington, Dimitri Maisonet, Assistant District Attorneys, Bronx, NY.
OPINION ORDER
Petitioner Mike Henriquez ("Henriquez") murdered the mother of his child and immediately confessed to the police, who recorded the confession in writing and on videotape. At trial, Henriquez instructed his attorney to do nothing to represent him. After the court conducted an allocution to confirm that Henriquez was knowingly and voluntarily waiving his right to interpose a defense, the attorney and judge adhered to Henriquez's decision. Following the jury's verdict that he was guilty of murder in the second degree, criminal possession of a weapon in the second degree, and endangering the welfare of a child, petitioner attacked his conviction unsuccessfully in state court, arguing that his trial counsel failed to provide him with effective assistance of counsel.
Henriquez then filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The case was referred to Magistrate Judge Kevin Nathaniel Fox for a report and recommendation ("Report"), which was issued on January 10, 2007. The Report recommends that the writ be granted because the New York Court of Appeals failed unreasonably to apply Supreme Court precedent when it rejected Henriquez's claim. Finding that the Court of Appeals did not unreasonably apply clearly established federal law, the Report's recommendation is rejected and the petition is denied.
Background
The facts relevant to the petition are set forth in the Report and summarized here, or taken from the trial transcript. The parties have made no objections to any factual conclusions drawn by the Magistrate Judge.
In March 1994, Henriquez shot and killed the mother of his infant child, while she and the child were together on a bed in the apartment they shared with Henriquez. After the shooting, Henriquez left the apartment with the child and encountered a police officer. Henriquez approached the officer and after a brief conversation, the officer 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.
After being administered Miranda rights at the local police precinct, Henriquez recounted the events that led to the shooting. His statement was reduced to writing, which he signed. Henriquez also agreed to be interrogated by a Bronx County assistant district attorney, and that interrogation was recorded on videotape. After he was indicted, Henriquez challenged the use at trial of the written and videotaped statements. At the conclusion of a hearing, the trial court permitted the prosecution to introduce the two statements as evidence at trial.
Henriquez elected to be absent from the courtroom during the voir dire process. He returned for the exercise of challenges to the venire. Outside of the presence of the jury and before opening statements were presented, Henriquez's trial counsel informed the trial judge that:
The defendant advised me this morning that he is directing me not to cross-examine any witnesses, not to object to any line of questioning, not to call — to go even further, not to approach the bench, not to participate in any bench conferences or side bars, not to have any defense in this case, not to call any witnesses, not to sum up, not to do anything.
He has indicated to me he just wants me to sit here and do nothing.
Henriquez's trial counsel then requested that he be relieved from representing Henriquez. Through colloquy with Henriquez, the trial court satisfied itself that the circumstance was as defense counsel described it, and that Henriquez understood that he was waiving important rights including the right to examine trial witnesses, to make evidentiary objections, and to present evidence in defense of the charges. The trial court also found that notwithstanding Henriquez's directive to his trial counsel that he do nothing, Henriquez did not want to represent himself. The trial court then denied trial counsel's request to be relieved from representing Henriquez.
The trial court urged Henriquez to reconsider his position, but Henriquez refused to do so. The judge repeatedly advised Henriquez that he could change his mind at any time and offer a defense or challenge the state's evidence. During the trial, no opening or closing statements were made on Henriquez's behalf, and no objection was made to evidence offered by the prosecution, including the introduction of crime scene photographs and the murder weapon. There was no cross-examination of the prosecution witnesses, and no witnesses were called or motions made on Henriquez's behalf. Furthermore, Henriquez declined to comment on the trial court's proposed jury instructions, and although the court invited Henriquez to authorize a defense of extreme emotional disturbance, Henriquez refused to request the instruction.
The jury found the defendant guilty, and at sentencing on April 16, 1996, Henriquez's trial counsel declined to make a statement to the court on Henriquez's behalf in mitigation of the sentence. After hearing from the prosecution, the trial court sentenced Henriquez to two concurrent terms of imprisonment of 25 years to life for murder and criminal possession of a weapon, and to a one-year term of imprisonment on the endangerment charge, to merge with the concurrent terms by operation of law.
Henriquez's trial counsel filed a notice of appeal, but before the appeal was perfected, Henriquez filed a series of motions pro se to challenge his conviction. They were all denied.
In his direct appeal to the Appellate Division, Henriquez claimed ineffective assistance of counsel because of trial counsel's mistaken belief that he was required to comply with Henriquez's directive that he do nothing at trial. In addition, Henriquez claimed that the trial court violated his Sixth Amendment right to have a criminal trial in which the allegations made by the state were tested by the adversarial process. The state argued that Henriquez made a strategic choice to prevent his trial counsel from advocating on his behalf during the trial proceedings, and that he received the trial that he demanded.
