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denying Fourth Amendment claims, including claim of unlawful arrest, under Stone
Summary of this case from Rice v. SenkowskiOpinion
02-CV-6045, 03-MISC-0066
October 30, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
This petition was filed on December 12, 2002, Petitioner, sometimes referred to as defendant or appellant, claims:
Point I; The court's dental of Appellant's request for a missing witness instruction as to an informant who had set up me instant robbery incident and who had personal contact with the perpetrators immediately before and after the incident deprived appellant of his due process right to a fair trial in this identification case. U.S. Coast., Amend, XIV; N.Y. Const., Art. I § 6.
Point II: The hearing court's denial of Appellant's motion to suppress the evidence flowing from an arrest premised upon a suggestive photographic identification deprived appellant of his right to due process and to be free from unreasonable searches and seizures. U.S. Const., Amends. IV, XIV; N.Y. Const., Art. I § 12.
Point III: Appellant was deprived of due process and his right to be free from self-incrimination where, at trial, the people failed to prove beyond a reasonable doubt and by the weight of the evidence that his statements were voluntarily made. U.S. Const., Amends. V, XIV; N.Y. Const., Art. I § 6.
Point IV; Appellant's maximum sentences should be reduced in light of his background and demonstrated potential for rehabilitation; at the very least, his minimum term for second-degree robbery should be modified since it is illegally high,
The evidence supports the following statements:
On June 10, 1992, defendant and an accomplice were hired to steal drug money from Annette Cortez, Arming themselves with a loaded handgun, defendant and his accomplice accosted Cortez in front of a residential building at 210 Roebling Street in Brooklyn, As the man who had hired them waited in a nearby car, defendant attempted to wrest a paper bag from Cortez, but she resisted. Defendant fired a single bullet at point-blank range into Cortez's temple, killing her, Defendant and his accomplice then ran around the corner to the waiting car. Defendant was paid in money and cocaine.
Two neighborhood residents, including a thirteen-year old schoolboy, had witnessed defendant commit the murder. One witness told the police that he had seen the entire crime, and he described both perpetrators. A second witness, at the urgings of his frightened mother, told the police only that he had heard the gunshot and run away. Both witnesses would later testify at defendant's trial and identify him as the shooter.
In 1996, four and one-half years after the crime, detectives assigned to the Brooklyn North Homicide Cold Case Squad reinvestigated the murder of Annette Cortez.
On December 2, 1996, detectives interviewed Jesus Sierra, an inmate at the Auburn State Correctional Facility, Sierra was offered and received no benefit for his cooperation in the murder investigation. Sierra admitted that he and another man had arranged for defendant and the accomplice to rob Annette Cortez near the corner of South Second and Roebling Streets. Sierra explained that he had previously sold large quantities of cocaine to Cortez, and that he had reason to believe that she possessed $900 dollars on the day of the robbery. Sierra had waited in a car around the corner from the robbery location. When defendant and the accomplice returned to the car, they reported to Sierra that "the girl had been shot."
During a canvass of the neighborhood in which the murder had been committed, Sierra pointed out a building and told the detectives that one of the two robbers lived on the second floor, A computer check revealed that defendant lived on the second floor of the building pointed out by Sierra.
On December 4, 1996, detectives showed Jesus Sierra an array of six photograph's, which included the photograph of defendant. Defendant's photograph, which had a pink background, was the most recent photograph then on file with the New York City Police Department, The five filler photographs depicted men who resembled defendant. The filler photographs had gray or white backgrounds because the detective was unable to locate any suitable photographs with pink backgrounds. Sierra identified the photograph of defendant as one of the two men whom he had hired to rob Annette Cortez.
Detectives re-interviewed the two witnesses to the shooting. They were more forthcoming about what they had seen four years earlier. Both described the perpetrators.
On January 13, 1997, at approximately 5:10 p.m., detectives arrested defendant in front of his Brooklyn home and transported him to the 90th Precinct.
At approximately 6:10 p.m. on June 13, 1997, a detective advised defendant of his rights under Miranda. Defendant waived his rights to an attorney and to remain silent. He then gave an oral statement followed by a written statement He admitted that he had participated in the June 10, 1992 robbery of Cortez at the behest of "Jesus" and others. Defendant related that after the robbery he and his accomplice ran around the comer to where "Jesus" waited for them in a cab. "Jesus" paid defendant $50 and two grams of coke.
At approximately 9:45 p.m. on June 13, 1997, the two eyewitnesses separately viewed defendant in a lineup. One witness identified defendant as the man he had seen shoot the victim. Another witness stated that defendant looked like one of the two robbers, but that he could not be certain. Both witnesses would later testify at defendant's trial and identify defendant as the gunman.
