Opinion
9:07-CV-0334 (TJM/GHL).
March 24, 2010
KENT JOHNSON, Petitioner pro se, Coxsackie Correctional Facility, Coxsackie, NY.
HON. ANDREW M. CUOMO, Office of the Attorney General, State of New York, Counsel for Respondent, New York, New York. FREDERICK H. WEN, ESQ. Assistant Attorney General.
MEMORANDUM-DECISION ORDER
Petitioner Kent Johnson, pro se, is an inmate in the custody of the New York State Department of Correctional Services. After a jury trial in August of 2004 in Albany County Court, Petitioner was found guilty of Criminal Possession of a Controlled Substance in the First Degree and Criminal Possession of a Controlled Substance in the Third Degree. Dkt. No. 12-16, Trial Transcript ("TT") at 350. Petitioner was sentenced, as a second felony offender, to an indeterminate prison term of twenty years-to-life for the former charge, to run concurrently with an indeterminate ten-to-twenty year prison term for the latter term. Dkt. No. 12-17, Sentencing Transcript ("ST") at 3, 5.
Petitioner's conviction was affirmed by the Appellate Division, Third Department, and leave to appeal to the Court of Appeals was denied. People v. Johnson, 30 A.D.3d 773 (N.Y. App. Div. 2006); leave denied 7 N.Y.3d 813 (2006).
In the interim, Petitioner filed a pro se motion to vacate the judgment under N.Y. C.P.L. § 440.10 ("CPL § 440 motion"). Dkt. No. 12-8 (Ex. H). On February 8, 2006, the motion was denied. Dkt. No. 12-12 (Ex. L). Leave to appeal to the Appellate Division was also denied. Dkt. No. 12-14 (Ex. N).
Petitioner, through counsel, also filed a motion for resentencing under Penal Law § 70.71. Dkt. No. 12-9 (Ex. I). On February 6, 2006, the trial court granted the motion, resentencing him to a determinate fourteen-year term for his first-degree criminal possession of a controlled substance conviction, plus five years of post-release supervision. Dkt. No. 12-11 (Ex. K), at 2. This sentence was to run concurrent to the previously-imposed indeterminate ten-to-twenty years sentence for the third-degree criminal possession of a controlled substance conviction. Id. at 3. The court rejected other arguments that he was ineligible for resentencing, and found that his other claims either lacked merit or were not "appropriate for resolution on a postjudgment motion." Dkt. No. 12-12 (Ex. L).
Petitioner submitted a fifty-three page petition in which he petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the following grounds: (1) he was improperly selectively prosecuted; (2) the prosecution improperly elicited evidence regarding his incarceration; (3) the trial court improperly admitted evidence regarding Petitioner's incarceration; (4) the trial court erred by giving an accomplice charge with respect to a witness's testimony; (5) he was deprived of due process when the trial court admitted hearsay testimony; (6) trial counsel was ineffective; (7) the trial court failed to conduct appropriate inquiries; and (7) he was improperly resentenced under the Rockefeller Drug Law Reform Act. Dkt. No. 1. For the reasons which follow, the petition is denied.
I. BACKGROUND
The background was succinctly summarized by the Appellate Division as follows:
On January 22, 2004, [Petitioner] enlisted the assistance of Kristina Pagan to aid him in transporting drugs from New York City to Albany County. [Petitioner] placed a plastic bag containing separate bags of cocaine in Pagan's knapsack and gave Pagan $40 for a bus ticket and an additional $100 as travel expense back to New York City in the event problems arose. [Petitioner] and Pagan then purchased bus tickets to Albany under false names.
In Albany, police officers Eugene Duda and Carmen Frangella were engaged in drug interdiction at the Albany bus terminal when they observed [Petitioner] and Pagan exit their bus. As a result of their suspicious conduct, the officers approached the taxicab in which [Petitioner] and Pagan were seated and began questioning them. Upon smelling the scent of acetone emanating from Pagan's knapsack, Duda asked for and received Pagan's consent to search the knapsack. The search revealed cocaine and both [Petitioner] and Pagan were arrested.
Thereafter, [Petitioner] was indicted and charged with one count of criminal possession of a controlled substance in the first degree and one count of criminal possession of a controlled substance in the third degree. While that indictment was pending, Pagan, having revealed that the drugs in question belonged to [Petitioner], pleaded guilty to criminal possession of a controlled substance and testified against [Petitioner] at his ensuing trial. At the conclusion of the trial, [Petitioner] was found guilty as charged and was sentenced to prison terms of 20 years to life on the first degree conviction and 10 to 20 years on the third degree conviction, said sentences to run concurrently.Johnson, 30 A.D.3d at 774-75.
Acetone is a substance commonly mixed with cocaine. Johnson, 30 A.D.3d at 774, n. 1.
Acetone is a substance commonly mixed with cocaine. Johnson, 30 A.D.3d at 774, n. 1.
II. DISCUSSION
A. Applicable Standard of Review
When reviewing a habeas petition, a federal court is limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States. 28 U.S.C. § 2241(c). Relief does not lie for errors of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); DiGuglielmo v. Smith, 366 F.3d 130, 136-137 (2d Cir. 2004). Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may not grant habeas relief to a state prisoner on a claim that was adjudicated on the merits in state court proceedings unless the state court's decision was "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); Carey v. Musladin, 127 S. Ct. 649, 653 (2006); Campbell v. Burgess, 367 F. Supp. 2d 376, 380 (W.D.N.Y. 2004).
A decision is adjudicated "on the merits" when it finally resolves the claim, with res judicata effect, based on substantive rather than procedural grounds. Sellan v. Kuhlman, 261 F.3d 303, 311-12 (2d Cir. 2001). This is so, "even if the state court does not explicitly refer to either the federal claim or to relevant federal case law." Id. at 312. To determine whether a state court has adjudicated a claim "on the merits," a federal habeas court must examine three "clues" to classify the state court decision as either (1) fairly appearing to rest primarily on federal law or to be interwoven with federal law; or (2) fairly appearing to rest primarily on state procedural law. Jimenez v. Walker, 458 F.3d 130, 145 (2d Cir. 2006). "Absent a clear and express statement of reliance on a state procedural bar," decisions in the first category are deemed to have been made "on the merits" of the federal claim. Id.
The three "clues" to the basis of a state court's decision are (1) the face of the state court opinion; (2) whether the state court was aware of a procedural bar; and (3) the practice of state courts in similar circumstances. Jimenez, 458 F.3d at 145, n. 16.
A decision on the merits is contrary to clearly established federal law when it is either contrary to Supreme Court precedent on a question of law or opposite to a relevant Supreme Court case with materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-406 (2000). A state court unreasonably applies federal law when the state court correctly identifies the governing legal rule in a particular case but applies the rule to the facts in an "objectively unreasonable" manner. Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Although "[s]ome increment of incorrectness beyond error is required" in order to grant a federal habeas application, that increment "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) (quotation marks and citation omitted); see also Hawkins v. Costello, 460 F.3d 238, 243 (2d Cir. 2006), cert. denied, 549 U.S. 1215 (2007). The state court's determination of a factual issue is presumed to be correct, and the petitioner has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005), cert. denied, 546 U.S. 884 (2005); Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001).
