Opinion
01 Civ. 2178 (PKC).
July 19, 2005
MEMORANDUM AND ORDER
On March 14, 2001, Darrel Isaac filed this petition for the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The case was assigned to the Hon. Lewis A Kaplan, U.S.D.J., who referred the petition to Magistrate Judge Kevin Nathaniel Fox. The petition subsequently was reassigned to me.
Magistrate Judge Fox appointed counsel to represent the petitioner, and briefing on the petition ensued. On September 29, 2004, Magistrate Judge Fox issued a Report and Recommendation ("RR") granting Isaac's petition in part. The Magistrate Judge recommended that a writ of habeas corpus be granted on the grounds that the trial court violated the petitioner's equal protection rights as delineated in Batson v. Kentucky, 476 U.S. 79 (1986). The Magistrate Judge also recommended that the petition be denied insofar as Isaac claimed that he did not receive effective assistance of counsel and thus was denied a right protected under the Sixth Amendment to the United States Constitution. By Order dated April 26, 2005, I identified several points relevant to the Batson issue as to which I requested additional evidentiary support or further briefing. Respondent's submission was filed on May 16, 2005, and petitioner's on May 31, 2005.
I have reviewed the RR de novo. Rule 72(b), Fed.R.Civ.P.; 28 U.S.C. § 636(b)(1). Having considered the petition, the response thereto, the trial record, and the parties' supplemental submissions, I adopt in part and modify in part the RR.
Background
Isaac was convicted of two counts of robbery in the first degree, two counts of robbery in the second degree, and one count of resisting arrest following a jury trial held in the Supreme Court, New York County. According to the trial testimony, on the evening of September 29, 1995, Isaac and two other individuals robbed Tomeko Gordon and William Coleman at gunpoint on a subway platform at the 145th Street and Broadway station. (Tr. at 293, 295-98, 386-87) One of the assailants threatened to shoot Coleman because "he doesn't have enough money and he doesn't have any coke." (Tr. at 298; 386-87) Gordon observed all three assailants throughout the robbery. (Tr. at 302-06) As the assailants exited the subway station, Gordon followed the three up the subway stairs, whereupon she immediately saw police officer Jerome Arico, notified him of the robbery, and directed the officer toward Isaac. (Tr. at 304-05; 400; 410) Gordon informed Officer Arico that Isaac had a gun. (Tr. at 410) Isaac fled from Officer Arico, sought shelter beneath a parked car and physically resisted Arico's efforts to remove him. (Tr. at 411-15) Once Isaac was out from under the car, he attempted to break free from Officer Walter Doyle by striking him. (Tr. at 426-27) Doyle and Arico handcuffed Isaac, and Arico testified that Isaac shouted toward a crowd of bystanders, "Get the stuff. Get the stuff." (Tr. at 416) Doyle recalled Isaac shouting, "Get the gun. Get the stuff." (Tr. at 428)
Following the jury verdict, the trial court sentenced Isaac to between 12 1/2 and 25 years of incarceration and entered judgment. (Sentencing Tr. at 19-20) Isaac appealed the judgment and conviction, alleging that he was denied his equal protection rights under Batson. People v. Isaac, 265 A.D.2d 190, 696 N.Y.S.2d 142 (1st Dep't 1999). In addressing the Batson claim, the Appellate Division stated that "[t]he record clearly reveals that the prosecutor had a race-neutral, nonpretextual reason for challenging a prospective juror who believed that his brother had been wrongly convicted of a crime." Id., 265 A.D.2d at 190-91, 696 N.Y.S.2d at 142. The Appellate Division went on to state that "[s]ince the record is sufficient to establish that defendant's Batson claim was patently lacking in substance, we find that defendant was not prejudiced by the abbreviated manner in which the court conducted the Batson proceeding." Id. The Appellate Division rejected his other grounds for appeal without discussion. The New York Court of Appeals denied Isaac leave to appeal. People v. Isaac, 94 N.Y.2d 904, 728 N.E.2d 987, 707 N.Y.S.2d 388 (2000). Isaac also filed three separate motions to the trial court to vacate his conviction under New York Criminal Procedure Law § 440.10, on March 29, 1999, July 27, 1999, and August 29, 2000, respectively. (Affidavit in Opposition Exs. C, F, O) Each motion was denied. (Affidavit in Opposition Exs. E, H, P) He next filed this habeas petition.
The Trial Court's Consideration of the Batson Challenge
The petition asserts that, during voir dire, the prosecution struck a prospective alternate juror who was black, and that the trial court prevented counsel from articulating a prima facie case under Batson. (Petition at 5) During the voir dire of alternate jurors, veniremember Dudley Williams stated that his brother had been arrested in upstate New York. (Tr. at 226) Williams's brother was charged with assault, and the case went to trial, resulting in imprisonment and probation. (Tr. at 226-27) In the course of voir dire, Mr. Williams, an African-American, expressed the view that he "felt that [his brother] was not treated fairly. . . ." The colloquy with the juror unfolded as follows:
THE COURT: Is there anything about that that would affect your fairness in this case?
PROSPECTIVE JUROR: Well, it wouldn't affect my fairness in terms of charging the case from whatever evidence is presented. But speaking of that case in particular, I felt that he was not treated fairly because —
THE COURT: Anything you want to ask Mr. Williams?
[PROSECUTOR]: What was unfair about the way he was treated?
PROSPECTIVE JUROR: Well, the incident charged was, I think, assault. And what happened — the person he got into the fight with went to the house that he was staying at and they got physical. And my brother, he end up with the knife that was in the kitchen and he stopped the guy. But he told me that the guy, you know, picked him up, was running him across the floor and like slamming into — you know, getting him against the kitchen utensils like the refrigerator. And he grabbed the two knives while the guy had him in there, and he was just striking him.
* * * *
[DEFENSE COUNSEL]: Mr. Williams, do you believe that you could be a fair juror?
PROSPECTIVE JUROR: I think so.
(Tr. 227-28) The trial court then asked counsel for each side whether they had any for-cause challenges to the alternate jurors. The prosecutor challenged Mr. Williams for cause on the ground of "the arrest of his brother and the incident where he says he was falsely accused." (Tr. at 228) The trial court first reserved judgment on the challenge, and then ruled against the prosecutor, at which point the trial judge inquired whether the prosecutor wished to exercise a peremptory challenge striking Mr. Williams:
THE COURT: . . . I am going to deny the cause challenge.
Are you exercising a peremptory on him?
[PROSECUTOR]: Yes.
THE COURT: He said his brother, he thought, was treated unfairly. But he didn't say that would make him an unfair juror.
[PROSECUTOR]: But he alleges his brother was falsely accused of a crime.
THE COURT: So you are challenging him peremptorily.
(Tr. 230-31)
Upon the prosecutor's exercise of the peremptory challenge, petitioner's counsel asserted that she believed its use on Mr. Williams was motivated by racial discrimination. The colloquy out of the presence of the jury was as follows:
[DEFENSE COUNSEL]: . . . I object to the peremptory on Mr. Williams. I believe that [he] had a racial basis for doing that.
THE COURT: And what is the basis of that?
[DEFENSE COUNSEL]: Because I did not — I am trying to understand.
He tried to challenge on cause and his reason was that —
THE COURT: Counsel, you also offered many cause challenges which the Court has not agreed with. He is exercising his rights as far as challenging a juror that he believes to be for cause. The fact I disagree with him does not make that a racially-based challenge.
There are other black jurors impaneled here. I see no basis for that. The fact that Mr. Williams is black doesn't make a challenge to him racially based.
[DEFENSE COUNSEL]: The fact that he is black doesn't make it a racial bias challenge. There I agree.
But I also believe in this particular case based on —
THE COURT: Let's just say that I don't agree with you. You made your record, and I don't rule that that is so.
[DEFENSE COUNSEL]: May I make my record?
THE COURT: No. I think you adequately protected your record.
As far as I am concerned there is no basis for that. There are black jurors on the jury, and I think there is adequate cause for the People to raise the challenge. I simply disagree that it was a cause challenge, and I am not going to impanel someone over his objection when he has a peremptory.
(Tr. 231-33) Based upon the Court's conclusion that there was "adequate cause for the People to raise the challenge," the challenge stood. Mr. Williams was excused, and a remaining member of the array was selected as an alternate juror. (Trial Tr. 233-34) Nothing in the record indicates that the alternate jurors deliberated in this case. Standard of Review
A Batson error is structural in nature and not subject to harmless error review. Galarza v. Keane, 252 F.3d 630, 638 n. 8 (2d Cir. 2001). The Eighth Circuit has indicated that a Batson error may not be structural when the error is directed toward an alternate juror who was not called upon to deliberate, as was the case here. See, e.g., Carter v. Kemna, 255 F.3d 589, 592 (8th Cir. 2001) ("[I]f no alternate deliberates on the verdict, a court could reasonably believe the improper exclusion of an alternate juror is not a structural error because it is clear the error never affected the makeup of the petit jury that decided to convict the defendant."), cert. denied, 534 U.S. 1085 (2002). Because the respondent does not advance this argument, I do not reach it.
A federal court should not grant habeas relief to a person in custody pursuant to a state court judgment unless the state proceedings "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." 28 U.S.C. § 2254(d)(1). A habeas court reviews the state court for an "unreasonable application" of law "`if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of a particular case.'" Harris v. Kuhlmann, 346 F.3d 330, 344 (2d Cir. 2003) (quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court's factual determinations are presumptively correct, rebuttable only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). "[E]rrors that undermine confidence in the fundamental fairness of the state adjudication certainly justify the issuance of the federal writ." Williams v. Taylor, 529 U.S. 362, 375 (2000). "[T]he determination of whether or not a rule is clearly established at the time a state court renders its final judgment of conviction is a question as to which the `federal courts must make an independent evaluation.'" Id. at 382 (quoting Wright v. West, 505 U.S. 277, 305 (1992)). A habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable."Id. at 365. "More particularly, when reviewing a Batson challenge in the context of a habeas petition, a trial court's conclusion that a peremptory challenge was not exercised in a discriminatory manner is entitled to a presumption of correctness, except, inter alia, to the extent that the trial court did not resolve the factual issues involved in the challenge or if the finding is not fairly supported by the record." Galarza v. Keane, 252 F.3d 630, 635 (2d Cir. 2001).
Discussion
In Batson, a prosecutor exercised peremptory challenges to strike all four black veniremembers, resulting in an all-white jury. 476 U.S. at 83. Over the defendant's objection, the trial court upheld the prosecutor's actions as proper applications of peremptory challenges. Id. The Supreme Court observed that "[p]urposeful racial discrimination in selection of the venire violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure." Id. at 86. This is true when racial discrimination is effectuated through facially neutral procedures, such as a peremptory challenge. Id. at 88-89. As the Supreme Court recently observed, Batson is not directed solely to the rights of a defendant, but implicates the very integrity of a trial proceeding: "When the government's choice of jurors is tainted with racial bias, that `overt wrong . . . casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial. . . .'" Miller-El v. Dretke, 125 S. Ct. 2317, 2323-24 (2005) (ellipses in original; quoting Powers v. Ohio, 499 U.S. 400, 412 (1991)).
Batson established a three-part test for evaluating a claimed discriminatory use of peremptory challenges. First, the defendant sets forth a prima facie case by showing that the totality of relevant facts gives rise to an inference of discrimination, including "total or seriously disproportionate exclusion" of members of a racial group from a jury venire, a "pattern" of strikes giving rise to an inference of discrimination, statements by counsel, or other fact-specific considerations. Batson, 476 U.S. at 93-94, 97 (quotation marks omitted); see also Johnson v. California, 125 S.Ct. 2410, 2417, (2005) (to establish a prima facie case, defendant only need produce "evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred."); Harris v. Kuhlmann, 346 F.3d 330, 344 (2d Cir. 2003) (state trial court erred in not finding prima facie case of discrimination when prosecutor used peremptory strikes against all five black venirepersons);Tankleff v. Senkowski, 135 F.3d 235, 249 (2d Cir. 1998) (government's effort to strike all three black venirepersons sufficient to make prima facie case).
The second step requires the prosecution to explain the peremptory strike using "permissible racially neutral selection criteria." Batson, 476 U.S. at 94, 97-98 (quotation marks omitted). "This second step does not require the party to give an explanation that is persuasive or even plausible." Galarza, 252 F.3d. at 636; see also Green v. Travis, ___ F.3d ___, 2005 WL 1581265, at *10 (2d Cir. July 7, 2005) (step two is satisfied when "[the] proffered justifications were race-neutral, clear, and not otherwise vague or facially questionable."). The Supreme Court has held that a prosecutor's unease with a potential juror's facial hair or grooming may be sufficient to articulate a race-neutral explanation under step two. Purkett v. Elem, 514 U.S. 765, 769 (1995). However, a prosecutor's basis for exercising a peremptory challenge may be inadequate as a matter of law. See Walker v. Girdich, 410 F.3d 120, 121-22 (2d Cir. 2005) (prosecutor's rationale for exercising peremptory strike failed to satisfy Batson when her justification for striking the venireman was that "one of the main things I had a problem with was that this is an individual who was a Black man with no kids and no family.").