After midnight on January 14, 1997, defendant was again advised of his Miranda rights, which he again waived before giving a videotaped statement. Defendant admitted that he and his accomplice planned to steal the victim's package, which had contained not money but 125 grams of cocaine. According to defendant, the accomplice had been armed with a gun provided by "Jesus," Defendant further claimed that the gun accidentally discharged while his accomplice struggled with their victim.
Defendant was charged, under Kings County Indictment Number 513/97, with acting alone and in concert with his unapprehended accomplice in the commission of three counts of Murder in the Second Degree (N.Y. Penal Law § 125.25, [2] and [3]), two counts of Robbery in the First Degree (N.Y. Penal Law § 160.15 and [2]), Robbery in the Second Degree (N.Y. Penal Law § 160.10), Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 2 ( 55.03), and Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02).
On April 13-15, 1998, an evidentiary hearing on defendant's motions to suppress evidence was conducted. Defendant argued that he had been arrested without probable cause and that his post-arrest statements and lineup identification should be suppressed as the fruits of that illegal arrest. According to defendant, the photographic array shown to Jesus Sierra was suggestive because the background of his photograph was pink, and that, therefore, Sierra's identification of defendant's photograph over four years after the crime was unreliable and could not provide a basis for probable cause to arrest defendant. The hearing court denied each of defendant's suppression motions. The court found, inter alia, that probable cause to arrest defendant had existed even without the Sierra's identification of defendant's photographs, but that, in any event, the photographs array had not been unduly suggestive, Defendant and the individuals portrayed in the filler photographs were sufficiently similar in appearance, and nothing about defendant's photograph would have signaled to the witness that the police had reason to believe that defendant was the perpetrator.
During the ensuing jury trial the two eyewitnesses identified defendant as one of the two robbers and as the man who had fired the fatal gunshot. Each of defendant's statements admitting to the robbery was admitted into evidence. Defendant testified, claiming that he did not commit the crime and that he had been coerced into making statements to the contrary.
The People did not call Jesus Sierra as a witness. The defense interviewed Sierra and also did not call him as a witness. The trial court refused the defense request to charge the jury that Sierra was a "missing witness" and that an inference adverse to the People's case could be drawn from the People's decision not to call him. The court based its decision on the defense failure to establish that Sierra, who did not witness the crime, had knowledge about a material fact in issue and that his testimony would not be cumulative to the testimony of the eyewitnesses and defendant's own statements.
On April 30, 1998, defendant was convicted of second-degree murder (N.Y. Penal Law § 125.25)f robbery in the first degree (N.Y. Penal Law § 160.10[l]), and robbery in the second degree (N.Y. Penal Law § 160.15).
On May 15, 1998, the court imposed concurrent indeterminate terms of imprisonment of twenty-five years to life for the murder count, twelve and one-half to twenty-five years for the first-degree robbery count, and seven and one-half to fifteen years for the second-degree robbery count. The sentence for the second-degree robbery count was subsequently modified to five to fifteen years in order to reflect the Penal Law sentencing provisions in effect at the time of the crime, as opposed to at the time of the trial.
Defendant, represented by assigned counsel, appealed from this judgment of conviction to the Appellate Division. Defendant claimed that the judgment of conviction should be reversed and a new trial ordered because:
(i) the trial court improperly denied defendant's request for a "missing witness charge" relating to informant Jesus Sierra, who did not testify at the trial, and the court thereby "deprived [defendant] of his due process right to a fair trial in this identification case. U.S. Const, Amend. XIV";
(ii)the hearing court erroneously denied defendant's motion to suppress his statements and the lineup identifications as the fruits of an illegal arrest without probable cause, and the court thereby "deprived [defendant] of his right to due process and to be free from unreasonable searches and seizures. U.S. Const., Amends IV, XIV". According to defendant, the hearing court should have concluded that the police wrongly took into account information derived from Jesus Sierra's identification of defendant from a suggestive photographic array, and that without that tainted information probable cause did not exist;
(iii) defendant "was deprived of due process and his right to be free from self-incrimination where, at trial, the People failed to prove beyond a reasonable doubt and by the weight of the evidence that his statements were voluntarily made, U.S. Const. Amends. V, XIV";
(iv) defendant's maximum sentences for murder and robbery should be modified because they were excessive in light of defendant's background and potential for rehabilitation. Defendant also claimed that his sentence for second-degree robbery reflected the law at the time of his trial and not at the time of the crime.
In a decision dated November 13, 2001, the Appellate Division unanimously affirmed defendant's judgment of conviction. People v. Morales, 288 A.D.2d 328, 733 N.Y.S.2d 617 (2d Dep't 2001). The Appellate Division wrote:
The defendant contends that the People failed to prove at trial the voluntariness of his statements to law enforcement officials. Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621 [1983]), we find that it was legally sufficient to prove the voluntariness of the defendant's statements and to prove his guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see, C.P.L. § 470.05 (2).15 [5]).
