Opinion
00-CV-594S.
April 27, 2004
REPORT, RECOMMENDATION AND ORDER
Petitioner, James P. O'Connor ("O'Connor"), commenced this action seeking habeas corpus relief under 28 U.S.C. § 2254. O'Connor is an inmate at Auburn Correctional Facility. On January 27, 1996, he was convicted in a New York State court of Burglary in the First Degree, Assault in the First Degree, Robbery in the First Degree, and Sexual Abuse in the First Degree. He contends that his convictions were obtained in violation of his constitutional rights and should be vacated. This matter was referred to the undersigned by the Honorable William M. Skretny, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and is presently before the undersigned for a report and recommendation. Dkt. #16.
BACKGROUND
A. Indictment
The following factual summary is derived from the trial transcript. On November 5, 1994, at approximately seven o'clock in the morning, O'Connor arrived at the home of his elderly aunt, Mrs. Margaret Mayar, and woke her by ringing the doorbell. He reported car trouble and asked to use her phone. O'Connor and Mrs. Mayar both went to the kitchen, where Mrs. Mayar sat at the kitchen table while O'Connor made a call on her kitchen phone. Mrs. Mayar was an uncooperative witness who presented vague testimony at the trial regarding her physical assault. The facts of her assault, as I am able to discern them from the record, appear to be as follows. As Mrs. Mayar sat at the table watching O'Connor talk on the phone, another individual grabbed her from behind and covered her mouth and nose with his hands. Mrs. Mayar struggled with her assailant in the kitchen and "hollered" for O'Connor, who was apparently still in the kitchen. O'Connor did not respond to his aunt's cries for help, but instead left the kitchen where Mrs. Mayar continued to struggle with her unidentified assailant. (T. at 28-31). Mrs. Mayar testified that she lost consciousness when O'Connor returned to the kitchen, and that when she awoke, she was lying on the concrete floor of her basement. (T. at 35). Mrs. Mayar crawled up the stairs, called the 911 operator and reported that O'Connor and two others flung her down the stairs. (T. at 37, 129-30).
T. references the transcript of O'Connor's criminal trial conducted on January 18, 19, 22, 23, 25, 26, and 27, 1996.
At the trial, Mrs. Mayar, who was apparently not cooperating with the prosecutor, testified that she did not remember how she got into the basement. (T. at 31). There appears to be a discrepancy between Mrs. Mayar's trial testimony and her grand jury testimony. W hen questioned directly at trial, she did admit that she "might" have told an assistant district attorney that O'Connor and another individual flung her down the stairs. (T. at 35). In fact, Mrs. Mayar swore to these facts in her videotaped statement in the Grand Jury. (T. at 32-33).
As a result of this attack, Mrs. Mayar sustained five fractured ribs, a concussion, a laceration on her chin which required fourteen stitches, and "a lot of bruises, black and blue marks." (T. at 36, 290-294). She was hospitalized for six days. (T. at 39). Mrs. Mayar's attending physician characterized her injuries as "life threatening." (T. at 294).
It appears from the facts of relating to Mrs. Mayar's attack, that her front door had been left open thereby facilitating the entry of O'Connor's accomplice and his restraint of Mrs. Mayar, while O'Connor searched the house for valuables. However, a subsequent search of Mrs. Mayar's home revealed that no money was missing and that the house had not been ransacked. (T. at 49,132).
On January 8, 1995, at approximately four o'clock in the afternoon, Ms. Josephine Lisko, O'Connor's other elderly aunt, answered a call at the back door of her Hamburg, New York residence. A black woman who claimed that she was with the District Attorney's office was at the door. She carried a worn black brief case and a manila folder bearing the handwritten names Margaret Mayar and James O'Connor. The woman presented a badge to Ms. Lisko and stated that she "wanted some information." (T. at 186-87). Once inside the house, the woman asked to use the bathroom and demanded that Ms. Lisko turn on a light in the living room window. When Ms. Lisko refused, the woman quickly ran to the living room and turned on the light in the front window. At that moment, a second individual grabbed Ms. Lisko's right hip from behind. Although she did not see the assailant, she deduced that it was a man because of the person's strength, "tallness," and voice. (T. at 188-89). At the time of the attack, Ms. Lisko had not seen O'Connor in eight years. (T. at 185).
This male assailant pushed Ms. Lisko into the living room and asked several times where she kept her money. Ms. Lisko stated that the money was in the bedroom in a chest of drawers. When the woman assailant left to search the chest, the male assailant pushed Ms. Lisko to the floor, and held her head to the floor by pressing his foot firmly against her cheek. (T. at 191). After the woman assailant indicated to the male assailant that she found the money, the male assailant forced Ms. Lisko to her feet, repeatedly referring to her as "bitch" or "white bitch." (T. at 192). The male assailant forced her to the bedroom. Still restraining her from behind, he touched her breast and said "oh, so small." (T. at 193). He again forced Ms. Lisko to the floor, and she was hit on the head with a ceramic basket. At the suggestion of the male assailant, the assailants bound Ms. Lisko's feet and her wrists. (T. at 194-98). After placing a coat over her body, the male assailant told Ms. Lisko that she should not say anything or he would "send someone." (T. at 198).
After her assailants left her home, Ms. Lisko freed her feet from the bindings. (T. at 194-98). She discovered that her telephone wires had been pulled from the wall and went to her neighbor's house to report that she had been beaten and robbed. The neighbor called 911. (T. at 199-200). Ms. Lisko advised the police that her assailants had stolen $1,500. (T. at 202).
West Seneca police officers, in cooperation with the Hamburg police, detained O'Connor the following day, January 9, 1995, and the Hamburg detective who searched O'Connor's person found a gold police badge and some currency secreted in his right sock. (T. at 345-46). O'Connor is a former police officer who served on the West Seneca police force for over twelve years. After discovering the badge and money, the detective obtained a search warrant for O'Connor's vehicle and recovered a briefcase and a 4 inch by 7 inch piece of cardboard bearing the hand printed words "district attorney." (T. at 347-48). On January 19, 1995, an Erie County grand jury issued Indictment Number 94-2390, which charged O'Connor with ten violations of the New York Penal Law with respect to the two victims, Mrs. Mayar and Ms. Lisko. Specifically, O'Connor was charged with three counts of Burglary in the First Degree (N.Y. Penal Law §§ 140.30, [3]; 20.00), four counts of Assault in the First Degree (N.Y. Penal Law §§ 120.10, [4]; 20.00), two counts of Robbery in the First Degree (N.Y. Penal Law §§ 160.15; 20.00), and one count of Sexual Abuse in the First Degree (N.Y. Penal Law § 130.65). O'Connor was arraigned before the Honorable Joseph S. Forma, Supreme Court Justice, on January 27, 1995. At the arraignment, O'Connor's now-disbarred attorney, Thomas J. Casey, entered a plea of not guilty on his behalf.
See Volume III, Exhibit 18, page 65 of the papers submitted by Daniel M. Griebel, O'Connor's attorney, in support of his post-conviction motion for leave to appeal pursuant to N.Y. Criminal Procedure Law § 460.15.
Mr. Casey was disbarred for reasons unrelated to this case or to his competence as a trial attorney.
According to O'Connor, his third aunt, Mrs. Ethel Mahack, paid Mr. Casey approximately $197,000.00, plus assorted jewelry for his legal services on behalf of O'Connor. Mrs. Mahack claims that she paid $87,000.00 of the total as a "bonus" to Mr. Casey to "win" the case, that is, to keep O'Connor out of jail, and to preserve the unblemished family name. Dkt. #27, pp. 3-4. Mr. Casey represented O'Connor at the trial.
B. State Trial Proceedings
New York Supreme Court Justice Rose D. LaMendola presided over O'Connor's jury trial, which began on January 23, 1996. The jury returned its verdict of guilty of three counts of Burglary in the First Degree, two counts of Assault in the First Degree, one count of Robbery in the First Degree, and one count of Sexual Abuse in the First Degree on January 27, 1996. (T. at 952-54). Justice LaMendola sentenced O'Connor on April 29, 1996, to concurrent indeterminate terms of imprisonment of eight and one-third to twenty-five years for the burglary counts, five to fifteen years for the assault counts, eight and one-third years to twenty-five years for the robbery count, and two and one-third to seven years for the sexual abuse count. (S. at 55-56).
S. references the transcript of the sentencing conducted on April 29, 1996.
C. State Appellate Proceedings
O'Connor appealed his convictions to the Appellate Division of the New York State Supreme Court, Fourth Department ("Appellate Division"), arguing, inter alia, that the trial court erred by: (1) denying his motion to sever the counts of his indictment; (2) entering an order of protection in favor of the victims, thereby precluding his trial attorney from interviewing them; (3) permitting misconduct on the part of the prosecutor; (4) failing to conduct a suppression hearing regarding items seized from his person and vehicle; (5) denying his motion to suppress these items; (6) admitting into evidence a 911 tape of Mrs. Mayar's telephone call after the attack; and (7) giving an "unbalanced" jury charge in violation of Allen v. United States, 164 U.S. 492 (1896). O'Connor further argued that his trial attorney's performance was constitutionally deficient because he failed to properly object or otherwise preserve these issues during the trial.
O'Connor's attorney did, in fact, interview Mrs. Mayar regarding O'Connor's alleged crimes in violation of the Court's order. See Volume II, Exhibit 15, page 58 of the papers submitted by Daniel M. Griebel, O'Connor's attorney, in support of his post-conviction motion for leave to appeal pursuant to N.Y. Criminal Procedure Law § 460.15.
In a decision issued on September 30, 1997, the Appellate Division unanimously affirmed O'Connor's conviction. People v. O'Connor, 242 A.D.2d 908 (4th Dep't 1997). Acknowledging that many of O'Connor's claims were not preserved for appellate review, the Appellate Division nevertheless addressed them and found them to be without merit. Specifically, the Court found that: (1) O'Connor's offenses were properly joinable; (2) the trial court did not violate O'Connor's constitutional right by entering orders of protection in favor of the victims; (3) there was no prosecutorial misconduct; (4) the trial court did not err in failing to hold a suppression hearing; (5) the trial court properly denied O'Connor's motion to suppress certain evidence; (6) the 911 tape was admissible as an excited utterance; and (7) the jury charge was not unduly coercive. Id. Moreover, the Appellate Division stated that "[O'Connor] was not deprived of effective assistance of counsel. The evidence, the law and the circumstances of the case establish that [O'Connor] received meaningful representation." Id.
On January 5, 1998, the New York Court of Appeals denied O'Connor permission to appeal. People v. O'Connor, 91 N.Y.2d 895 (1998). Thereafter, O'Connor sought vacatur of his conviction pursuant to N.Y. Criminal Procedure Law § 440.10(1)(h) ("Section 440.10"), on the ground that trial counsel rendered ineffective assistance of counsel due to a conflict of interest, to wit, counsel's personal motivation to collect additional fees from a non-client, the aforementioned Mrs. Mahack. An evidentiary hearing was conducted to resolve the claim raised by O'Connor's Section 440.10 motion. Mr. Casey testified that he received a fee to represent O'Connor, not a fee to "win the case." (M4. at 43-44). Testimony revealed that Mr. Casey pursued more favorable plea bargains in order to reduce O'Connor's sentencing exposure right up to the commencement of trial. (M2. at 64; M4. at 45-47). Mr. Casey's associate and post-trial successor, Randy Margulis, testified that Mr. Casey met with O'Connor on at least ten occasions to discuss plea and trial options, that he conveyed each of the several plea bargains offered by the prosecution before and during trial, and that he made no recommendations regarding any particular plea. Margulis claimed that O'Connor, an ex-police officer, rejected each plea proposal and insisted that he could not spend any time in jail. (M5. at 81-85). Moreover, Margulis testified that O'Connor threatened to flee before the verdict. (M5. at 84-85).
O'Connor's Section 440.10 evidentiary hearing was conducted over several days, resulting in five separate transcripts. M1. references the transcript of the hearing conducted on October 25, 1999, M2. references the transcript of the hearing conducted on November 3, 1999, M3. references the hearing conducted on November 22, 1999, M4. references the hearing conducted on November 23, 1999, and M5. references the hearing conducted on December 2, 1999. The transcripts appear in Volumes II and III of the papers submitted by O'Connor to the New York State Supreme Court, Appellate Division, Fourth Department in support of his motion for leave to appeal the trial court's denial of his Section 440.10 motion, pursuant to N.Y. Criminal Procedure Law § 460.15.
Assistant District Attorney Reda, the trial prosecutor, testified that she overheard O'Connor telling his attorney to reject her plea proposal because he did not want to go to jail. (M3. at 27). Ms. Reda conceded that her case against O'Connor had weaknesses stemming from Mrs. Mayar's lack of cooperation and Ms. Lisko's failing health. (M2. at 61). She opined that Mr. Casey did an "outstanding job" exploiting these weaknesses. (M3. at 26). "He appeared to leave no stone unturned with what he presented with the defense and how he attacked my case." (M3. at 26).
The trial court denied O'Connor's Section 440.10 motion on December 29, 1999. In denying the motion, Justice LaMendola wrote that "[t]he court's review of the record presented at the hearing as well as its assessment of the interests and credibility of the witnesses leads it to conclude that [O'Connor's] trial counsel presented a vigorous and capable defense and that it was [O'Connor] who deprived himself of the alleged benefits of a plea bargain and that [O'Connor] did so willingly." People v. O'Connor, No. 94-2390-001, Mem. Order (Dec. 29, 1999). On June 21, 2000, the Appellate Division denied O'Connor's motion for leave to appeal the trial court's denial of his Section 440.10 motion, pursuant to N.Y. Criminal Procedure Law § 460.15.
D. Federal Habeas Corpus Proceedings
O'Connor commenced this action on July 7, 2000, by filing a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Dkt. #1. Thereafter, the parties filed submissions outlining their respective positions. On August 13, 2002, the undersigned conducted an evidentiary hearing on the charge that O'Connor's trial counsel rendered ineffective assistance in handling his defense. See Sparman v. Edwards, 154 F.3d 51 (2d Cir. 1998).
DISCUSSION
In his habeas petition, O'Connor argues that his conviction should be vacated because he was denied effective assistance of counsel at his criminal trial. Specifically, O'Connor claims that his attorney was laboring under a conflict of interest that caused him to avoid a plea disposition. O'Connor also argues that his attorney performed deficiently at trial. Dkt. #1.A. Federal Habeas Corpus Standard
Federal habeas corpus review of a state court conviction is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, federal courts must give substantial deference to a state court determination that has adjudicated a federal constitutional claim "on the merits." 28 U.S.C. § 2254(d); Sellan v. Kuhlman, 261 F.3d 303, 309-10 (2d Cir. 2001). Specifically, AEDPA requires that where a state court has adjudicated the merits of a petitioner's federal claim, habeas corpus relief may not be granted unless the state court's adjudication:
(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).
In Williams v. Taylor, 529 U.S. 362, 413 (2000), the Supreme Court held that a state court decision is "contrary to" clearly established federal law "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 [the Court] has on a set of materially indistinguishable facts." Id. A state court employs "an unreasonable application" of Supreme Court case law if it "identifies the correct governing legal principle from [the Court's] decisions but unreasonably applies that principle to the particular facts of [a] prisoner's case." Id.
While both AEDPA and its predecessor statute recognize that a presumption of correctness shall apply to state court findings of fact, Whitaker v. Meachum, 123 F.3d 714, 715 n. 1 (2d Cir. 1997), AEDPA also requires a petitioner to rebut that presumption by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1); LanFranco v. Murray, 313 F.3d 112, 117 (2d Cir. 2002). The presumption of correctness applies to findings by both state trial and appellate courts. Galarza v. Keane, 252 F.3d 630, 635 (2d Cir. 2001); Whitaker, 123 F.3d at 715 n. 1.
If, however, the federal court cannot determine whether the state court has adjudicated a petitioner's federal constitutional claims on the merits, the federal constitutional claims are considered to not have been determined on the merits. As such, the federal court applies the pre-AEDPA de novo review standard in such cases, even where the petition was filed after the effective date of the statute. See Sellan, 261 F.3d at 313-14; Boyette v. Lefevre, 246 F.3d 76, 89 (2d Cir. 2001).
A federal claim is adjudicated on the merits when the state court "(1) disposes of the claim `on the merits,' and (2) reduces its disposition to judgment." Sellan, 261 F.3d at 312. In other words, in order to invoke the deferential standard of 28 U.S.C. § 2254(d)(1), "the state court need only dispose of the petitioner's federal claim on substantive grounds, and reduce that disposition to judgment. No further articulation of its rationale or elucidation of its reasoning process is required." Aparicio v. Artuz, 269 F.3d 78, 93-94 (2d Cir. 2001) (citing Sellan, 261 F.3d at 312). If there is no indication that the federal claim has been decided on procedural grounds, the federal claim will be deemed to have been adjudicated on the merits. Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002).
I find that the state courts adjudicated O'Connor's claim of ineffective assistance of counsel on the merits. Specifically, the Appellate Division held that "[t]he evidence, the law and the circumstances of the case establish that the defendant received meaningful representation." O'Connor, 242 A.D.2d 908. In addition, the trial court, in ruling on O'Connor's Section 440.10 motion, concluded that "[O'Connor's] trial counsel presented a vigorous and capable defense and that it was [O'Connor] who deprived himself of the alleged benefits of the plea bargain." O'Connor, No. 94-2390-001, Mem. Order (Dec. 29, 1999).
B. Petitioner's Claim of Ineffective Assistance of Counsel:
The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). This Sixth Amendment right "entails `a correlative right to representation that is free from conflicts of interest.'" United States v. Levy, 25 F.3d 146, 152 (2d Cir. 1994) (quoting Wood v. Georgia, 450 U.S. 261, 271 (1981)).
The Second Circuit Court of Appeals has recognized three categories of Sixth Amendment violations, which are "distinguished by the severity of the deprivation and the showing of prejudice required of the defendant in order to succeed on his claim." United States v. O'Neil, 118 F.3d 65, 70 (2d Cir. 1997). Specifically, these categories include violations that involve: (1) potential conflicts of interest; (2) actual conflicts of interest; or (3) "circumstances so severe as to constitute per se violations of the Sixth Amendment." Id.; see also Lopez v. Scully, 58 F.3d 38, 41 (2d Cir. 1995); Levy, 25 F.3d at 155.
In cases where there is an "[a]ctual or constructive denial of the assistance of counsel altogether," Strickland, 466 U.S. at 692, a defendant suffers a per se violation of his Sixth Amendment right to counsel, and need not demonstrate that the conflict adversely affected his counsel's performance. Winkler, 7 F.3d at 308. According to the Second Circuit Court of Appeals, the per se rule only attaches in two limited circumstances: when defendant's counsel is unlicensed, or when the attorney is implicated in defendant's crimes. Id.; United States v. Novak, 903 F.2d 883, 890 (2d Cir. 1990); United States v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984). This Court finds that the per se prejudice rule is inapplicable to the facts of this case, because Mr. Casey was licensed at the time he represented O'Connor and because he was not implicated in O'Connor's crimes. See Winkler, 7 F.3d at 308.
I. Potential Conflict of Interest
The right to effective assistance of counsel is violated if an attorney labors under a potential conflict of interest that results in prejudice to his client. Winkler v. Keane, 7 F.3d 304, 307 (2d Cir. 1993). According to the standard articulated in Strickland v. Washington, 466 U.S. at 687-88, a petitioner must demonstrate that: (1) counsel's representation fell below an objective standard of reasonableness; and (2) but for counsel's unprofessional errors, the result of the proceeding would have been different. In scrutinizing counsel's performance, the court must be highly deferential and evaluate the conduct from counsel's perspective at the time, thereby eliminating the "distorting effects of hindsight." Id. at 689. The Fifth Circuit Court of Appeals has held that when an attorney's alleged conflict arises from self interest, not from multiple representation, a petitioner must meet the Strickland standard to prevail on a claim of ineffective assistance of counsel. Beets v. Scott, 65 F.3d 1258,1271-72 (5th Cir. 1995).
This Court finds that the retainer agreement between Mrs. Mahack and Mr. Casey created, at best, a potential conflict of interest based on Mr. Casey's self interest in collecting a fee for his services. As such, O'Connor is required to meet the Strickland standard in order to prevail on his claim of ineffective assistance of counsel. Beets, 65 F.3d at 1271-72. O'Connor has failed to show that Mr. Casey's performance before or during the trial fell below an objective standard of reasonableness. O'Connor alleges that his attorney's financial arrangement with Mrs. Mahack whereby he was to keep O'Connor out of jail caused his attorney to avoid a plea disposition. However, the record before this Court does not support O'Connor's assertion that Mr. Casey was single-mindedly proceeding to trial to obtain an acquittal. The credible evidence establishes that Mr. Casey repeatedly pursued a plea agreement on behalf of his client until the eve of trial, and that he conveyed each plea proposal to O'Connor. Mr. Casey's failure to recommend whether to accept or reject the prosecution's plea proposals did not render his representation constitutionally deficient. See Purdy v. United States, 208 F.3d 41 (2d Cir. 2000). With the benefit of hindsight, the decision to proceed to trial may not have been a prudent decision. However, giving deference to counsel's performance and evaluating the conduct from counsel's perspective at the time, as I am required to do, I find that Mr. Casey's representation did not fall below an objective standard of reasonableness.
In addition, O'Connor has failed to make the requisite showing of prejudice under Strickland, which would entitle him to habeas relief. Specifically, O'Connor has not demonstrated that Mr. Casey's failure to insist that O'Connor accept a plea proposal caused him to reject any of the plea proposals extended by the prosecution. The record is replete with references to O'Connor's steadfast refusal to accept any plea proposal because he was fearful of going to jail. As the trial court found, "it was [O'Connor] who deprived himself of the alleged benefits of a plea bargain and [he] did so both knowingly and willingly." O'Connor, No. 94-2390-001, Mem. Order (Dec. 29, 1999). Insomuch as this conclusion is based on findings of fact, it is entitled to a presumption of correctness that can only be rebutted by clear and convincing evidence. O'Connor has offered only his assertion, made after he was convicted, that he would have accepted a plea. This is not enough, however, as some objective evidence is required to corroborate his wholly subjective and self-serving statement, See, e.g. United States v. Gordon, 156 F.3d 376, 381 (2d Cir. 1998), and to rebut the trial court's factual findings. Because O'Connor has failed to satisfy either Strickland requirement, this Court finds that he is not entitled to habeas relief based on his claim of ineffective assistance of counsel.
2. Actual Conflict of Interest
An attorney has an actual — as opposed to potential — conflict of interest when the attorney's and the defendant's interests "diverge with respect to a material factual or legal issue or to a course of action" during the course of representation. Winkler, 7 F.3d at 307 (quoting Cuyler v. Sullivan, 446 U.S. 335, 356 n. 3 (1980)). If a defendant establishes that his attorney labored under an actual conflict of interest that adversely affected the attorney's performance, the court will presume prejudice to the defendant. Cuyler, 446 U.S. at 350; Winkler, 7 F.3d at 307; United States v. Jones, 900 F.2d 512, 519 (2d Cir. 1990). To demonstrate adverse effect, a petitioner must identify a "plausible alternative defense or tactic" that might have been pursued and demonstrate that the alternative defense was "inherently in conflict with or not undertaken due to the attorney's other loyalties or interests." Lopez, 58 F.3d at 41 (citing Levy, 25 F.3d at 157). The Second Circuit Court of Appeals has held that an actual conflict of interest is created when an attorney enters into a contingency fee agreement in a criminal case, whereby counsel receives a fee only if his client is acquitted or otherwise found not guilty. Winkler, 7 F.3d at 307-308.
After reviewing the transcripts of the hearing based on the Section 440.10 motion and considering the evidence produced at the Sparman hearing conducted by this Court, I am not persuaded that the arrangement between Mr. Casey and Mrs. Mahack was a contingency fee agreement. However, assuming arguendo, that a contingency fee agreement existed and Mr. Casey labored under an actual conflict of interest, O'Connor has failed to demonstrate that the agreement with Mrs. Mahack adversely affected counsel's performance as required by Cuyler. O'Connor has not established that Mr. Casey avoided plausible alternative legal tactics because of alleged loyalties to Mrs. Mahack or because of his self interest. O'Connor's claim that Mr. Casey avoided a plea disposition is without merit as evidenced by the trial court's factual finding, which O'Connor has failed to rebut, that O'Connor knowingly and willingly deprived himself of the benefits of a plea bargain. The numerous errors and omissions allegedly made by his counsel at the trial were not a result of counsel's alleged loyalty to Mrs. Mahack or his self interest in collecting a fee for his services. Therefore, these alleged deficiencies do not demonstrate that Mr. Casey's relationship with Mrs. Mahack adversely affected his performance on behalf of his client before or during trial. Accordingly, O'Connor is not entitled to a presumption of prejudice, or to habeas relief on the ground that he was deprived of effective assistance of counsel.
Several facts in the record suggest that the arrangement was not a contingency agreement. For example, Mrs. Mahack regularly remitted payments to Mr. Casey throughout his representation of O'Connor, prior to, during and after the guilty verdict was returned. Dkt. #57, pp. 32-35 and that such payments were not contingent upon Mr. Casey winning the case, keeping O'Connor out of jail or "preserving the family name." Mrs. Mahack's ambiguous language was more likely a hopeful expression of her desire for a particular outcome.
O'Connor has failed to establish a violation of his Sixth Amendment right to counsel under any standard recognized by the United States Supreme Court. Under these circumstances, it is clear that the state courts did not employ "contrary" or "unreasonable applications" of clearly established federal law when they held that O'Connor's trial attorney rendered effective assistance of counsel. Accordingly, O'Connor's claim for habeas relief based on ineffective assistance of counsel should be DENIED.
CONCLUSION
Based on the foregoing, it is recommended that this petition for habeas corpus relief under 28 U.S.C. § 2254 be DISMISSED. Further, as the Court finds that there is no substantial question presented for appellate review, a certificate of appealability should not issue. 28 U.S.C. § 2253(c)(2) (1996).
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ordered that this Report. Recommendation and Order be filed with the Clerk of the Court and that the Clerk send a copy of this Report, Recommendation and Order to counsel for the Petitioner and to counsel for the Respondent.
ANY OBJECTIONS to this Report, Recommendation and Order must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report, Recommendation and Order in accordance with 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, as well as W.D.N.Y. Local Rule 72(a)(3). Failure to file objections to this Report, Recommendation and Order within the specified time, or to request an extension of time to file objections, waives the right to appeal any subsequent order by the District Judge adopting the recommendations contained herein. Thomas v. Arn, 474 U.S. 140 (1985); F.D.I.C. v. Hillcrest Assocs., 66 F.3d 566 (2d. Cir. 1995); Wesolak v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988); see also 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, and W.D.N.Y. Local Rule 72(a)(3).
Please also note that the District Judge, on de novo review, will ordinarily refuse to consider arguments, case law and/or evidentiary material which could have been, but was not, presented to the Magistrate Judge in the first instance. See Patterson-Leitch Co. Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988).
Finally, the parties are reminded that, pursuant to W.D.N.Y. Local Rule 72.3(a)(3), "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3) may result in the District Judge's refusal to consider the objection.
SO ORDERED.