Opinion
No. 97 CV 5307 (SJ).
June 11, 2004
CAMILLO LOVACCO DIN 86-A-2926 Sullivan Correctional Facility Fallsburg, New York, Petitioner, pro se.
CHARLES J. HYNES, ESQ., Kings County District Attorney Renaissance Plaza Brooklyn, New York, By: Thomas M. Ross, Esq. Assistant District Attorney Attorneys for Respondent.
MEMORANDUM AND ORDER
Camillo LoVacco ("Petitioner") brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the petition must be dismissed.
BACKGROUND
Anthony Valente, Jr., ("Valente, Jr.") disappeared on October 1, 1982. In May 1984, after receiving an anonymous tip and obtaining a search warrant, law enforcement authorities discovered a decomposed body in the yard of a social club located on 3466 Webster Avenue in the Bronx, New York. Around the same time, Michael Doyle ("Doyle"), a friend of Petitioner, was arrested on unrelated charges. Doyle agreed to cooperate with the authorities and told the police that Petitioner was involved in Valente, Jr.'s disappearance. On March 5, 1985 and May 13, 1985, the police recorded conversations between Petitioner and Doyle, in which Petitioner made statements regarding Valente, Jr.'s disappearance. Soon after, Petitioner was arrested and charged with the murder of Valente, Jr. and went to trial in the New York Supreme Court, Kings County. A jury found petitioner guilty of Murder in the Second Degree on March 4, 1986. Thereafter, the New York State Supreme Court sentenced petitioner to a prison term of twenty-five years to life.Petitioner appealed this conviction to the New York Supreme Court, Appellate Division, Second Department, rasing two claims: that Kings County lacked jurisdiction over the crime, and that he was denied the effective assistance of trial counsel. The Appellate Division affirmed the conviction on February 14, 1989.People v. LoVacco 537 N.Y.S.2d 886 (N.Y.App.Div., 2d Dep't 1989) ("Resp.'s Ex. D"). Petitioner applied for leave to appeal to the New York Court of Appeals, raising the same two claims. The Court of Appeals denied his application for leave to appeal.People v. LoVacco, 545 N.Y.S.2d 117 (N.Y. 1989) ("Resp.'s Ex. G").
Next, Petitioner moved in the Appellate Division for a writ of error coram nobis, where he claimed (1) that his right to be present at trial was violated by his alleged absence from the voir dire of the prospective jurors; (2) that the prosecutor exercised peremptory challenges in a discriminatory manner by challenging a prospective juror who had an Italian surname; and (3) that appellate counsel rendered ineffective assistance by not raising these two issues on appeal. The Appellate Division denied Petitioner's motion without opinion. People v. LoVacco, No. 93-01764 (N.Y.App.Div., 2d Dep't June 24, 1993) ("Resp.'s Ex. J").
Petitioner then moved in the Supreme Court of New York State to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10, claiming that (1) trial counsel rendered ineffective assistance by stipulating to the identity of the victim; and (2) the prosecutor introduced false evidence that the defendant strangled the victim. Petitioner asserted that these new claims were based on newly discovered evidence that he discovered after having obtained transcripts from the trial of co-defendant Joseph Marano ("Marano Transcripts"). The New York Supreme Court denied this motion, holding that both claims were procedurally barred because they alleged facts that were apparent on the trial record and thus could have been raised on direct appeal. People v. LoVacco, Ind. No. 4231/85, CPL § 440.10(1), Dec. 12, 1996 (Egitto, J.) ("Resp.'s Ex. M"). Petitioner requested leave to appeal to the Appellate Division, which denied without opinion.People v. LoVacco, No. 97-00100 (N.Y.App.Div., 2d Dep't January 29, 1997) ("Resp.'s Ex. P").
Petitioner next moved in the Appellate Division for renewal of his direct appeal, on the ground that the additional information that he obtained from the Marano Transcripts had been unavailable to him when he originally appealed his conviction. The Appellate Division denied this motion without opinion, People v. LoVacco, No. 93-01764 (N.Y.App.Div., 2d Dep't May 19, 1997) ("Resp.'s Ex. S"), and the Court of Appeals dismissed his application for leave to appeal, on the ground that the order for which defendant sought appeal was unappealable. People v. LoVacco, 90 N.Y.2d 860 (N.Y. 1997) ("Resp.'s Ex. U").
Petitioner filed the instant application for a writ of habeas corpus on September 8, 1997, claiming the following eight grounds for relief: (1) he was denied the effective assistance of counsel because counsel stipulated to the deceased's identity; (2) the prosecutor committed misconduct by allegedly arguing that defendant strangled the victim; (3) he was denied an evidentiary hearing in state court on his motion to vacate the judgment; (4) defendant's right to be present at trial was violated by his alleged absence from the selection of the jury; (5) the prosecutor's use of a peremptory challenge against a prospective juror with an Italian surname violated defendant's right to equal protection; (6) he was denied the effective assistance of appellate counsel because counsel failed to raise claims (4) and (5) above on direct appeal; (7) the trial court in Kings County lacked geographical jurisdiction over the crime; and (8) the New York State Appellate Division mischaracterized defendant's motion to reargue his appeal and denied due process by denying the motion.
DISCUSSION
1. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if the federal court concludes that the adjudication of the claim "(1) 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court decision is "contrary to" clearly established Federal law where "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). A state court decision involves an "unreasonable determination of the facts" where the state court correctly identifies the governing legal principle from Supreme Court precedent, but unreasonably applies that principle to the facts of the petitioner's case. Id. at 413. Thus, a federal court may only grant habeas relief where the state court's application of clearly established federal law was not only erroneous, but objectively unreasonable. Id. at 409. The federal court may not substitute its judgment for that of the state court.
Federal claims which have not been adjudicated on the merits are reviewed under the de novo pre-AEDPA standard. Washington v. Schriver, 255 F.3d 45 (2d Cir. 2001). This standard permits habeas relief to be granted if the court finds that a constitutional violation has occurred, and does not require that the court find an unreasonable application of Supreme Court precedent. This Court finds that under the applicable standards of review, none of Plaintiff's claims may serve as the basis for habeas relief.
II. Procedural Bar
The Kings County District Attorney, acting on behalf of Respondent, has argued that three of Petitioner's claims are procedurally barred because he failed to raise them in the appropriate state forum. Federal courts may not consider the merits of federal constitutional claims on habeas review when a state court has already found those claims to be procedurally barred by an adequate and independent state ground. See Coleman v. Thompson, 501 U.S. 722, 730 (1991); Wainwright v. Sykes, 433 U.S. 72, 81, 87 (1977). A petitioner's procedural default may only be excused if he can show both cause and prejudice or a fundamental miscarriage of justice. Id, 433 U.S. at 87. "Cause" for a procedural default may exist where a petitioner can show that "the factual or legal basis for a claim was not reasonably available to counsel, . . . some interference by officials made compliance impracticable, . . . [or] the procedural default is the result of ineffective assistance of counsel." Murray v. Carrier, 477 U.S. 478, 488 (1986) (internal quotation marks and citations omitted).
A. Prosecutorial Misconduct
Petitioner claims that the prosecutor committed misconduct at his trial because he knowingly presented false evidence to the jury that Petitioner strangled the victim. During the trial of Petitioner, the prosecution advanced the theory that Petitioner strangled the victim after he was shot (Trial Tr. at 103-04) and presented evidence to support that theory, through the testimony of the State's witness Michael Doyle (Trial Tr. at 139). Petitioner alleges that in a separate trial of Petitioner's co-conspirator, Joseph Marano, People v. Marano, Ind. No. 4533/85, the same prosecutor allegedly told the jury that there was no evidence that LoVacco had strangled the decedent. (Pet.'s Mem. at 7; Pet.'s Traverse at 3.)
Respondent argues that this claim of Prosecutorial Misconduct is procedurally barred from review by this Court because the New York Supreme Court found that it was barred from review by N.Y.C.P.L. § 440.10 for failure to raise this claim on direct appeal. (Resp.'s Ex. M, at 3-4.) Petitioner contends that this claim should not be procedurally barred, because he had cause for not raising it below: that he was unaware of the inconsistent statements by the prosecutor until he acquired the transcript from the trial of Joseph Marano ("Marano Transcript"), and that he was denied access to the Marano Transcript for a considerable period of time. Respondent counters that the alleged "newly discovered evidence" from the Marano Transcript cannot serve as cause for the default because the limited basis for the strangulation theory — Doyle's testimony — was known at LoVacco's trial.
The state court already rejected Petitioner's "cause and prejudice" claim and found that sufficient facts appeared on the trial record regarding the quality and weight of the evidence to enable defendant to raise a claim regarding this evidence on direct appeal. This Court agrees. The only evidence presented at Petitioner's trial in support of the prosecutor's claim that Petitioner strangled the victim was Doyle's testimony. Petitioner had the opportunity at trial to cast doubt on Doyle's credibility, and, in fact, defense counsel attempted to impeach Doyle by ascribing a motive to fabricate his testimony implicating LoVacco. As defense counsel agreed during proceedings outside the presence of the jury, the case against Petitioner depended on whether or not the jury credited Doyle's testimony. (Trial Tr. at 406.)
Furthermore, even if this Court were to consider Petitioner's claim of prosecutorial misconduct, it would fail on its merits. Petitioner's allegation that the prosecutor stated that there was no admissible evidence that LoVacco had strangled the victim, standing alone, does not indicate that Doyle's testimony at LoVacco's trial was false, let alone that the prosecutor knew it to be false. (See Pet.'s Traverse at 15.)
B. Ineffective Assistance of Appellate Counsel
Respondent does not argue that Petitioner's claim that he was denied the effective assistance of appellate counsel is procedurally barred from review. Indeed, Petitioner properly raised this claim in his motion for a writ of error coram nobis. In the instant motion, Petitioner advances this claim, in part, to explain his procedural default of his claims regarding jury selection. However, for the following reasons, the Court finds that this claim is without merit, and thus may not serve to excuse his procedural default of those other issues.
The Appellate Division denied that motion "upon the papers filed in support of the motion and the papers filed in opposition thereto." (Resp.'s Ex. J.) The Kings County District Attorney's Office opposed the motion on its merits. Accordingly, it can be assumed that the Appellate Division's denial was based on the merits of the claim, rather than any procedural default. Thus, this Court finds that Petitioner's claim of ineffective assistance of counsel is preserved for federal habeas review.
Petitioner contends that Appellate Counsel was ineffective because of his failure to bring the two claims related to the jury selection proceedings on direct appeal. This claim was raised and considered in Petitioner's state petition for a writ of error coram nobis, and thus the AEDPA standard of review applies. Accordingly, the Court may only consider whether the Appellate Division's denial of this claim was in accord with the standard established by the United States Supreme Court inStrickland v. Washington, 466 U.S. 668 (1984). To prove ineffective assistance, a Petitioner must first show that counsel's performance "fell below an objective standard of reasonableness."Strickland, 446 U.S. at 687. In assessing the reasonableness of counsel's performance, judicial scrutiny must be highly deferential and "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." DeLucca v. Lord, 77 F.3d 578, 584 (2d Cir. 1996) (quoting Strickland, 466 U.S. at 689). Additionally, Petitioner must establish that he was actually prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 687. To demonstrate prejudice, the petitioner must establish that a reasonable probability exists "that, but for counsel's unprofessional errors, the result of the proceeding would have been different." DeLucca, 77 F.3d at 584. Although Strickland and that line of cases was initially applied to claims regarding the assistance of trial counsel, the same standard applies to the evaluation of appellate counsel. See Smith v. Murray, 477 U.S. 527, 536-37 (1986) (citing the Strickland standard while considering the performance of appellate counsel); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992) ("[O]ur Circuit has also adopted the Strickland two-prong test in assessing the effectiveness of appellate counsel."). Furthermore, the Supreme Court has specifically stated that appellate counsel is not required to bring every non-frivolous issue requested by the defendant. Jones v. Barnes, 463 U.S. 745, 754 (1983). In order to meet the first prong of Strickland, Petitioner must demonstrate that his appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
Applying these standards, it is clear that Petitioner's argument is without merit. The two arguments that counsel did pursue on appeal, the jurisdiction of the forum and the effectiveness of trial counsel, appeared colorable from the face of the record. While the reviewing courts ultimately rejected the two arguments on their merits, each at least contained a prima facie argument. The two claims that Petitioner now alleges should have been introduced are not supported by the trial record, as the Court finds below. Therefore, appellate counsel was not in error by choosing not to bring these non-meritorious claims.
C. Jury Selection Procedures
Petitioner claims that he was denied his Sixth Amendment right to be present at jury selection and that his Due Process and Equal Protection rights were violated by the prosecutor's use of a peremptory challenge to dismiss a juror with an Italian-American surname. As discussed above, the Court finds that Petitioner's claim of ineffective assistance of appellate counsel may not serve as cause for his failure to raise these claims on direct review. Accordingly, these claims are procedurally bared from federal habeas review.
Even if these claims regarding jury selection were not procedurally barred, they would be dismissed on their merits, as neither claim is supported by the record. Petitioner apparently bases his claim that he was not produced at the jury selection proceedings on the failure of the trial transcript to specifically indicate his presence at the beginning of jury selection. (Hearing Tr. at 64, Trial Tr. at 5.) Petitioner argues that "on every occasion that the court convened prior or subsequent to the voir dire, either the clerk or the court duly noted the appearance of the prosecutor, defense counsel and the defendant." (Pet.'s Mem. at 15.) The record does not fully support this claim. In fact, no appearances were noted at the commencement of the pre-trial hearing on February 24, 1986 (Hearing Tr. at 1), although they were noted when the parties reconvened after lunch (Hearing Tr. at 23). Appearances were not noted again when jury selection began, immediately following that hearing. (Hearing Tr. at 64; Trial Tr. at 2.) The record does not indicate any substantial break between the proceedings on that day, nor indicate that the defendant left the courtroom. The next day, February 25, 1986, when jury selection resumed, the clerk called the case, but did not verbally note the appearance of any of the parties. (Trial Tr. at 5.) Once the trial commenced, the appearances of the parties is noted by the clerk at the commencement of the trial (Trial Tr. at 66), and upon the entry of the jury following breaks in the proceedings. (Trial Tr. at 69, 80, 88, 115, 128, 149, 193, 233, 235, 284, 340, 349, 385.) During the trial, proceedings were sometimes held on the record, outside of the presence of the jury, without the clerk noticing the appearances. (Trial Tr. at 127, 334.)
A notation in the transcript says "Appearances same as previously noted," but this was apparently not stated on the record. (Trial Tr. at 5.)
It is unclear from the record whether a significant break took place between these two proceedings. The page numbering of the trial transcript provided to this Court indicates a gap between pages 38 and 66. The jury was excused at the end of the first section (Trial Tr. at 37), and the next section begins with proceedings prior to the jury returning to the courtroom (Trail Tr. at 66). When the jury reentered the courtroom, the clerk noted for the record that "the defendant is present with counsel." (Trial Tr. at 69.) It is unclear whether this gap indicates a misnumbering of the pages of the original transcript or an elision in the materials provided to the Court.
Thus, the Court finds that absent some indication that petitioner was removed from the courtroom between proceedings, the failure of the clerk to note the appearance of any of the parties during jury selection does not indicate the absence of petitioner, but merely that the clerk failed to mention the appearances of the parties during the parts of the proceedings that are included in the transcripts provided to the Court. This finding is further supported by the trial judge's instructions to the potential jurors, during voir dire, on the burden of proof: "Now the defendant, as he sits here, I told you, is presumed to be innocent." (Trial Tr. at 29, emphasis added.) Because petitioner has failed to introduce any evidence outside of the record which would indicate that he was excluded, this court must reach a conclusion based on an examination of the record, which strongly supports that Petitioner was present.
Petitioner's claim regarding the composition of the jury is equally without merit. Petitioner complains that the prosecutor's exercise of a peremptory challenge against one juror with an Italian-American surname violated the principles set out inBatson v. Kentucky, 476 U.S. 79 (1986). Batson establishes a three-step process for considering claims of racial discrimination in jury selection: 1) the party raising the challenge must make a prima facie showing that the prosecutor exercised peremptory challenges on the basis of a prohibited factor; 2) once the prima facie case is established, the burden shifts to the prosecutor to provide a racially neutral explanation for the peremptory challenge; and 3) the trial court must then determine whether the party challenging the strike had established "purposeful discrimination" and thus whether the race-neutral reasons articulated for the strike are actually a pretext for discrimination.
Although Batson had not yet been decided when petitioner's jury was empaneled, its principles apply retroactively to his case. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (holding that Batson will be applied retroactively to cases that were not yet final when Batson was decided). Petitioner's case falls into this category.
Petitioner's claim does not meet even the first prong of theBatson test. Even if Petitioner could show that he is a member of a cognizable racial group, he cannot show that the prosecutor used a pattern of exclusion. An examination of the jury that was impaneled clearly shows that there was no systematic attempt by the prosecutor to keep Italian-Americans off the jury. One juror with an Italian surname, Paul Collintino, was excluded by a peremptory challenge. (Trial Tr. at 21.) But jurors with surnames of DeAmbrosio, Veglia, amd Solesso were seated. (Trial Tr. at 26, 37.) The Court finds that Petitioner failed to show prima facie evidence of a discriminatory pattern, and thus the trial judge properly refused to require the prosecutor to give a race-neutral explanation for his peremptory challenge. (Trial Tr. at 21.) Accordingly, even if it were properly before this Court, Petitioner's Batson claim would be dismissed on its merits.
While the status of Italian-Americans as a group eligible for Batson review remains unresolved by the Supreme Court, this court has extended Batson review for Italian-Americans. See United States v. Biaggi, 673 F Supp. 96, 100-102 (E.D.N.Y. 1987), aff'd, 853 F.2d 89 (2d Cir. 1988), cert. denied, 489 U.S. 1052 (1989).
III. Ineffective Assistance of Trial Counsel
Petitioner argues that he received ineffective assistance of counsel because "defense counsel committed a plethora of errors." (Pet. at 9.) Petitioner argues that counsel was ineffective because he stipulated to the identity of the victim; was confused about the status of a pre-trial hearing and failed to demand Doyle's testimony at the hearing; failed to cross-examine the State's identification witness; failed to object to the introduction of prejudicial statements and evidence, including the admissibility of the audio tapes, the introduction of a forensic dental report, and several statements by witnesses Doyle and Alphonse Ripandelli; elicited prejudicial testimony and was admonished by the judge; stalled the case; failed to object to a jury charge on circumstantial evidence; and made an ineffective summation.
Because this claim was adjudicated on the merits in the state court's denial of Petitioner's appeal, the AEDPA standard of review applies. Accordingly, the Court may only consider whether the Appellate Division's denial of this claim was in accord with the standard established by the United States Supreme Court inStrickland v. Washington, as discussed above. The state court held that "Defense counsel's representation was within the broad range of reasonably competent assistance and there is no reasonable probability that the outcome of the trial was affected by the alleged shortcomings of counsel." (Resp.'s Ex. D.) This standard is equivalent to the federal Strickland standard.
Reviewing each of Petitioner's claims, the Court finds that none of the alleged errors by counsel "fell below an objective standard of reasonableness." Strickland, 446 U.S. at 687. Several of the alleged errors appear to be part of counsel's trial strategy, including the decision not to cross-examine the victim's father, and counsel's admission that he was stalling for time in order to hold Doyle over to the next day of trial. (Trial Tr. at 336-37.)
Petitioner's claim regarding the parties' stipulation of proposed testimony by Anthony Valente, Sr. is also without merit. Petitioner claims that the stipulation established the identity of the decedent, Valente, Jr., and that this destroyed the adversarial process by removing a critical element of the crime from the jury's determination. Petitioner critically misconstrues the nature of the stipulation because it does not, as he claims, represent an agreement as to the identification of the decedent. Rather it represents an agreement that Valente, Sr., if he had been recalled to the stand, would have testified that the clothing found on the body belonged to the decedent. (Trial Tr. at 126, 128.) As the trial court instructed the jury (Trial Tr. at 128a), the stipulation has the same effect as direct testimony. Therefore, any inferences from the evidence regarding the identity of the body were ultimately left to the jury. In fact, counsel likely decided to so stipulate as part of a reasonable trial strategy to keep the jury from hearing highly emotional testimony from the victim's father that risked arousing the jury's sympathy for the victim's family.
Petitioner apparently believes that without the stipulation, the jury would not have credited Valente, Sr.'s testimony about the identification, presumably on the ground that the jury at Marano's trial perhaps was not convinced that the State had met its burden of proof on this issue. This does not imply that the evidence was legally insufficient at LoVacco's trial, just that another jury may have weighed the evidence and credibility differently and reached a different conclusion.
The claims regarding the introduction of the forensic dental reports and audio tapes are also without merit. In his appellate brief, Petitioner argued that counsel should have further cross-examined Alphonse Ripandelli and called Doyle to testify during the pre-trail hearing. However, Petitioner's explanation for possible uses of additional testimony is highly speculative, and thus the failure to make further inquiry was not prejudicial error. (Resp. Ex. B at 30-32.) Indeed, counsel did object to the admission of the tapes, arguing that they were "insufficient," "not understandable," "untrustworthy," and that there were unexplained gaps. (Hearing Tr. at 59, 61.) His objection was overruled by the trial judge. (Hearing Tr. at 62.) Even if counsel could have raised additional questions about this evidence in the minds of the jury, Petitioner cannot show that the jury was likely to have come to a different conclusion regarding their reliability.
Petitioner also alleges that counsel erred in failing to request a jury charge on circumstantial evidence. However, the majority of the case was based on direct evidence, not circumstantial evidence, as the trial court explained. (Trial Tr. at 405-06.) The only circumstantial evidence involved the identification of the victim using the clothing identified by Valente, Sr. Counsel failed to raise this point during the charging conference. However, no prejudice flowed from this error. Even if the trial judge could have been persuaded to charge on circumstantial evidence, it is unlikely that the jury would have given less credence to Valente, Sr.'s proposed testimony. Furthermore, his identification of his son's remains was buttressed by the forensic dental reports. Accordingly, the Court finds that Petitioner was not prejudiced by his counsel's failure to request a charge on circumstantial evidence.
Petitioner's claim regarding the effectiveness of counsel's summation is also without merit. Although a flawed summation may constitute ineffective assistance of counsel in some cases,United States v. Jordan, 927 F.2d 53, 57 (2d Cir. 1991), the reviewing court must consider the summation as a whole, rather than pick out less competent statements or arguments. See United States v. Hon, 17 F.3d 21, 26-27 (2d Cir. 1994) (finding counsel not ineffective, where counsel's "comment was merely inarticulate" and his "argument as a whole was an effective one"); United States v. Salameh, 54 F. Supp. 2d 236, 255 (S.D.N.Y. 1999) ("In evaluating an ineffective assistance of counsel claim based on an attorney's summation, a court is required to assess the effectiveness of the summation as a whole.") Petitioner's counsel's allegedly "ignorant presentation" (Pet.'s Mem. at 28) does not raise constitutional implications. Given the potentially damaging impact of Doyle's testimony against Petitioner, upon which the case against him depended, defense counsel's attempt in summation to discredit Doyle and point out the lack of any other significant evidence linking petitioner to the crime was a reasonable defense strategy. Petitioner's complaints about counsel's specific statements or omissions do not defeat this central point. Accordingly, this claim must be denied.
The most meritorious allegation raised by Petitioner is his claim that counsel failed to object to the introduction of potentially prejudicial testimony and, indeed, elicited such evidence through his own cross-examination of Doyle. On several occasions, counsel either permitted or induced the witnesses to testify to Petitioner's relationship to several individuals, testimony which Petitioner claims associated him with unrelated criminal activity. (Trial Tr. at 254-56, 382.) Counsel was also warned by the prosecutor and the trial judge, outside of the presence of the jury, not to "open the door" to additional testimony. (Trial Tr. at 288, 334-336.) However, there was no allegation or inference that Petitioner was responsible for any uncharged criminal activity, and thus the Court finds that Petitioner was not prejudiced by these alleged associations.
More damaging, was Doyle's testimony regarding his participation in the witness protection program and the perceived danger to himself and his family as a result of his testimony. (Trial Tr. at 268, 276, 300, 311, 314, 330, 323-24, 328.) Petitioner claims that this evidence, elicited by defense counsel, was prejudicial, because it could have the potential to make the jury biased against petitioner and more sympathetic to the witness. However, the Court finds that within the context of the entire transcript, counsel's alleged errors could also be part of a reasonable strategy to discredit Doyle by implying that he was testifying solely to gain financial advantage and to save himself from criminal prosecution. (See Trial Tr. at 305-311, 316-317.) Faced with the incriminating evidence of Doyle's testimony and the tape-recorded conversations between Doyle and LoVacco implicating LoVacco, defense counsel reasonably focused his defense on challenging the witness's credibility. That this strategy risked the introduction of prejudicial testimony does not make the strategy inappropriate. A reasonable but unsuccessful strategic choice cannot be the basis for a claim of deficient performance. See United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990). It certainly does not fall below the level of the "wide range of reasonable professional assistance."DeLucca, 77 F.3d at 584. Accordingly, this Court finds that counsel's performance meets the standard required in Strickland and that the state court's similar finding was correct. The ineffective assistance of trial counsel claim is denied.
VI. State Law Claims
The remainder of Petitioner's claims involve matters of state law that are not cognizable on federal habeas review. See 28 U.S.C. § 2254(a). "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
A. The Jurisdiction of Kings County
Petitioner claims that Kings County did not have jurisdiction in this case because the charged criminal activity took place in the Bronx. This claim raises a question of state law, specifically an interpretation of N.Y. Crim. Proc. Law § 20.40, pertaining to venue in state criminal trials. The Court of Appeals for the Second Circuit has held that claims relating to venue in criminal trials are entirely questions of state law and may not be considered in federal habeas petitions. United States ex rel. Roche v. Scully, 739 F.2d 739, 741 (2d Cir. 1984). Accordingly, the present venue claim is not reviewable by this court.
To the extent that Petitioner is raising a claim regarding the sufficiency of the evidence of where the intent to commit the crime arose, the Supreme Court has held that a challenge on the grounds of insufficient evidence is a valid federal constitutional claim. Virginia v. Jackson, 443 U.S. 307, 314 (1979). Because this claim was considered and rejected by the Appellate Division in Petitioner's direct appeal, AEDPA deference applies. The pertinent standard for federal habeas review of a claim turning upon insufficiency of the evidence in a state court trial is whether " any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."Id., 443 U.S. at 319. The Appellate Division found that the evidence was legally sufficient for the jury to infer that the defendant formed the intent to kill Valente, Jr. in Kings county, thereby conferring geographical jurisdiction therein. (Resp.'s Ex. D.) This standard of review is consistent with established Federal law. Having reviewed Petitioner's claims and the transcript of Doyle's testimony, this Court finds that the jury could reasonably have credited Doyle's testimony about the chronology of events regarding the three men's pickup of Valente, Jr. in Brooklyn with the already formed intent to kill him in the Bronx. Thus, a rational trier of fact could have found beyond a reasonable doubt the essential elements of the charge regarding intent, sufficient to confer geographical jurisdiction. Petitioner's claim must be denied.
B. The State Court's Denial of an Evidentiary Hearing
Petitioner now seeks review of the New York State Supreme Court decision to deny his motion to vacate the judgment without conducting an evidentiary hearing. Normally, a state procedural decision is not reviewable by federal courts unless the decision implicates a federal constitutional claim. See Schlup v. Armontrout, 941 F.2d 631, 642 (8th Cir. 1991) (holding that a habeas petitioner's federal challenge to a state court's procedural decision was collateral to the petitioner's detention, rather than a constitutional challenge to the detention itself; thus it was not cognizable in a federal habeas corpus action). Petitioner argues that his federal constitutional rights were violated by the trial court's denial of an evidentiary hearing, because the claims he asserted therein were federal constitutional claims. (Pet.'s Traverse at 6.) However, he does not allege that the state court's denial of the hearing was itself in violation of the federal Constitution, as would be required to permit federal habeas review of that decision. Accordingly, this Court has no jurisdiction over Petitioner's claim that the state court improperly denied an evidentiary hearing.
Although a federal court may not compel the state court to reopen its proceedings after it found that an evidentiary hearing was unnecessary, federal courts must make an independent inquiry into whether the record below is adequate to determine the federal claims. If it is not, then the federal court has discretion to hold its own hearing. Pagan v. Keane, 984 F.2d 61, 64 (1993) (holding that where the factual record is insufficiently developed by the state court, a federal court has discretion to hold further evidentiary hearings) (quotingTownsend v. Sain, 372 U.S. 293, 318 (1963), overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992)). The factors to be considered in making that determination include the existence of a factual dispute and the strength of the proffered evidence.Pagan, 984 F.2d at 64.
Here, this Court finds that an evidentiary hearing is unnecessary, as there is no material factual dispute. Petitioner and Respondent do disagree about whether the Marano Transcripts provide "newly discovered evidence" that would overcome the state court's finding of procedural default on Petitioner's claims regarding defense counsel's alleged error in stipulating to Valente, Sr.'s identification testimony and the prosecutor's alleged misconduct in presenting evidence that LoVacco strangled the victim. However, this Court has already independently considered these claims and found sufficient evidence in the trial record to conclude that both claims could have been brought on direct appeal and that both claims are without merit. Accordingly, there is no need to conduct further hearings to determine what actually happened at the Marano trial, because those events have no effect on LoVacco's claims. Thus, even if Petitioner had phrased his claim as a request for an evidentiary hearing in federal court, the request would be denied.
C. The State Court's Denial of the Motion to Reargue the Appeal
Petitioner also argues that the state appellate court should not have denied his motion to reargue or renew his appeal. The Appellate Division's denial does not implicate federal constitutional rights, because there is no federally guaranteed right to appeal state criminal convictions. Jones v. Barnes, 463 U.S. at 751. The Supreme Court has held that if a state chooses to use a criminal appeals system, the process must be fair: individuals may not be denied an opportunity to appeal on the basis of indigency or lack of counsel. Douglas v. California, 372 U.S. 353 (1963) (counsel must be provided if the state allows a criminal appeal); Griffin v. Illinois, 351 U.S. 12 (1956) (if a criminal appeal is allowed, the cost of such appeal may not serve as an independent barrier). Petitioner does not allege that he was denied access to the appellate process because of his indigency or lack of counsel. Because those are the only aspects of the state appellate process that a federal court may consider on habeas review, the instant claim is not reviewable. Under New York state law, Petitioner was entitled to make his initial appeal as of right, and, within 30 days, could bring a motion to "reargue, resettle, or amend" such appeal. 22 N.Y.C.R.R. § 670.6(a). Thereafter, the state court was not required, by state or federal law, to provide further opportunity for direct review. This claim must be dismissed.
CONCLUSION
For the foregoing reasons, Petitioner's application for a writ of habeas corpus is denied. The Clerk of the Court is directed to close this case. Because Petitioner has not made a substantial showing of the denial of any constitutional right, a certificate of appealability will not be issued. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (reiterating the standard for issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253(c)). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith.
SO ORDERED.