Contrary to the defendant's contention, the trial court properly denied his request for a missing witness charge. A missing witness charge is appropriate where it is shown that "the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him, and that the witness is available to such party" (People v. Gonzalez, 68 N.Y.2d 424, 427; see People v. Fields, 76 N.Y.2d 761), The People established that the witness in question was not knowledgeable about a material and relevant issue and that his testimony would be cumulative, ( see, People v. Macana, 84 N.Y.2d 173, 177; People v. Gonzalez, supra). In any event, even if the trial court erred in failing to grant the defendant's request for a missing witness charge, the error was harmless in light of the overwhelming evidence of the defendant's guilt. Given the defendant's statements and those of the prosecution witnesses, there is not a significant probability that the defendant would have been acquitted ( see People v. Fields, supra; People v. Crimmins, 36 N.Y.2d 230, 241).
As the People correctly concede, the sentence imposed on the conviction of robbery in the second degree, which was committed in 1992, was illegal ( see, Penal Law former § 70.02 [2][a]; [4]). However, it is clear that the trial court intended to impose upon the defendant the maximum sentence, and we find that would be appropriate to do so. Consequently, the judgment is modified [from 7 1/2 to 15 years to 5 to 15 years] to reflect the intention of the court ( see. People v. Dorch, 117 A.D.2d 677), The defendant's sentence in all other respects is not excessive ( see, People v. Suitte, 90 A.D.2d 80).
Contrary to the defendant's contention, the photographic identification procedure was not unduly suggestive ( see, People v. Mack, 2243 A.D.2d 731).
The defendant's remaining contentions are without merit.
By letter dated December 17, 2001, defendant, acting through his assigned counsel, sought leave to appeal from this decision to the New York Court of Appeals, raising in this application each issue that he had raised on appeal to the Appellate Division.
On March 26, 2002, defendant's application for leave to appeal to the New York Court of Appeals was denied, People v. Morales, 97 N.Y.2d 758, 742 N.Y.S.2d 619 (2002).
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 Civ. 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 23137 (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. Berbary v. Torres, No. 02-24 (53, 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. Limitations Period
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1), This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A), A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Arm, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 199(5, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion," Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground," Id.
In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted. . . ." 28 U.S.C. § 2244(d)(2), The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations, Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4; 8 (2000) ("[A]n application is ` properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar," (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures," Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review), A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause, See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general." an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements. Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998), But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law," Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition," 533 U.S. 167, 181-82 (2001), Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 203 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably, Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time," Smaldone v. Senkowki, 273 F.3d 133, 138 (2d Cir. 2001).
Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, No. 02-2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the Court of Appeals has explained,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations,Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 158 F.3d 762, 780 (5th Cir. 1999)).
IV. 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 *1Q (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
V. 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 n3 (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.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy," Scklup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence. Id. at 321, "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding."). A habeas court is, in short, concerned "`not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.'" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances).
VII. 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 defense." 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, 46( 5 U.S. at 694), Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See EZE v. Senkowki, 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 arc "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 (590-91, 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, 2003 U.S. App. LEXIS 2511, at *78-*79 (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).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel, See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that 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). Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance." Id. (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief does not lie for mere errors of state law, Estelle v. McGuire, 502 U.S. 62, 68 (1991), Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict,'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant,'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982), This test applies post-AEDPA, See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).
X. Verdict Against the Weight of the Evidence
To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court 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). To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
XI. Legal Claims Frequently Raised in Habeas Corpus Applications
For an explication of the law concerning other claims that are frequently raised before this court in applications for a writ of habeas corpus, see Waters v. McGuiness, 99-CV-0615, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y. June 16, 2003) (grand jury claims); Custodio v. Duncans, Nos. 99-CV-2561, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y. June 11, 2003) ( liaison challenges); Reyes v. Irwin, 99-CV-3758, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y. June 20, 2003) ( Wade claims); Brathwaite v. Duncan, 00-CV-0860, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11056, at *4-*5 (E.D.N.Y. June 10, 2003) ( Sandoval claims); Thomas v. Kuhlman, 255 F. Supp.2d 99, 108-09 (E.D.N.Y. 2003) (perjured testimony); Martinez v. Greiner, 99-CV-4663, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11046, at *7 (E.D.N.Y. June 20, 2003) ( Fourth Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003) ( Rosario claims); Beniquez v. Bennett, 00-CV-0985, 03-MISC-0066 (JBW), 2003 U.S. Dist LEXIS 11032, at *15-*16 (E.D.N.Y/ June 16, 2003) (prosecutorial misconduct); Sevencan v. Herbert, No. 01-2491, slip op. at 6-13 (2d Cir. Aug. 7, 2003) (public trial); Cox v. Donnelly, 99-CV-8216, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 9886, at *12-*14 (E.D.N.Y. June 12, 2003) (shifting burden of proof); Jelinek v. Costello, 247 F. Supp.2d 212, 266-67 (E.D.N.Y. 2003) (right to self-representation); Stewart v. Senkowski, 00-CV-0806, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11028, at *6 (E.D.N.Y. June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz, 98-CV-7837, 00-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11049, at *7-*8 (E.D.N.Y. June 13, 2003) (abuse of discretion in sentencing);
XII. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (19)(57) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No. 01-2694, 2003 U.S. App. LEXIS 8326, at *92 (2d Cir. May 1, 2003).