After the prosecutor states his or her basis for exercising the peremptory challenges, the trial court evaluates whether the defendant has satisfied the burden of proving purposeful discrimination. Batson, 476 U.S. at 98. "It is not until thethird step that the persuasiveness of the justification becomes relevant — the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination." Purkett, 514 U.S. at 768. "[T]he task of assessing the prosecutor's explanations, in order to determine the ultimate issue of whether discrimination has been shown, falls primarily upon the judicial officer conducting the jury selection, whose determinations as to credibility of the proffered explanations are entitled to `appropriate deference'. . . ." U.S. v. Alvarado, 951 F.2d 22, 25 (2d Cir. 1991). "When circumstances suggest the need, the trial court must undertake a `factual inquiry' that `takes into account all possible explanatory factors' in the particular case." Id. at 95 (quoting Alexander v. Louisiana, 405 U.S. 625, 630 (1972)).
The trial court may discern discriminatory intent from a variety of factors, including the prosecutor's demeanor.Hernandez v. New York, 500 U.S. 352, 365 (1991) (plurality opinion). "As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies `peculiarly within a trial judge's province.'" Id. "Since the trial judge's findings in the context under consideration here largely turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference." Id. at 364. "In evaluating the race neutrality of an attorney's explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law." Id. at 359. The Second Circuit has "repeatedly emphasized that a trial court may not deny a Batson motion without determining whether it credits the race-neutral explanations for the challenged peremptory strikes." Galarza, 252 F.3d at 636 (collecting cases).
In Isaac's trial, the trial court truncated its analysis, and in denying the challenge it did not expressly refer to Batson's three-step analysis. The trial court interrupted Isaac's counsel and did not permit her to place on the record the basis for a prima facie case of discrimination under Batson. The consequence of a trial court's summary dispensation with the first prong of Batson was addressed in the Supreme Court's plurality opinion in Hernandez. In Hernandez, before the trial court determined whether the defendant articulated a prima facie case, the prosecutor defended his use of peremptory strikes, and the trial court ruled on the explanation's credibility. Hernandez, 500 U.S. at 359. Despite the trial court's failure to formally invoke each step of Batson, the plurality found no violation of the Equal Protection clause, and stated that "[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot." Id.
Here, the trial court informed the prosecutor that she was denying the challenge for cause, and inquired of the prosecutor: "Are you exercising a peremptory on him?" The prosecutor responded in the affirmative. Whether, as part of the prosecutor's effort to reargue the denial of the challenge for cause or as an explanation for the peremptory challenge, the prosecutor then articulated a race-neutral reason for the challenge: "he alleges that his brother was falsely accused of a crime." (Tr. 230-31) Having articulated a neutral explanation, the trial court's failure to make a finding on whether there was a prima facie case of discriminatory use of the peremptory challenge became moot under Hernandez.
Once the prosecutor stated a race-neutral explanation for challenging Mr. Williams, it became incumbent upon the trial court to assess the surrounding facts and circumstances, including the credibility of the race-neutral explanation, and determine "whether the opponent of the strike has carried his burden of proving purposeful discrimination." Purkett, 514 U.S. at 768. Here, in denying the Batson challenge, the trial court said, "[t]here are black jurors on the jury, and I think there is adequate cause for the People to raise the challenge." (Tr. 233) The reason cited by the Court — the presence of black jurors on the jury — was a fact, albeit not a dispositive one, that bore on the credibility of the prosecutor's explanation. A prosecutor who claims to have exercised a peremptory challenge because a juror "alleges his brother was falsely accused of a crime" is less likely to be lying to conceal racial animus if he has already refrained from exercising peremptory challenges to at least two seated black jurors.
Also, it must be kept in mind that the peremptory challenge arose after the trial judge had entertained the prosecutor's argument in support of a challenge to Mr. Williams for cause, which it had denied. When the prosecutor announced his use of the peremptory challenge, defense counsel raised the Batson issue. The trial court's response, abrupt though it may have been, credited the prosecutor's peremptory challenge as being premised upon a belief in the merits of the rejected for-cause challenge. As the trial court put it, "He is exercising his rights as far as challenging a juror that he believes to be for cause." (Tr. 232)
True, that the trial court did not expressly identify its ruling as falling under step three of Batson. But federal law does not require "a talismanic recitation of specific words in order to satisfy Batson." Galarza, 252 F.3d at 640 n. 10. InGalarza, the Second Circuit vacated and remanded the denial of a habeas petition where the trial court had not expressly ruled on three of the petitioner's Batson objections, and, to the extent the trial court addressed the objections, it communicated skepticism as to the basis for the prosecutor's peremptories.Id. at 639-40. In vacating the district court's denial of the habeas petition, the Second Circuit observed that its ruling may have been different if the Batson challenge "culminated in a general crediting of the prosecutor's race-neutral explanations or possibly even if the trial court had merely stated that it rejected each of [petitioner's] Batson claims." Id. at 640 n. 10. See also Miller-El v. Cockrell, 537 U.S. 322, 347 (2003) (noting "that a state court need not make detailed findings addressing all the evidence before it" when ruling on a Batson motion); Hodge v. Strange, 2005 WL 1018426, at *6 (D. Conn. Apr. 29, 2005) ("Though the judge's language was not always perfectly explicit or precise, in every case he either made a finding that the prosecutor did not have a discriminatory intent or a finding that the reasons given by the prosecutor were not pretextual.") (citing Galarza); Moise v. Schultz, 2004 WL 2202665, at *5 (E.D.N.Y. Sept. 29, 2004) (step three of Batson does not "require an explicit finding that the prosecutor was truthful when the motion is rejected.") (citing Galarza); Reyes v. Greiner, 340 F. Supp. 2d 245, 253, 253 n. 1 (E.D.N.Y. 2004) (though trial court did not explicitly adjudicate the credibility of the prosecutor's race-neutral justification for exercising the peremptory challenge, the law does not compel the trial judge to rule "in haec verba" on Batson issues); DeBerry v. Portuondo, 277 F. Supp. 2d 150, 159-60 (S.D.N.Y. 2003) ("Although a trial judge must reach step three of Batson, no controlling Supreme Court precedent requires the trial judge's adjudication to take any particular form or include any `magic words.'"), aff'd, 403 F.3d 57 (2d Cir. 2005).
See also United States v. Breen, 243 F.3d 591, 597 (2d Cir.) (rejecting assertion that federal trial judge failed to comply with the Speedy Trial Act, 18 U.S.C. § 3161(h)(8)(A), and observing that "a trial is neither a game nor an obstacle course; failure to utter the magic words `ends-of-justice' at the time of ordering the continuance is not necessarily fatal."), cert. denied, 534 U.S. 894 (2001); United States v. Walsh, 119 F.3d 115, 121 (2d Cir. 1997) (observing that "[w]e do not require that district courts recite any magic words to assure that they have applied the appropriate standard" when enhancing a criminal sentence for perjury).
A federal court applies a standard of objective reasonableness when it reviews a state court's interpretation of federal law set forth by the Supreme Court. Rompilla v. Beard, 125 S.Ct. 2456, 2462 (2005) ("That is, `the state court's decision must have been [not only] incorrect or erroneous [but] objectively unreasonable.'") (citations omitted; alterations in original). This standard "falls somewhere between `merely erroneous and unreasonable to all reasonable jurists.'" Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000). In the absence of clearly established Supreme Court precedent that a court's finding under the third prong of Batson must be asserted in more explicit terms, I cannot conclude that the state court's ruling was either "contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1).
Of course, the "increment of incorrectness beyond error . . . need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks and citation omitted). "We must presume the state court's factual findings to be correct and may overturn those findings only if petitioner offers clear and convincing evidence of their incorrectness." Yung v. Walker, 341 F.3d 104, 109 (2d Cir. 2003) (citing 28 U.S.C. § 2254(e)). "If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that the prisoner's custody . . . violates the Constitution, that independent judgment should prevail." Williams v. Taylor, 529 U.S. 362, 389 (2000). See also Christie v. Hollins, 409 F.3d 120, 125 (2d Cir. 2005).
The petitioner in this case argues that a side-by-side comparison between Mr. Williams and a white juror, Mr. Ropelt, indicates a discriminatory motivation for striking Mr. Williams. Mr. Ropelt was arrested and convicted of a DWI offense approximately seven or eight years prior to the voir dire. (Tr. at 155-56) Like Williams, he stated that he believed he could serve fairly and impartially as a juror. (Tr. at 156; Tr. 228) However, the answers of the two veniremembers to the questions posed differed significantly. In response to a question, Mr. Ropelt stated that he was treated fairly by the police. (Tr. at 156) In contrast, Mr. Williams stated that he felt that his brother "was not treated fairly" during arrest and prosecution. (Tr. at 227) The distinction is material because the prosecutor knew that two police officers, Jerome Arico and Walter Doyle, would testify at trial. The record pertaining to Mr. Ropelt does not, therefore, support a conclusion that the prosecutor's stated rationale for striking Mr. Williams should have been rejected by the trial court as pretextual.
The Supreme Court recently observed that a side-by-side comparison between black venirepersons who were peremptorily struck and white venirepersons who were impaneled may provide "[m]ore powerful" evidence of discrimination than "bare statistics." Miller-El, 125 S.Ct. at 2325. In Miller-El, the Supreme Court compared the death penalty views of a black veniremember to those of non-black veniremembers, and concluded that the prosecution's peremptory strike of the black veniremember could only be explained by an "ulterior reason."Id. at 2326-31.
The prosecutor asked, "Were you treated fair or as best you could be by the police officers?" Mr. Ropelt responded, "Yes." (Tr. at 156)
I modify the RR's conclusion that Isaac's petition should be adopted on Batson grounds. The petition, to the extent that it rests on the Batson claim, is denied.
Ineffective Assistance of Counsel
Isaac contends that after Gordon first testified, Isaac told his counsel that he wanted to testify on his own behalf. At that point, counsel stated that she did not want him to testify, and that his testimony would not be a part of the defense. (Petition at 5) Petitioner later reiterated to counsel his desire to testify, at which point his counsel stated that she would not allow him to take the stand because if he did, the prosecution would use petitioner's mother as a witness against him. (Petition at 5) The petitioner asserts that he was prejudiced by counsel's conduct because had he taken the stand, he would have testified that the gun used in the robbery "was not a loaded weapon capable of being fired." (Pet. Opp. Mem. at 15) Isaac posits that if he had so testified, he would have established an affirmative defense to first-degree robbery, and would have been found guilty of a lesser offense. (Pet. Opp. Mem. at 15-16) Isaac has maintained throughout his post-trial submissions that he informed his counsel that he wished to testify on his own behalf, and that counsel disregarded his wishes. (See, e.g., Petitioner's May 3, 2000 440.10 affidavit, ¶¶ 12-15) His claimed inability to testify was a substantial basis for the post-trial motions to vacate his conviction. (Aff. in Opposition Exs. A, C, F, L, O)
The RR noted that a criminal defendant has a constitutional right to testify on his or her own behalf, and that an attorney's duty of effective assistance includes advising the defendant concerning that right. (RR at 13, citing Rega v. United States, 263 F.3d 18, 21 (2d Cir. 2001), cert. denied 534 U.S. 1096 (2002)) In addition, to establish a claim for ineffective assistance, the defendant must prove by a reasonable probability that counsel's conduct adversely affected the outcome of the criminal proceeding. (RR at 13, citing Rega, 263 F.3d at 21)
The RR concluded that the pivotal issue in evaluating the ineffective assistance claim is whether Isaac's testimony would have resulted in a conviction for second-degree robbery rather first-degree robbery. (RR at 13-14) A person may be found guilty of robbery in the first degree if the defendant or another participant in the crime "[d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm." N.Y. Penal Law § 160.15(4). However, under New York law, a defendant may establish as an affirmative defense that the firearm was not a loaded weapon from which a shot could be discharged, in which case a defendant may be found guilty of robbery in the second degree or robbery in the third degree.Id.
