Opinion
01 Civ. 5048 (JSM)
April 2, 2002
Oscar Pagan, 94-A-8130, Attica, NY, Pro Se.
Karen Swiger, Assistant District Attorney, Bronx, NY, for Respondent.
MEMORANDUM
Oscar Pagan, who was convicted in the New York State Supreme Court, Bronx County, on three counts of Murder in the Second Degree brings this action pursuant to 28 U.S.C. § 2254 seeking to vacate his conviction.
Petitioner contends: (1) that his constitutional rights were violated when he was excluded from a robing room conference at which the Court questioned a complaining witness and later spoke with the juror's individually to instruct them to disregard the witness' testimony identifying Petitioner by name; and (2) that he was denied the effective assistance of appellate counsel because counsel failed to raise a claim that the police did not have probable cause to arrest him.
Petitioner's first claim arises from an incident at trial when a witness, who himself had been shot at the time of the murders, was asked by the prosecutor if he could describe the perpetrators. He responded that he could describe one of them.
When asked "Who is that?", the witness responded "Oscar Pagan," even though he had not previously testified that he was able to identify Petitioner. After the witness gave similar testimony and defense counsel moved for a mistrial, the Court called the witness and counsel, but not Petitioner, into the robing room and asked the witness how he knew the assailant's name. The witness said his father told him the name. When the Court learned that the father had not been present at the time of the shooting, it instructed the witness not to use Petitioner's name during his testimony.
After excusing the witness, the Court heard argument in the robing room and ultimately concluded that it would call each of the juror's individually into the robing room and instruct them to disregard the testimony of the witness concerning the name of his assailant. That procedure was followed and the trial continued.
Respondent argued that the Petitioner's claim that he had a right to be present during the robing room proceedings is procedurally barred because the New York Court of Appeals held that:
defendant failed to preserve the issues he now presses before this Court. He argues that he was entitled to be present when, with all counsel present in Chambers, the trial court interviewed the surviving fourth victim, as to his identification testimony in connection with defendant's motion for a mistrial. Similarly, he contends that he had a right to be present when the court, after denying the mistrial and agreeing to defense counsel's request only for cautionary instructions, conducted inquiries of each individual juror to satisfy itself that none of the jurors was disqualified by the preceding developments. Preservation of these claims is required, since judicial precautions in this case did not constitute material stages of the trial, and defendant's presence would not have had a substantial effect on his ability to defend against the charges. See People v. Spotford, 85 N.Y.2d 593, 596; People v. Torres, 80 N.Y.2d 944, 945; People v. Ferguson, 67 N.Y.2d 383, 390. People v. Pagan, 93 N.Y.2d 891, 892, 689 N.Y.S.2d 686, 687 (1999).
It is well-settled that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (per curiam). While the Court of Appeals stated that Petitioner did not preserve the issue for review, it went on to state, "[p]reservation of these claims is required, since judicial precautions in this case did not constitute material stages of the trial, and defendant's presence would not have had a substantial effect on his ability to defend against the charges." Pagan, 93 N.Y.2d at 892. Thus, it could be argued that the decision of the Court of Appeals did involve a ruling on the merits that, absent an objection that demonstrates a particular benefit that would flow from the defendant's presence, the exclusion of the defendant from robing room proceedings such as these does not violate a defendant's constitutional right to be present at trial.
Even if this latter statement is considered a ruling on the merits, it is totally consistent with Supreme Court precedent on the scope of the defendant's right to be present at trial. A defendant's presence at a particular point in the proceedings against him is required only if his "`presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge. . . . [T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.'" United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484 (1985) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 108, 54 S.Ct. 330, 332, 333 (1934)). Here, the Court's questioning of the witness was solely for the purpose of determining whether the witness had a non-hearsay basis for testifying that Petitioner was one of the assailants. Petitioner could not have added anything to that inquiry. Nor was Petitioner's presence required when the court advised the jurors to disregard the witness' testimony. In United States v. Gagnon, the Supreme Court found that the defendants' rights were not violated by an in camera discussion with a juror where the defendants "could have done nothing had they been at the conference, nor would they have gained anything by attending." Id. at 527.
Thus whether one considers the ruling of the Court of Appeals as a procedural bar to consideration of the merits of Petitioner's claim or a ruling on its merits, Petitioner's claim cannot succeed.
Petitioner's claim that his appellate counsel was ineffective is similarly without merits. For Petitioner to prevail on his claim of ineffective assistance of counsel, Petitioner must establish that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). To establish prejudice "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
Petitioner's attack on his appellate counsel fails to satisfy either prong of the Strickland test. In Jones v. Barnes, 463 U.S. 745, 752-53, 103 S.Ct. 3308, 3313 (1983), the Supreme Court rejected the argument that appellate counsel had an obligation to raise every non-frivolous ground for reversal, stating:
There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review. This has assumed a greater importance in an era when oral argument is strictly limited in most courts — often to as little as 15 minutes — and when page limits on briefs are widely imposed. (citations omitted) Even in a court that imposes no time or page limits, however, the new per se rule laid down by the Court of Appeals is contrary to all experience and logic. A brief that raises every colorable issue runs the risk of burying good arguments — those that, in the words of the great advocate John W. Davis, "go for the jugular," Davis, The Argument of an Appeal, 26 A.B.A.J. 895, 897 (1940) — in a verbal mound made up of strong and weak contentions.
Here, appellate counsel's choice of issues to raise on appeal was well within the range of tactical strategy that is left to the professional judgment of defense counsel, and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. In any event, given the strength of the evidence establishing probable cause for Petitioner's arrest, there is no basis to conclude that Petitioner was prejudiced by counsel's choice not to raise this issue.
For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2254 is denied and the action is dismissed. In addition, pursuant to 28 U.S.C. § 1915(a), the Court certifies that an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 920-21 (1962).
The Court determines that the petition presents no question of substance for appellate review and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.
SO ORDERED.