Opinion
01 Civ. 5813 (SAS)
August 5, 2002
Jason H. Sterne, Esq., Buffalo, New York, for Petitioner.
Morrie I. Kleinbart, Assistant District Attorney, New York, New York, for Respondent.
MEMORANDUM OPINION AND ORDER
I have reviewed the Report and Recommendation ("RR") of United States Magistrate Judge Andrew J. Peck, dated May 31, 2002, recommending dismissal of the instant habeas petition brought under 28 U.S.C. § 2254. I have also reviewed the objections raised in a June 17, 2002 letter from petitioner's attorney Jason H. Sterne ("Sterne Letter"). And although the issue sub judice presents a close call, Second Circuit authority compels me to accept and adopt Judge Peck's RR.
The relevant facts are fully described in the RR. However, the following synopsis is provided to give context to the present dispute.
Petitioner was convicted of two counts of second degree murder after a jury trial in Supreme Court, New York County. See RR at 1. Before the jury reached a verdict, however, the jurors notified the judge that they were deadlocked, in response to which he gave a preliminary Allen charge. See id. at 5. After further deliberations, the jury again informed the judge that they were deadlocked. See id. at 6. This time, the judge gave them a second Allen charge which stated, in pertinent part, as follows:
Now, you swore that if you had a reasonable doubt, I mean a reasonable doubt on any relative point or material element or on the evidence or lack of it and that one or more of your fellow jurors questions you about it that you would be willing to give him or her what you believe is a fair and calm explanation for your position based upon the evidence and the lack of evidence.
Id. at 7.
Defense counsel immediately objected to this charge and asked for a mistrial on the ground that the charge was unduly coercive given that the jury previously stated that further deliberations would be useless. See id. at 8. Defense counsel did not, however, specifically object to the above quoted language. Defense counsel's application was denied, the jury returned a guilty verdict, and petitioner was sentenced to two consecutive terms of fifteen years to life imprisonment. See id. at 8-9.
Appellate counsel then moved pursuant to C.P.L. § 440.10 to vacate petitioner's conviction on the ground that trial counsel rendered ineffective assistance by failing to object to the second Allen charge. See id. at 10. The trial court denied the motion, finding that petitioner waived the claim by not raising it on direct appeal. See id. Larrea then petitioned the First Department for a writ of error coram nobis arguing that his appellate counsel rendered ineffective assistance by raising the ineffective trial counsel claim in the section 440 motion rather than on direct appeal. See id. at 11. The First Department summarily denied this motion, citing only People v. De La Hoz, 520 N.Y.S.2d 386 (1st Dep't 1987). The portion of De La Hoz cited by the First Department states that in light of the "ever burgeoning number of applications which raise a claim of ineffective assistance of appellate counsel, [the] burden lies with those raising the issue to rebut the presumption that counsel has been effective. The mere existence of an unraised issue will not suffice. A defendant must show that had the issue been raised a greater likelihood would exist that the judgment would have been reversed, or at least, modified." Id. at 388.
Judge Peck concluded that the First Department adjudicated petitioner's ineffective appellate counsel claim on the merits given its citation to De La Hoz. I agree.
Petitioner then brought the instant habeas petition alleging: (1) the trial court violated his due process rights by giving an improper Allen charge; (2) trial counsel rendered ineffective assistance by not objecting to the Allen charge; and (3) appellate counsel rendered ineffective assistance by failing to raise the ineffective trial counsel claim on direct appeal. Petitioner did not object to Judge Peck's findings that the first two claims are procedurally barred. In dispute is petitioner's third claim — specifically, Judge Peck's finding that petitioner's predicate claim for the ineffective trial counsel claim is meritless and, therefore, petitioner's ineffective appellate counsel claim must be dismissed. See RR at 42.
Judge Peck also ruled that because petitioner's ineffective appellate counsel claim is meritless, it may not serve as "cause" for the procedural default of his ineffective trial counsel claim. See RR at 31.
At the time of petitioner's trial, no controlling decision squarely addressed the particular jury instruction in issue. Two years later, however, the New York Court of Appeals decided People v. Antommarchi, 80 N.Y.2d 247 (1992), wherein the following charge was in issue:
You swore that, if you have a reasonable doubt, I repeat, a reasonable doubt, on any relative [sic] point or material element or on the evidence or lack of it, and when one or more of your fellow jurors questioned you about it, you would be willing and able to give him what you believe is a fair, calm explanation for your position based upon the evidence or the lack of evidence in this particular case.
Id. at 251. The Court of Appeals held that,
[t]he language used in the Allen charge, however, went beyond permissible bounds by placing on each juror the express duty of giving a "fair, calm explanation for your position". Manifestly, the burden of proving guilt beyond a reasonable doubt in a criminal proceeding must always remain with the People. An instruction that requires jurors to supply concrete reasons "based upon the evidence" for their inclination to acquit implicitly imposes on defendants the burden of presenting a defense that supplies the jurors with the arguments they need to legitimize their votes. As such, the charge actually reverses the constitutionally required principles that the defense bears no burden and that it is the prosecution that must introduce evidence sufficient to persuade the fact finder, beyond a reasonable doubt, of the defendant's guilt. Consequently, the instruction in the court's Allen charge violated the Due Process Clauses of both the State and Federal Constitutions.
Id. at 252 (citations omitted, emphasis added). The question, as succinctly stated by Judge Peck, is "whether federal or state decisional law presaged Antommarchi, such that at the time of Larrea's 1990 trial, his counsel should have known to object to the Allen charge at issue on grounds similar to those later announced in Antommarchi." RR at 43.