The RR concluded that there was trial testimony sufficient to establish that an actual, loaded gun was used in the robbery. (RR at 13-14) Magistrate Judge Fox also noted that if Isaac were to have testified as to the gun, it would have undermined the principal defense theory of mistaken identification. (RR at 14) It also would have permitted the prosecution to question Isaac as to an alias he used at the time of the arrest, thereby undermining his credibility to the jurors. (RR at 14) As asserted by the respondent, the prosecution indeed indicated that it planned to call his mother as a rebuttal witness if the defendant testified, which would have potentially led to adverse testimony from the petitioner's mother. (Tr. at 333) The RR concluded that there was no reasonable basis to believe that the jury would have reached a different verdict had Isaac testified. (RR at 14)
"[T]he accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to . . . testify in his or her own behalf . . ." Jones v. Barnes, 463 U.S. 745, 751 (1983); see also Rock v. Arkansas, 483 U.S. 44, 49-53 (1987) (tracing history of and policy justifications for criminal defendant's right to testify). A "trial counsel's duty of effective assistance includes the responsibility to advise the defendant concerning the exercise of this constitutional right. . . ." Brown v. Artuz, 124 F.3d 73, 74 (2d Cir. 1997),cert. denied, 522 U.S. 1128 (1998). The Second Circuit has summarized the standard for evaluating an ineffective assistance claim as follows:
In order to prevail on a claim of ineffective assistance of counsel within the framework established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a habeas petitioner must satisfy a two-part test. First, he must show that his attorney's performance `fell below an objective standard of reasonableness,' id. at 668, and second, he must show that there is a `reasonable probability' that but for counsel's error, the outcome would have been different, id. at 694.
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 513 U.S. 820 (1994). In evaluating whether counsel's ineffective assistance prejudiced the defendant, a court considers whether counsel's conduct "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 at 686.
The arguments that petitioner's counsel submitted to Magistrate Judge Fox, and incorporated in his objections by reference, are unavailing. Petitioner argued that he would have taken the stand to disavow having carried an actual gun. "[I]n this case, petitioner would not have attempted to exculpate himself or disavow his responsibility for the crime but instead admit it, thus his credibility would have been enhanced. Furthermore, petitioner's criminal history would have confirmed that he had a serious substance abuse problem, an issue that would have bolstered the very theme defense counsel attempted to assert throughout the trial by suggesting that this was a drug deal rip off." (Mem. in Support at 12)
Having reviewed the trial record, the RR, and the objections set forth by the petitioner, I adopt Magistrate Judge Fox's analysis, and therefore deny the habeas petition's ineffective assistance claim. At trial, Gordon and Coleman both testified that a gun was brandished during the robbery, and that the assailants repeatedly spoke of discharging it as though it were a loaded weapon. Gordon testified that she "looked down and he had the gun out. The young man had the gun out." (Tr. at 297) She testified that one of the assailants directed that Coleman should be shot, and that Isaac was the individual holding the gun during the robbery. (Tr. at 298-99, 312) Coleman himself testified that Isaac approached him with a gun, pressed the gun against his stomach, and told the other assailants that Coleman was to be shot if he moved. (Tr. 378-79, 381, 395)
The objections filed by Isaac's counsel are framed in broad terms largely unsupported by legal citation, contending, inter alia, that the Magistrate Judge "applies an inverse and retroactive analysis of the trial record." (Petitioner's Objections at 9) Petitioner further argues that counsel's misapprehension of governing law was so severe that it established "prospective taint from the outset of the trial," resulting in "extraordinarily pernicious ineffectiveness" that undermined the trial's very integrity. (Petitioner's Objections at 10-11; emphasis in original) The petitioner's objections fail to set forth a basis in fact or law sufficient to establish that he was denied effective assistance of counsel in a manner that shows prejudice under Strickland. As such, I adopt the RR's conclusions, and deny petitioner's habeas petition inasmuch as it claims that Isaac was denied effective assistance of counsel.
Certificate of Appealability
Isaac may not appeal this order "[u]nless a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c)(1). A certificate should be granted "only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). A petitioner must "sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (alternation in original; internal quotation marks omitted).
I believe that there is room for reasonable jurists to debate the resolution of Isaac's Batson claim, and therefore conclude that a certificate of appealability is properly issued as to this prong of his petition. In contrast, I do not believe that the petition's ineffective assistance claim meets the standard for issuance of a certificate of appealability. Therefore, a certificate of appealability is granted as to theBatson claim only.
CONCLUSION
The RR is adopted in part and modified in part. Issac's habeas petition is denied, and the Clerk is directed to enter judgment in favor of the respondent.
Pursuant to 28 U.S.C. § 2253(c), I grant a certificate of appealability as to the petitioner's claim under Batson v. Kentucky, 476 U.S. 79 (1986). A certificate of appealability is denied as to all other aspects of the petition. Issac, who is represented by appointed counsel, is granted leave to proceedin forma pauperis pursuant to Fed.R.App.P. 24(a)(3).
SO ORDERED.