Opinion
No. 02-CV-6116L.
August 13, 2004
DECISION AND ORDER
INTRODUCTION
Petitioner, Christopher Nenni ("Nenni"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Orleans County Court on one count of second degree robbery.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On January 15, 1996, at about 7 p.m., an individual clad in a ski mask and long, dark trench coat entered the Barre Center Deli Plus on Route 98 in the Town of Albion. Brandishing a shotgun at owner Mona Edwards ("Edwards") standing behind the counter, the man demanded money. Edwards gave the man the contents of the cash register, which was $169. The robber then left the deli, and Edwards called 911. See T1.264-71.
Citations to "T1. ___" refer to the transcript from the first day of Nenni's three-day jury trial held on April 22-24, 1997. Citations to "T2. ___" and "T3. ___" refer to the transcripts from the second and third days, respectively.
Shortly after 7 p.m., as Raymond Litteer ("Litteer") was heading northbound on Route 98, his minivan nearly struck a white male wearing a ski mask and a long, dark trench coat. The masked man, who was carrying a "long" gun, was sprinting from the direction of the delicatessen westbound across Route 98 toward Maple Street. Litteer swung his vehicle around and drove to the delicatessen to see if anyone needed help. Once there, he observed Edwards huddled behind the counter speaking on the telephone with the police. Litteer looked outside to see the "square"-shaped taillights of a car proceeding away from the deli on Maple Street. T1.30-34, 37, 42.
The getaway car, which happened to be a 1982 Pontiac Grand Prix, was the only car on the roads in the vicinity at that time. Off-duty sheriff's deputies William Larkin ("Deputy Larkin") and Christopher Bork ("Deputy Bork"), along with Sergeant Timothy Boyer ("Sergeant Boyer") of the Albion Village Police Department's K-9 unit pursued the vehicle by coordinating their efforts via police radio communications. E.g., T1.78-85, 104-13. They also received help from Barre Fire Chief Scott Hazel ("Chief Hazel"), who was in the vicinity of the deli at about 7 p.m. on the evening of January 15 when he received word of the robbery via his police radio. Observing the Grand Prix heading west on Maple Street, Chief Hazel turned his truck around and followed it. Hazel also radioed the police to report his observations and a portion of the license plate number of the car he was pursuing. T1.56-67. The vehicle traveled west on Maple Street, turned left onto Eagle Harbor Road heading south, doubled-back along Miller Road heading east and eventually headed north on Miller Road. At this point, the Grand Prix passed Deputies Bork and Larkin, who were heading south on Miller Road. T1.84-85. Deputy Larkin radioed for Sergeant Boyer to pull over the suspected getaway vehicle.
Boyer complied with Larkin's request and conducted a felony takedown of the vehicle, ordering all three occupants out of the car. Michael Narburgh ("Michael Narburgh") was driving; Edward Narburgh ("Edward Narburgh") and Nenni exited from the passenger's side of the car. T1.115-22. Nenni was handcuffed and placed in a patrol car. Nenni asked to speak with Sergeant Boyer, whom he apparently knew from high school, and Boyer sat with Nenni in the patrol car for a while. According to Sergeant Boyer, Nenni had an odor of alcohol on his breath but was not intoxicated. T1.125-26.
When Investigator Merle Fredericks ("Investigator Fredericks") of the Orleans County Sheriff's Department responded to the scene, he looked into the car in which Nenni and his confederates had been riding and observed a black trench coat, a wad of bills and a camouflage-patterned gun case. T1.302. After obtaining Michael Narburgh's consent to search the car more fully, Investigator Fredericks found gloves, shotgun shells, a ski mask, and $169 in cash. T1.304. Shortly thereafter, Investigator Fredericks discovered a shotgun on the east side of the road, two-tenths of a mile south of where the car was stopped. T1.299-301.
Nenni was brought to the county jail where he remained in a holding area for a few hours. At about 11 p.m. that night, Investigator Fredericks met with Nenni in his office and advised him of his Miranda rights. Investigator Rick Harmer ("Investigator Harmer") and Deputies Thomas Drennan ("Deputy Drennan") and Herbert McClellan ("Deputy McClellan") also were present. T1.314. According to Investigator Fredericks, Nenni was coherent, cooperative, and answered questions in a reasonable and logical fashion. Nenni did not appear to the investigator to be intoxicated, and he never asked for counsel. T1.315-20. After voluntarily waiving his Miranda rights, Nenni gave a two-page statement which he signed. T1.334-37. Deputies Drennan and McClellan and Investigator Harmer testified at trial that when they observed Nenni on the night of January 15 he was not intoxicated. T1.123-26; T2.567-68, 589, 592-93.
Following a hearing pursuant to People v. Huntley, 15 N.Y.2d 72, 78 (1965), on February 21 and 27, 1997, Nenni's statement was found to be voluntary and admissible at trial. In it, Nenni stated that before he and the Narburghs left to go to the Barre Deli, Michael Narburgh "gave [him] a shotgun and dark ski mask to use to rob the Barre Deli." Michael Narburgh drove, Nenni sat in the passenger seat, and Ed Narburgh sat in the back. When they arrived, Michael Narburgh parked the car on Maple Street. Nenni then "walked in with the shotgun, pointed it toward the counter, but not at the clerk." He did not remember what he said, but the clerk just gave [him] a wad of dollar bills." Nenni exited the store, got back into the car, and told Michael Narburgh to "go." Nenni discarded the shotgun by throwing it out of the car on Miller road. He stated that both of the Narburghs knew that he was going to rob the deli, and that they "more or less" "put [him] up to it" because he "had the balls to do it." See T1.334-37.
Michael Narburgh, the driver of the getaway car, testified at trial that before they left the house to go to the deli, Nenni asked him to borrow a coat; Michael Narburgh gave him his long Army trench coat. After directing Michael Narburgh where to pull over, Nenni donned a ski mask and exited the car. Michael Narburgh recalled that Nenni said to him, "Don't leave me." In the rearview mirror, Michael Narburgh watched Nenni walk toward the deli. When he returned, Nenni got into the car holding a fistful of cash, still carrying the shotgun, and wearing the dark trench coat that Michael Narburgh had given him earlier that day. As they drove away, Michael Narburgh said that Nenni urged him to drive faster. T.171, 173-77, 184.
Nenni testified at trial that he had consumed a substantial amount of beer and Valium throughout the day, and also had smoked marijuana. Nenni claimed that he had no recollection of ever being in the Barre Deli on the night of January 15. He stated that he did not really remember leaving to go to the delicatessen and his only recollection of that part of the evening was being woken up when the police stopped Michael Narburgh's car. Nenni also testified that he did not remember ever speaking to Investigator Fredericks. T2.406-28.
On April 27, 1997, the jury returned a verdict convicting Nenni of one count of second degree robbery. The prosecution filed an information pursuant to New York Criminal Procedure Law § 400.21 ("C.P.L.") alleging that Nenni previously had been convicted of third degree burglary, a class D felony, in Orleans County Court on December 19, 1986. Prior to sentencing on July 7, 1997, Nenni submitted a pro se motion contending that when he pled guilty in 1986 he had not been advised by the court that doing so would subject him to being deemed a second felony offender if he were to be convicted of another felony. S.9, 14. After oral argument at the sentencing hearing, the trial court found that a defendant pleading guilty does not have a constitutional right under Boykin v. Alabama, 395 U.S. 238 (1969) ( "Boykin"), to be warned of the possibility of more severe punishment for a future felony. As a result, the trial court determined that the 1986 felony plea was valid. Accordingly, he adjudicated Nenni a second felony offender and sentenced him to a determinate term of imprisonment of 12 years. S.15-16, 23.
Nenni had been indicted on several weapons possession charges and a charge of petit larceny, but the trial judge dismissed all counts save the robbery charge at the close of the proofs.
Citations to "S. ___" refer to the transcript of Nenni's sentencing hearing on July 7, 1997.
Nenni's trial counsel prosecuted his direct appeal for him and argued that (1) the trial court erred in not conducting a probable cause hearing; (2) the trial court erred in failing to suppress Nenni's confession; and (3) the judge at Nenni's trial was biased and failed to recuse himself. Nenni filed a pro se supplemental brief arguing that (1) the verdict was against the weight of the evidence; (2) there was insufficient evidence to support the verdict; (3) his statement to the police should have been suppressed; (4) the trial court improperly denied him the opportunity to present "documentary proof" to contest the 1986 plea agreement which formed the basis of his second felony offender status; (5) the trial court's jury instructions were erroneous ( e.g., the court failed to properly instruct the jury on identification and the defense of intoxication); and (6) the sentence was harsh and excessive.
On May 7, 1999, the Appellate Division, Fourth Department, issued a decision holding that County Court Judge Charles Hannigan erred in denying Nenni's suppression motion without conducting a hearing. The court noted that Nenni's omnibus motion, which had been argued before a different judge, contained sworn statements that the evidence seized should be suppressed because the police lacked probable cause to stop the vehicle in which he was a passenger. People v. Nenni, 261 A.D.2d 900, 900-01 (4th Dept. 1999) (citing, inter alia, C.P.L. § 710.60 (3), (4)). The court further observed that the judge before whom the motion initially was argued orally had granted Nenni's request for a hearing, and thus his decision constituted the law of the case. Id. (citations omitted). Furthermore, the Fourth Department held, Judge Hannigan erred in relying on the Grand Jury minutes to determine that a probable cause hearing was not necessary. Id. at 901 (citations omitted). The Fourth Department held the case, reserved decision, and remitted the matter to Orleans County Court for a suppression hearing.
Pursuant to that order, a Mapp hearing was conducted before County Court Judge Robert C. Noonan on June 17, 1999. Although Nenni's trial counsel conducted the hearing and offered a closing argument, Nenni himself also addressed the court at the conclusion of the hearing. Nenni submitted a pro se legal brief asserting that the Albion Village police officer who conducted the stop of the vehicle was acting outside of his statutory authority under C.P.L. § 140.50 and did not have jurisdiction to make the arrest, and that the arrest was without probable cause. The People submitted a letter-brief in opposition. Judge Noonan issued a written decision on September 9, 1999, holding that the police had probable cause to stop the Narburgh vehicle. See 9/09/99 County Court Order. As a consequence, Nenni was not entitled to suppression of the physical evidence obtained from the vehicle. Finally, the court rejected Nenni's jurisdictional argument. See id.
A Mapp hearing refers to a hearing held pursuant to Mapp v. Ohio, 367 U.S. 643 (1961), to determine whether a search and seizure was consistent with the Fourth Amendment to the United States Constitution.
On February 16, 2000, the Appellate Division unanimously affirmed Nenni's conviction. People v. Nenni, 269 A.D.2d 785 (4th Dept. 2000). Acting pro se, Nenni sought leave to appeal from the New York Court of Appeals on May 15, 2000. Leave was denied on May 31, 2000. People v. Nenni, 95 N.Y.2d 801 (2000).
Nenni then sought to attack his conviction collaterally. On January 8, 2001, he filed a motion to vacate the judgment pursuant to C.P.L. § 440.10 alleging that his trial counsel was ineffective for numerous reasons. Judge Noonan issued a memorandum decision and order denying Nenni's motion without a hearing on April 27, 2001. See 4/17/01 County Court Order. The Appellate Division denied leave to appeal on November 3, 2001. On or about May 9, 2001, Nenni filed an application for a writ of error coram nobis challenging the performance of his appellate counsel on a number of grounds. The Appellate Division denied the motion in a summary order on July 3, 2001. People v. Nenni, 285 A.D.2d 997 (4th Dept. 2001).
This habeas petition followed in which Nenni claims that he (1) received ineffective assistance of appellate counsel; (2) received ineffective assistance of trial counsel; (3) was deprived of his Fifth Amendment right against self-incrimination; and (4) was deprived a fair trial due to the judge's bias. For the reasons set forth below, the petition is denied.
Respondent does not raise the failure to exhaust with regard to any of Nenni's claims. The Court determines that they have been fully exhausted, 28 U.S.C. § 2254(b); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995), and are properly before the Court on habeas review.
DISCUSSION
Standard of Review
To prevail under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
Merits of the Petition
I. Ineffective assistance of trial counsel and appellate counsel
A. Legal standard
In order to succeed on a claim of ineffective assistance of counsel within the framework established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984) ( "Strickland"), a habeas petitioner must satisfy a two-part test. First, he must show that his attorney's performance "fell below an objective standard of reasonableness," id. at 688, and second, he must show that there is a "reasonable probability" that but for counsel's error, the outcome would have been different, id. at 694. "[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697.
Although the Strickland test was formulated in the context of evaluating the effectiveness of trial counsel, the same standard applies to claims regarding the performance of appellate counsel. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (citing, e.g., Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992)). Appellate counsel need not present every non-frivolous argument that could be made on petitioner's behalf. Mayo, 13 F.3d at 533; see also Evitts v. Lucey, 469 U.S. 387, 394 (1985) (emphasizing that appellate counsel "need not advance every argument, regardless of merit, urged by the appellant"). Moreover, reviewing courts should not employ hindsight to second-guess an appellate attorney's strategic choices. Mayo, 13 F.3d at 533; see also Jones v. Barnes, 463 U.S. 745, 754 (1984) ("For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every `colorable' claim suggested by a client would disserve the goal of vigorous and effective advocacy[.]").
B. Trial counsel's alleged errors
1. Failure to conduct investigation and interview witnesses regarding petitioner's degree of intoxication
Nenni alleges that his defense counsel failed to "conduct an independent investigation and proper preparation into the law and facts of the petitioner's degree of intoxication at the time of his alleged confession and Miranda waiver." Petitioner's Traverse ("Trav.") at 16 (Docket #13). In particular, Nenni faults defense counsel for failing to interview and call as witnesses Orleans County Sheriff's Deputy Christopher Bourke ("Bourke") and Bill Donke ("Donke"), a civilian. Id. at 19. According to Nenni, these individuals could have "aided in the defense" of intoxication and corroborated the testimony of the three corrections officers who testified at the Huntley hearing that Nenni was intoxicated. See id. at 18, 19.
Presumably, Nenni is referring to Deputy Christopher Bork, an off-duty member of the Sheriff's Department who was with Deputy Larkin when Deputy Larkin learned of the robbery on his police radio. Deputy Larkin participated in the pursuit of the getaway vehicle using his own private car; Deputy Bork rode with him.
In his C.P.L. § 440.10 motion, Nenni asserted that Bourke had been involved in the stop of the Narburgh vehicle and had made statements to his mother, Patricia Foote ("Foote"), concerning Nenni's "degree of intoxication." Petitioner's C.P.L. § 440.10 Motion at ¶ (a). According to Foote, she had a conversation with Bourke while the two were at her place of employment, the Orleans County Department of Social Services, on January 17, 1996, the day after Nenni's arrest. Foote asserted that Bourke informed her that he had been at the scene when Nenni and the Narburghs were detained. According to Foote, Bourke told her that "`Chris' eyes were glazed over, he was so out of it he didn't know what was going on.'" See 4/05/98 Affidavit of Patricia Foote, appended to Petitioner's C.P.L. § 440.10 Motion. Nenni claimed that "[i]t was later discovered after trial" that Bourke allegedly had made these admissions to Nenni's mother. Nenni claims that Donke, the other witness, would have testified that he was present with Nenni and the Narburghs for about four hours prior to the crime, during which period they all smoked marijuana and consumed alcohol and "numerous" Valium pills.
In denying the C.P.L. § 440.10 application, Judge Noonan held that
other than the hearsay submitted through the affidavit of defendant's mother, defendant has failed to produce sworn allegations from the purported witnesses substantiating the potential testimony, and, moreover, it does not appear that the failure to introduce either the additional witnesses or the other evidence was clearly prejudicial to the defense.
4/17/01 County Court Order at 3.
Tellingly, neither Bourke nor Donke submitted affidavits regarding their respective observations of Nenni's level of intoxication. The only evidence of Donke's alleged observations rests upon Nenni's say-so; this is an entirely insufficient basis on which to premise a claim of newly discovered evidence. And the sole proof of the alleged admissions by Bourke is the affidavit of an arguably biased witness, Nenni's mother. I find that Foote's uncorroborated affidavit, standing alone, is insufficient to establish that these admissions actually were made by Bourke. Furthermore, I find it peculiar indeed that the admissions of Bourke to Nenni's mother allegedly were made the day after Nenni's arrest, but did not come to light until several years after trial.
However, even if I were to accept Nenni's and Foote's allegations as true, defense counsel's failure to obtain statements from Bourke and Donke does not support a finding that Nenni was deprived of effective representation. At the Huntley hearing as well as at trial, defense counsel called two employees of the Orleans County Jail-Donald Stilwell, a corrections officer ("CO Stilwell"), and Sergeant Paul Sidari ("Sergeant Sidari") — both of whom testified that Nenni was extremely intoxicated on the night of his arrest. The evidence of intoxication was before the jury. The proposed testimony by Bourke merely would have been cumulative. I am unconvinced that adding one more witness to Nenni's roster would have "tipped the scales" such that the finder of fact would have agreed that Nenni was too intoxicated to give an intelligent and knowing Miranda waiver. Donke's allegations are even less helpful to Nenni since they do not purport to describe Nenni's level of intoxication at the time when he actually was arrested. Because there is no reasonable probability that Bourke's or Donke's testimony would have altered the outcome of the trial, Nenni did not suffer constitutional prejudice as a result of defense counsel's failure to investigate these two witnesses.
2. Failure to introduce clothing worn by co-defendants
Nenni argues that defense counsel was deficient in failing to introduce the clothing taken from him and the Narburghs at the time of their arrest. According to Nenni, Michael Narburgh, the driver of the car, was identified by four witnesses as the gunman who entered the delicatessen "solely because of the color and bagginess of the sweat pants he had on." C.P.L. § 440.10 Motion at ¶ (c). Nenni and Edward Narburgh were both wearing blue jeans that night which, Nenni argues, are "quite distinguishable when compared to sweat pants." Trav. at 20 (Docket #13). Although defense counsel did not introduce the actual clothing at trial, he elicited testimony as to what Nenni and Michael Narburgh were wearing and in that way sought to exploit the fact that Michael Narburgh was identified as the perpetrator based upon his clothing. Nenni concedes this point, but argues that "physically showing the jury the clothing . . . could have substantially changed the verdict."
First of all, I note that this is the type of tactical decision which reviewing courts generally should refrain from second-guessing. See Strickland, 466 U.S. at 689 (cautioning against the distorting effects of hindsight in reviewing strategic decisions that proved unsuccessful). More importantly, Nenni has failed to demonstrate that there is a reasonable probability that the outcome of his trial would have been different had defense counsel introduced the actual items of clothing. Having failed to establish prejudice as a result of counsel's decision not to introduce the clothing, Nenni cannot succeed on an ineffectiveness claim on this basis.
3. Failure to prevent trial court from admitting altered evidence
Nenni contends that counsel erred in "allowing the trial court to admit altered and tampered documentary evidence." See Petition ("Pet.") at 6, ¶ (d) (Docket #1). Nenni apparently is referring to certain booking records which were subpoenaed by defense counsel prior to the Huntley hearing. Defense counsel sought to show that someone had purposely altered certain portions of these records. At the hearing, counsel called Sergeant Sidari, who partially booked Nenni at some time between 3:50 a.m. and 8 a.m. Sergeant Sidari testified that someone altered the box for "Condition When Booked" by inserting an "N" for "normal." H1.81. Sergeant Sidari testified that his practice was to insert an "X" in that spot which did not indicate anything about the suspect's condition; if something needed further explanation, he would do so on the medical sheet. H1.82-83. Sergeant Sidari testified that "I" was another option which meant "[i]ll, or intoxicated." H1.82.
Citations to "H1. ___" refer to the transcript from the first day of the two-day Huntley hearing. Citations to "H2. ___" refer to the second day's transcript.
Nenni asserts that Lieutenant Mitchell Buddenhagen ("Lieutenant Buddenhagen") also testified that the same documents were altered. Trav. at 21 (citing H2.68, 80). When Lieutenant Buddenhagen came on duty at 8 a.m., he completed Nenni's booking by taking pictures and fingerprints; he apparently did not have to use the computer. Lieutenant Buddenhagen testified that Nenni was cooperative, not intoxicated, and that there was no odor of alcohol on his breath. H2.53. Lieutenant Buddenhagen indicated that it was possible that Nenni's record could have been changed in order to make it correct. With regard to the fact that Sergeant Sidari put an "X" to denote Nenni's condition, Lieutenant Buddenhagen did not know why anyone would put an "X" there; in his opinion, the person doing the booking should know what the suspect's condition is and should be able to complete that section. H2.69.
Nenni claims that he urged defense counsel "to file a formal complaint as this misconduct was evidence of a crime." He submits that the "significance of this malfeasance" is that obviously someone altered certain categories of the records in order to help the prosecution sustain its burden of proving that Nenni's Miranda waiver was voluntary.
First of all, the testimony by Sergeant Sidari upon which Nenni bases this conspiracy theory was equivocal and not very credible: although the officer testified that Nenni was heavily intoxicated when booking was attempted, H1.112-13, and that he knew that there was an abbreviation to denote "intoxicated", Sergeant Sidari nevertheless did not so indicate on the intake record, H1.84. As his supervising officer Lieutenant Buddenhagen testified, the person doing the booking would have been in a position to know what the suspect's condition was, and there would have been no reason to leave that section blank.
Despite counsel's efforts to use this booking record at the Huntley hearing to discredit the Sheriff's Department witnesses who testified that Nenni was not intoxicated, the defense witness on this issue did not provide testimony that remotely substantiated a claim of misconduct. Perhaps most importantly, the allegedly altered booking record is of marginal importance to Nenni's case. All of the officers who testified that Nenni was not intoxicated on the night of his arrest did so based upon their own observations of him; they did not rely upon the "N" inserted into the booking record as the basis for their testimony. Nor was the suppression court's decision to admit Nenni's statement based upon the presence of an "N" on the booking record. Thus, I cannot find that Nenni suffered any prejudice as a result of counsel's handling of the allegedly altered record.
4. Failure to object to jury charges
Nenni argues that defense counsel was deficient in (1) failing to object when the trial court did not adequately marshal the evidence regarding Nenni's level of intoxication; (2) failing to request an identification charge; (3) failing to request a "cautionary instruction for his co-defendant's plea bargain"; (4) failing to request a specific voluntariness charge on the aspect of coercion; (5) failing to request a charge concerning the defense of intoxication; and (6) failing to request a missing witness charge. See Pet. at 6 (Docket #1).
When Nenni raised these issues on his C.P.L. § 440.10 motion, Judge Noonan held that "[i]nsofar as those claims were or could have been effectively raised on direct appeal, this Court is now precluded from reconsideration." 4/17/01 County Court Order at 3 (citing C.P.L. § 440.10(2)(a)). The state court's reliance upon C.P.L. § 440.10(2)(a) as a procedural bar in this instance was erroneous. C.P.L. § 440.10(2)(a) provides, in pertinent part, that "the court must deny a motion to vacate a judgment when: (a) [t]he ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment[.]" C.P.L. § 440.10(2)(a). Although Nenni argued on direct appeal that the trial court's jury instructions were erroneous, he did not assert that trial counsel was ineffective in failing to object to the allegedly incorrect charges. Thus, the jury instruction-related claims in his motion to vacate had not been raised on direct appeal, making C.P.L. § 440.10(2)(a) inapplicable.
In any event, respondent does not argue that the state court's reliance on C.P.L. § 440.10(2)(a) constitutes an adequate and independent ground sufficient to preclude habeas review of these claims. Respondent, having failed to raise the affirmative defense of procedural default, has waived it. Thus, there is no impediment to my considering these claims on the merits. See Larrea v. Bennett, 2002 WL 1173546, at *12 n. 15 (S.D.N.Y. May 31, 2002) (citing Hooks v. Ward, 184 F.3d 1206, 1216 (10th Cir. 1999) ("[S]tate-court procedural default . . . is an affirmative defense, and the state is `obligated to raise procedural default as a defense or lose the right to assert the defense thereafter.'") (quoting Gray v. Netherland, 518 U.S. 152, 165-66 (1996)).
a. Failure to request identification charge
In New York state courts, "[a] detailed charge on the issue of identification is not required as a matter of law." People v. Rivera, 259 A.D.2d 637, 637 (2d Dept. 1990) (citing, e.g., People v. Whalen, 59 N.Y.2d 273, 279 (1983)); accord People v. Knight, 87 N.Y.2d 873, 874 (1995). Here, the court issued a general instruction on weighing the credibility of witnesses and stated that the prosecution must prove beyond a reasonable doubt that Nenni was, in fact, the person who committed the crime. These instructions accurately stated the law and were sufficient. People v. Rivera, 259 A.D.2d at 637 (citing People v. Whalen, 59 N.Y.2d at 279 ("A Judge who gives a general instruction on weighing witnesses' credibility and who states that identification must be proven beyond a reasonable doubt has made an accurate statement of the law. No cognizable prejudice accrues to any party.")); see also People v. Knight, 87 N.Y.2d at 874 (same)). Moreover, when the charge is read as a whole against the background of all the evidence presented, there is little possibility that the failure to expand the charge on identification infected this trial with error. Thus, even if it arguably would have been better practice for defense counsel to request, and the trial court to give, an expanded identification charge, counsel's failure to request one did not result in prejudice to Nenni. As such, this claim does not warrant habeas relief.
b. Failure to request a "cautionary instruction for his co-defendant's plea bargain"
Nenni contends that "[w]hen a plea is introduced for any proper reason, the defendant should get a jury charge reflecting that the co-defendant's plea may not be considered as evidence of the petitioner's guilt." Trav. at 26 (Docket #13) (citing United States v. Prawl, 168 F.3d 622 (2d Cir. 1999)). He asserts that counsel's failure to request such a charge prejudiced him because the admission of a co-defendant's plea "can be extremely prejudicial" to a defendant. Id.
At trial, Michael Narburgh testified for the prosecution concerning the events surrounding the January 15 robbery of the deli. On direct examination, he testified that he pled guilty to one count of grand larceny without a sentence promise and that he ultimately was sentenced to 1 to 6 years in state prison. T1.186-88. On cross-examination, defense counsel hammered Michael Narburgh about his decision to plead guilty to a non-violent felony a mere two weeks after his arrest, suggesting that he did so in order to be sent to "shock camp" ( i.e., the bootcamp-like New York State Shock Incarceration Program) for six months. Counsel stated that all Michael Narburgh had to do was "point the finger" at his friend and his cousin and he would be able to avoid a larger jail sentence in state prison. T1.190-91. Through his questioning, counsel sought to portray as incredible Michael Narburgh's testimony that he was "not sure" whether his cooperating with the police was part of his consideration for obtaining a plea agreement. T1.192.
Michael Narburgh testified that he was sentenced about two or three months after he pled guilty, and that he was released two days before Thanksgiving of 1996. Thus, he served a sentence of about six to eight months. Although Michael Narburgh testified that he went to state prison, he did not serve the minimum one year to which he was sentenced. It appears that, in fact, Michael Narburgh was placed in "shock camp" instead.
I cannot find that defense counsel's failure to request an instruction concerning Michael Narburgh's guilty plea supports a claim of attorney ineffectiveness. On the record before me, Nenni has not established a reasonable possibility that the verdict would have been different had counsel asked for an instruction that Michael Narburgh's guilty plea was not to be considered as evidence of Nenni's guilt. This was not a case where the only evidence of Nenni's participation in the robbery was provided by Michael Narburgh; the jury also had before it Nenni's signed statement admitting that he was the gunman who held up the delicatessen on January 15, 1996, and the physical evidence seized by the police. Cf. United States v. Ramirez, 973 F.3d at 105 (court's error in refusing to give instruction when requested by defense counsel "may have prejudiced the defendant" where "[t]he only evidence of [defendant's] participation and role in the conspiracy and substantive crimes was provided by testimony [of co-conspirator who pleaded guilty]."). Habeas relief is not warranted on this claim.
c. Failure to request a specific voluntariness charge on the aspect of coercion
The trial court instructed the jury at length on their obligation to determine the voluntariness of Nenni's confession. The court explained the different ways in which a confession could be obtained involuntarily — through physical force, threats, coercion, promises of immunity or favored treatment, or the failure to obtain a knowing waiver of a defendant's Miranda rights. Nenni argues that the fact that he remained in the county jail for approximately four hours prior to being issued Miranda warnings and interrogated warranted an expanded charge on the issue of coercion. Nenni has provided the Court with no authority which stands for the proposition that Miranda warnings must be issued within a certain period of time after a suspect's arrest. What the Fifth Amendment forbids is the custodial interrogation of a criminal accused absent the issuance of Miranda warnings and a knowing and voluntary waiver thereof. Missing from the record before the Court is a single allegation that Nenni actually was interrogated during the four hours prior to the time that he was administered the Miranda warnings. Thus, there has been no deprivation of any constitutional right in this regard, and counsel was not ineffective for failing to request an expanded charge on the issue of coercion.
d. Failure to request a charge that intoxication can negate voluntariness
Nenni argues that he was "entitled to a jury charge which reflects the defense theory" and the trial court should have given a "voluntary charge of intoxication on the criminal intent to the robbery charge." Trav. at 25 (Docket #13). In denying this claim on Nenni's motion to vacate, Judge Noonan held that
counsel's failure to pursue intoxication as a defense in mitigation of the mens rea required for the crime would appear to be a legitimate strategic decision given the inconsistent defense of mistaken identification that was pursued.
4/17/01 County Court Order at 4 (citations omitted).
Nenni concedes that an intoxication defense was "inconsistent" with the primary defense theory of lack of identification, but he contends that counsel should have requested the charge anyway. This belated conclusory assertion does not suffice to overcome the presumption that his trial attorney based his action on strategic considerations. See Strickland, 466 U.S. at 690 ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]"); accord, e.g., United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir.), cert. denied, 516 U.S. 927 (1995).
The core defense at Nenni's trial, after all, rested on the theory of mistaken identification — that is, that someone else, not Nenni, was the robber. The defense of intoxication, on the other hand, rests on the premise that the accused was too inebriated to form the necessary intent to commit the crime in question. Thus, an intoxication defense would have had to concede that Nenni actually participated in the robbery. Counsel's failure to raise a defense that was inconsistent with other defenses is not sufficient to support an ineffectiveness claim. See, e.g., Santos v. Greiner, 1999 WL 756473, at *10 (S.D.N.Y. Sept. 24, 1999) (counsel not ineffective for failing to raise defense that intoxication negated intent where primary defense rested on petitioner's credibility and his testimony that he did not engage in sexual intercourse with victim at all) (citing, e.g., White v. Singletary, 972 F.2d 1218, 1221 n. 3 (11th Cir. 1992) (no ineffectiveness for failure to raise intoxication defense that would have been inconsistent with other defenses), cert. denied, 514 U.S. 1131 (1995); Harich v. Dugger, 844 F.2d 1464, 1470-71 (11th Cir. 1988) ( en banc) (no ineffectiveness for failure to raise intoxication defense where defendant was only "mildly drunk" and testified as to his factual innocence), cert. denied, 489 U.S. 1071 (1989); Underwood v. Artuz, 1996 WL 734898, at *4 (S.D.N.Y. Dec. 24, 1996) (no ineffectiveness in decision not to call defendant to testify as to his own intoxication, where testifying might have subjected him to damaging cross-examination)). The decision by defense counsel not to request a jury instruction on intoxication, where such a defense was inconsistent with the stronger defense of misidentification, was a reasonable strategic decision. Having failed to show deficient performance by trial counsel in this regard, Nenni is not entitled to habeas relief on this claim.
e. Failure to object on basis that the trial court did not marshal certain evidence
Nenni asserts that trial counsel was ineffective for failing to object when the court did not marshal the evidence of identification and intoxication in accordance with C.P.L. § 300.10. Section 300.10 provides that the trial court "must . . . so far as practicable, explain the application of the law to the facts, but it need not marshall [ sic] or refer to the evidence to any greater extent than is necessary for such explanation." N.Y. Crim. Proc. Law § 300.10(2). Contrary to Nenni's contention, C.P.L. § 300.10 does not mandate that the trial court marshal the evidence prior to the jury's deliberations. I have reviewed the court's charge in its entirety, and it adequately complied with the requirements of C.P.L. § 300.10.
In any event, on the facts of this case, I cannot say that defense counsel was ineffective for not requesting that the facts be marshaled. Generally, the practice of marshaling is employed only in complicated, multi-defendant conspiracy cases in order to highlight the differences in the evidence presented against and by various defendants. See, e.g., United States v. Armedo-Sarmiento, 545 F.2d 785, 790 (2d Cir. 1976), cert. denied, 430 U.S. 917 (1977). The present case, by contrast, involved one defendant and criminal conduct occurring on a single evening. The proof at Nenni's trial and jury deliberations were completed in three days. Under such circumstances, marshaling was not necessary. Indeed, had the court marshaled the evidence, it would have had to repeat all of the evidence of guilt adduced by the prosecution, as well as the evidence that Nenni wished to highlight. I cannot find that there is any reasonable probability that such marshaling would have altered the outcome of the trial. Nenni thus has failed to satisfy establish ineffectiveness under the Strickland standard. See, e.g., Michaels v. Dalsheim, 1991 WL 99368, at *8 (E.D.N.Y. May 22, 1991) (in a single-defendant case involving only three days of testimony, trial counsel not ineffective in failing to request marshaling of the evidence).
f. Failure to request a missing witness charge
In his habeas petition, Nenni faults trial counsel for not requesting a missing witness charge. Pet. at 6 (Docket #1). Nenni does not identify the witnesses by name but asserts that after the prosecutor stated that he did not call "three witnesses who were involved in different aspects of the case," defense counsel should have requested a missing witness instruction. In his summation, the prosecutor admitted that he did not call Tammy Ritchie ("Ritchie"), the fiancée of Raymond Litteer; Barre Assistant Fire Chief Jerry Benton ("Assistant Chief Benton"); and Deputy Bork, who was with Deputy Larkin when news of the robbery came over the police radio.
Under certain circumstances, a party's failure to produce at trial a witness who presumably has evidence that would "`elucidate the transactions,' requires a trial court, upon a timely request, to instruct the jury that an unfavorable inference may be drawn from the failure of the party to call such witness." People v. Gonzalez, 68 N.Y.2d 424, 427 (1986) (citing, inter alia, Richardson, Evidence § 92, at 65-68 [10th ed.]; McCormick, Evidence § 272, at 804-808 [3d ed.]). As the Supreme Court has explained, "[t]he rule in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable." Graves v. United States, 150 U.S. 118, 121 (1893); accord, e.g., People v. Gonzalez, 68 N.Y.2d at 427; Revson v. Cinque Cinque, P.C., 221 F.3d 71, 81 (2d Cir. 2000).
Of course, the mere failure to produce a witness at trial, standing alone, is not sufficient to warrant the charge. Rather, the complaining party must show that the uncalled witness is (1) knowledgeable about a material issue upon which evidence is already in the case; (2) that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him, (3) and that the witness is available to such party. People v. Gonzalez, 68 N.Y.2d at 427 (citations omitted). To defeat the request, the opposing party must
account for the witness' absence or otherwise demonstrate that the charge would not be appropriate. This burden can be met by demonstrating that the witness is not knowledgeable about the issue, that the issue is not material or relevant, that although the issue is material or relevant, the testimony would be cumulative to other evidence, that the witness is not "available," or that the witness is not under the party's "control" such that he would not be expected to testify in his or her favor.Id.; accord, e.g., People v. Macana, 84 N.Y.2d 173 (1991); Shepherd v. Portunda, 2003 WL 22964538, at *9 (E.D.N.Y. Nov. 10, 2003).
Here, Nenni was not entitled to a missing witness charge with regard to any of the three uncalled witnesses. Ritchie, who was riding with Litteer in the van that nearly struck Nenni, in all likelihood would have provided testimony cumulative to that offered by Litteer. Furthermore, defense counsel himself said that Litteer was not an interested witness; most likely, his fiancée Ritchie would not have been in the prosecution's camp either. Thus, Nenni has not shown that Ritchie was under the "control" of the prosecution such that she would be expected to testify favorably for the People.
Turning to Deputy Bork, law enforcement officers and informants have been characterized as witnesses who are "or may be inferred to be, of good will" to the prosecution and can be expected to testify favorably to the prosecution and adversely to the defendant. People v. Gonzalez, 68 N.Y.2d at 429-30. That evening, Deputy Bork with Deputy Larkin when Deputy Larkin received word on his radio of the robbery. The prosecutor explained that Deputy Larkin, rather than Deputy Bork, was a necessary witness because it was Deputy Larkin who was driving and therefore primarily was involved in the pursuit of the getaway vehicle. Even assuming that Deputy Bork would have testified favorably for the prosecution by virtue of his affiliation with the Sheriff's Department, his testimony would have been cumulative. Thus, Nenni would not have been entitled to a missing witness charge with regard to Deputy Bork. I note that defense counsel did not mention Deputy Larkin's testimony during summation, which leads me to conclude that the testimony of his companion, Deputy Bork, similarly would not have been of particular importance.
Lastly, Assistant Chief Benton is a member of the fire department; he is not a law enforcement officer. Therefore, he is not presumed to be peculiarly within the control of the prosecution for purposes of justifying a missing witness charge. Furthermore, as the prosecutor explained, it was the testimony of Chief Hazel which was material and relevant to the proceeding since Chief Hazel was driving and was directly involved in the car chase that evening. In his summation, defense counsel attempted to create reasonable doubt as to whether probable cause existed to stop the vehicle by questioning the validity of Chief Hazel's testimony that he pursued the Grand Prix in which Nenni was riding based on a "gut feeling." The testimony of his passenger, Assistant Chief Benton — who merely was "along for the ride" — would have added nothing in this regard.
In sum, a missing witness charge with regard to Ritchie, Deputy Bork and Assistant Chief Benton, if requested, in all likelihood would have been denied by the trial court. Nenni therefore cannot show under these circumstances that he was prejudiced by counsel's failure to make such a request. In any event, defense counsel took full advantage of the opportunity to comment during his summation upon the absence of Tammy Ritchie at trial, thereby rectifying any error in not requesting a missing witness instruction with regard to her. See Rivera v. Duncan, 2001 WL 1580240, at *21 (S.D.N.Y. Dec. 11, 2001) (no ineffectiveness where counsel failed to request missing witness charge; any error in not requesting charge was ameliorated by defense counsel's summation in which he commented on the witness's failure to appear) (citing, inter alia, United States v. Torres, 845 F.2d 1165, 1170-71 (2d Cir. 1988) (under federal rules, court's failure to give a missing witness charge was not reversible error, "especially given that the judge permitted defense counsel to argue the inference themselves in summation")). For these reasons, trial counsel's decision not to request a missing witness charge does not demonstrate ineffectiveness.
5. Omission of "requested material evidence"
Nenni contends that defense counsel failed to introduce into evidence the personal belongings which were confiscated from Nenni when he was committed to the county jail. These items consisted of "one wallet, papers, one packet of marijuana, and one pill bottle containing several valium pills." Trav. at 27 (Docket #13). During deliberations, one of the jury's requests was for "description of perpetrator . . . Mike's testimony about amount of drugs. Chris' testimony about amount of drugs. See personal belongings, envelope. The coat and the gun." T3.755. Because the manilla envelope containing Nenni's personal effects had not been introduced into evidence, the judge did not allow the jury to view it. Id. The state court did not address this claim specifically when it disposed of Nenni's C.P.L. § 440.10 motion.
According to Nenni, the jury's request indicated that they were contemplating his intoxicated state, and the failure to introduce the requested items "caused prejudice . . . during the deliberation process." Trav. at 27 (Docket #13). That is pure speculation. At trial, there was testimony by Nenni and Michael Narburgh concerning how much alcohol, Valium and marijuana they had consumed prior to the robbery. I fail to see how the packet of marijuana and the several pills which Nenni did not consume would have added anything to the jury's analysis of Nenni's level of intoxication. The failure to introduce the envelope containing the personal effects confiscated upon his arrest did not prejudice Nenni since there is no reasonable probability that the outcome of the trial would have been different had those items been part of the proof at trial. Nenni has failed to establish that his attorney was ineffective in failing to introduce this evidence.
6. Failure to present a defense
Nenni contends that defense counsel's failure "to pursue any identifiable defense strategy" and "to offer available credible evidence of . . . intoxication from disinterested witnesses . . . transcended mere losing tactics and constituted true ineffectiveness." Trav. at 28 (Docket #13) (citations omitted). In denying this claim, the state court found that
defense counsel made timely and proper motions, requested and competently conducted the suppression hearings, purposefully advanced at trial both defendant's intoxication at the time of his statements and a defense of mistaken identification, vigorously cross-examined the People's witnesses, and made appropriate arguments to the jury. It could not therefore be concluded that but for counsel's unprofessional errors the result of the proceedings would have been different ( Strickland v. Washington, 466 U.S. 668 [(1986)]) or that counsel's conduct, under the totality of the circumstances, constituted such egregious and prejudicial error that defendant did not receive a fair trial ( People v. Benevento, 91 N.Y.2d 708 [(1998)]; People v. Baldi, 54 N.Y.2d 137 [(1981)]).
4/17/01 County Court Order at 5.
I agree with this assessment of counsel's performance. Contrary to Nenni's assertion, defense counsel did pursue an "identifiable defense strategy"-namely, that this was a case of mistaken identification and that Nenni was not the culprit. This very viable defense theory was supported by four witnesses who all identified Michael Narburgh as the robber. Faced with Nenni's incriminating statements, counsel chose to argue that Nenni was so inebriated that he could not have waived his Miranda rights knowingly and intelligently. Contrary to Nenni's contention, counsel did introduce testimony regarding Nenni's level of intoxication on the night of his arrest from two "disinterested witnesses": a sergeant and a corrections officer employed by the county jail.
In sum, the numerous errors allegedly committed by defense counsel are not, contrary to Nenni's contention, in fact errors at all. Rather, they amount to nothing more than Nenni's attempts to second-guess a competent performance by trial counsel throughout all stages of his criminal proceeding. Habeas relief therefore is not warranted on any of Nenni's claims of ineffective assistance of trial counsel.
C. Appellate counsel's alleged errors
1. Failure to properly argue the probable cause issue
Nenni argues that "[a]ppellate counsel failed to properly argue the law persistent [ sic] to the facts elicited at the probable cause hearing[.]" Trav. at 1 (Docket #1). On direct appeal, the Appellate Division held that there was probable cause to stop the vehicle, noting that
[t]he robber, who wore a trench coat and ski mask, was seen leaving the establishment on foot and running toward a car. An identified citizen informant [Raymond Litteer] saw the car traveling west on Maple Road in the County of Orleans. The local fire chief was in the vicinity and heard the radio transmission that a robbery had just occurred at the delicatessen. He observed a car, the only one traveling west on Maple Road, and proceeded to follow it. The fire chief transmitted the location of the car as he followed it, and two off-duty deputies also responded. Meanwhile, the K-9 officer for the Major Crimes Task Force responded from the Village of Albion, where he was employed. Upon hearing the radio transmissions, he proceeded on Miller Road, where the car was then reported to be traveling, and he observed a car with the license plate number transmitted by the fire chief. The K-9 officer stopped the vehicle and executed a felony takedown. Almost immediately, the off-duty deputies arrived at the scene.People v. Nenni, 269 A.D.2d at 785. According to Nenni, "[t]here was never any testimony . . . that the robber was seen running towards a car or seen entering one." Nenni argues that appellate counsel should have taken steps to correct this misstatement of facts.
"Reasonable cause," the phrased utilized in New York's C.P.L. § 140.10(1), is equated with "probable cause," as that term is used in the Fourth Amendment. People v. Lombardi, 18 A.D.2d 177, 181 (2d Dept. 1963) ((citing Draper v. United States, 358 U.S. 307, 310 (1959)); accord People v. Maldonado, 86 N.Y.2d 631, 635 (1995) (citations omitted). "Probable cause exists when an officer has knowledge of facts and circumstances sufficient to support a reasonable belief that an offense has been or is being committed." People v. Maldonado, 86 N.Y.2d at 635 (internal quotation marks and citations omitted); see also Brinegar v. United States, 338 U.S. 160, 175 (1949) ("The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.") (internal quotation marks omitted); accord, e.g., United States v. Webb, 623 F.2d 758, 761 (2d Cir. 1980)).
Nenni is correct that Litteer, the driver who almost struck Nenni on Route 98 as Nenni was fleeing the crime scene, did not testify explicitly that he saw Nenni running toward a car. Litteer also conceded that he did not see Nenni actually enter a car. However, Litteer testified that, when he first saw Nenni in the middle of the road, there were no other cars besides his traveling on Route 98. When Litteer turned his car around and drove back to the deli, the only cars he saw were two cars parked in the lot across the street from the deli and one car traveling west down Maple Street away from the deli. When Litteer almost struck Nenni, they were just north of where Maple Street made a "T" intersection with Route 98. Litteer testified that as his vehicle passed Nenni, Nenni continued running behind Litteer's minivan; this would be in the direction of Maple Street where Litteer then saw a car heading west. It is a reasonable and logical inference from the testimony that the only car in the vicinity that Litteer saw traveling away from the deli contained the individual whom he had just seen running, carrying a shotgun, and wearing a mask. I am unable to find that the Appellate Division factual determinations on the probable cause issue were unreasonable in light of the evidence presented at the Mapp hearing in state court. See 28 U.S.C. § 2254(d)(2). Thus, it was not a professionally unreasonable judgment on the part of appellate counsel not to move for reargument on this factual issue.
2. Failure to properly pursue appeal of probable cause issue
Nenni also claims that counsel "unequivocally abandoned" him by making him argue the jurisdictional issue at the Mapp hearing, by not filing a brief in support of his appeal of the hearing court's determination that probable cause existed, and by not appearing for oral argument on the appeal.
As to the "abandonment" of Nenni at the Mapp hearing, I find that this claim is not supported by the record. At the close of the hearing, defense counsel indicated to the court that Nenni wished to present some case law. The prosecutor did not object, and Nenni provided to the court several case citations and briefly explained why he believed they were relevant. M.212-15. Counsel then addressed the court and clarified Nenni's arguments. M.215-17. Not only did counsel expand upon the jurisdictional argument, he argued that the evidence was thin as to whether the car followed by the police actually contained the robber. Thus, defense counsel did not "abandon" Nenni at the Mapp hearing.
Citations to "M. ___" refer to the transcript of the Mapp hearing.
Turning to Nenni's claim that counsel failed to file a brief in support of Nenni's appeal of the decision at the Mapp hearing, the record indicates that on September 29, 1999, Nenni's counsel filed a timely notice of appeal. By letter dated September 30, 1999, the Clerk of Court for the Appellate Division indicated that the appeal would be prosecuted "on submission only" and that "[b]riefs, if any" were due from the appellant on November 1, 1999, and from respondent on December 1, 1999. Nenni's counsel apparently did not file an appellate brief. On December 16, 1999, Nenni submitted an affidavit to the Appellate Division complaining that defense counsel had not informed him that counsel was not submitting a brief on Nenni's behalf. Nenni therefore requested a 30-day extension of time in which to file a pro se brief. The record does not contain an order from the Appellate Division granting or denying Nenni's request. In any event, it appears that Nenni's pro se brief was received by the district attorney's office on January 5, 2000.
At the time Nenni appealed the outcome of the Mapp hearing, his original direct appeal was still pending since the Appellate Division had held the matter and remitted it for a hearing. By submitting an appellate brief when he initially appealed Nenni's conviction, defense counsel fulfilled his constitutionally imposed obligations with regard to the filing of a brief on direct appeal. I agree that it might have been better practice for defense counsel to submit a supplemental brief after the Mapp hearing; however, I cannot find that it was professionally unreasonable for him to not do so, or that Nenni was prejudiced. In any event, defense counsel raised, in his closing remarks to the trial court, the arguments upon which Nenni elaborated in his pro se appellate brief. The salient arguments thus were brought to the state court's attention.
Nenni also assails defense counsel for failing to appear for oral argument on his appeal of the state court's finding of probable cause. This is frivolous. The Appellate Division declined to entertain oral argument on the appeal.
Lastly, Nenni faults defense counsel for not filing an application for leave to appeal the Appellate Division's denial with respect to the probable cause issue. Under New York procedure, a person convicted of a felony in New York State Supreme Court is entitled to one appeal, as of right, to the Appellate Division of the State Supreme Court. See N.Y. Crim. Proc. Law § 450.10. Nenni took that appeal, and the Appellate Division affirmed his conviction (after first remitting the matter to county court for a Mapp hearing). At that point, New York procedure permits the appellant to apply for permission to appeal to the New York Court of Appeals; the leave application may be made either to the Appellate Division, or to a judge of the Court of Appeals. Id. § 460.20(2)(a). The appellant has no right to have his appeal heard by the Court of Appeals. Whether the appeal will be heard in the Court of Appeals is a discretionary decision. Id. § 460.20(4).
The Supreme Court has established that there is no constitutional right to counsel for such discretionary appeals. Ross v. Moffitt, 417 U.S. 600, 610-11 (1974). The right to counsel extends only to a first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 394 (1985). Furthermore, the Supreme Court has held that a writ of habeas corpus cannot be premised on a claim of ineffective assistance of counsel based on counsel's failure to file a timely application for leave with respect to a discretionary appeal. Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) ("Since [petitioner] had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel."); accord Chalk v. Kuhlmann, 311 F.3d 525, 528-29 (2d Cir. 2002), cert. denied, ___ U.S. ___, 124 S. Ct. 483 (2003).
It is true that New York court rules obligate the attorney handling the appeal to the Appellate Division to prepare and file the petition for leave to appeal to the Court of Appeals, see N.Y. Rules of Court § 500.10(a) ("Counsel assigned or retained at the Appellate Divisions or other intermediate appellate courts are required by rules of those courts to make the application if defendant requests."). However, the Second Circuit has explicitly rejected the argument that because the appellant has a statutorily guaranteed right to have this application made on his behalf, the leave application should therefore be considered an appeal as of right, as to which a petitioner has a constitutional right to counsel. See Chalk v. Kulhmann, 311 F.3d at 528-29. "The fact that a state may, `as a matter of legislative choice,' Ross v. Moffitt, 417 U.S. at 618, provide a right to counsel for discretionary appeals subsequent to the first appeal as of right does not extend the Constitution's guarantee of counsel to such proceedings. See Evitts, 469 U.S. at 394." Chalk, 311 F.3d at 529 (concluding that "even if new counsel's performance in failing to include [petitioner]'s claims in his leave application fell below minimum standards of performance, this did not constitute a deprivation of the constitutional right to counsel because [petitioner] had no constitutional right to counsel for the filing of that application."). Nenni is not entitled to habeas relief based on counsel's failure to file a leave application.
D. Fifth Amendment claims relating to the confession
The "ultimate issue of voluntariness [of a confession] is a legal question requiring independent federal determination." Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997) (quoting Arizona v. Fulminante, 499 U.S. 279, 287 (1991)); see also Nova v. Bartlett, 211 F.3d 705, 707 (2d Cir. 2000). However, factual questions underlying a legal determination are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). "The statutory presumption refers to historical facts, that is, recitals of external events and the credibility of the witnesses narrating them." Green v. Scully, 850 F.2d 894, 900 (2d Cir. 1988) (citing Cuyler v. Sullivan, 446 U.S. 335, 341-42 (1980)).
1. Miranda waiver invalid due to intoxication
Nenni contends that the record developed at the Huntley hearing "is unequivocal that petitioner was so intoxicated from the ingestion of alcohol and valium, that an intelligent waiver of his Miranda rights is questionable in the instant case." Trav. at 30 (Docket #13).
Nenni presented his intoxication claim to the state trial court, which conducted a two-day Huntley hearing. After hearing their testimony, the trial judge found the prosecution's witnesses to be credible. Although there was conflicting testimony as to Nenni's level of intoxication, the state court was entitled to credit Investigator Fredericks who testified that he could smell alcohol on Nenni's breath, but that Nenni was not intoxicated. Furthermore, the state court was entitled to find incredible and self-serving Nenni's testimony that he had no recollection of anything that occurred after 6 p.m. except asking Investigator Fredericks for a lawyer. In a written decision and order entered March 18, 1997, the court held in relevant part as follows:
Nenni was . . . fully advised of his Miranda Warning [ sic]. He stated that he understood them; and I find that he did. He had been drinking, and popping pills during the day. Today, he states that he was so inebriated that he could not understand his rights. I find that is wishful thinking. He knew his rights, and he sought to help himself. . . . Blame the other guy; or blame drugs, alcohol, bad luck. . . . He knew his rights, and he voluntarily waived them. 3/18/97 County Court Order at 2. The state court did not credit Nenni's testimony that he told Investigator Fredericks that he wanted to speak to a lawyer or his testimony that the signature on two-page confession was not his, describing these statements as "pure fantasy." See id.
Based upon the record of the state court proceedings, it is clear that the state court's factual findings were made after extensive development of the material facts, and are supported by the record. Nenni has failed to come forward with clear and convincing evidence to refute these factual findings, which are presumed correct pursuant to 28 U.S.C. § 2254(e)(1). Having failed to demonstrate that the trial judge's determination that he voluntarily waived his Miranda rights "was based on an unreasonable determination of the facts in light of the evidence," see 28 U.S.C. § 2254(d)(2), habeas relief is not warranted.
At trial, Deputies Drennan and McClellan, and Investigator Harmer of the Sheriff's Department testified that they were present when Nenni gave his statement and that he was not intoxicated.
2. Failure to cease interrogation after request for counsel
This claim centers around testimony introduced at trial by Investigator Harmer and Deputies McClellan and Drennan who were present along with Investigator Fredericks during Nenni's interrogation. (These witnesses did not testify at the Huntley hearing, however.) Nenni contends that testimony by Investigator Harmer and Deputy McClellan establishes that the police did not cease questioning him after he asked to speak with his attorney, thereby violating his Fifth Amendment rights.
Nenni has mis-characterized these witnesses' testimony. Deputy McClellan testified merely that prior to signing the statement, Nenni "mentioned Sam Marino." The deputy stated that Nenni did not ask for an attorney. T2.591-92. Investigator Harmer testified that Nenni never asked for an attorney but, prior to signing the statement, said, "[W]hat if I wanna talk to Sam[?]" T3.618. Investigator Harmer did not know to whom Nenni was referring, although he was aware of the existence of an attorney named Sam Marino. Though offered the use of a telephone, Nenni did not make any phone calls at the time.
Upon hearing this testimony at trial, defense counsel moved to have Nenni's confession excluded, arguing that the officers' testimony regarding Nenni's mention of "Sam" amounted to a request for counsel and constituted potentially impeaching evidence which should have been disclosed prior to trial. The court denied the application. Although Nenni raised this issue in his pro se supplemental brief on direct appeal, the state court did not address this aspect of his voluntariness claim.
In Davis v. United States, 512 U.S. 452 (1994), the Supreme Court stated that "[i]nvocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for assistance of an attorney." Davis, 512 U.S. at 459 (internal quotations omitted); see also id. at 455 (petitioner's statement, "Maybe I should talk to a lawyer," after initially waiving right to attorney, was not a request for counsel; court held that there was no ground for suppression of statements); accord Diaz v. Senkowski, 76 F.3d 61, 64-65 (2d Cir. 1996). In light of these precedents, Nenni's mention that he possibly wanted to talk to "Sam" is not close to being a clear request for counsel that would require the police to cease interrogating him. The Appellate Division's finding that Nenni's confession was not taken in violation of his Miranda rights thus is neither contrary to, nor an unreasonable application of, clearly established federal precedent.
E. Judicial bias
Nenni contends that Judge Hannigan, the judge who presided over the hearings in the case, the trial, and sentencing, was biased against him and erroneously failed to withdraw from the case after defense counsel made a recusal motion. See Pet. at 8-10 (Docket #1). On direct appeal, the Appellate Division, Fourth Department, held that Nenni's contention that he was denied a fair trial because the judge refused to recuse himself was without merit, since "[d]efendant failed to demonstrate that any alleged bias or prejudice on the part of the Judge unjustly affected the result of the case." People v. Nenni, 269 A.D.2d at 786.
The Supreme Court has explained that "opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555-56 (1994). "[J]udicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge." Id. Where the alleged bias is rooted not in any extrajudicial source, but rather in the trial proceedings themselves, judicial bias is almost never a basis for habeas relief. See id.
Turning to Nenni's particular claims, Judge Hannigan's decision not to hold a Mapp hearing on probable cause did not show bias. "[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky, 510 U.S. at 555 (citing United States v. Grinnell Corp., 384 U.S. 563, 583 (1966)). The comments in Judge Hannigan's decision following the Huntley hearing about which Nenni complains certainly do not show a "deep-seated antagonism" toward the defense. Further, Nenni has not demonstrated that the judge's rulings or his comments derived from any external or extrajudicial source. See Liteky, 510 U.S. at 555-56. In sum, Nenni has failed to show bias in the constitutional sense on the part of the trial judge. Accordingly, this claim is denied.
F. Denial of opportunity to present evidence that prior plea agreement was unconstitutional
Nenni pleaded guilty in Orleans County Court on December 19, 1986, to third degree burglary (a class D felony under New York law). The prosecution used this 1986 conviction as the basis for an application to have Nenni sentenced as a second felony offender for the 1996 robbery of the delicatessen. Nenni contends that, at sentencing on the 1996 robbery charge, he was precluded from introducing the transcript of the colloquy from his prior plea conviction in 1986 "to contest the constitutionality based on the Boykin criteria" and to show that the previous conviction could not serve as a basis for a second felony offender status determination. See Trav. at 36-37 (Docket #13).
At sentencing on this robbery conviction, the prosecutor indicated that he had not obtained the 1986 plea hearing transcript but had subpoenaed the court reporter. She was, however, on vacation at the time. The prosecutor asked whether the defense was, nevertheless, in a position to proceed. Judge Hannigan explained to Nenni that he could admit or deny his prior felony conviction, claim that he is not the Christopher Nenni so convicted in 1986, or assert that he was denied a constitutional right during the prior plea process. Defense counsel indicated that Nenni admitted to the felony but claimed that the plea was taken in violation of his constitutional rights. When asked by the judge to specify which rights were violated, defense counsel answered that Nenni had not been advised as to the possibility of an enhanced sentence were he convicted of a felony in the future. S.9-10. That was the only so-called "constitutional right" which defense counsel claimed was violated.
At this point, when defense counsel turned to Nenni and asked if he had any cases, it was revealed that Nenni, acting pro se, had submitted an application to the district attorney challenging the validity of the 1986 plea. Nenni then supplied several cases to the judge, the salient points of which were discussed among Nenni, defense counsel and the court. The last comment made prior to the judge's ruling was Nenni's request, through defense counsel, to put on the record the fact that his in forma pauperis motion to obtain a free copy of the 1986 plea transcript had been denied.
On direct appeal, the Fourth Department held that the court properly rejected defendant's motion that he should not have been considered a second felony offender: "There was no requirement for the court in 1986 to advise defendant of the collateral consequence that he would be subject to an enhanced sentence in the future if convicted of another crime." People v. Nenni, 269 A.D.2d at 787 (citations omitted).
Nenni now argues that his trial counsel was somehow ineffective for raising the argument concerning the failure to be advised of more severe penalties in the future, stating that "[w]hy counsel . . . went off on a tangent arguing an enhanced punishment theory, is not known." Trav. at 37 (Docket #13). According to Nenni, he wanted to challenge the plea based on the " Boykin factors" but was precluded from doing so because he could not introduce the transcript of the 1986 plea colloquy.
First of all, I note that Nenni himself made the argument which he now claims was an example of incompetence when made by his defense counsel. At sentencing, the prosecutor indicated that he had received correspondence in Nenni's handwriting stating that, "I was not notified of the severity and ramifications of the second felony offender status at the time of accepting said plea." S.4. Nenni also made this argument in his pro se supplemental brief on direct appeal. See "Appellant's Pro Se Supplemental Brief" at 31-32.
Secondly, Nenni's argument made on direct appeal that he was adjudicated a second felony offender in violation of C.P.L. § 400.21 is unavailing on habeas review. As it relates to Nenni's habeas claim, C.P.L. § 400.21(7)(b) provides that, at any time during the course of a hearing held to determine predicate felon status pursuant to this section, a defendant may contest the constitutionality of a prior conviction used by the prosecutor in seeking second felony offender status. See N.Y. Crim. Proc. Law § 400.21(7)(b). Nenni argues that this provision "means that documentary proof must be afforded the defendant." Trav. at 32 (Docket #13). This argument is not supported by the statutory language. Nowhere in C.P.L. § 400.21 is there found a requirement that a defendant be provided with a free copy of a prior plea colloquy. Thus, Nenni has shown no violation of a state statutory right, let alone a federal constitutional right.
CONCLUSION
For the reasons stated above, Christopher Nenni's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the petition is dismissed. Because Nenni has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue. 28 U.S.C. § 2253.
IT IS SO ORDERED.