The Appellate Division affirmed unanimously. People v. Henriquez, 763 N.Y.S.2d 466 (App.Div. 2003). The court found 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."Id. at 467.
Although represented by counsel, Henriquez made a pro se application for leave to appeal to the Court of Appeals, because he was "not inclined to trust any lawyer." His appellate counsel also sought leave to appeal, and it was granted. Appellate counsel argued to the Court of Appeals 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 his trial counsel felt bound by the directive to do nothing, and the trial court abdicated its responsibility to ensure a fair trial when it made sure that the trial counsel complied fully with Henriquez's instructions to him. Henriquez filed a supplemental brief pro se presenting a variety of other grounds for reversal.
A divided Court of Appeals affirmed. People v. Henriquez, 818 N.E.2d 1125 (N.Y. 2004). The court found that "because the right to defend is given directly to the accused, the Constitution does not force a lawyer upon a defendant." Id. at 1128 (citing Faretta v. California, 422 U.S. 806, 819-20 (1975), and Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)). "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." Id. at 1129. The court concluded that the "defendant in this case [must] now accept the decision he knowingly, voluntarily and intelligently made, and the consequences of his intentional actions and choices." Id.
One judge dissented, opining that while fundamental decisions are reserved to the client, strategic and tactical decisions, such as "if and when to object, call witnesses and develop particular defenses, have to be made without consulting defendant." Id. at 1135 (Smith, J., dissenting) (citingWainwright v. Sykes, 433 U.S. 72, 93 (1977) (Burger, C.J., concurring)). Relying largely on United States v. Cronic, he reasoned that, since the "right to the effective assistance of counsel is the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing," 466 U.S. 648, 656 (1984), "where the trial is not an adversarial proceeding, the accused has been deprived of his right to effective assistance of counsel." Henriquez, 818 N.E.2d at 1137.
On December 30, 2005, after the Court of Appeals decision, Henriquez filed this timely petition for a writ of habeas corpus, raising a multiplicity of claims. The case was referred to Magistrate Judge Fox on January 11, 2006. Magistrate Judge Fox concluded in his Report that the unexhausted claims in Henriquez's petition should be denied for lack of merit, but that the writ should be granted because Henriquez's Sixth Amendment right to the effective assistance of counsel was violated, and the New York Court of Appeals failed unreasonably to apply applicable federal law as determined by the Supreme Court. Essentially adopting the dissent to the Court of Appeals decision, Judge Fox also relied on Cronic to find that, because no meaningful adversarial testing occurred at the trial, Henriquez's counsel and the trial judge had made errors of constitutional magnitude.
Extensions to file objections were granted until February 23, 2007. Petitioner filed an objection on January 25, and the respondent filed an objection on February 16. Petitioner also submitted an additional letter, which was received on March 1.
Discussion
The district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The court shall make a de novo determination of the portions of the report to which the petitioner objects. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Where no objections are filed, or where the objections are "devoid of any reference to specific findings or recommendations" and are "unsupported by legal authority," the claims are not preserved. Mario v. P C Foods, Inc., 313 F.3d 758, 766 (2d Cir. 2002).
The Report recommends that all of Henriquez's claims be denied except for his ineffective assistance claim. Henriquez objects generally to "each and every Ruling of the Court that was unfavorable to me and/or that I was denied Relief for." Henriquez's objections merely restate conclusions without citation to any legal authority and do not refer to any specific portion of the Report. Although pro se submissions are construed liberally, Wright v. Comm'r, 381 F.3d 41, 44 (2d Cir. 2004), such perfunctory objections cannot preserve his claims, and therefore those portions of the Report are reviewed under the clear error standard. The respondent objects to the Report's recommendation that the petition be granted. That portion of the Report is reviewed de novo.
I. Unexhausted Claims
A federal court may not grant a habeas petition unless "the applicant has exhausted the remedies available in the courts of the State," "there is an absence of available State corrective process," or "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1). A petitioner's state remedies are exhausted when he has "(i) presented the federal constitutional claim asserted in the petition to the highest state court (after preserving it as required by state law in lower courts) and (ii) informed that court (and lower courts) about both factual and legal bases for the federal claim." Ramirez v. Att'y Gen., 280 F.3d 87, 94 (2d Cir. 2001). Where a district court is confronted with a "mixed" petition, which includes both exhausted and unexhausted claims, the court may stay the petition and permit the petitioner to return to state court to exhaust his claims, or it may deny the petition on the merits even though it contains unexhausted claims. Pratt v. Greiner, 306 F.3d 1190, 1196-97 (2d Cir. 2002).
The Report considered all of the unexhausted claims, and determined that they lacked merit. Henriquez's unexhausted claims asserted: (1) ineffective assistance of counsel because trial counsel (a) had never tried a murder case before, (b) failed to file a post-conviction motion, and (c) failed to conduct adequate pretrial investigation; (2) that his conviction resulted from an unconstitutional trial because (a) the trial court failed to instruct the jury about jury nullification, (b) the trial court was biased against Henriquez, as evidenced by its rulings in favor of the prosecution, and (c) other vague claims of unconstitutionality; (3) that his sentence was cruel and unusual; and (4) that the admission of his inculpatory statements made him a witness against himself and violated his right to remain silent at trial. There is no clear error in the Report's consideration of the merits of Henriquez's unexhausted claims, and the Report's recommendation that these claims lack merit is adopted in full.
II. Exhausted Claims A. Ineffective Assistance of Counsel
Henriquez's central claim in this petition is that trial counsel provided ineffective assistance in following Henriquez's directive to do nothing. This claim was adjudicated on the merits by the Court of Appeals. Under the Antiterrorism and Effective Death Penalty Act of 1996, a petition for writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts, unless the adjudication: "(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).
A state court decision is "contrary to" clearly established federal law "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 than [the Supreme] Court on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000) (opinion of the Court, by Justice O'Connor in Part II). On the other hand, a state court decision involves an "unreasonable application" of Supreme Court precedent if the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. "[C]learly established Federal law in § 2254(d) refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Carey v. Musladin, 127 S. Ct. 639, 653 (2006) (citingWilliams, 529 U.S. at 412).
The Report relied on Cronic, 466 U.S. 648, to find that the Court of Appeals affirmance of Henriquez's conviction was an unreasonable application of Supreme Court precedent. As described in Cronic, the Tenth Circuit had identified five criteria for considering the presumption of ineffective assistance. The five criteria were: "(1) the time afforded for investigation and preparation; (2) the experience of counsel; (3) the gravity of the charge; (4) the complexity of possible defenses; and (5) the accessibility of witnesses to counsel." Id. at 652 (citation omitted) Unlike in Strickland v. Washington, which was issued the same day as Cronic and which established the now-famous test for an ineffective assistance claim, 466 U.S. 668, 687 (1984), the Court in Cronic did not articulate a test for an ineffective assistance claim but held instead that the five criteria identified by the Tenth Circuit did not justify a presumption of ineffective assistance. 466 U.S. at 666.
Strickland established that "in order to prevail on an ineffective assistance of counsel claim, a defendant must show (1) that his attorney's performance fell below an objective standard of reasonableness, and (2) that as a result he suffered prejudice." Strickland, 466 U.S. at 687.
Cronic, who was convicted of mail fraud, was represented at trial by a young attorney with expertise in real estate, who was conducting his first jury trial with only 25 days to prepare for it. The Tenth Circuit reversed the conviction without determining that defense counsel had committed any specific errors, on the premise that no showing of error, prejudice, or lack of competence was necessary "when circumstances hamper a given lawyer's preparation of a defendant's case." Id. at 650 (citation omitted).
The Court held, however, that the five
criteria used by the [Tenth Circuit] do not demonstrate that counsel failed to function in any meaningful sense as the Government's adversary. [A criminal defendant] can therefore make out a claim of ineffective assistance only by pointing to specific errors made by trial counsel.Id. at 666. In reaching this conclusion, the Court described the right to effective assistance as "the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. . . . [I]f the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated." Id. at 656-57. Prejudice is presumed where there is "complete denial of counsel," or "if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing." Id. at 659.
When examined, therefore, Cronic's holding is its rejection of the five-part test as the litmus test for an ineffective assistance claim. The reference to a failure to meaningfully test the prosecution's case — which was crucial to the analysis in both the Report and the Court of Appeals dissent — is not necessary to that holding. More significantly for our purposes,Cronic did not confront the situation where the defendant orders defense counsel not to do anything during the trial; the Supreme Court has never addressed a claim that such acquiescence by defense counsel and the trial court is a failure of effective assistance. See Carey, 127 S. Ct. at 653-54.
This does not end our analysis though. Pronouncements in other Supreme Court decisions also have resonance for the issues presented in this petition. For example, in Florida v. Nixon, the Court reviewed a conviction in a capital case where defense counsel made a strategic decision to concede guilt in the guilt phase of the trial without receiving the defendant's express consent. 543 U.S. 175, 178 (2004). The Court held that Cronic's presumption of prejudice when counsel fails meaningfully to oppose the prosecution's case was not applicable since defense counsel pursued a tenable strategy that he had adequately discussed with the defendant. Id. at 179, 190. The Nixon Court reasoned that while "[a]n attorney undoubtedly has a duty to consult with the client regarding `important decisions,' including questions of overarching defense strategy," the attorney is not obligated to obtain consent "to every tactical decision." Id. at 187 (citation omitted).
It is well established that "certain decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate." Id. Thus, a defendant has "the ultimate authority to determine whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal." Id. (citation omitted). The Nixon Court distinguished between the decision made by defense counsel to concede guilt at trial, which still obliges the state to present sufficient admissible evidence to win a conviction and retains the right of appeal for the defendant, and a guilty plea, which requires a defendant's express consent. Id. at 188. It did not confront, however, the correct course of action for counsel when the defendant instructs counsel to stand mute.
At least one other Supreme Court decision bears discussion. In reviewing a defendant's constitutional right to proceed pro se, the Court in Faretta opined that "[t]he right to defend is given directly to the accused, for it is he who suffers the consequences if the defense fails." 422 U.S. at 819. Thus, even though a defendant may conduct his defense in a manner that is detrimental to his interests, he has the right to proceed pro se, so long as the waiver of assistance of counsel is knowing, intelligent, and voluntary. Id. at 834-35.
As already noted, the Supreme Court has never addressed a case in which a defendant did not seek to proceed pro se, but did instruct his attorney to do nothing to contest the Government's evidence at trial. Assuming that he was competent to make this decision, and that he made a knowing and voluntary waiver of the right to confront and test the state's evidence — issues that are not contested in this petition — Henriquez has not shown that the New York Court of Appeals unreasonably applied the holdings in Supreme Court precedent when it rejected his Sixth Amendment claim. As Nixon illustrates, not every failure to subject the prosecution's case to adversarial testing is a violation of the Sixth Amendment. Indeed, Nixon is consistent with the finding that a defendant has the right to consent to or reject a strategy of conceding guilt at trial. Given that a defendant may waive altogether the right to assistance at trial from an attorney, and can of course choose to plead guilty and forego the right to a trial altogether, it takes no great leap to conclude that a defendant also has the ultimate right to instruct his attorney to present no defense on his behalf. Defendants in this district stipulate not infrequently to the Government's trial evidence and waive their right to a jury trial in order to preserve the right to challenge on appeal an adverse ruling in a suppression hearing. It simply cannot be said that a Sixth Amendment violation occurs whenever defense counsel fails to function "in any meaningful sense" at trial as the Government's adversary. Cronic, 466 U.S. at 666. Thus, it is not unreasonable for a court to conclude that while issues of trial tactics may be for the attorney, the decision to dispense with a defense altogether is a decision which can be directed by the defendant or chosen by defense counsel with the implicit or express consent of the defendant.
In sum, Judge Fox improperly concluded that the New York Court of Appeals' decision was contrary to or an unreasonable application of Cronic. Therefore, the Report's recommendation that the writ be granted as to the ineffective assistance claim is rejected.
B. Other Exhausted Claims
The Report also considered three other exhausted claims. First, Henriquez claimed that his posture at trial should have been recognized as an attempt to tender a plea of nolo contendere. The plea of nolo contendere is not recognized in a criminal action in New York. See People v. Daiboch, 191 N.E. 859, 860 (N.Y. 1934). The Report determined that it would be unreasonable to conclude that trial counsel should have determined that Henriquez was attempting to tender a plea that is not recognized in New York. Upon de novo review, this claim fails. Where the plea is not even recognized under New York law, failure of counsel to pursue that course cannot be said to "f[a]ll below an objective standard of reasonableness."Strickland, 466 U.S. at 687.
The other two exhausted claims are based on (1) the fact that Henriquez allegedly "pled guilty on several occasions" and "solicited a plea bargain on several occasions" between the day of the murder and the day of his sentence, and the imposition of an unconstitutional sentence enhancement; and (2) the trial court's admission of certain evidence at trial. The Report considered both claims and determined that they do not entitle Henriquez to relief. There is no clear error in the Report's consideration, and its recommendation on these claims is adopted in full.
Conclusion
The recommendation of Magistrate Judge Fox is rejected as to Henriquez's ineffective assistance of counsel claim, and adopted as to the other claims. I decline to issue a certificate of appealability. Henriquez has not made a substantial showing of a denial of a federal right, and appellate review is therefore not warranted. Grotto v. Herbert, 316 F.3d 198, 209 (2d Cir. 2003). I also find, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss the petition.
SO ORDERED: