Summary
applying Strickland standard to petitioner's federal claim of ineffective appellate counsel, but evaluating the predicate trial counsel's performance under the state Henry "meaningful representation" standard
Summary of this case from Larrea v. BennettOpinion
98 Civ. 6704 (MBM)
May 29, 2001
FELIX HERNANDEZ, Pro Se Petitioner.
NANCY LYNN EISENSTEIN, ESQ., Assistant Attorney General Attorney for Respondents
OPINION ORDER
Felix Hernandez petitions pro se, pursuant to 28 U.S.C. § 2254 (West 1994 Supp. 2000), challenging his state court conviction for one count of burglary in the first degree and one count of criminal impersonation in the first degree. Magistrate Judge Michael Dolinger recommended in a Report and Recommendation, dated July 25, 2000 (the "Report"), that the writ be denied on procedural and substantive grounds. Hernandez submitted a Notice of Objection in which he objects to essentially all of the Report. Therefore, I must review the Report de novo. See 28 U.S.C. § 636(b)(1)(1994); Fed.R.Civ.P. 72(b). For the reasons stated below, the Report is modified, and Hernandez's petition is dismissed.
I.
The testimony at trial established that on October 20, 1989, Hernandez and another man entered the apartment of Juana Peleaz and her son, Marcelino Otero. (Tr. 23, 34-35, 60, 62-63) The two men claimed that they were police officers. (Tr. 23-24, 64) They wielded guns, displayed police shields, wore bulletproof vests, and at least one of them carried a radio scanner. (Tr. 23, 25, 33-39, 61, 64-65) After the two men left the apartment, Peleaz ran to the street where she sought the assistance of two officers in a patrol car. (Tr. 29-30) The officers arrested Hernandez as he and two other men fled from a car. (Tr. 82-85, 109, 116) One of the arresting officers testified that Hernandez dropped a scanner on the ground as he ran from the car, and that his accomplice dropped a black duffel bag. (Tr. 89) The other officer testified that Hernandez's accomplice had dropped both the scanner and the duffel bag. (Tr. 116) Hernandez was wearing a bullet-proof vest at the time of his arrest. (Tr. 89, 116)
References to "Tr." are to the trial transcript.
On April 29, 1992, the jury convicted Hernandez of burglary in the first degree and criminal impersonation in the first degree. (Tr. 357) On May 28, 1992, he was sentenced to concurrent terms of ten to twenty and two to four years imprisonment. (Sent. Tr. 19-20) Hernandez appealed his conviction to the Appellate Division, First Department. He argued that the bullet-proof vest, Pelaez's identification, and his post-arrest statement should have been suppressed because the police lacked probable cause to arrest him. He argued also that he was denied due process of law because the trial court refused to charge trespass, a lesser included offense of burglary in the first degree. (Pet.'s A.D. Br. at 17, 23) The judgment was affirmed by the Appellate Division on December 28, 1993. (Pet. Ex. 4); People v. Corbriette, 199 A.D.2d 204, 606 N.Y.S.2d 4 (1st Dep't 1993). The New York Court of Appeals denied leave to appeal on February 17, 1994. People v. Cobriette, 83 N.Y.2d 803, 611 N.Y.S.2d 139(1994).
Hernandez also sought to vacate his sentence. His request was denied and leave to appeal was denied by the Appellate Division on June 15, 1995. (Aff. Ex. 1)
Hernandez applied for a writ of error coram nobis dated December 1995. He claimed that his appellate counsel was ineffective because he did not raise on appeal the issue of Hernandez's alleged absence during the reading of a supplemental jury charge. The application was denied by the Appellate Division, First Department on May 14, 1996. (Aff. Ex. 5)
On November 15, 1995, Hernandez wrote to the motion clerk for the New York Supreme Court inquiring about a motion to vacate the judgment that Hernandez claimed to have mailed on October 23, 1995. (Aff. Ex. 3) In a letter dated January 16, 1996, the motion clerk responded that the Court had not received the motion. (Aff. Ex. 4) However, the state filed a response to the motion dated April 8, 1996. (Aff. Ex. 6) On May 20, 1996, the Hon. William Wetzel issued an opinion that addressed only Hernandez's alleged absence during the reading of a supplemental jury instruction. (Pet. Ex. 2) The court denied the motion based on an erroneous finding that Hernandez failed to bring a direct appeal of his conviction, and failed also to submit a sworn allegation of fact in support of his motion.
Hernandez claims that he did not receive a copy of the May 20, 1996 decision until December 1996. (Pet. Ex. 3) As a result, he filed a second motion to vacate, dated September 17, 1996. In the second motion, Hernandez reiterated his claim that the trial court had instructed the jury outside his presence. He claimed also that his trial counsel was ineffective. (Notice of Motion 9/17/96, at 2) An affidavit by Hernandez stating that he was not present for the supplemental jury instruction accompanied this motion. (Id.) He submitted also a "reargument and reply to respondent's affirmation and opposition" dated January 17, 1997, after he received a copy of the May 20, 1996 decision. He explained that, contrary to Judge Wetzel's decision, he had directly appealed his conviction as far as the Court of Appeals. In addition, he raised again his claim that trial counsel had been ineffective. (Pet. Ex. 3) On April 16, 1997, without a written decision, Judge Wetzel denied Hernandez's January 17, 1997 motion. (Pet. Ex. 5)
Hernandez sought leave to appeal in a document dated December 4, 1997. (Notice of Appeal 12/4/97) In his request for leave to appeal, he raised the issue of his alleged absence during the reading of the supplemental jury instruction, and also argued ineffective assistance of trial counsel. (Id.) The Appellate Division denied leave to appeal Judge Wetzel's May 20, 1996 and April 16, 1997 decisions, and stated that there was "no question of law or fact presented which ought to be reviewed." (Pet. Ex. 6)
II.
Hernandez's grounds for relief here include his alleged absence when the trial judge gave a supplemental instruction to the jury, and ineffective assistance of trial counsel. Hernandez objects to the Report's failure to address a third claim — ineffective assistance of appellate counsel. He asserts the last claim to establish cause for his failure to raise the first two claims on direct appeal. (Pet. at 9)
Hernandez raised his first two claims before the state court in successive motions to vacate the judgment pursuant to N.Y. C.P.L. § 440.10 (McKinney 1994). In response to the first motion, the trial court found that N.Y. C.P.L. § 440.10(2)(c) barred Hernandez's claim based on his alleged absence during the supplemental jury instruction. Although that court clearly erred in finding that Hernandez had not pursued a direct appeal of his conviction, it nonetheless correctly denied his motion. The cited N.Y. C.P.L. section requires the court to deny a motion to vacate if the defendant, although he appealed his conviction, unjustifiably failed to raise the issue in question on direct appeal. Hernandez did not argue on direct appeal that the trial court had delivered a supplemental charge in his absence. See also, N.Y. C.R.R. § 500.10(a) (West 1995) (allowing defendants only one request for leave to appeal to the New York Court of Appeals). Therefore, Hernandez's claim that the trial court gave a supplemental jury instruction in his absence is procedurally barred. "Federal courts may not review state court decisions that rest on adequate and independent state procedural default." Fama v. Commissioner of Correctional Servs., 235 F.3d 804, 809 (2d Cir. 2000); see also, Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 126 (2d Cir. 1995) (refusing federal habeas review where New York court found claim procedurally barred pursuant to N.Y. C.P.L. § 440.10(2)(c)).
A court may raise a petitioner's procedural default sua sponte. See Washington v. James, 996 F.2d 1442 (2d Cir. 1993).
Although it appears that Hernandez did not raise his ineffective assistance of trial counsel claim in his initial motion to vacate the judgment — the May 20, 1996 decision of his motion to vacate does not mention ineffective assistance of trial counsel — Hernandez did raise that claim in his second motion to vacate, notarized September 17, 1996, and in his January 1997 motion for reargument. (Notice of Motion 9/17/96; Pet. Ex. 3) He raised the claim also in his request for leave to appeal the denial of his motion to vacate.
Hernandez's January 17, 1997 reargument and request for leave to appeal were denied without opinion. Magistrate Judge Dolinger, relying onTankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998), appears to have determined that the state court did not "clearly and expressly" find that the ineffective assistance of trial counsel claim was procedurally barred. Therefore, he determined that the claim was not procedurally defaulted. However, in Tankleff, the state court wrote that the petitioner's claim was "either meritless or unpreserved." Id. In the instant case, the trial court expressed no opinion regarding Hernandez's ineffective-assistance-of-trial-counsel claim; rather, that court denied it without opinion. (Pet. Ex. 5) The Appellate Division denied leave to appeal and stated only that there was no question of law or fact presented which ought to have been reviewed. (Pet. Ex. 6) The Second Circuit has held that "where a state court issued no opinion and where both procedural and substantive arguments were made in the appellate briefs," it is assumed that the state court based its decision on state procedural grounds, Fama, 235 F.3d at 810 (citing Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993)), "unless there is `good reason to question whether there is an independent and adequate ground for the decision.'" Quirama, 983 F.2d at 14 (quoting Coleman v. Thompson, 501 U.S. 722, 739(1991)).
In opposition to Hernandez's second motion to vacate, the state argued, inter alia, that N.Y. C.P.L. § 440.10(2)(c) barred him from raising his ineffective assistance of trial counsel claim. (Pet. Ex. 1, at 2) Although, contrary to the state's argument, Hernandez did appeal his conviction, he did not raise his ineffective assistance of counsel claim on direct appeal. Therefore, his ineffective assistance of trial counsel claim was barred also by N.Y. C.P.L. § 440.10(2)(c). The state court did not issue an opinion; both procedural and substantive grounds were argued in the opposing papers. There is no reason to question that the claim was procedurally barred. Therefore, I must conclude that Hernandez' s ineffective-assistance-of-trial-counsel claim was denied by the state courts on procedural grounds. See Quirama, 983 F.2d at 14.
"Denial of a 440.10 motion, pursuant to 440.10(2)(c), will not always be appropriate in the ineffective assistance context." Reves v. Keane, 118 F.3d 136, 139 (2d Cir. 1997). However, Hernandez's ineffective assistance of trial counsel claim was based solely on the trial record. Therefore, denial of his motion pursuant to § 440.10(2)(c) was appropriate. Id. (finding that it would be futile for the petitioner to bring an ineffective assistance of counsel claim pursuant to § 440.10); Redd v. Quinones, 1998 WL 702334, at *4 (S.D.N.Y. 1998) (citingReyes, 118 F.3d at 139-140).
III.
Hernandez's claims may be heard despite the procedural default only if he can show cause for the default and actual prejudice as a result of an alleged violation of federal law. See Coleman v. Thompson, 501 U.S. 722, 750(1991). A defaulted claim may also be heard if a petitioner shows that a miscarriage of justice — the conviction of an innocent man — will result if the constitutional claim is not reviewed. See Murray v. Carrier, 477 U.S. 478, 496(1986). Hernandez asserts ineffective assistance of appellate counsel as cause for his default.
To assert such cause for a default, a petitioner must first exhaust this claim in the state courts. See Edwards v. Carpenter, 529 U.S. 446, 451-52(2000); accord Reves, 118 F.3d at 139-40. Hernandez exhausted his ineffective assistance of appellate counsel claim by applying for a writ of error coram nobis in the Appellate Division. See Garcia v. Keane, 973 F. Supp. 364, 369-70 (S.D.N.Y. 1997) (finding ineffective assistance of appellate counsel claim exhausted by applying for a writ of errorcoram nobis in the Appellate Division); see also Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 124 (finding that denial of a coram nobis petition is not appealable to New York Court of Appeals); People v. Bachert, 69 N.Y.2d 593, 598-600, 516 N.Y.S.2d 623, 626-28(1987). Therefore, to determine whether Hernandez has shown cause, an assessment of the merits of his ineffective assistance of appellate counsel claim is appropriate. "Attorney error short of ineffective assistance of counsel does not constitute cause for a procedural default even when that default occurs on appeal rather than at trial." Murray, 477 U.S. at 492.
To establish ineffective assistance of appellate counsel, Hernandez must show that (1) his appellate counsel's performance was deficient, and (2) the deficiency caused actual prejudice to his defense. Clark v. Stinson, 214 F.3d 315, 321 (2d Cir. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)), cert. denied, 121 S.Ct. 865(2001). "A petitioner may establish constitutionally inadequate performance 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). The omitted claim may be based either in federal or state law. Id.
Hernandez argues that his appellate counsel's representation was deficient because counsel failed to raise on direct appeal Hernandez's ineffective-assistance-of-trial-counsel and right-to-be-present claims. Thus, although Hernandez may not be entitled to a direct consideration of the merits of these claims due to his default, an evaluation of their merit is nonetheless necessary to determine whether they were "significant and obvious" issues, and thus whether his appellate counsel was deficient because he failed to raise them.
A. Hernandez's Right to Be Present Claim
Hernandez's claim that his right to be present was violated because he was absent when the judge gave a supplemental instruction to the jury was not "significant and obvious" under either New York or federal law. Under New York law, a defendant must be present when the jury is being charged, whether initially or in response to a jury question. See People v. Mullen, 44 N.Y.2d 1, 4, 403 N.Y.S.2d 470, 472(1978); see also N.Y. C.P.L. § 310.30 (McKinney 1993); Clark, 214 F.3d at 322 (citing N.Y. Const. art. 1, § 6; N.Y. C.P.L. §§ 260.20, 340.50 (McKinney 1993, 1994)). Further, a defendant may raise a claim that he was absent when the judge gave a supplemental jury charge on appeal absent an objection at trial, and the claim is not subject to harmless error analysis. See People v. Dokes, 584 N.Y.2d 656, 662, 584 N.Y.S.2d 761, 765(1992); People v. Mehmedi, 69 N.Y.2d 759, 760, 513 N.Y.S.2d 100, 101(1987).
If the trial transcript showed Hernandez's absence, appellate counsel may have been ineffective for failing to raise the claim; it would have been a "sure winner." Clark, 214 F.3d at 328. However, the transcript of Hernandez's trial says nothing about who was present when the judge gave the supplemental instruction. (Tr. 339-44) Although it is possible that the attorneys and the defendant were not present, it is just as possible that they were, and that the court reporter simply failed to identify those in attendance. Moreover, the trial transcript contains no reference to Hernandez's absence, either in the form of an objection by counsel or a notation by the prosecutor, despite the fact that the trial judge stated that both attorneys had been shown the jury note that gave rise to the supplemental instruction. (Tr. 339) Given the ambiguity in the record and the presumption of regularity that attaches to court proceedings in New York, see People v. Firrira, 258 A.D.2d 666, 685 N.Y.S.2d 787, 788 (2d Dep't 1999), it was not unreasonable for Hernandez's appellate counsel to forego arguing Hernandez's right-to-be-present claim pursuant to New York law. See Turner v. Greiner, 2000 WL 516509 (E.D.N.Y. 2000) (it was not unreasonable application of Supreme Court precedent for a state court to find that appellate counsel was not ineffective for failing to raise a right-to-be-present claim).
A defendant's right to be present at all material stages of trial exists also under federal law, and arises from the Sixth Amendment confrontation clause and the due process clauses of the Fifth and Fourteenth Amendments. Clark, 214 F.3d at 322. A defendant's presence is required "to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Snyder v. Massachusetts, 291 U.S. 97, 108 (1934), overruled on other grounds, Malloy v. Hogan, 378 U.S. 1 (1964); accord United States v. Gagnon, 470 U.S. 522(1985) Even assuming that Hernandez was absent during the reading of the supplemental instruction, his claim under federal law also was not "significant and obvious." The supplemental instruction was nothing more than a verbatim reiteration of the initial criminal impersonation instruction. (Tr. 307-311, 340-344) A fair and just hearing would not have been thwarted by Hernandez's absence. See United States v. Jackson, 263 F.2d 282, 283 (2d Cir. 1959) (no injustice or prejudice in trial court's read-back of testimony to the jury in the absence of the defendant). Hernandez's appellate counsel was not deficient for failing to raise his right-to-be-present claim on appeal, because it was not a "significant and obvious" issue under federal or state law.
Moreover, even if Hernandez's appellate counsel was deficient for failing to raise the federal right to be present claim, Hernandez cannot establish prejudice — that, but for counsel's error, there is a reasonable probability that the outcome of his appeal would have been different. The Second Circuit has subjected a claim raising a defendant's federal right to be present to harmless error review. See United States v. Fontanez, 878 F.2d 33, 37-38 (2d Cir. 1989). Unlike Fontanez, where the Second Circuit held that the defendant's absence during an Allen charge was not harmless error, the instruction in Hernandez's case was not the result of a deadlocked jury. Rather, the judge read verbatim the instruction on criminal impersonation that he had given previously to the jury in Hernandez's presence. See id. at 38 (Mahoney, C.J. concurring) ("[T]he result here [in Fontanez] should not be taken to establish any general rule that such violations of Fed.R.Crim.Proc. 43(a) ordinarily result in prejudice calling for reversal of the related conviction. . . .).
B. Hernandez's Ineffective Assistance of Trial Counsel Claim
Because Hernandez's ineffective-assistance-of-trial-counsel claim is meritless, appellate counsel did not omit a significant and obvious issue by failing to raise it. Under federal law, the standard used to determine whether appellate counsel was ineffective is applied also to determine whether trial counsel was ineffective. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). First, the defendant must show that counsel's performance was deficient as judged by an objective standard of reasonableness. Second, the defendant must show prejudice from counsel's performance. See Strickland v. Washington, 466 U.S. 668, 687 (1984);Mayo, 13 F.3d at 533.
Hernandez argues that his trial counsel was deficient because he did not (1) object to the introduction of the radio scanner despite problems with the chain of custody; (2) cross-examine police witnesses using a property voucher on which the brand name for the scanner was different from the brand name reported by witnesses; and (3) object to the prosecutor's alleged use of Hernandez's post-arrest statement for purposes other than impeachment. Even assuming that Hernandez has shown deficient performance by his trial counsel, he cannot demonstrate "a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Strickland, 466 U.S. at 695, 697 ("If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice, . . . that course should be followed.").
Neither the exclusion of the scanner nor cross-examination that used the property voucher to suggest that the scanner introduced at trial was not the scanner observed by the witnesses would have created a reasonable probability that the jury would have acquitted petitioner of the burglary charge. Pelaez identified Hernandez as one of the men who entered her apartment on October 20, 1989 posing as a police officer. She identified him immediately after his arrest and again at trial. (Tr. 24, 32) Her son also identified him at trial. (Tr. 61-62; see also Tr. 114 (trial court pointing out the extent of identification evidence)) Furthermore, the witnesses at trial testified only that the scanner produced by the prosecutor "looked like" the scanner carried by Hernandez and/or his accomplice. (Tr. 36-37, 65, 119)
The exclusion of the scanner also would not have created a reasonable probability that the jury would have acquitted Hernandez of criminal impersonation. The prosecutor consistently cited the scanner as one of several items of police gear, including police badges, guns, and bullet-proof vests, that were displayed by Hernandez and his accomplice. (See. e.g., Tr. 11, 246) Had no mention been made of the scanner during trial, the list of police gear would have been merely one item shorter.
When the prosecutor questioned Hernandez about his post-arrest statement, the trial court instructed the jury that the questioning was "allowed for a very limited purpose here, to help you assess the credibility of the witness." (Tr. 183) The trial court gave the same instruction following the testimony of Officer Teaton, who recounted Hernandez's post-arrest statements, and further reminded the jury that "any statement made outside the court is not evidence in this case." (Tr. 224) Thus, even if the prosecutor intended the statements to serve a purpose other than to impeach Hernandez's testimony, and despite defense counsel's failure to object, the trial court's limiting instructions made it clear that the statements could be considered only to the extent that they affected Hernandez's credibility. Assuming defense counsel had not committed the errors Hernandez alleges, there is no reasonable probability that the fact finder would have had a reasonable doubt respecting guilt. Strickland, 466 U.S. at 695. Therefore, Hernandez's federal ineffective-assistance-of-counsel claim is meritless, and his appellate counsel was not deficient for failing to raise it.
In New York, representation is considered effective if it is meaningful when viewed generally and as of the time it is rendered. People v. Henry, 95 N.Y.2d 563, 565, 721 N.Y.S.2d 577, 578(2000). Hernandez's trial counsel gave an opening statement (Tr. 18-19), cross-examined prosecution witnesses regarding inconsistent statements and ambiguities in their testimony (e.g., Tr. 66-71, 125-32), presented a defense witness to explain Hernandez's use of the bullet-proof vest (Tr. 191-94), and gave a persuasive closing argument (Tr. 229-46). He sought to limit the prosecution's use of Hernandez's prior arrests (Sandoval Hearing 4/20/92, at 4), and made jury charge requests (Tr. 209-10) Hernandez's trial counsel provided meaningful representation. See, e.g., People v. DiLorenzo, 177 A.D.2d 590, 576 N.Y.S.2d 46 (2d Dep't 1991). Therefore, appellate counsel was not deficient for failing to raise the ineffective-assistance-of-trial-counsel claim pursuant to state law.
Hernandez's right-to-be-present claim and his ineffective-assistance-of-trial-counsel claim were not "obvious and significant issues" omitted on appeal where "significantly weaker" claims were raised. His appellate counsel did not "overlook a `sure winner' and focus only on clearly losing arguments." Clark, 214 F.3d at 328 (citing Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998)). Although he has exhausted the claim, Hernandez has failed to establish ineffective assistance of appellate counsel, see Murray v. Carrier, 477 U.S. 478, 492 (1986), and thus has failed to show cause for his default.
Hernandez's ineffective assistance of appellate counsel claim fails also as an independent ground for relief. The state court's denial of hiscoram nobis petition was not "contrary to" or "an unreasonable application of" federal law as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1) (West Supp. 2000).
Hernandez asserts that, until 1995, he did not have the trial transcript and therefore did not know that the supplemental charge was given in his absence. Because he had effective assistance of appellate counsel, and his appellate counsel had the trial transcript, Hernandez's alleged lack of a trial transcript also does not constitute cause for his default. He has made no attempt to show actual innocence, and therefore has not shown that a failure to hear his petition would result in a miscarriage of justice. See Murray, 477 U.S. at 496(1986).
Hernandez's right-to-be-present and ineffective-assistance-of-trial-counsel claims were procedurally defaulted. He has failed to establish ineffective assistance of appellate counsel, and therefore has not shown cause for his default. Therefore, his petition must be dismissed.
IV.
The Supreme Court recently established the standard for determining whether a certificate of appealability should issue when the district court denies a habeas petition on procedural grounds. The Court held that "[w]here the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484(2000) However, as the language quoted above states, the Slack standard applies only when the district court did not reach the petitioner's underlying constitutional claim. Here, I considered the merits of Hernandez's constitutional claims when deciding whether his ineffective-assistance-of-appellate-counsel claim constituted cause for his default. Therefore, the Slack Court's concern that an erroneous procedural ruling would bar the vindication of substantial constitutional rights on appeal is not implicated here. Id. at 483. Hernandez has not made a substantial showing of ineffective assistance of trial or appellate counsel or of the denial of his right to be present. 28 U.S.C. § 2253 (West Supp. 2000). Therefore, a certificate of appealability will not issue.
* * *
The Report is modified insofar as it did not find Hernandez's ineffective-assistance-of-counsel claim barred, and did not address his claim of ineffective assistance of appellate counsel. I agree with the Report's dismissal of Hernandez' s right-to-be-present claim as procedurally barred. The petition is dismissed. A certificate of appealability will not issue.
SO ORDERED: