Opinion
98-CV-0064 (JBW), 00-MISC-0066 (JBW)
July 16, 2003
JUDGMENT ORDER
Petitioner was granted a hearing. He was present by telephone.
The petition for a writ of habeas corpus is denied for the reasons stated orally on the record. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
Petitioner was charged, inter alia, with second degree intentional murder. As the Appellate Division describes some of the evidence at trial, an eyewitness to the crime
observed petitioner running after the victim while firing several shots, bending down and grabbing a black bag from near the victim's body before running down the street and getting into a white Mustang, and picking up another man before driving away. The eyewitness testified that immediately after the white Mustang drove away, he pointed it out to the police officers who were already in pursuit. Those police officers were among the many police officers and police detectives who ultimately pursued the white Mustang and apprehended the defendant and his passenger, recovering a black bag and a Taurus .9 millimeter gun from which the bullets that had killed one of the victims were fired.People v. Morgan, 228 A.D.2d 704, 705 (N.Y.App.Div. 1996).
Petitioner was acquitted of the intentional murder charge, but convicted of second degree felony murder, first degree robbery, and several counts of criminal possession of a weapon. He was sentenced to 25 years to life in prison. His convictions were affirmed on appeal.
In the instant application for a writ of habeas corpus, petitioner claims (1) that the trial court's failure to grant a missing witness charge concerning an alleged eyewitness was error that denied him due process of law; and (2) that the trial court's "reasonable doubt" instruction to the jury was flawed and denied him due process of law.
At the hearing in this matter, petitioner raised two additional claims: First, that he was denied a fair trial because his heavy Jamaican accent caused "communications" problems at trial. Second, that his trial counsel provided him with constitutionally ineffective assistance by (a) seeking money from him even though counsel was appointed pursuant to Article 18-b of the New York County Law; (b) failing to call to testify for the defense the "missing witness" that the prosecution did not call to testify; and (c) failing to adequately communicate with petitioner.
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, 1., 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. "[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).
III. Statute of Limitations
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. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R. 13.
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 *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
V. Procedural Default
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.
VI. 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. 02-3 11, 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, 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.
VI. Certificate of Appealability
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").
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). Any claims for which a certificate of appealability is granted will be reviewed de novo by the Court of Appeals.
VII. Analysis of Claims
As an initial matter, respondent passingly mentions in a footnote to its Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus that "this petition may be untimely under the provisions of 28 U.S.C. § 2244 (d)(1)." Respondent notes that although the petition was signed exactly one year after petitioner's conviction became final, it was not received by the court until over one month later. Even granting petitioner the benefit of the so-called "prisoner's mailbox rule," it would appear questionable whether the petition was actually delivered to prison authorities for mailing within the one year limitations period. This court will assume that respondent's footnote is sufficient to have invoked this affirmative defense. Having heard petitioner's sworn statement at the hearing in this matter that he handed the petition to prison authorities on the date indicated on the petition, this court concludes as a matter of fact that petitioner is credible and that he has shown by a preponderance of the evidence that his petition was timely filed.
Petitioner first claims that the trial court's failure to grant a missing witness charge concerning an alleged eyewitness was error that denied him due process of law. This claim is exhausted and may be reviewed under the deferential standards of AEDPA. One count of the indictment had charged petitioner with the attempted murder of George Farfand, characterized by the prosecution as an "innocent bystander." Trial Tr. at 16. There was testimony at trial that Farfand was shot in the stomach and was lying on the sidewalk at the scene of the shootings. In a colloquy with counsel, the trial court indicated that Farfand was an eyewitness whose testimony might be important to the case. Trial Tr. at 33 1-32. The prosecution did not call him to the stand, however. The defense asked for a missing witness charge, which the trial court rejected because there was no showing that Farfand was under the control of the district attorney. The attempted murder charge relating to George Farfand was dismissed. During his summation, the prosecutor stated that, because that charge had been dropped, the jury was "not to speculate as to what might have been said [by Farfand]," and that "[w]hether a witness would have said that's not the man, or whether he would have said I didn't get a good look at him, or I didn't see him, that's all speculation." Trial Tr. at 465-66.
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). In weighing the prejudice from an allegedly improper charge (or a failure to give a charge), a reviewing court will view the instruction (or lack thereof) in its total context. Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). The question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147.
The Appellate Division concluded that the trial court erred by not providing the defense with a missing witness charge, but also concluded that the error was harmless in light of the overwhelming evidence of petitioner's guilt. Having reviewed the record, this court concludes that the Appellate Division's determination was fully supported by the evidence. Petitioner was not denied a fair trial by the lack of a missing witness charge, nor were the proceedings so infected that his due process rights were violated. Evidence of petitioner's guilt was overwhelming.