Judge Peck cites and distinguishes several pre-Antommarchi Appellate Division cases, see id. at 51-52, in support of his conclusion that "as of Larrea's 1990 trial, state appellate courts might have deemed the instant Allen charge to be reversible error, but there was no clear precedent that would have guided Larrea's trial counsel (or the trial court)." Id. at 52-53. Of all the cases cited, most on point is People v. La Rosa, 492 N.Y.S.2d 633 (2d Dep't 1985). In La Rosa, the court ordered a new trial because "the cumulative effect of all of the aforementioned errors necessarily deprived defendant of a fair trial, . . ." Id. at 635.
The most obvious error cited by the defendant involved the court's charge with respect to the quantum of proof necessary to sustain a guilty verdict. The trial court's utilization of the phrases "moral certainty" and "reasonable degree of certainty" in explaining the concept of proof beyond a reasonable doubt was clearly improper. In addition, the court aggravated this error by indicating in its charge that the jury had to come up with a "substantial" and "articulable" reason for its doubts, and by suggesting that they might even be required to "tell what that doubt is."
Id. at 634 (citations omitted, emphasis added). Judge Peck distinguished this case on the ground that the articulation portion of the charge may not have been a sufficient, independent ground for reversal given the "numerous prejudicial errors committed during the course of the trial." RR at 52.
The issue, therefore, is the "degree of deference [that] should be accorded trial counsel for failing to object to a possibly erroneous charge that is later deemed erroneous[.]" Id. at 56. Judge Peck found that trial counsel's failure to object to the charge clearly satisfied the prejudice prong of the Strickland analysis, see id. at 54, and that appellate counsel's failure to raise the ineffective trial counsel claim on direct appeal satisfied the performance prong. See id. at 63. Judge Peck did not reach the prejudice prong with regard to the ineffective appellate counsel claim, however, as he found trial counsel's performance to be objectively reasonable given existing precedent. See id. at 63, 60.
Strickland requires a petitioner to prove both that: (1) trial counsel performed "deficiently" (i.e., objectively unreasonable); and (2) prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
In so doing, Judge Peck analyzed the federal standard used to evaluate the performance prong as it relates to failing to object to a jury charge. Judge Peck began his analysis with Bloomer v. United States, 162 F.3d 187 (2d Cir. 1998), wherein the court stated:
[O]ur review of the record suggests that the representation afforded by Bloomer's attorney fell short of being objectively reasonable. Although an attorney is not usually faulted for lacking the foresight to realize that a higher court will subsequently identify a defect in jury instructions similar to those used at his client's trial . . . an attorney nonetheless may be held responsible for failing to make such an objection when precedent supported a "reasonable probability" that a higher court would rule in defendant's favor.
Id. at 193 (citations omitted, emphasis added). Judge Peck characterized the above language as dicta, see RR at 57, given the court's subsequent statement that is was "troubled by the failure of Bloomer's attorney to object at trial to any of these clearly and previously identified errors." Bloomer, 162 F.3d at 193 (emphasis added).
In rejecting the "reasonable probability" standard, which was subsequently applied with regard to Strickland's prejudice prong in McKee v. United States, 167 F.3d 103, 108 (2d Cir. 1999), Judge Peck opted for the higher standard enunciated in Aparicio v. Artuz, 269 F.3d 78 (2d Cir. 2001). In Aparicio, the court "concluded that counsel's failure to object to a jury instruction (or to request an additional instruction) constitutes unreasonably deficient performance only when the trial court's instruction contained `clear and previously identified errors." Id. at 99 (quoting Bloomer, 162 F.3d at 193) (emphasis added). Using the "clear and previously identified error" standard, trial counsel could not be found ineffective as the instant charge did not contain clear and previously identified errors. See RR at 58.
The Aparicio court did not cite, nor distinguish, the holding of McKee.
Finding an absence of clear guidance from the Second Circuit, Judge Peck defaulted to the deferential Strickland standard and found that trial counsel's failure to object to the second Allen charge did not constitute deficient performance. See RR at 61. As a result, Judge Peck dismissed petitioner's appellate counsel claim. See id. at 63 ("because Larrea's ineffective trial counsel claim was meritless . . . his appellate counsel had no obligation to raise that claim in any forum . . . the failure to raise through the correct procedure a meritless claim cannot form the basis for a Sixth Amendment violation").
Petitioner objects to Judge Peck's description of Second Circuit authority as "in conflict." See Sterne Letter at 2. According to petitioner, the "reasonable probability" standard enunciated in Bloomer is binding precedent and imposes an obligation upon trial counsel to object. See id. Because the holdings of Bloomer, as applied in McKee, and Aparicio appear to be in direct conflict, petitioner's claim of ineffective appellate counsel must be dismissed under the general principles enunciated in Strickland (petitioner must show that his attorney "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment"). Accordingly, I hereby adopt and accept the thorough and well-reasoned Report and Recommendation of the Magistrate Judge and dismiss the petition. The Clerk of the Court is directed to close this case.
Nonetheless, this is an appropriate case for the issuance of a certificate of appealability. For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A `substantial showing' does not compel a petitioner to demonstrate that he would prevail on the merits, but merely that the issues involved in his case `are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.'" Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983) (internal quotation marks omitted) (emphasis and alteration in original)). In sum, "`[w]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.'" Rudenko v. Costello, 286 F.3d 51, 79 (2d Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Petitioner has made such a showing in this case.
SO ORDERED: