Opinion
No. 9:99-CV-0024 (GLS).
February 17, 2004
JOHN H. PATTERSON Petitioner, Pro Se Comstock, NY, for the petitioner.
HON. ELIOT SPITZER, Office of Attorney General Albany, NY, STEPHEN M. KERWIN, JR., ESQ. Ass't Attorney General, for the respondent.
DECISION and ORDER
Petitioner, pro se John H. Patterson, an inmate at the Great Meadow Correctional Facility, filed a writ of habeas corpus in this District in which he claims he was wrongfully convicted of second degree murder in September 1989 ( Dkt. No. 1 ("Pet.")). In responding to the petition, the Attorney General for the State of New York ("Attorney General"), acting on respondent's behalf, filed an answer and memorandum of law in opposition to the petition ( Dkt. Nos. 7-8). Patterson filed a reply memorandum in further support of his petition ( Dkt. No. 9).
I. Background A. State Court Proceedings
According to the testimony adduced at trial, on June 30, 1998, Kenneth Smith, a disc jockey who was working at an Albany, New York, tavern, left the bar at which he was working sometime after 11:00 p.m. and observed Patterson assaulting Roland Maye with an iron bar. See Transcript of Trial of John Henry Patterson (9/7/89) ("Tr.") at PP. 167-69. At the time, Patterson was "repeatedly saying 'I'm going to kill this son of a bitch for cutting me in my eye'" ( Tr. at P. 173). After witnessing the assault, Smith went back into the bar and asked an employee to call the police ( Tr. at P. 180).
Patterson struck the victim at least five times with the iron bar, and "every time" Patterson hit the victim, Smith heard Maye's bones breaking ( Tr. at PP. 176-78). Smith testified that when he later walked over to Maye, his face was "bloody everywhere and it was just a mess. It [was] undescribable" ( Tr. at P. 180).
At approximately 1:30 a.m. on July 1, 1988, Harry Wright was awakened by the sound of an individual at the door to his apartment ( Tr. at P. 155). Wright answered the door and discovered his girlfriend's brother, Patterson, at the door ( Id.). Patterson was visibly upset and began crying, and eventually stated that he had been in an argument with an individual over drugs, and that after the man had cut Patterson, he hit the individual with a pipe, possibly killing him ( Tr. at PP. 156-57).
On July 2, 1988, Detective Frederick McGue of the Albany Police Department, who had been assigned to investigate the Maye homicide, located Patterson at his home ( Tr. at P. 390). Detective McGue requested that Patterson accompany him to the Albany Police Department for questioning ( Id.). Patterson entered Detective McGue's vehicle, was informed of his Miranda rights, and was brought to the police station ( Tr. at P. 390-92). After initially denying that he had been involved in an altercation with Maye, Patterson eventually admitted that after Maye had cut Patterson, he assaulted Maye ( Tr. at PP. 392-93). Patterson was advised of his Miranda rights for a second time ( Tr. at P. 394), and, after he again admitted striking Maye, Patterson was placed under arrest ( Id.). Patterson then agreed to discuss what occurred on the night of Maye's murder, and stated that he and Maye had begun arguing about drugs, and during the altercation, Maye cut Patterson over his left eye with a knife ( Tr. at PP. 394-97). Patterson claimed that he left the area, however, he returned after an unnamed individual gave Patterson a set of "moonchucks or chukka sticks" ( Tr. at P. 398). Patterson admitted that he then hit Maye several times and fled the scene when Maye fell to the ground ( Id.).
Patterson indicated to Detective McGue that he understood his Miranda rights ( Tr. at P. 391).
On July 7, 1988, an Albany County grand jury charged Patterson with two counts of second degree murder. See Indictment No. SU880915. On September 7, 1989, Patterson was tried before a jury on these charges with Albany County Court Judge John G. Turner presiding. The jury acquitted Patterson of the charge that he intentionally murdered Maye ( Tr. at PP. 680-81), however, it found Patterson guilty of depraved indifference murder in connection with Maye's death ( Tr. at P. 681). Patterson was thereafter sentenced by Judge Turner to an indeterminate term of imprisonment of twenty-five years to life. See Sentencing Tr. (4/9/90) at PP. 9-10.
Judge Turner had also instructed the jury that it could consider the lesser included offenses of manslaughter and criminally negligent homicide ( Tr. at PP. 614-23).
Patterson appealed his conviction and sentence to the New York State Supreme Court, Appellate Division, Third Department. That court affirmed, People v. Patterson, 184 A.D.2d 916 (3d Dept. 1992), and the Court of Appeals denied Patterson leave to appeal. People v. Patterson, 80 N.Y.2d 908 (1992).
