Opinion
97-CV-3735 (JBW), 00-MISC-0066 (JBW)
March 11, 2004
MEMORANDUM JUDGMENT ORDER
The court held hearings in this matter on January 21, 2004, March 1, 5, and 9, 2004. Petitioner was present by telephone, with counsel present in person. Petitioner's and respondent's counsel were granted time to present evidence without limitation.
Based on the record, petitioner has not satisfied his burden of proof. The petition for a writ of habeas corpus is denied. This memorandum briefly addresses petitioner's claims. Other reasons were stated orally during the hearing.
I. Facts and Procedural History
Petitioner was charged primarily with second degree murder for the killing of his exfiancé, who was killed by stabbing in her apartment. No murder weapon was discovered at the scene, nor were there any eyewitnesses to the crime. The prosecution called seventeen witnesses at trial in November 1993.
Rabab Buneid, a niece of the victim, testified that she found the body in the apartment in which the witness, the victim, eight other family members and petitioner lived. Along with other prosecution witnesses, she testified concerning the tumultuous relationship between petitioner and the victim, and informed the jury that several days prior to her aunt's death, petitioner and her aunt had quarreled. Babiker Guneid, the victim's brother, told the jury about an incident in 1991 at a family picnic where petitioner told him that he planned to cut the victim's hand as punishment for playing games at the picnic. Kalid Saeedosman, a friend of the victim, testified that several weeks before the murder she learned that the relationship between the victim and petitioner was troubled. Rihab Guneid, another niece of the victim, heard petitioner and the victim quarreling one week before the murder. She also noticed on the day before the murder that the victim was no longer wearing her engagement ring.
Police Officer Jeffrey Ferrara testified that he was at the crime scene when petitioner entered the apartment, running in the direction of the victim's bedroom in a "frantic, struggling, screaming, crying" manner. Trial Tr. at 240. He observed petitioner inspecting his hands while hugging and consoling a family member. Police Officer Klauss Lettau also observed petitioner examining his hand Id. at 598.
Lettau interviewed petitioner at the precinct later that evening. Without having been read Miranda warnings, petitioner described his day, including trips to Kennedy Airport with his taxicab-business partner to take care of parking ticket. Petitioner told Lettau that he had received a phone call informing him that there had been an accident at his apartment and that he should come home; and that he did not learn about the death of his fiancé until he arrived at the apartment.
At the end of the interview, Lettau asked petitioner if he would remove his shirt and then noticed that petitioner had scratch and bite marks on his chest. Petitioner was reinterviewed at 1:30 a.m. after being given Miranda warnings. Petitioner repeated what he had told Lettau earlier, adding that he did not know where he got the bite mark on his chest and that he had not been fighting with the victim. The next morning, at approximately 10:00 a.m., a forensic dentist examined the bite marks on petitioner's body. Petitioner then told Lettau that his fiancé had "playfully" bitten him twice. Trial Tr. at 615. Petitioner also stated that if there was any blood on his clothes it was because he had been wearing the same clothes for two days and had administered first aid to the victim after she stepped on a nail near her closet, cutting the heel of her foot. No protruding nails were found in the apartment and there was no evidence that the victim had recently cut her heel.
Jay Weinberg, a felon convicted in 1988 and serving a sentence of 8-1/3 to 25 years in prison for defrauding the government of over one million dollars, also testified for the prosecution. He stated that he met petitioner in the Queens House of Detention, a pre-trial holding facility, and that petitioner trusted him and confided in him regarding his case. Weinberg stated that he kept copious notes of his conversations with petitioner because he was helping him prepare an alibi defense. According to Weinberg, petitioner told him that prior to going to Kennedy Airport to take care of his parking ticket, he took a screwdriver and knife and placed them inside the waistband of his pants. At lunch with the victim and his business partner, petitioner and the victim argued about the victim's cool demeanor toward him.
Later in the afternoon petitioner took a subway train back to the apartment to talk alone with the victim, but that she ignored him when he tried to speak with her about the party they were scheduled to hold that evening. Petitioner told Weinberg that he tried to convince the victim not to announce their broken engagement at the party and that when he failed to do so he took out the screwdriver and drove it into her chest. According to Weinberg, petitioner said he left the weapon at the scene and ran back to the subway to go back to Manhattan. Weinberg testified that although petitioner told him about the murder at the end of January 1993, he did not contact the district attorney's office until late in February 1993. He was told by the district attorney that if his testimony was used, and if he testified truthfully, the district attorney's office would convey the fact that he had been cooperative to the New York State Department of Correctional Services and the Work Release Committee, permitting a possible early release, but no diminution in his sentence.
This court was troubled by the question of what revelations by petitioner had been made to Weinberg before the District Attorney was contacted by Weinberg. During the course of the evidentiary hearings, it was established that Weinberg first discussed detailed evidence of petitioner's crime during a first meeting with the prosecutor attended by Weinberg, Assistant District Attorney Peter Reese, Weinberg's attorney Kevin Casey, and Weinberg's father's attorney Richard Mischel.
Reese testified that Weinberg provided essentially all the substantive evidence to which he testified at petitioner's trial during this initial meeting with the People. At trial, Weinberg testified that conversations with petitioner subsequent to the initial meeting with the People yielded no additional substantive information of any importance.
This court credits the testimony of Assistant District Attorney Reese that essentially all the substantive evidence provided by Weinberg at trial was presented at this first meeting. It also finds that Weinberg did not obtain substantive information of any importance regarding petitioner's crimes while acting as an agent of the People.
Petitioner called no witnesses in his defense at trial.
He was convicted murder in the second degree and criminal possession of a weapon in the fourth degree. He was sentenced to 24 years to life in prison.
Petitioner's conviction was affirmed by the Appellate Division on direct appeal. Leave to appeal to the New York Court of Appeals was denied. No state collateral proceedings were initiated.
In his habeas application, petitioner claims that (1) his trial counsel was ineffective for failing to argue that police lacked probable cause to arrest him; (2) trial counsel was ineffective for failing to request a Massiah hearing to determine whether the jailhouse informant was working under the direction of the district attorney's office; and (3) his due process rights were violated because the State failed to prove his guilt beyond a reasonable doubt.
II. AEDPA
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 it 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).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if 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 this 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). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the 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) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Torres v. Berbary, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
III. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
IV. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
V. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also Wiggins v. Smith, 539 U.S. ___, No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The Court of Appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 321 F.3d at 136 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
VI. Certificate of Appealability
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)." See also Shabazz v. Artuz, No. 02-2320, 2003 U.S. App. LEXIS 14450, at *15 (2d Cir. July 18, 2003).
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
VII. Analysis of Claims
A
Petitioner first claims that his trial counsel was ineffective for failing to argue that police lacked probable cause to arrest him and that his statements, their observations and the physical evidence recovered from him should have been suppressed. This claim was presented to the Appellate Division on direct appeal, but it was not directly addressed in the court's written decision affirming petitioner's conviction. The Appellate Division held generally that petitioner's "contention that he was deprived of the effective assistance of counsel is without merit," but devoted its analysis solely to the particular question concerning the failure of counsel to request a Massiah hearing, discussed below. See People v. Mohamed, 641 N.Y.S.2d 332, 333 (App.Div. 1996). It is unnecessary for this court to decide whether the claim was addressed by the Appellate Division and therefore should be reviewed under the deferential standards of AEDPA. The claim is meritless under any standard of review.
Under Stone v. Powell, 428 U.S. 465 (1976), a federal habeas court is barred from reviewing the merits of a Fourth Amendment issue so long as the state has provided petitioner with the opportunity for a full and fair litigation of his claim. Fourth Amendment claims in habeas petitions may be undertaken "in only one of two instances: (a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). Ineffective assistance of counsel claims premised on a failure related to the Fourth Amendment are, however, cognizable on habeas. Kimmelman v. Morrison, 477 U.S. 365 (1986).
In the early stages of their investigation in the instant case, police learned that petitioner and the victim had been fighting during the past several days and that the victim had returned her engagement ring to petitioner. While at the murder scene, detectives noticed that petitioner was looking at his hands, as if checking for cuts. Petitioner accompanied detectives to the precinct house, where he was asked to remove his shirt. He did so, and a detective notice petitioner had a scratch and bite marks on his chest. Petitioner's clothes were taken by a detective. The next morning, petitioner was read his Miranda warnings. A forensic dentist then examined the bite marks on petitioner, at which point petitioner informed detectives that the victim had "playfully" bitten him. He also informed detectives that it was possible they would find traces of blood on his pants because he had tended to the victim's foot after she stepped on a nail. The medical examiner found no evidence of any injury to the victim's foot. That evening, petitioner was arrested.
After a pretrial suppression hearing, the trial court issued a seven page written ruling in which it refused to suppress petitioner's statements and the clothing recovered from him, explicitly finding: (1) that petitioner was not initially under arrest and that he was free to leave during his interview with the police, and (2) that the police had probable cause to arrest petitioner at the time his clothes were taken from him. With respect to the former point, the court appropriately determined that a reasonable person in petitioner's position would have felt at liberty to cease the interview and leave. See Thompson v. Keohane, 516 U.S. 99, 113 (1999) ("Two discrete inquiries are essential to the determination" of whether a defendant has been taken into custody for Miranda purposes: "first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave." (footnote omitted)). With respect to this latter point, the court found that the facts and circumstances within the arresting officer's knowledge were sufficient to warrant a reasonably cautious person to believe an offense had been committed. See Brinegar v. United States, 338 U.S. 160, 175-76 (1949) ("Probable cause exists where the facts and circumstances . . . [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." (quotation marks and citations omitted)).
These conclusions were reasonable. Petitioner has demonstrated no way in which further argument from his counsel would have led the hearing court to reach a different determination. Having failed to demonstrate that he was prejudiced by counsel's performance, petitioner's claim that he received the ineffective assistance of counsel with respect to the litigation of his Fourth Amendment claim is rejected. Habeas corpus relief on this ground is not warranted.
B
Petitioner next claims that trial counsel was ineffective for failing to request a Massiah hearing to determine whether Weinberg, the jailhouse informant, was working under the direction of the district attorney when he obtained critical admissions from petitioner. The Appellate Division rejected this claim, stating:
The failure to make a particular pretrial motion does not, by itself, establish ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of counsel, it is incumbent upon the defendant to demonstrate the absence of strategic or legitimate explanations for counsel's failure to request a particular hearing. Absent such a showing, it will be presumed that counsel acted in a competent manner and exercised professional judgment in not pursuing a hearing.
In this case, the defendant's trial counsel acted in a competent manner and exercised professional judgment in not pursuing a certain strategy or hearing. The defense counsel effectively cross-examined the People's witnesses, and delivered opening and closing arguments which focused on discrepancies in the identification of the defendant and upon his theory of the case. Taken as a whole, the defendant was provided with meaningful representation.Mohamed, 641 N.Y.S.2d at 333 (citations omitted). Review proceeds under the deferential standards of AEDPA.
The purpose of a Massiah hearing is to determine whether or not a defendant's right to counsel was violated by the government's use of an agent to "deliberately elicit" inculpatory information from the defendant. See Massiah v. United States, 377 U.S. 201, 206 (1964); see also People v. Waterman, 175 N.E.2d 445, 448 (N.Y. 1961) ("Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime.").
The Court of Appeals for the Second Circuit has explained that the Massiah rule "covers only those statements obtained as a result of an intentional effort on the part of the government, so information gotten before the inmates became agents/informants is not protected by the rule." United States v. Stevens, 83 F.3d 60, 64 (2d Cir. 1996). "If, however, an informant obtains some initial evidence, approaches the government to make a deal on the basis of that information, and then — with the backing of the government — deliberately elicits further evidence from an accused, the materials gotten after such government contact are properly excluded under the Massiah rule." Id. Information gathered from a defendant who seeks contact with a government agent at his own behest after a fellow inmate has contacted the government need not be excluded under the Massiah rule, unless "the government had actually encouraged contact" between the informant and defendant. Id. at 65.
In the instant case, Weinberg testified that he spoke with petitioner on January 31, 1993, about petitioner's activities on the day of the murder. On an unspecified date thereafter, Weinberg spoke with his father's lawyer, who in turn contacted the Queens District Attorney's Office. Weinberg subsequently met with an assistant district attorney three times: February 24 or 26, 1993, April 16, 1993 and September 1, 1993. Weinberg testified that he kept copious notes on petitioner's case, beginning sometime in the middle of January, and that he dated the entries for each day he met with petitioner. He also testified that he was separated from petitioner "sometime after" his first meeting with an assistant district attorney. After being separated, he received a letter from petitioner that the prosecution sought, unsuccessfully, to introduce into evidence at the trial. Weinberg stated at trial that after he met with an assistant district attorney, he and petitioner would watch television together. When asked if they discussed the case at all, he replied, "Very little. There was a last meeting that I had with him when I discussed the case with him but at that meeting [petitioner] said to me that he was a little angry with me. . . . He said to me that, isn't it enough my Jewish friend, isn't it enough that I told you everything." Trial Tr. at 574.
At no time did petitioner's counsel move for a Massiah hearing. Making such a motion would have been prudent in order to ascertain which, if any, portions of Weinberg's testimony were subject to suppression for having been elicited from petitioner outside of the presence of counsel while Weinberg was acting as an agent of the government. Although anything told to Weinberg by petitioner before initiation of contact with the District Attorney's Office would not have been subject to exclusion under Massiah, any significant information gathered by Weinberg subsequent to the initiation of contact might have been subject to suppression. A Massiah hearing would have been useful to determine whether the District Attorney's Office encouraged Weinberg to elicit more information from petitioner. More importantly, it would have established what if any information concerning petitioner Weinberg learned after he contacted the District Attorney's office.
Having held hearings on the matter, this court finds that petitioner was not prejudiced by trial counsel's failure to move for a Massiah hearing.
Under the circumstances of the instant case, arguably reasonably competent counsel would have sought a Massiah hearing. The suggestion of the Appellate Division that there may have been a strategic reason for failing to ask for a Massiah hearing is not persuasive. Because such a hearing would have taken place outside of the presence of the jury, there was no concern about prejudice from that quarter. The worst case scenario for petitioner at a Massiah hearing was that all of Weinberg's proffered testimony would be deemed admissible — the same eventuality that resulted from the failure to hold a hearing at all. Requesting a hearing was a no-lose proposition.
In order to merit habeas corpus relief, however, petitioner must further establish that he was prejudiced by counsel ineffective performance — i.e., that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Petitioner cannot make such a demonstration.
The court has reviewed Weinberg's "notes" in which he recorded summaries of his jailhouse conversations with petitioner. Weinberg, with petitioner, prepared a "timeline" of petitioner's movements on the date of the crime, which detailed the actual movements of petitioner along with a false alibi. The "notes" arguably suggest that Weinberg learned substantive details of petitioner's crime after his initial meeting with the People. Weinberg testified to the contrary at trial:
Q: Now, did you have any meetings with Hassan after you first met with the District Attorney's office?
A: Meetings concerning the case?
Q: Yes.
A: No.
Q: Did you have any meetings not concerning the case with Hassan after you met with the District Attorney's office?
A: Well, we did watch TV together and I did help him with his English.
Q: But you did not discuss the case at all?
A: Very little. There was a last meeting that I had with him when I discussed the case with him but at that meeting Hassan said to me that he was a little angry with me he said that. He said to me that, isn't it enough my Jewish friend, isn't it enough that I told you everything.
Q: This was after you met with the District Attorney's not necessarily this assistant but another assistant?
A: I never meant [sic] with any other assistant.
Q: You meant [sic] with Mr. Reese for the first time and the only assistant that you meant [sic] with was with Mr. Reese?
A: That's correct.
Q: And that was February 26 I believe you said?
A: Yes.
Q: That's the first time?
A: Yes.
Tr. at 574-75.
At the hearing in this court the following questioning of Mr. Reese took place after he testified at length:
The Court: Am I accurately stating your testimony when I say that you learned nothing of substance about the crime from Mr. Weinberg after that first meeting?
Reese: Yes, nothing of substance.
The Court: And you learned nothing of substance from this writing, 1-A, and the time sheet, other than what you had already heard at the first meeting, the proffer session?
Reese: Right.
The Court: And that nothing of substance was stated by Weinberg on the witness stand that was different from what you learned at the first proffer session?
Reese: Correct.
Tr. of Hearing Mar. 5, 2004 at 186-87.
The court credits the testimony of Assistant District Attorney Reese that he learned nothing of substance about the crime from Weinberg after that first meeting. Assistant District Attorney Reese learned nothing of substance from reviewing Weinberg's diary other what he had already heard at the first meeting. He also testified that nothing of substance was stated by Weinberg on the witness stand that was different from what he learned at the first proffer session.
It is unlikely that any new substantively inculpatory statements were acquired after the jailhouse friend of petitioner reached out to the District Attorney. Petitioner's contention that the trial might have been different had defense counsel moved for a Massiah hearing cannot be supported. Habeas relief on this claim is not warranted. In view of this finding, it is unnecessary to decide if Weinberg was an agent of the prosecutor after their first meeting. This court finds that Weinberg learned nothing of substance after the first meeting between himself and the prosecutor, Reese.
C
Petitioner finally claims that his due process rights were violated because the State failed to prove his guilt beyond a reasonable doubt. The Appellate Division rejected this claim on the procedural ground that petitioner failed to preserve the claim for appellate review. That ground appears adequate, under the instant circumstances, to preclude further review in this court. At any rate, the Appellate Division alternative holding that the claim is meritless is reasonable.
The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997).
Viewing the evidence in the light most favorable to the prosecution, a reasonable juror could conclude that petitioner was guilty of each element of the crimes charged against him. Petitioner prevaricated concerning the reasons blood might be found on his clothes; he changed his story concerning bite marks on his chest; he was observed checking his hands soon after the homicide, arguably looking for cuts or abrasions; the animosity of petitioner to the deceased and the opportunity to kill her supported a finding of guilt. Habeas corpus relief on this claim is not warranted.
D
No other possible claim is more than frivolous.
VIII. Conclusion
The petition for a writ of habeas corpus is denied.
A certificate of appealability is granted with respect to petitioner's claim of ineffective assistance of counsel with respect to failure to request a Massiah hearing. No certificate of appealability is granted with respect to any of petitioner's remaining claims, petitioner having made no substantial showing of the denial of a constitutional right with respect to them.
SO ORDERED