B. Exhaustion
Respondent argues that Petitioner has not exhausted his claims that (1) the prosecutor committed misconduct by eliciting evidence of Petitioner's incarcerated status through letters Petitioner wrote to Pagan, and the trial court erred in admitting those letters; and (2) the trial court erred in giving an accomplice liability charge to the jury. Dkt. No. 11-1, at 19-20. Respondent claims that counsel raised these claims on direct appeal only under state evidentiary rule and case law analysis. Id. at 19. Respondent therefore argues that these claims should be deemed exhausted, but dismissed as procedurally defaulted. Id. at 20.
An application for a writ of habeas corpus may not be granted until the prisoner has exhausted all remedies available in state court unless 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). To satisfy the exhaustion requirement, a petitioner must do so both procedurally and substantively. Procedural exhaustion requires that a petitioner raise all claims in state court prior to raising them in the habeas corpus petition. Substantive exhaustion requires that a petitioner "fairly present" any constitutional claims to the highest state court in the same factual and legal context in which it appears in the habeas petition. Baldwin v. Reese, 541 U.S. 27, 29 (2004); Fama v. Comm'r of Corr. Servcs., 235 F.3d 804, 808 (2d Cir. 2000); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)).
"To establish that a federal claim was raised in state court, a petitioner must, in the state courts, (1) have relied on federal case law employing federal constitutional analysis; (2) relied on factually similar state cases employing federal constitutional analysis; (3) asserted the claim "in terms so particular as to call to mind a specific right protected by the Constitution"; or (4) alleged a set of facts well within ordinary constitutional litigation." Stone v. Stinson, 121 F. Supp. 2d 226, 236 (W.D.N.Y. 2000) (citing Daye, 696 F.2d at 194). The requirement that the state court have been given a reasonable opportunity to pass on the federal habeas claim is satisfied if the legal basis of the claim made in state court was the "substantial equivalent" of that of the habeas claim. Picard, 404 U.S. at 278. However, where no real avenue remains by which the claim could be raised, a claim is deemed exhausted. See Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995).
On direct appeal, appellate counsel argued that the prosecutor committed misconduct by offering evidence of Petitioner's incarceration through letters Petitioner wrote to Pagan, and that the trial court erred by admitting the letters. Dkt. No. 12-1 (Ex. A) at 17-19. In rejecting these arguments, the Appellate Division found, "Clearly, the letters at issue were of considerable probative value and were properly offered by the People and admitted into evidence by County Court." Johnson, 30 A.D.3d at 775.
Appellate counsel also argued that the trial court erred in instructing the jury as to accomplice testimony. Dkt. No. 12-1 (Ex. A) at 25-28. In disagreeing, the Appellate Division reasoned, "Here, by pleading guilty to criminal possession of a controlled substance, Pagan conclusively established her complicity and County Court quite properly rendered an accomplice instruction to the jury." Johnson, 30 A.D.3d at 775 (citing People v. Sweet, 78 N.Y.2d 263, 267 (1991)).
Appellate counsel placed no reliance on federal case law nor on factually similar state cases. Dkt. No. 12-1 (Ex. A), at 17-19, 25-28. Moreover, he made no assertion of the claims "in terms so particular as to call to mind a specific right protected by the Constitution;" nor did he allege a set of facts well within ordinary constitutional litigation. Id. Thus, Petitioner has not fairly presented his current arguments to the state courts.
Moreover, there is no longer a state court in which Petitioner can raise his current arguments. He cannot present the arguments to the Court of Appeals in the future because he is entitled to only one leave application. Moreover, raising these arguments in a C.P.L. § 440.10 motion would be futile because Petitioner failed to raise these arguments on direct appeal. C.P.L. § 440.10(2)(c) bars collateral proceedings when a criminal defendant has failed to raise the grounds on direct appeal. Thus, since no remaining avenue exists in which Petitioner could raise these claims, they are deemed exhausted but procedurally defaulted. Coleman v. United States, 501 U.S. 722, 732 (1991); Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001); Spence v. Superintendent, Great Meadow Corr. Fac., 219 F.3d 162, 170 (2d Cir. 2000).
This Court may review these claims only if Petitioner demonstrates cause for the default and resulting prejudice, or that the failure of the federal court to review the claim will result in a "fundamental miscarriage of justice" i.e., that he is innocent. Calderon v. Thompson, 523 U.S. 538, 559 (1998); Coleman, 501 U.S. at 748-750. To establish "cause" sufficient to excuse a procedural default, a petitioner must show that some objective external factor impeded his or her ability to comply with the relevant procedural rule. Coleman, 501 U.S. at 753; Restrepo v. Kelly, 178 F.3d 634, 638-39 (2d Cir. 1999). When a petitioner has failed to establish adequate cause for his procedural default, the court need not determine whether he suffered prejudice, since federal habeas relief is generally unavailable as to procedurally defaulted claims unless both cause and prejudice are demonstrated. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985).
Petitioner fails to show that some objective external factor impeded his ability to comply with the relevant procedural rule. Thus, Petitioner has not established cause for the default. Petitioner also fails to show that a fundamental miscarriage of justice will result from no federal review of the claims. Accordingly, Petitioner's claims are denied.
C. Selective Prosecution
Petitioner claims that the prosecutor committed misconduct by "selectively" prosecuting him. Dkt. No. 1 at 52. He claims that Pagan was charged with a lesser offense because she is a female. Id. Respondent argues that this claim should be "summarily dismissed because both [Petitioner] and Pagan were arrested and charged at the same time; it was only because Pagan chose to plead guilty to a lesser charge that she testified against petitioner." Dkt. No. 11-1, at 22.
In his CPL § 440 motion, Petitioner similarly argued that the prosecution unfairly charged Pagan with a lesser offense because she was a female. Dkt. No. 12-8 (Ex. H) at Aff. at 14-15. The trial court found that this claim "was not appropriate for resolution on a post judgment motion. That claim could be raised on appeal and thus must be denied (CPL 440.10[2][b].)" Dkt. No. 12-12 (Ex. L) at 3.
To support a claim of selective prosecution, a petitioner bears the heavy burden of making a prima facie showing of "intentional and purposeful discrimination." U.S. v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974); see also United States v. Armstrong, 517 U.S. 456, 465 (1996). A petitioner must demonstrate (1) that, "compared with others similarly situated, [he] was selectively treated; and (2) [that] such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Crowley v. Courville, 76 F.3d 47, 52-53 (2d Cir. 1996) (citations omitted). "In the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties." Armstrong, 517 U.S. at 464 (internal quotation marks omitted). As Petitioner must make a "credible showing of different treatment of similarly situated persons," "mere assertions and generalized proffers on information and belief are insufficient." United States v. Sanders, 17 F. Supp. 2d 141, 145 (E.D.N.Y. 1998) (citing United States v. Fares, 978 F.2d 52, 59 (2d Cir. 1992)), aff'd, 211 F.3d 711 (2d Cir. 2000).
Petitioner's claim is purely speculative. Unsubstantiated conclusions, opinions, or speculation cannot serve as a basis for habeas relief. See Wood v. Bartholomew, 516 US 1, 8 (1995) (asserting that federal courts should not grant "habeas relief on the basis of little more than speculation with slight support"). Moreover, the mere fact that Petitioner was prosecuted for one offense while Pagan was prosecuted for another offense does not support a claim of selective prosecution. Accordingly, the petition on this ground is denied.
See Welch v. Artus, No. 04-cv-205S, 2007 WL 949652, at *55 (W.D.N.Y. Mar. 29, 2007) (noting same).
D. Petitioner's Admissions
Petitioner claims that his due process rights were violated when the court admitted testimony consisting of statements Petitioner made to Pagan before the drugs were transported. Dkt. No. 1 at 22-23. Respondent argues that this claim is without merit. Dkt. No. 11-1, at 28-31.
