Opinion
No. 01 Civ. 10750 (BSJ) (RLE).
December 15, 2005
Karen Swiger, Assistant District Attorney Bronx County, Bronx, NY, District Attorney.
REPORT AND RECOMMENDATION
I. INTRODUCTION
Pro se petitioner James Hill ("Hill") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in the Supreme Court, Bronx County, on June 10, 1996. Hill was convicted of murder in the second degree, and sentenced to an indeterminate term of twenty-five years to life. He is now serving his sentence at Shawangunk Correctional Facility in Wallkill, New York. Hill challenges his conviction on four grounds: 1) appellate counsel was ineffective in failing to raise a claim that his Miranda rights were violated; 2) appellate counsel was ineffective in failing to argue that his due process rights were violated when the trial court conducted a Wade [ United States v. Wade, 388 U.S. 218 (1967)] hearing instead of a Rodriguez [ People v. Rodriguez, 79 N.Y.2d 445, 453 (1992)] hearing; 3) evidence used to convict him was the fruit of an unlawful search, and should have been suppressed; and 4) the trial court abused its discretion when it permitted the prosecution to examine him about the underlying facts of his previous conviction. For the reasons set forth below, I recommend that Hill's writ of habeas corpus be DENIED.
II. BACKGROUND
A. Factual HistoryOn February 7, 1994, Anthony Irving and Sylvia Welch were walking in the Bronx when they encountered Hill and Belinda Reyes. Hill's Appeal Brief, filed before the Appellate Division, First Department ("Hill's Br.") at 3. Shots were fired, and Irving was fatally wounded as Hill and Reyes fled. Id. Welch was taken to the 48th precinct to view photographs of suspects who resembled her description of the shooter. Consolidated Pretrial Hearing Transcript ("Hrg.") at 215-17. She identified Hill. Id.
At approximately 1:00 a.m. on February 8, 1994, police officers arrived at 661 Rosedale Avenue in the Bronx to arrest Hill without an arrest warrant. Hill's Br. at 4. When the detectives knocked on the door, Irene Wiley ("Wiley"), Hill's bedridden mother, who had been diagnosed with Acquired Immune Deficiency Syndrome, said that she could not get out of bed to open the door. Hrg. at 251, 372-73. Police officers and detectives were also present at the home of Hill's grandmother at 1458 Webster Avenue in the Bronx. Government's Brief in Opposition to Hill's Appeal, filed before Appellate Division, First Department ("Gov. Br.") at 4. After speaking with Hill's grandmother, detectives called Wiley's house, and asked Hill to exit the apartment. Id.. At the same time, Kim Hill ("Kim"), Hill's sister, and her boyfriend, Jurah Freeman, arrived at 661 Rosedale Avenue to make sure Wiley was all right. Hrg. at 372-73. The detectives told them that they were there to arrest Hill, and "that if he knew [Kim] was in the hallway it might assist in making it easier for him to come out of the apartment." Id. at 252.
At approximately 2:45 a.m., Hill exited the apartment and was arrested in the hallway. Trial Transcript ("Tr.") at 651. Lieutenant Montgomery testified at a pretrial hearing that he entered the apartment at the same time as Kim, Hrg. at 267-69, but she testified that she followed him into the apartment. Id. at 354. Sergeant Loos and Officer Pitone remained in the apartment as Montgomery went to the precinct to get a search warrant. Id. at 277-28. The officers told Hill's family that they were there to protect them from possible retaliation from the victim's family. Id. at 355, 404. Montgomery couldn't get a warrant, and returned to the apartment at 6:30 a.m. He asked Wiley, with Kim present, if she would consent to a search of the apartment. Id. at 255-56. Wiley consented orally. Id. Montgomery wrote a consent form, and read it to her. Id. at 256. Montgomery did not explain the consent form to Wiley, and officers did not inform her that she could refuse consent. Id. at 286, 410. Instead, Montgomery told Wiley and Kim that if they did not sign the consent form, officers would remain in the apartment for several more hours until a judge issued a search warrant. Id. at 409. They signed the form. Id. at 409, 412.
During their search of the Wiley apartment, officers found a gun slide with three live rounds belonging to a .380 automatic pistol, and a box of ammunition in the tank behind the toilet bowl. Id. at 259. A .380 automatic pistol, with a slide missing, was found on the sidewalk outside one of the windows of Hill's apartment. Tr. at 201. The .380 pistol was the alleged murder weapon. Hill's Br. at 3.
While officers were engaged at the Rosedale Avenue apartment, Hill had been arrested and taken to the 42nd precinct, where he was advised of his Miranda rights. Hrg. at 138. Hill said he understood his rights, and was willing to answer questions. Id. At approximately 7:50 a.m., he initiated a conversation with Detective Wagner and confessed to shooting Irving. Id. at 148-50.
B. Trial and Appellate History
Hill was found guilty by a jury of murder in the second degree, and was sentenced to twenty-five years to life. Respondent's affidavit in opposition to petition for habeas corpus ("Resp. Aff.") at 1-2. Hill's direct appeal to the Appellate Division, First Department, raised two issues: 1) the evidence recovered from Wiley's house should have been suppressed because the search was illegal; and 2) the trial court abused its discretion when it allowed the prosecutor to cross-examine him about a) the underlying facts of a robbery that resulted in a youthful offender adjudication, b) a prior drug conviction, and c) an alleged assault of a fellow inmate at Riker's Island. Hill's Br. at 11, 22. The court unanimously affirmed Hill's conviction. It held that the motion to suppress physical evidence was properly denied because the police had a reasonable basis to believe that Kim had apparent authority to allow the police to enter and search, and Wiley's subsequent written consent to the search was voluntary. See People v. Hill, 688 N.Y.S.2d 47 (App.Div. 1st Dep't 1999). The court also held that the trial court's Sandoval hearing, allowing the prosecutor to question Hill about previous adjudications and convictions, did not constitute an abuse of discretion. Id.
In a letter dated June 9, 1999, Hill's counsel sought leave to appeal the validity of the search in the New York Court of Appeals. See Letter to the Hon. George Bundy Smith from Julia P. Kuan, dated June 9, 1999, attached to Resp. Aff., as Exh. 4. On June 17, 1999, the court denied the application. See People v. Hill, 93 N.Y.2d 972 (1999). In motion papers dated October 24, 2000, Hill moved pro se for a writ of error coram nobis on the grounds that his appellate counsel was ineffective in failing to argue that: 1) Hill was denied due process when the trial court conducted a Wade hearing instead of a Rodriguez hearing; 2) the trial court's denial of his motion to suppress testimony concerning an eyewitness identification was unreasonable in light of the facts adduced at the Wade hearing; and 3) his right against self-incrimination was violated, and his self-incriminating statement should have been suppressed. The court denied the writ on July 26, 2001. On August 2, 2001, Hill filed the instant petition.
III. DISCUSSION
A. Fourth Amendment Claim
Hill alleges that police officers violated his Fourth Amendment rights when they searched his house without the consent of his mother or sister. Hill is procedurally barred from raising this claim. "[W]here the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494 (1976). This Court can only review Hill's claim "(a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). Procedures to address Fourth Amendment violations in New York are codified in New York Criminal Procedure Law §§ 710 et seq, (McKinney 1995 Supp. 1999-2000), and meet part (a) of the Capellan test. See Gates v. Henderson, 568 F.2d 830, 837 (2d Cir. 1977); see also Crispino v. Allard, 378 F. Supp. 2d 393, 413 (S.D.N.Y. 2005).
Hill was provided with a full and fair opportunity to litigate his Fourth Amendment claim. The state court held that Wiley's consent was "freely given." See Hill, 688 N.Y.S.2d at 48. The court also held that the officers had a reasonable basis to believe that Kim had apparent authority to consent even though she did not have keys to Wiley's apartment, and needed to knock on the door to gain entry. Id. Hill had an extensive suppression hearing, the trial court issued a detailed decision denying this claim, and that decision was affirmed by the appellate courts. The state courts conducted "a reasoned method of inquiry into relevant questions of fact and law" on his claim. Capellan, 975 F.2d at 71 (quotation marks omitted). Accordingly, Hill's Fourth Amendment claim is procedurally barred from habeas review, and I recommend that it be dismissed with prejudice.
B. The Sandoval Hearing
Hill alleges that the trial court abused its discretion when it ruled that the prosecution would be allowed to ask about the underlying facts of his youthful offender adjudication, drug conviction, and prison disciplinary record. More specifically, he alleges the court conducted an improper Sandoval hearing. A Sandoval hearing is an evidentiary proceeding at which the trial court determines the extent to which a prosecutor may cross-examine a defendant about his prior convictions or bad acts should he testify. See Sandoval, 34 N.Y.2d 371 (1974). To establish a constitutional deprivation, Hill must show that an error in the hearing "deprived him of a fundamentally fair trial." Rosario v. Kuhlman, 839 F.2d 918 (2d Cir. 1988). He must demonstrate that the error caused him actual prejudice by having a "substantial and injurious effect or influence in determining the jury's verdict." See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) ( citing Kotteakos v. United States, 320 U.S. 750, 776 (1946)).
Respondents argue that Hill's Sandoval claim is unexhausted because he did not present it to state courts in federal constitutional terms, and did not present it to the New York Court of Appeals in his leave application. Resp. Aff. at 6. Notwithstanding respondent's contentions, Hill cannot "raise and preserve" a claim for "improper impeachment with a prior conviction," because he did not testify at trial. Luce v. United States, 469 U.S. 38, 43 (1948). Hill's "failure to testify is fatal to any claims of constitutional deprivation arising out of a Sandoval type ruling because in the absence of such testimony the Court has no adequate non-speculative basis upon which to assess the merits of that claim . . ." Peterson v. LeFevre, 753 F. Supp. 518, 521 (S.D.N.Y.), aff'd, 940 F.2d 649 (2d Cir. 1991). The Court cannot provide "relief for allegedly erroneous Sandoval rulings in instances where a defendant elects not [to] testify." McEachin v. Ross, 951 F. Supp. 478, 483 (S.D.N.Y. 1997). I therefore recommend that Hill's claim related to the Sandoval hearing be denied.
C. The Rodriguez / Wade Hearing
Hill alleges that he was denied due process when the trial court conducted a Wade hearing instead of a Rodriguez hearing to determine the independent basis of reliability for his pretrial identification. Hill did not raise this claim on direct appeal, but filed a writ of error coram nobis arguing that his appellate counsel was ineffective in failing to raise it.
Hill was required to exhaust state remedies and fairly present the federal constitutional claim to the highest state court available before filing for a writ of habeas corpus. See 28 U.S.C. § 2254(b); see also Daye v. Attorney General of the State of New York, 696 F.2d 186, 191-192 (2d Cir. 1982). A coram nobis application based on ineffective assistance of counsel, however, does not exhaust the underlying constitutional claim. See Turner v. Artuz, 262 F.3d 118 (2d Cir. 2001). The court denied Hill's application in its entirety, and did not rule on the underlying claims. Hill's Wade claim is therefore unexhausted.
Hill's claim is also procedurally barred because New York law does not permit a second direct appeal or a second leave request to the New York Court of Appeal. See N.Y. Court Rules § 500.10(a). Collateral review of the claim in the state court is similarly barred. See New York Criminal Procedure Law § 440.10(2)(a), (c). "[A] federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred." Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989).
The Court may excuse a procedural bar if Hill demonstrates either cause for failure to raise this claim at the state level, and prejudice resulting from the default, Edwards v. Carpenter, 529 U.S. 446, 451 (1996), or that a fundamental miscarriage of justice will result if this Court denies his claim on procedural grounds. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). Hill has failed to show cause for not raising this claim in the state court, or the resulting prejudice. Hill may claim a miscarriage of justice by showing a "colorable showing of factual innocence." McCleskey v. Zant, 499 U.S. 467 (1991). He has made no such showing. I therefore recommend that Hill's third claim for relief alleging deprivation of due process be denied.
D. The Ineffective Assistance of Counsel Claim
Hill has properly exhausted his ineffective assistance of appellate counsel claim by filing a writ of error coram nobis before the Appellate Division. Pursuant to 28 U.S.C. § 2254(d), as amended by AEDPA, the Court cannot issue a writ of habeas corpus unless the state court's judgment "was adjudicated on the merits" and the petitioner satisfies one of two conditions: "the state-court adjudication resulted in a decision that (1) `was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States,' or (2) `involved an unreasonable application of . . . clearly established Federal law as determined by the Supreme Court of the United States.'" Williams v. Taylor, 529 U.S. 362, 412 (2000) ( citing 28 U.S.C. § 2254(d)(1)-(2)). A state court decision is contrary to federal law if the state court applies a "conclusion opposite to that reached by [the] Court on a question of law" or if it decides a case differently than [the] Court has on a set of materially indistinguishable facts." Id. at 413. A state court decision involves an "unreasonable application" of Supreme Court precedent "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. Finally, "clearly established federal law" refers only to Supreme Court "holdings, as opposed to the dicta of [the] Court's decisions as of the time of the relevant state-court decision." Id. at 412.
The Court must presume the state court's factual determinations to be correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). A state court's "adjudication on the merits is a substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quotation marks omitted). An adjudication on the merits occurs when the state court: "(1) disposes of the claims `on the merits;' and (2) reduces its disposition to judgment." Id. at 312 ( citing 28 U.S.C. § 2254(d)). State courts are not required to explain their reasoning process in order to adjudicate on the merits. Id. at 311. Hill's ineffective assistance of appellate counsel claim was adjudicated on the merits in the state court, and must be reviewed under the standard of deference set forth in 28 U.S.C. § 2254(d)(1).
Hill has a Sixth Amendment right to the effective assistance of counsel. See Jones v. Barnes, 463 U.S. 745 (1983); see also Strickland v. Washington, 466 U.S. 668, 686 (1984). To establish a violation of that right, Hill must show that 1) counsel's errors were "so serious that he was not functioning as `counsel'" guaranteed by the Sixth Amendment; and that 2) he suffered prejudice as a result of counsel's deficient representation. See Strickland, 466 U.S. at 687-88. Furthermore, Hill must prove that counsel's conduct so undermined the adversarial process so that it cannot be relied upon as having produced a just result. Id. at 686. In reviewing ineffective assistance of counsel claims, the Court "strongly presume[s]" that counsel rendered adequate assistance in making significant decisions in the exercise of reasonable professional judgment. Id. at 689; United States v. Cronic, 466 U.S. 648, 658 (1984).
The Strickland standard applies both to trial and appellate counsel. Smith v. Robins, 528 U.S. 259, 285 (2000); Smith v. Murray, 477 U.S. 527, 535-36 (1986). Ineffective assistance of appellate counsel cannot be met by merely showing that "counsel omitted a nonfrivolous argument" on appeal. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). In order to establish prejudice in an ineffective assistance of appellate counsel claim, "[Hill] must demonstrate that there was reasonable probability that his claim would have been successful before the state's highest court." Id. at 534 (quotation marks omitted).
"For AEDPA purposes, a petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also clearly established." Aparicio v. Artuz, 269 F.3d 78, 95, n. 8 (2d Cir. 2001) (quotation marks omitted). However, Hill "must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly." Bell v. Cone, 535 U.S. 685, 688-89 (2002). Instead, "he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner." Id. at 89.
The record does not show that Hill's appellate counsel was ineffective. Counsel argued two claims on appeal, a Fourth Amendment and a Sandoval hearing violation. Counsel authored a twenty-eight page brief, and included a harmless error analysis in anticipation that her adversary would raise that issue in the response brief. The state filed a fifty-three page response, and Hill's counsel filed a twenty-three page reply. Appellate counsel's failure to argue Hill's right against self-incrimination does not rise to ineffective assistance of counsel. Hill received Miranda warnings, stated that he understood them, initiated a conversation, and confessed to law enforcement officials. He has not demonstrated that "he attempted to invoke his [Fifth Amendment privilege] after the Miranda warnings were given, or that these attempts were ignored by law enforcement officials." United States v. Eltayib, 88 F.3d 157 (2d Cir. 1996). Hill's argument that he should have been given an additional Miranda warning has no merit. Appellate counsel tacitly chose not to raise it on appeal. Accordingly, I recommend that Hill's effective assistance claim be denied.
IV. CONCLUSION
For the reasons set forth above, I recommend that Hill's petition for writ of habeas corpus be DENIED. Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Barbara S. Jones, 40 Centre Street, Room 2103, and to the chambers of the undersigned, 500 Pearl Street, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam) ); 28 U.S.C. § 636(b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).