Petitioner next claims that the trial court's "reasonable doubt" boilerplate instruction to the jury was flawed and denied him due process of law. This claim is exhausted and may be reviewed under the deferential standards of AEDPA. Petitioner complains in particular about the highlighted passages in the jury instructions, below:
Now, what does our law mean when it requires proof of guilt beyond a reasonable doubt? When is a doubt of guilt a reasonable doubt under our law? Now a doubt of the defendant's guilt to be a reasonable doubt must be a doubt for which some reason can be given. The doubt to be reasonable must therefore arise because of the nature or quality of the evidence in the case, or from the lack or insufficiency of the evidence mt he case. A doubt to be a reasonable doubt should be one which a reasonable person acting in a matter of this importance would be likely to entertain because of the evidence or lack of evidence of insufficiency of the evidence in the case.
A doubt of guilt is not reasonable if instead of being based on the nature or quality of the evidence or insufficiency of the evidence it is based on some guess or whim or speculation unrelated to the evidence in the case. Also a doubt of guilt is not a reasonable doubt if it's based merely on sympathy for the defendant or from a mere desire by a juror to avoid a disagreeable duty.
Trial Tr. at 492-93. Petitioner also complains that the court stated to the jurors that if they were satisfied that the prosecution had proven each of the elements of the offense, "then you must find the defendant guilty of" each separate offense for which petitioner stood trial. Trial Tr. at 507, 515, 527.
The court of appeals for the Second Circuit, analyzing identical language to that quoted in italics above concerning a doubt "for which some reason must be given," has stated that "jury instructions that imply that jurors should be ready to give a reason for their doubts are `not approved' and `perhaps unwise' but [we] have never held such an instruction to be reversible error." Chalmers v. Mitchell, 73 F.3d 1262, 1268 (2d Cir. 1996) (citations omitted). In that case, as in this one, the trial court emphasized to the jury that "the accused is presumed to be innocent and that presumption remains throughout the trial unless and until his guilt is proved beyond a reasonable doubt. That presumption of innocence continues right through the trial and continues at this moment, and accompanies you into the jury room. . . . No defendant is required to prove his innocence. . . ." Trial Tr. at 491. As in Chalmers, the instruction given in the present case did not violate petitioner's due process rights and does not merit granting of the writ.
The instruction that reasonable doubt cannot be "based merely on sympathy for the defendant or from a mere desire by a juror to avoid a disagreeable duty," is similar to language that has been approved by the court of appeals for the Second Circuit for use in federal courts. See United States v. Mangano, 543 F.2d 431, 437 (2d Cir. 1976) (finding no error in instruction to jury defining reasonable doubt as "a doubt founded in reason that is `substantial and not shadowy"). Granting of the writ is not merited on this ground.
Petitioner's claim that the court erred by stating to the jury that they "must" find petitioner guilty of an offense if they found that the prosecution had proven all the elements of the offense is not the basis for granting the writ. Petitioner can point to no precedent for the proposition that a jury must be instructed that it may nullify the law. In addition, the cumulative effect of these instructions did not deprive petitioner of a fair trial.
While the instructions were less than a model, in view of the evidence they sufficed under the constitution to assure a fair trial.
Neither of the pair of claims raised by petitioner for the first time during the hearing held in this matter has been exhausted in the state courts. The first of these claims, that he was denied a fair trial because his heavy Jamaican accent caused "communications" problems at trial, is based on facts that appear on the record and could have been raised on direct appeal. Because it was not, and because petitioner has exhausted the one direct appeal to which he is entitled, the claim would now be barred in state court. It may therefore be deemed exhausted. See Bossett v. Senkowski, 41 F.3d 825, 828-29 (2d Cir. 1994) (because it would be "fruitless" to require petitioners to return to state court to raise unexhausted claims that are procedurally barred, such claims are deemed exhausted). Because the claim would be procedurally barred, further review in this federal court is unavailable.
At any rate, the claim is meritless. Petitioner does not claim to be unable to understand English and he does not contend that he failed to understand what was happening during his trial. Petitioner does have a heavy accent — as occasional lacunae in the transcript for the hearing in this court will likely reveal — but the trial court provided petitioner with an "interpreter" during the presentation of his testimony so that the jury would be able to understand everything that he said. See Trial Tr. at 383-84. Habeas relief is not merited on this ground.
Petitioner also urges that his trial counsel provided him with constitutionally ineffective assistance by (a) seeking money from him even though counsel was appointed pursuant to Article 18-b of the New York County Law; (b) failing to call for the defense the "missing witness" that the prosecution did not call to testify; and (c) failing to adequately communicate with petitioner. Because some aspects of this claim involve facts dehors the record, petitioner might be able to raise these claims in a motion to vacate judgment before the trial court. Nonetheless, this court chooses to exercises its statutory discretion to address these claims in this long-delayed matter because they are meritless.
Even assuming to be true petitioner's contention that trial counsel sought money from him — an ethical breach if it occurred — petitioner must demonstrate that he was prejudiced by the actual conflict created by counsel. The Court of Appeals has explained:
While a defendant is required to demonstrate prejudice to prevail on most claims of ineffective assistance of counsel, see Strickland v. Washington, 466 U.S. 668, 687 (1984), the same showing is not necessary when a defendant's counsel is burdened by an actual conflict of interest because, under such circumstances, prejudice is usually presumed. Id. at 692. This presumption is not. conclusive. In order for a defendant to prevail on a claim that he was denied effective assistance of counsel based on counsel's actual conflict, the defendant must still establish that (a) counsel actively represented conflicting interests, and (b) such conflict adversely affected his lawyer's performance. Id.; see also Cuyler v. Sullivan, 446 U.S. 335, 348 (1980) (discussing standard for obtaining relief from conviction based on an actual conflict); accord Schwarz, 283 F.3d at 91.
We have held previously that "an attorney has an actual, as opposed to a potential, conflict of interest when, during the course of the representation, the attorney's and defendant's interests diverge with respect to a material factual or legal issue or to a course of action." Id. at 91. An actual conflict of interest does not present grounds for a new trial if it does not rise to more than "a mere theoretical division of loyalties." See Mickens v. Taylor, 535 U.S. 162, 171 (2002). To obtain a new trial, a defendant must prove that the conflict manifested itself as "an actual lapse in representation." See Cuyler, 446 U.S. at 349. To prove the lapse in representation "a defendant must demonstrate that some plausible alternative defense strategy or tactic might have been pursued, and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests." Schwarz, 283 F.3d at 92; see also Winider v. Keane, 7 F.3d 304, 309 (2d Cir. 1993). With respect to the substance of the plausible alternative strategy, the defendant need not show that the defense would necessarily have been successful had it been used, only that "it possessed sufficient substance to be a viable alternative." Winkler, 7 F.3d at 309.United States v. Feyrer, No. 01-1543, 2003 U.S. App. LEXIS 12035 at *13-*15 (2d Cir. June 18, 2003) (parallel citations omitted).
Petitioner has not alleged any way in which his counsel performed below the constitutional minimum standard. There is no evidence in the record that counsel failed to represent petitioner diligently. Counsel, for instance, was able to persuade the trial court to drop an attempted murder charge with respect to the shooting of George Farfand. Review of the record shows that his representation throughout the course of the trial was competent. Counsel chose not to give an opening statement, a strategic choice that is reasonable. Witnesses were cross examined, motions properly made. Counsel was provided with few defense options in a case in which petitioner's guilt was demonstrated by overwhelming evidence. Petitioner admitted on the stand that he was with the shooters but denied having any part in the shooting. Counsel's closing emphasized that the evidence against petitioner was equivocal. There is no indication that a plausible alternative defense strategy could have been pursued and there is no reason to believe that a conflict influenced the adopted strategy.
Trial counsel opted not to call as a witness George Farfand, whom petitioner was initially accused of attempting to murder. That tactical decision will not be second-guessed by this court. Counsel had reason to suspect that Farfand would testify contrary to petitioner's interests. By not calling him to the stand, he was able to seek a missing witness charge from the trial court that would have been of great advantage to petitioner. (Though the charge was denied, the Appellate Division concluded that counsel's request was proper.) Assuming to be true petitioner's claim that counsel did not interview Farfand to determine his suitability as a defense witness, petitioner has nonetheless failed demonstrated that he was prejudiced by counsel's inaction. Petitioner has at no point provided any court with reason to believe that Farfand would in fact have testified in a way that might have tended to exculpate him. Habeas relief on this ground is not warranted.
Petitioner has alerted this court to no way in which he was unable to make himself understood by his defense counsel. At the hearing before this court held via a speaker-phone, petitioner made himself understood, albeit having to repeat himself on occasion. It strains credulity that counsel represented petitioner over the course of the entire trial — advocating effectively on his behalf — without having been able to communicate with him. Habeas relief is not warranted on this ground.
VIII. Conclusion
The petition for a writ of habeas corpus is denied. No certificate of appealability is granted with respect to any of the issues raised in the petition.