The Appellate Division rejected Petitioner's claim, as follows:
[D]efendant contends that Pagan's testimony concerning conversations with him preparatory to transporting the drugs to Albany constituted hearsay and was thus improperly admitted into evidence. Suffice to say that admissions and confessions are exceptions to the hearsay rule and are admitted into evidence as declarations against penal interest by an unavailable declarant.Johnson, 30 A.D.3D at 775 (citation omitted).
This determination was not contrary to, or involved an unreasonable application of, clearly established Supreme Court law.
Here, Pagan testified that Petitioner asked her if she would like to take a trip with him to Albany "to carry the drugs for him because he was coming up here to handle his business," which she understood to mean "[b]asically come and bring his drugs up here that w[ere] being sold." TT. at 118. The statement constitutes an admission by a party, and it is well-established under traditional rules of evidence, a party's admission does not constitute hearsay and therefore is not excluded under the hearsay rule. Avincola v. Stinson, 60 F. Supp. 2d 133, 154 (S.D.N.Y. 1999) (quotation marks and citations omitted). Accordingly, the petition on this ground is denied.
E. Effectiveness of Trial Counsel
Petitioner argues that trial counsel was ineffective for the following reasons: (1) Counsel waived Petitioner's right to a hearing to suppress the drugs; (2) Counsel failed to object to the admission of certain evidence and to a jury charge, and failed to adequately cross-examine several witnesses; (3) Counsel failed to adequately investigate the case; (4) Counsel failed to use certain letters to impeach Pagan; (5) Counsel allowed Petitioner to testify in a narrative fashion; and (6) Counsel labored under conflicts of interest. Dkt. No. 1.
On direct appeal, Petitioner raised the aforementioned claims, as well as numerous other alleged reasons why counsel was ineffective. The Appellate Division rejected Petitioner's arguments, as follows:
On direct appeal, Petitioner, through counsel, argued that trial counsel provided ineffective assistance by: (1) failing to adequately object to the introduction of evidence of Petitioner's incarceration, or to seek a curative instruction; (2) failing to subpoena a videotape of the bus terminal; (3) refusing to send an investigator to speak to the cab driver; (4) trying to "coerce" Petitioner to plead guilty; (5) refusing to use inculpatory letters to Petitioner from Pagan; (5) improperly "denigrat[ing]" Petitioner before the court; (6) admitting that he lacked knowledge regarding drugs and drug testing procedures; (7) failing to adequately question the People's drug-testing expert witness; (8) failing to object to the accomplice jury charge; and (9) waiving Petitioner's right to challenge the legality of the arrest and to seek suppression of the drugs. Dkt. No. 12-1 (Ex. A) at 19-24, 28, 29-32.
In his pro se supplemental brief, Petitioner argued that trial counsel was ineffective for: (1) failing to properly investigate the case by obtaining the bus terminal videotape or by talking to the taxi cab driver (Dkt. No. 12-2 (Ex. B), at 21-22, 25, 34-35, 54); (2) apparently failing to request that the trial court instruct the jury regarding corroboration ( id., at 22); (3) pressuring Petitioner to plead guilty ( id. at 23-24, 28, 29, 54); (4) having an actual conflict with the prosecutor by having a personal relationship with her ( id. at 23, 29, 35); (5) improperly waiving the "Mapp" hearing and for failing to adequately explain what a Mapp hearing was or the consequences of waiving the hearing ( id. at 26, 54-55); (6) deceiving the trial court by stating that he would obtain a videotape of the bus terminal ( id. at 27); (7) failing to adequately cross-examine Officer Duda ( id. at 32-35, 37); (8) failing to object to the admittance of a bus ticket into evidence and failing to view this evidence ( id. at 33); (9) advising Petitioner to testify in a narrative format without advising Petitioner of the "consequences and the prejudice of doing so" ( id. at 36-37); (10) failing to "assist" Petitioner during his narrative testimony ( id. at 38, 45, 47-49); (11) failing to request a lesser charge ( id. at 50); (12) failing to properly impeach Pagan ( id. at 51); (13) refusing to present inculpatory evidence ( id. at 53); and (14) destroying exculpatory evidence ( id. at 53).
[W]e reject defendant's contention that he was denied the effective assistance of counsel. A review of the record reveals that counsel engaged in vigorous and meaningful representation at every stage of the proceedings, defendant's claims to the contrary notwithstanding. We have considered defendant's remaining contentions, including those asserted in his pro se brief, and find them to be equally without merit.Johnson, 30 A.D.3d at 775. This determination was not contrary to, or involved an unreasonable application of, clearly established Supreme Court law.
The Sixth Amendment to the United States Constitution provides that: "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. To establish a violation of this right to the effective assistance of counsel, a habeas petitioner must show both: (1) that counsel's representation fell below an objective standard of reasonableness, measured in the light of prevailing professional norms; and (2) resulting prejudice, that is, a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different. Strickland v. Washington, 446 U.S. 668, 688-90 (1984); Wiggins v. Smith, 539 U.S. 510, 521 (2003) ("the legal principles that govern claims of ineffective assistance of counsel" were established in Strickland.). There is a strong presumption that counsel's conduct fell within the wide range of reasonable assistance and that counsel's actions constituted sound trial strategy under the circumstances. Cuevas v. Henderson, 801 F.2d 586, 589-90 (2d Cir. 1986).
The record shows that trial counsel's performance was objectively reasonable. Before trial, counsel successfully argued that Petitioner had not been given his full Miranda warnings before making a statement. Dkt. No. 12-15 (Ex. O) at 63-64, 66-68. The court suppressed the statement. Dkt. No. 12-4 (Ex. D) at 38-39. Further, counsel was effective because he had negotiated a favorable plea bargain, namely an indeterminate, six years-to-life prison sentence, which Petitioner declined. Dkt. No. 12-15 (Ex. O) at 5-6. See Whitehurst v. Senkowski, 485 F. Supp. 2d 105, 120 (N.D.N.Y. 2007) (McCurn, S.J.) (finding that the fact that a defendant had received a favorable plea bargain "militate[d] against a finding that his attorney rendered ineffective assistance").
These specific page numbers are those assigned by the Court's electronic filing system.
During trial, counsel argued a defense that the evidence was insufficient. For instance, during his opening statement, counsel pointed out that on the day of the incident, Petitioner simply was returning to the home of a relative in North Troy, New York. TT at 34. Moreover, counsel stressed that Pagan would be testifying as a result of a plea bargain. Id. at 36. Counsel further noted that Pagan, who physically possessed the drugs, never saw Petitioner place the drugs in her bag. Id.
Counsel cross-examined several witnesses at length, including Officer Duda, (TT at 93-109); Pagan ( id. at 143-62); Christopher Mark McDonough (Forensic Scientist) ( id. at 182-87); and Gina Cataldo (Albany Bus Terminal Employee) ( id. at 196-98). Significantly, during the cross examination of Pagan, counsel elicited testimony from Pagan in which she admitted that she lied in a letter she wrote to the trial court. Id. at 160-62. Counsel also elicited from Pagan that she was testifying as a result of her plea bargain. Id. at 147-50.
Counsel also made several objections during the People's case. For instance, counsel objected to Pagan testifying as to statements Petitioner made to her. TT at 117. Counsel also objected to the admission of certain letters Petitioner wrote to Pagan. Id. at 139-40.
Counsel then presented Petitioner's testimony, allowing him to testify in a narrative form. TT at 204-19. Thereafter, counsel moved to dismiss pursuant to CPL § 290.10. TT at 200-01.
Counsel also presented a comprehensive summation. He argued that the People failed to carry their burden of proof beyond a reasonable doubt, pointing out that the behavior exhibited by Petitioner and Pagan at the bus terminal was innocent and inconsistent with that of drug transporting; that Petitioner's arrest was the product of racial profiling; that Pagan offered no reason for her use of an alias and admitted to receiving "leniency" in exchange for testifying against Petitioner; and that Petitioner made no admissions in his letters to Pagan. TT at 264-85.
1. Waiver of Suppression Hearing
Petitioner claims that counsel was ineffective for waiving his right to a hearing to suppress the drugs, and for failing to "adequately inform" Petitioner about the hearing or the "consequences" of waiving the hearing. Dkt. No. 1 at 20-21, 26, 44-45. Respondent argues that these claims are unavailing. Dkt. No. 11-1, at 34-36.
Counsel filed a pre-trial omnibus motion regarding, inter alia, dismissal of the indictment and suppression of all property and statements taken from Petitioner. Dkt. No. 12-3 (Ex. C), att. F, at 2-4. Petitioner was granted a Huntley/Mapp suppression hearing, but the court stated that it would only hold the Mapp hearing if the court determined that Petitioner had standing. Dkt. No. 12-1 (Ex. A), at A6-7. At the beginning of the hearing, counsel stated that after conferencing with Petitioner, "we'd like to withdraw my application for a Mapp hearing as my client does not wish to assert standing with respect to the contents of the items in issue." Dkt. No. 12-15 (Ex. O), at 3-4. The items at issue consisted of the backpack and the contents therein, namely the drugs. Id. at 4. Most likely counsel did not want to associate Petitioner with possession of the backpack, simply to assert standing to suppress it. This decision was strategic in nature and is thus "virtually unchallengable." Strickland, 466 U.S. at 690-91. Moreover, if Petitioner moved to suppress the drugs, he likely would have been unsuccessful given the fact that Pagan had consented to a search of the bag. TT at 59. Thus, counsel was not ineffective for waiving Petitioner's right to a Mapp hearing. Accordingly, Petitioner has failed to meet either prong of the Strickland standard. Accordingly, the petition on this ground is denied.
People v. Huntley, 15 N.Y.2d 72 (1965); Mapp v. Ohio, 367 U.S. 643 (1961).
Similarly, in Hediam v. Miller, the defense counsel "felt a motion for a Mapp hearing would be antithetical to his client's consistent contention that defendant never had any possessory or proprietary interest in the drugs or paraphernalia recovered." Hediam v. Miller, No. 02 Civ. 1419, 2002 WL 31867722, at *17 (S.D.N.Y. Dec. 23, 2002) (Heck, M.J.) (recommending dismissal of this claim). The court found that counsel's "strategic decision not to seek a suppression hearing did not constitute ineffective assistance of counsel under the Strickland standard." Id. at *18.
To the extent that Petitioner argues that counsel was deficient for failing to adequately explain the concept of a suppression hearing, or the consequences of waiving the hearing, to Petitioner, Dkt. No. 1 at 20-21, Petitioner has failed to establish that even if this was true and that such failures constituted a deficient performance by counsel, that the outcome of the proceeding would have been different.
To the extent that Petitioner argues that the state court failed to address the issue of the waiver of the suppression hearing, Dkt. No. 1 at 21, the Appellate Division directly addressed Petitioner's contention that counsel was ineffective. Johnson, 30 A.D.3d at 775.
2. Alleged Failures to Object and Adequately Cross-Examine
Petitioner argues that counsel failed to object to the admission of evidence of his incarceration, and failed to object to the accomplice jury charge. Petitioner also claims that counsel failed to adequately cross-examine Officer Duda, and the forensic scientist, Christopher McDonough. Dkt. No. 1 at 14-17, 19, 31-33. Respondent argues that these claims are meritless. Dkt. No. 11-1, at 36-38.
a. Alleged Failures to Object
i. Evidence of Incarceration
Regarding Petitioner's argument that counsel was ineffective for failing to object to the admission of evidence of his incarceration, Dkt. No. 1 at 14, 17, counsel did object to the admission of this evidence, on the bases that a proper foundation was not laid and that the evidence was unduly prejudicial. TT at 139-40. Thus, Petitioner's claim that counsel failed to object to the introduction of this evidence is without merit and is denied.
To the extent that Petitioner argues that counsel was ineffective for failing to seek a curative instruction regarding the evidence of his incarceration, Dkt. No. 1 at 17, the trial court overruled counsel's objection to the evidence, which the Appellate Division stated was proper. Johnson, 30 A.D. 3d at 775. Therefore counsel had no reason to seek a curative instruction. Accordingly, Petitioner has failed to meet either prong of the Strickland standard, and the petition on this ground is denied.
See Maxwell v. Greiner, No. 04-CV-4477, 2008 WL 2039528, at *11 (E.D.N.Y. May 12, 2008) (noting that petitioner's argument that counsel did not seek a curative instruction after objecting to testimony "d[id] not make sense given that the objection was overruled" and that it was "illogical" for counsel to seek a curative instruction when another objection to testimony was overruled).
ii. Accomplice Jury Charge
Regarding Petitioner's argument that counsel was ineffective for failing to object to the accomplice jury charge, Dkt. No. 1 at 19, this argument is unavailing. The trial court properly gave the accomplice jury charge because Pagan had participated in the charged offense. She testified that she agreed to transport drugs for Petitioner by allowing him to place the drugs in her backpack and by accompanying him on a bus to Albany. TT at 118-28. She further testified that she pled guilty to criminal possession of a controlled substance. TT at 141-42.
The Appellate Division rejected Petitioner's claim that the trial court erred in instructing the jury as to accomplice testimony. Johnson, 30 A.D.3d at 775. The court reasoned that "by pleading guilty to criminal possession of a controlled substance, Pagan conclusively established her complicity and County Court quite properly rendered an accomplice instruction to the jury." Id.
Therefore, counsel had no basis to object to the accomplice jury charge. Any such objection would have been overruled as baseless. Accordingly, counsel did not render ineffective assistance by failing to make a baseless objection. See United States v. DiPaolo, 804 F.2d 225, 234 (2d Cir. 1986) (holding that the failure to make a meritless objection does not constitute ineffective assistance).
Moreover, the charge was potentially helpful to Petitioner. The Court essentially instructed the jury that Petitioner could not be convicted solely on Pagan's testimony. TT at 322.
Therefore, Petitioner has failed to establish either prong of the Strickland standard. Accordingly, the petition on this ground is denied.
b. Alleged Failures to Adequately Cross Examine
i. Officer Duda
Petitioner argues that counsel was ineffective by failing to cross-examine Officer Duda regarding his failure to inventory Pagan's backpack. Dkt. No. 1 at 31-33. As Respondent pointed out, Dkt. No. 11-1 at 37, counsel specifically asked Duda about whether he performed an inventory of the contents of the backpack. TT at 65. Duda stated that he performed no inventory. Id. Thus, this claim is unavailing.
Petitioner also argues that counsel was ineffective by failing to cross-examine Officer Duda regarding an "old" bus ticket. Dkt. No. 1 at 24, 26, 29-34; Dkt. No. 16 at 2-5. Officer Duda testified that he recovered a bus ticket from the backpack. TT at 78-79. The ticket bore the name of Robert Ross, which was the alias used by Petitioner on the day of the incident. Id. at 53-54, 78, 206. Petitioner claimed that this ticket was "planted" in the backpack and that the ticket was actually recovered from his pocket by Officer Frangella at the police station. Id. at 209. Petitioner claims that he insisted that counsel question Officer Duda as to this issue before Officer Duda testified about the ticket. Dkt. No. 1 at 31.
The transcript reveals that after counsel elicited testimony from Officer Duda that he performed no inventory of the backpack, counsel attempted to ask Officer Duda about the contents of the bag, but the court stopped counsel because the contents were not being offered into evidence at that point. TT at 65. When Officer Duda later testified about the contents, which included the bus ticket, counsel made no objection to the ticket being entered into evidence. TT at 67-80. Perhaps counsel did not want to call extra attention to the old bus ticket, and instead wanted the jury to focus on the events that occurred on the day of the incident. In any event, the decision to refrain from questioning Officer Duda at that point was strategic in nature, and will not support Petitioner's claim. Indeed, decisions about "whether to engage in cross-examination, and if so to what extent and in what manner, are strategic in nature and generally will not support an ineffective assistance claim." Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002) (citing U.S. v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987) (quotation marks omitted)). Further, Petitioner's claim that the bus ticket was planted is purely speculative. Unsubstantiated conclusions, opinions, or speculation cannot serve as a basis for habeas relief. See Wood, 516 U.S. at 8. Thus, Petitioner failed to meet either prong of the Strickland standard. Accordingly, the petition on these grounds is denied.
ii. Christopher McDonough
Petitioner argues that counsel was unprepared to cross-examine the forensic scientist, Christopher McDonough. Dkt. No. 1 at 16, 17. Specifically, Petitioner argues that counsel admitted that he lacked knowledge regarding drugs and drug testing procedures, and failed to question McDonough "about the foibles inherent in drug testing." Id. Respondent argues that counsel effectively cross-examined this witness. Dkt. No. 11-1 at 37-38.
At trial, counsel commenced his cross-examination of McDonough by stating, "I am going to apologize to you up front. I'm unfamiliar with a lot of these scientific terms." TT at 183. Counsel's statement was likely a strategic tactic used to gain the attention of the jury and perhaps a way to elicit clear, explanatory answers from this witness for the jury's benefit. Thereafter, counsel vigorously cross-examined McDonough, asking him numerous questions about the specific drug tests that he performed, his custody of the drugs, his work area, and his past experience with "false positive" test results, as well as a hypothetical question. TT at 182-87. Thus, Petitioner has failed to meet either prong of the Strickland standard. Accordingly, the petition on this ground is denied.
3. Alleged Failures to Investigate
Petitioner alleges that counsel was ineffective for failing to obtain videotapes of the bus terminal, and for failing to speak to the cab driver. Dkt. No. 1 at 15-16, 24, 26-27, 31-33, 38-39. Respondent claims that these omissions were sound trial strategy and did not constitute ineffective assistance. Dkt. No. 11-1, at 38-40.
i. Videotapes
Petitioner argues that counsel was ineffective for failing to obtain videotapes of the bus terminal because the videotapes "would have shown that [his] stop and arrest w[ere] unlawfully initiated." TT at 24. Petitioner thus argues that a videotape of the bus terminal would impeach Officer Duda's credibility. Id. at 31-32.
At the beginning of trial, counsel stated that he spoke to representatives from the bus terminal, who informed counsel that while there were videotapes of the inside of the terminal, there were no videotapes of the outside of the terminal. TT at 3. Thus, counsel investigated the existence of the alleged videotapes, and discovered that there were no videotapes of the outside of the terminal, which is where the stop and arrest occurred. Id. at 48, 49, 78, 128, 130, 205-07, 218. Petitioner himself admitted that the arrest occurred outside of the bus terminal at the cab. Id. at 205-07. Therefore, Petitioner's argument is unavailing. Thus, Petitioner has failed to meet either prong of the Strickland standard. Accordingly, the petition on this ground is denied.
In his traverse, Petitioner argues that he incorrectly phrased his original request for videotapes, and states that he requested tapes of the inside of the bus terminal. Dkt. No. 16 at 5 n. 2. However, the stop and arrest occurred outside of the terminal at the cab. TT at 48, 49, 78, 128, 130, 205-07, 218. Therefore, there was no reason for counsel to obtain videotapes of the inside of the terminal because the stop and arrest did not occur there.
To the extent that Petitioner claims that counsel should have "place[d] proper blame" on the prosecutor because it was her obligation to provide the videotapes, Dkt. No. 1 at 27, this claim too is unavailing. As noted there were no videotapes of the outside of the terminal, which is where the arrest occurred. Therefore, counsel had no reason to "blame" the prosecutor for failing to provide a videotape that was nonexistent.
ii. Cab Driver
Petitioner claims that counsel "refused to send an investigator to speak to the cab driver concerning the arresting officers' claims about what transpired just prior to [Petitioner's] arrest." Dkt. No. 1 at 16. Petitioner vaguely claims that the cab driver "would have contradicted what the officers said took place." Id. at 24.
"The decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial." U.S. v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987), cert. denied, 484 U.S. 957 (1987).
Counsel made a tactical decision to refrain from calling the cab driver as a witness. Moreover, it is unclear how testimony from the cab driver would have advanced the defense. Further, Petitioner fails to explain how the cab driver "would have contradicted what the officers said took place."
Therefore, Petitioner has failed to meet either prong of the Strickland standard. Accordingly, the petition on this ground is denied.
4. Failure to Impeach Pagan with Letters
Petitioner argues that counsel was ineffective for failing to impeach Pagan using alleged inculpatory letters that she wrote to him. Dkt. No. 1 at 16, 40, 42-43. Respondent fails to specifically address this issue.
"[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable. . . ." Strickland, 466 U.S. at 690. Moreover, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id.
At the close of the evidence, out of the presence of the jury, Petitioner brought the letters to the court's attention, and apparently was holding the letters in question. TT at 259. Counsel stated that he had "never seen" the letters Petitioner was holding. Id. at 260. However, he stated that Petitioner gave him one letter that Pagan wrote Petitioner, and that he "strategically discussed" the letter with Petitioner and that Petitioner "knew that we were not going to enter that letter into evidence." Id. at 260. Petitioner claimed that he showed the other letters to counsel. Id. The trial court denied Petitioner's request to admit the letters, noting that Petitioner "had an attorney that's worked diligently and hard on your behalf," and that Petitioner's request was made after the proof closed. Id. at 262.
Plainly, counsel made a strategic decision not to use the letter he received from Petitioner. Regarding the alleged other letters, which Petitioner claims he showed counsel, counsel denied that Petitioner showed him other letters. TT at 260. Even assuming arguendo that Petitioner did show counsel other letters, counsel attacked Pagan's credibility through other means. Counsel vigorously cross-examined Pagan and elicited testimony from Pagan in which she admitted that she lied in a letter she wrote to the trial court. Id. at 160-62. He also elicited from Pagan that she was testifying as a result of her plea bargain. Id. at 147-50. For example, counsel strenuously attacked Pagan's credibility in the following exchange:
Q: It's your testimony that you have, you know, untruths in this case, correct? You have lied about the facts in this case, correct? A: No. Never. Q: Never lied to Judge Breslin in the letter? A: In the letter I did. That was before my indictment, yes. Q: So it's — I didn't ask about the indictment, ma'am. Is it a fair statement to make that you have lied and misrepresented the facts about this case? A: At one point, yes. Q: So you lied at one point. A: At one point I did, yes. Q: But now you want the jury to believe what you're saying. A: I took the plea for my well-being. Q: My question — A: I took the plea for my well-being which was possession. Q: Ma'am, that's not my question. My question is you lied at one point in time. A: At one point I lied but — Q: Now you want — A: Once I got indicted and the truth needed to be told, you know, I knew I did wrong and I took my well-being. Q: Ma'am, once again my question and please answer my question, at one point in time you lied to the Judge, correct? A: Yes. Q: And now you wish for the jury to believe that you are telling the truth. A: Yes. Q: And in light of the fact that you lied before, correct? A: Yes.TT at 161-62.
Similarly, in Farrington v. Senkowski, 19 F. Supp. 2d 176, 179-80 (S.D.N.Y. 1998), aff'd, 214 F.3d 237 (2d Cir. 2000), the court noted that the trial counsel's failure to introduce a witness's videotaped statement or to highlight a purported inconsistency between that statement and the witness's trial testimony did not constitute ineffective assistance of counsel. Counsel judged the videotape to be both inculpatory and exculpatory, and attacked the witness's credibility by other means. Id.
In light of the foregoing, Petitioner has failed to meet either prong of the Strickland standard. Accordingly the petition on this ground is denied.
5. Petitioner's Narrative Testimony
Petitioner argues that counsel was ineffective by refraining from directly questioning Petitioner and by allowing him to testify in a narrative fashion, essentially "abandon[ing]" him. Dkt. No. 1 at 34. Petitioner also argues that counsel should have stopped his testimony to ask him questions about the videotapes, old bus ticket, and letters from Pagan. Id. at 37. Petitioner further argues that counsel "excessively" pressured him to continue testifying even after Petitioner stated that he was finished testifying. Id. at 28. Respondent failed to specifically address these issues.
At trial, counsel asked Petitioner three introductory questions, and then asked him to tell his version of the events in question. TT at 20-405. Petitioner testified, uninterrupted and at length, presenting his version of the events. Id. at 205-14. When Petitioner stopped talking, counsel asked him if there was anything else that he wanted to tell the jury, which prompted Petitioner to continue testifying in narrative fashion. Id. at 214-19. This sequence took place several times until Petitioner stated that he had told the jury his entire version of the events. Id.
First, the trial transcript indicates that Petitioner admitted to counsel that he committed the charged offenses. TT at 276-77. "In the representation of a client, a lawyer shall not . . . [k]nowingly use perjured testimony or false evidence," or "assist the client in conduct that the lawyers knows to be illegal or fraudulent." N.Y. Code of Prof. Resp., DR 7-102. Counsel likely wished to avoid violating professional responsibility rules, and therefore chose not to directly question Petitioner. Accordingly, Petitioner's claim that counsel was ineffective by allowing him to testify in a narrative form is unavailing. See DePallo v. Burge, 296 F. Supp. 2d 282, 290-92 (E.D.N.Y. 2003) (finding that counsel's elicitation of the petitioner's testimony in narrative form did not constitute ineffective assistance of counsel, since this course enabled counsel to "fulfill[] his ethical obligations to the court and to his client"); Benedict v. Henderson, 721 F. Supp. 1560, 1563 (N.D.N.Y. 1989) (Foley, S.J.) (finding no Sixth Amendment violation where defense counsel doubted that defendant would testify truthfully and allowed defendant to testify in narrative form), aff'd, 904 F.2d 34 (2d Cir. 1990), cert. denied, 498 U.S. 867 (1990).
During a sidebar conference, the trial court reminded counsel that "you have already indicated to this Court that he has admitted it to you[.]" TT at 276-77.
Moreover, the evidence against Petitioner was strong. Thus, even assuming arguendo that counsel's conduct fell below an objective standard of reasonableness, Petitioner cannot satisfy the prejudice prong of the Strickland standard in light of the strong evidence presented at trial against Petitioner, including the testimony of Officer Duda and Pagan. See U.S. v. John Doe No. 1, 272 F.3d 116, 126 (2d Cir. 2001) (holding similarly and noting that the petitioner had not demonstrated that counsel's "so-called abandonment," which resulted in the petitioner testifying in a narrative form, prejudiced the outcome).
Second, Petitioner's claim that counsel should have stopped his testimony to ask him questions about the videotapes, old bus ticket, and letters from Pagan, Dkt. No. 1 at 37-38, is unpersuasive. Counsel was not ineffective for refraining from directly asking Petitioner questions. Moreover, Petitioner cannot show that the outcome of his trial is unreliable because counsel failed to question him regarding the videotapes, the old bus ticket, or letters from Pagan. In any event, Petitioner took it upon himself to talk about the videotapes and old bus ticket, telling the jury that the old bus ticket was "planted" in the backpack, and that there are videotapes of the bus terminal that would show that he did not act suspiciously. TT at 217-18.
Third, Petitioner further claims that counsel "excessively" pressured him to continue testifying even after Petitioner stated that he was finished testifying. Dkt. No. 1 at 28. Petitioner is apparently referring to when counsel asked Petitioner if there was anything else that he wanted to tell the jury, which prompted Petitioner to continue testifying at length. TT at 214-19. As noted, this sequence occurred several times until Petitioner stated that he had told the jury his entire version of the events. Id. There is no indication that counsel "excessively pressured" Petitioner to continue testifying. If anything, counsel likely wanted to ensure that Petitioner presented his entire version of the events to the jury.
Therefore, Petitioner has failed to meet either prong of the Strickland standard. Accordingly, the petition on these grounds is denied.
To the extent that Petitioner claims that counsel and the trial court failed to advise him of his Fifth Amendment rights and the consequences and prejudice of testifying, Dkt. No. 1 at 34-35, 39, this claim provides no basis for relief. Petitioner's claim assumes that both counsel and the trial court knew what the consequences, and possible prejudice, of his decision to testify would be. It thus appears that Petitioner is arguing that counsel and the trial court knew that Petitioner would be convicted if he testified. The Appellate Division rejected this claim as meritless, Johnson, 30 A.D.3d at 775, and Petitioner has failed to support his bald claim in this Court. Accordingly, the petition on this ground is denied.
6. Alleged Conflict of Interest Due to Alleged Romantic Relationship
Petitioner argues that counsel labored under a conflict of interest because counsel was involved in a romantic relationship with the prosecutor. Dkt. No. 1 at 25, 33. Petitioner also argues that because of this conflict, counsel insisted that Petitioner plead guilty because counsel trained the prosecutor, this was her first "real case," she was inexperienced, and "she knew his tactics and he knew her tactics;" therefore counsel "could not win this case at trial." Id. at 25. Respondent argues that no actual or even potential conflict affected counsel's overall representation of Petitioner. Dkt. No. 11-1 at 40-42.
A defendant's Sixth Amendment right to counsel further guarantees the right to conflict-free representation. See Wood v. Georgia, 450 U.S. 261, 271 (1981) ("Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest."); Cuyler v. Sullivan, 446 U.S. 335, 345 (1980). When an ineffective assistance of counsel claim is predicated upon an alleged conflict of interest, the petitioner must demonstrate either (1) a per se conflict; (2) an actual conflict that adversely affected a lawyer's performance; or (3) a potential conflict of interest that results in prejudice. See Cuyler, 446 U.S. at 349-50 (1980); see also Armienti v. United States, 313 F.3d 807, 810 (2d Cir. 2002).
A per se conflict of interest exists in only two limited circumstances, and requires automatic reversal of a conviction without a showing of prejudice: (1) where trial counsel is not authorized to practice law or (2) where counsel is implicated in the crime for which his client is on trial. Armienti v. United States, 234 F.3d 820, 823 (2d Cir. 2000). Neither of these circumstances is present in the instant case.
Whether a conflict of interest exists is a mixed question of law and fact. See Cuyler, 446 U.S. at 342; see also United States v. Feyrer, 333 F.3d 110, 115-16 (2d Cir. 2003).
In cases where an asserted conflict arises between the interests of the defendant and those of his attorney, the Second Circuit has promulgated a three-stage analysis. United States v. Moree, 220 F.3d 65, 69 (2d Cir. 2000). The defendant must establish: (1) that an actual conflict of interest existed; (2) the existence of an "actual lapse in representation," that resulted from the conflict; and (3) causation-that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests. Id. (citations and quotation marks omitted).
An actual conflict of interest arises during representation when the attorney's and defendant's interests diverge with respect to a material factual or legal issue or to a course of action. Moree, 220 F.3d at 69 (citations and quotation marks omitted).
An "actual lapse in representation" is demonstrated by the existence of some plausible alternative defense strategy not taken up by counsel. The defendant need not show that the alternative defense would necessarily have been successful only that it possessed sufficient substance to be a viable alternative. Moree, 220 F.3d at 69 (citations and quotation marks omitted).
While the line between an actual and a potential conflict of interest is not always apparent, see United States v. Cruz, 982 F. Supp. 946, 948 n. 6 (S.D.N.Y. 1997), a potential conflict exists "if the interests of the defendant could place the attorney under inconsistent duties in the future," United States v. Jones, 381 F.3d 114, 119 (2d Cir. 2004) (emphasis in original) (citation omitted).
A defendant who proves that an actual conflict of interest affected the adequacy of his representation need not demonstrate prejudice. Sullivan, 446 U.S. at 349-50. On the other hand, a defendant who has established a potential conflict of interest is required to demonstrate prejudice in accordance with Strickland in order to prove that the conflict violated his right to effective assistance of counsel. Winkler v. Keane, 7 F.3d 304, 307 (2d Cir. 1993) (citing Strickland, 466 U.S. at 688-90); see also Sullivan, 446 U.S. at 350 ("[T]he possibility of conflict is insufficient to impugn a criminal conviction.").
Initially, Petitioner's claim that counsel and the prosecutor were involved in a romantic relationship is completely unsubstantiated. As noted, unsubstantiated conclusions, opinions, or speculation cannot serve as a basis for habeas relief. See Wood, 516 U.S. at 8.
Moreover, Petitioner has failed to establish that an actual conflict of interest existed, that an actual lapse in representation occurred, and causation. Petitioner also cannot demonstrate that counsel labored under a potential conflict of interest. As discussed above, counsel's representation was objectively reasonable.
Regarding Petitioner's claim that counsel insisted that Petitioner plead guilty because of the alleged romantic relationship, this is completely speculative and unsubstantiated. Moreover, even assuming that counsel insisted that Petitioner plead guilty, the alleged insistence was obviously futile as Petitioner did not plead guilty. Further, even if counsel did advise Petitioner to plead guilty, Petitioner has failed to prove that counsel did anything other than provide professional advice.
For the foregoing reasons, Petitioner has failed to show that counsel was deficient. Accordingly, these claims are unavailing and are denied.
7. Alleged Conflict of Interest Due to Allegations of Coercion
Petitioner argues that counsel was ineffective because he was laboring under a conflict of interest at trial when defense counsel was placed in the position of "having to contradict his client in order to protect himself from allegations of malpractice and potential liability." Dkt. No. 1 at 28. Respondent failed to specifically address this issue.
Petitioner cites United States v. Davis, 239 F.3d 283 (2d Cir. 2001) for support. Dkt. No. 1 at 28. In that case, the Second Circuit addressed the issue of whether a defendant was denied effective assistance of counsel at his plea withdrawal hearing. Davis, 239 F.3d at 286. The Court held that defense counsel suffered from an actual conflict of interest at the hearing. Id. at 285. The Court noted as follows:
Petitioner failed to provide a citation to this case. Therefore, the Court assumes that United States v. Davis, 239 F.3d 283 (2d Cir. 2001), is the case to which Petitioner refers.
Many of Davis's allegations of coercion do not suffice to create an actual conflict. For example, defense counsel's perhaps honest assessment that Davis would be found guilty if he went to trial, and that failing to take the plea would result in Davis "losing everything," might constitute nothing more than competent advice. However, Davis also makes particularized allegations that counsel had threatened not to investigate his case and not to file pre-trial motions if Davis did not accept the plea. These allegations are sufficient to create an actual conflict of interest.Id. at 287 (emphasis added).
Here, Petitioner made no such particularized allegations of coercion. Petitioner's allegations describe only competent counsel's candid advice about the risks of going to trial. For instance, at the beginning of trial, Petitioner stated that counsel was ineffective for the following relevant reasons:
[H]e is continuously telling me to cop out; that he told me I wasn't going to be — I wasn't going to — you weren't going to grant a suppression hearing. I'm telling you right now Mr. Breslin is not going to, your Honor, the Judge is not going to grant you hearings. He just getting me to cop out. I'm thinking he is not in the best interests of my defense.
. . . .
He keeps telling me there is no — they are going to — you are going to lose this case. I don't know why you are going to trial. He is not telling me — he is not defending me. That's telling me to cop out.
TT at 4-5.
Petitioner's allegations simply describe candid advice from counsel. Where "a defendant's allegations describe only competent counsel's candid advice about the risks of going to trial, counsel will not be placed in an actual conflict between advocating for his client's interests and his own." Davis, 239 F.3d at 286-87. Petitioner cannot establish that counsel was laboring under a conflict of interest at trial due to allegations of coercion, and therefore cannot establish that counsel was deficient. Accordingly, the petition on this ground is denied.
F. Trial Court Inquiries
Petitioner claims that the trial court erred by failing to inquire into the alleged romantic relationship between counsel and the prosecutor, as well as the alleged insistence by counsel that Petitioner plead guilty. Dkt. No. 1 at 25, 29, 46. He claims that separate counsel should have been appointed to assist him in establishing these allegations. Id. Respondent failed to specifically address these issues.
When a trial court is "sufficiently apprised of even the possibility of a conflict of interest," the court has an inquiry obligation. United States v. Levy, 25 F.3d 146, 153 (2d Cir. 1994) (citation omitted). "The court must investigate the facts and details of the attorney's interests to determine whether the attorney in fact suffers from an actual conflict, a potential conflict, or no genuine conflict at all." Id. (citation omitted).
At the beginning of trial, Petitioner informed the court that he wanted to relieve counsel for various reasons, TT at 2-5, including the following:
In the original transcript, Petitioner is referred to as "The Defendant." Dkt. No. 12-16.
Thus, the transcript reveals that Petitioner made no mention of the alleged romantic relationship. He simply stated that the attorneys had a "friendly" relationship, that the attorneys had worked together, and that counsel used to be a prosecutor. TT at 4-5. Upon the trial court's questioning, Petitioner clarified that he was uncomfortable with counsel representing him because of the alleged insistence that Petitioner plead guilty. Further, Petitioner himself stated in the petition that it was "hard" for him to "explain" the relationship to the trial court albeit because Petitioner claims that he knew that "counsel was a married man." Dkt. No. 1 at 25. Therefore, I find that the trial court was not "sufficiently apprised" of the alleged romantic relationship. Accordingly, the trial court had no obligation to inquire into the alleged romantic relationship because it was never made aware of its existence. Moreover, the trial court had no reason to appoint separate counsel to assist Petitioner with regard to these allegations.
In his traverse, Petitioner cites Summerlin v. Stewart, 267 F.3d 926 (9th Cir. 2001), for support. Dkt. No. 16 at 9. This opinion is uncontrolling and furthermore was withdrawn. Summerlin v. Stewart, 281 F.3d 836 (9th Cir. 2002).
As to the allegation that the trial court failed to inquire into counsel's alleged insistence that Petitioner plead guilty, Dkt. No. 1 at 29, 46, this claim is unavailing. The trial court patiently listened to the numerous reasons why Petitioner wanted to relieve counsel, and even asked Petitioner to elaborate on these claims. TT at 2-5. The trial court explained that counsel had an obligation to give him his best opinion as to the outcome of the case. Id. at 5. The trial court also explained to Petitioner that ultimately it was his choice to proceed to trial. Id.
"[C]ounsel has a professional obligation to adequately inform her client about the considerations that are relevant to her client's decision to accept or deny a plea bargain." Davis v. Greiner, 428 F.3d 81, 88 (2d Cir. 2005). Moreover, an attorney who advises a client to take an offer and warns him that his failure to do so would result in a lengthy prison sentence "merely asserts that the lawyer gave professional advice as to what the consequences of his choice might be." Moree, 220 F.3d at 72.
Therefore, the trial court inquired into the reasons why Petitioner wanted to relieve counsel, including the allegation that counsel had informed Petitioner that he should accept the plea bargain and that he had a low or no chance of success at trial. There was no reason to appoint separate counsel to assist Petitioner. Accordingly, the petition on this ground is denied.
To the extent that Petitioner is claiming that the trial court should have conducted an inquiry into counsel's "refusal to represent" Petitioner, Dkt. No. 1 at 41, this claim is unavailing. Petitioner refers to a portion of the trial transcript in which counsel stated that "from the very beginning of this trial I have been systematically harassed by my client." TT at 259. The trial court stopped counsel, stating "We're not going to get into that." Id. at 260. Counsel responded, "That's fine, Judge." Id. Nothing from this portion of the transcript indicates that counsel refused to represent Petitioner. Petitioner points to no other evidence indicating that counsel refused to represent Petitioner, and the Court is unaware of any such evidence. Thus this claim is unavailing.
G. Resentencing Claim
Petitioner argues that he was improperly resentenced under § 70.71 of the Rockefeller Drug Law Reform Act ("Reform Act") because the statute requires a positive testing of at least eight ounces to qualify as a class A-I felony, but that the prosecution tested only seven ounces. Dkt. No. 1 at 46-52.
Respondent argues that Petitioner was properly resentenced within the limits set by the legislature under § 70.71, and his challenge to the length of his sentence, thus, is not cognizable. Dkt. No. 11-1, at 42-43. Respondent further argues that Petitioner's claim is meritless because, inter alia, the state court found that the re-sentencing provisions permit a new determinate sentence to be imposed but do not change the underlying conviction. Id. at 43, at n. 12.
A petitioner's assertion that a sentencing judge abused his discretion in sentencing is generally not a federal claim subject to review by a habeas court. See Fielding v. LeFevre, 548 F.2d 1102, 1109 (2d Cir. 1977) (petitioner raised no cognizable federal claim by seeking to prove that state judge abused his sentencing discretion by disregarding psychiatric reports) (citing Townsend v. Burke, 334 U.S. 736, 741 (1948)) ("The [petitioner's] sentence being within the limits set by the statute, its severity would not be grounds for relief here even on direct review of the conviction, much less on review of the state court's denial of habeas corpus."). Clearly established federal law holds that "[n]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (holding that a state prisoner who was sentenced within the limits of the state law does not present a federal constitutional issue for habeas purposes) (citing Underwood v. Kelly, 692 F. Supp. 146 (E.D.N.Y. 1988), aff'd mem., 875 F.2d 857 (2d Cir. 1989)); see also Jackson v. Lacy, 74 F. Supp. 2d 173, 181 (N.D.N.Y. 1999) (McAvoy, C.J.) ("[i]t is well-settled . . . that a prisoner may not challenge the length of a sentence that does not exceed the maximum set by state law").
After the Reform Act became effective in January of 2005, Petitioner, as a second felony offender, could have been resentenced to a minimum determinate term of twelve years and a maximum determinate term of twenty-four years in prison, plus five years' post-release supervision. N.Y. Penal Law §§ 60.04(2), 70.71(3)(b)(I). Petitioner was resentenced to a determinate fourteen-year prison term, to run concurrent to his ten-to-twenty years' prison term. Dkt. No. 12 (Ex. K) at 2. While Petitioner's fourteen-year determinate prison term was greater than the possible minimum term, it was still within the range. Dkt. No. 12-11 (Ex. K) at 2-3. Accordingly, no federal constitutional issue is presented here, since the sentence was within the applicable statutory range.
However, Petitioner argues that he was improperly resentenced under § 70.71 because the statute requires a positive testing of at least eight ounces to qualify as a class A-I felony, but that the prosecution's witness testified that he analyzed only seven ounces. Dkt. No. 1 at 46-52. At the time of Petitioner's trial, the weight requirement for criminal possession of a controlled substance in the first degree was four ounces. See N.Y. Penal Law § 220.21 (2004); TT at 314. Under the Reform Act, the applicable weight requirement was raised to eight ounces. N.Y. Legis. 2004, ch. 738, § 220.21.
The state court rejected this claim as meritless. Dkt. No. 12-12, at 3. The court noted, "the re-sentencing provisions permit a new determinate sentence to be imposed but do not change the underlying conviction." Id. This Court agrees. Petitioner was convicted upon a jury finding that he possessed four ounces of a controlled substance, which is all that the law required at the time of his trial. Moreover, the State's forensic scientist testified that he analyzed only the contents of two of the five bags containing the drugs because it was "New York State Police policy to analyze only enough evidence to reach the highest legal weight cut off," which was four ounces. TT at 172. Accordingly, Petitioner's claim is denied.
See People v. Quinones, 22 A.D.3d 218, 219 (N.Y. App. Div. 2005) (holding that upon raising weight requirement for first-degree drug possession conviction from four to eight ounces, defendant was not entitled to reduction of first-degree possession conviction to second-degree possession, since a jury finding that defendant possessed four ounces of cocaine was all that the law required to convict him at the time of trial), leave to appeal denied, 6 N.Y.3d 817 (N.Y. 2006).
WHEREFORE, based upon the foregoing, it is hereby
ORDERED, that the petition for a writ of habeas corpus (Dkt. No. 1) is DENIED and DISMISSED; ORDERED, that a certificate of appealability not issue with respect to any of the claims set forth in the petition as Petitioner has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2); and it is further ORDERED, that the Clerk serve copies of the electronically-available-only opinions cited herein on Petitioner.
Those decisions include Welch v. Artus, No. 04-cv-205S, 2007 WL 949652 (W.D.N.Y. Mar. 29, 2007); Hediam v. Miller, No. 02 Civ. 1419, 2002 WL 31867722 (S.D.N.Y. Dec. 23, 2002); and Maxwell v. Greiner, No. 04-CV-4477, 2008 WL 2039528 (E.D.N.Y. May 12, 2008).