XIII. Analysis of Claims
A.
At defendant's trial, the State did not call as a prosecution witness Jesus Sierra, who had not witnessed the crimes but who had provided the police with information about defendant's role in it. Defendant asked the trial court to instruct the jury that Sierra was a "missing witness" and that the jury could infer from the State's failure to call Sierra that his testimony would have contradicted or undermined the State's evidence of defendant's guilt. The trial court refused to do so. Defendant now claims, as he did on direct appeal, that this was error and that he was denied due process as a result.
This claim of charging error presents no federal constitutional issue. The Appellate Division upheld the trial court's ruling as correct under New York State law.
The ruling does not raise concerns that defendant's right to a fair trial was abridged. As found by the Appellate Division, defendant was not prejudiced by the omission of the charge. See Cupp v. Naughten, 414 U.S. 141, 146-47 (1973) (an incorrect jury instruction, or the omission of an instruction, must so infect the entire trial that the resulting conviction violates due process in order to entitle a defendant to habeas relief). The Appellate Division's determination of defendant's claim was not "contrary to, or an unreasonable application of, clearly established law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
A state trial court's jury instruction, such as a missing witness charge, is ordinarily a matter of state law. In order to obtain a writ of habeas corpus on the ground that a state court erred in its instructions to the jury under state law, a petitioner must establish that the state court misstated state law and that the error violated a right guaranteed to him by federal law. See 28 U.S.C. § 2254(a); Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985). The habeas petitioner must show not only that the instruction, or lack of instruction, was "undesirable, erroneous, or even "universally condemned," but also that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naught en, 414 U.S. at 146-47; United States ex rel. Smith v. Montanye, 505 F.2d 1355, 1359 (2d Cir. 1974), cert. denied, 423 U.S. 856 (1975).
Under New York law, whether to grant a request — — by either party — for a missing witness charge lies in the sound discretion of the trial court.
No prejudice has been shown. Petitioner could have called the witness.
This claim has no merit.
B.
Defendant claims that the State courts erroneously concluded that probable cause existed for his arrest although the arresting officers relied on a suggestive photographic identification in determining that there was probable cause to believe that defendant had committed the robbery and murder.
In Stone v. Powell, 428 U.S. 465, 482 (1976), the Supreme Court held that, "[w]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." See also McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67 (2d Cir. 1983); Gates v. Henderson, 568 F.2d 830 (2d Cir. 1977) (en banc), cert. denied, 434 U.S. 1038 (1978).
Stone v. Powell applies to all Fourth Amendment claims — including claims of arrest without probable cause — and regardless of the nature of the evidence that the defendant is seeking to suppress, See Cardwell v. Taylor, 461 U.S. 571 (1933); Chavis v Henderson 63 S F.2d 534 (2d Cir. 1980), cert. denied, 454 U.S. 842 (1981).
In Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992), the Second Circuit refined the Powell analysis to allow habeas corpus review of Fourth Amendment claims in only two circumstances: "(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,"
Neither prong can be satisfied by petitioner. In addition the state decision was reasonable on the facts.
This claim has no merit.
C.
Defendant claims, as he did on his direct appeal, that the prosecution did not prove beyond a reasonable doubt at trial the voluntariness of his oral, written, and videotaped statements and that, therefore, the verdict convicting him of murder and robbery was not supported by proof beyond a reasonable doubt, In reaching and rejecting this claim, the Appellate Division found that, upon viewing the evidence in the light most favorable to the prosecution, the evidence "was legally sufficient to prove the voluntariness of the defendant's statements and to prove his guilt beyond a reasonable doubt." People v. Morales, 288 A.D.2d at 328, 733 N.Y. So.2d at 617. The Appellate Division's denial of defendant's claim was a reasonable application of clearly established federal law as determined by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979) and Miranda v. Arizona, 384 U.S. 436 (1966).
The facts do not support petitioner's claims.
This claim has no merit.
D.
Defendant claims that his sentence should be modified because the sentencing court failed to take into account his background and potential for rehabilitation. This claim does not allege a constitutional violation. Because defendant's sentence was lawful under the New York State Penal Law, defendant is not entitled to habeas relief.
This claim has no merit.
E.
No other claim rises above the frivolous.
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted. Petitioner made no substantial showing of the possible denial of a constitutional right. He may, as already indicated, seek a certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.