In March 1998, Patterson filed a motion to vacate his conviction pursuant to § 440.10 of New York's Criminal Procedure Law ("CPL"). In that motion, Patterson argued that he received ineffective assistance of trial counsel. See CPL § 440.10 Motion (3/98) ("CPL motion"). That application was opposed by the Albany County District Attorney's Office, and on August 18, 1998, Albany County Court Judge Larry J. Rosen denied Patterson's CPL motion. See People v. Patterson, slip op. at P. 3 (Alby. Cty. Ct., Aug. 18, 1998) ("August 1998 Decision"). The Appellate Division denied Patterson's application for leave to appeal Judge Rosen's order. See People v. Patterson, No. 10873, slip op. (3d Dept. Dec. 9, 1998) ("December 1998 Order").
Patterson's CPL 440 motion was dated by him "March 1998" ( CPL motion at P. 1).
B. This Proceeding
Patterson commenced this action on January 7, 1999 ( Pet. at P. 7). This court thereafter issued an order directing a response to the petition ( Dkt. No. 3). The Attorney General subsequently filed an answer and memorandum in opposition to the petition, and provided the court with various records associated with the relevant state court proceedings ( Dkt. Nos. 7-8). On June 11, 1999, Patterson filed a reply memorandum in further support of his petition ( Dkt. No. 9).
Although the petition lists only one ground for relief ( see Pet.), that ground asserts different theories in support of his request for habeas intervention.
III. Discussion A. Failure to Hold Hearing
The first aspect of Patterson's petition claims that Judge Rosen wrongfully denied his CPL motion without conducting an evidentiary hearing ( Pet. at attached P. 5A). Patterson argues that Judge Rosen's failure to conduct a hearing relating to the CPL motion "deprived [Patterson] of a procedural right implicit in the concept of orderly liberty" ( Dkt. No. 9 at (unnumbered) P. 1).
Patterson attached three unnumbered pages between pages 5 and 6 of his habeas petition. See Pet. For ease of reference, the court will refer to those pages as page numbers 5A, 5B, and 5C, respectively.
Respondent argues that this aspect of Patterson's petition does not raise a federal constitutional claim and cannot afford Patterson a basis for federal habeas relief ( Dkt. No. 8 at P. 3).
"[F]ederal habeas relief is not available to redress alleged procedural errors in state post-conviction proceedings." Diaz v. Greiner, 110 F. Supp.2d 225, 235 (S.D.N.Y. 2000) (assertion that trial court denied petitioner's CPL motion without a hearing violated due process not cognizable on federal habeas review) (quoting Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998)); see also, Jones v. Spitzer, 01CIV. 9754, 2003 WL 1563780, at *52 (S.D.N.Y. Mar 26, 2003) (failure to hold hearing regarding CPL motion cannot form basis for habeas relief) (citing Diaz) (other citations omitted); Smith v. Lacy, 01CIV. 4318, 2002 WL 826825, at *7 (S.D.N.Y. Apr. 30, 2002) (claim that county court violated petitioner's due process rights by failing to comply with procedural requirements of CPL "lack[ed] the necessary constitutional component for federal habeas corpus review").
Thus, the mere fact that Judge Rosen did not conduct a hearing regarding Patterson's CPL motion does not afford this court a basis upon which it may grant his request for habeas relief.
B. Ineffective Assistance of Trial Counsel
Patterson also claims that he is entitled to habeas relief because he received ineffective assistance of trial counsel ( Pet. at P. 5A). Specifically, he argues that his attorney wrongfully failed to: i) perform an adequate pretrial investigation; ii) explore all potential defenses to the charges; iii) question a witness whom Patterson alleges would have provided exculpatory testimony; and, iv) demand that the prosecution provide the defense all Brady material ( Pet. at PP. 5A-5B).
Brady v. Maryland, 373 U.S. 83 (1963).
Respondent argues that this court is precluded from considering Patterson's ineffectiveness claim ( Dkt. No. 8 at P. 4). Specifically, respondent contends that Judge Rosen found that Patterson was procedurally barred from asserting his ineffectiveness claim in his CPL motion, and therefore, this federal court may not consider the substance of that claim in light of the adequate and independent state ground doctrine ( Id. at PP. 4-6). In his reply, Patterson claims that this court should consider the merits of his claim ( Dkt. No. 9 at P. 3).
Federal habeas review of a state-court conviction is prohibited if a state court rests its judgment on an "adequate and independent state ground." Harris v. Reed, 489 U.S. 255, 261-62 (1989); Garcia v. Lewis, 188 F.3d 71, 76 (2d Cir. 1999); Levine v. Commissioner of Correctional Services, 44 F.3d 121, 126 (2d Cir. 1995). If the last state court rendering a judgment in the case clearly and expressly states that its decision rests on a state procedural bar, a federal court may not review the substance of that claim unless the petitioner demonstrates both good cause for and actual prejudice resulting from his noncompliance with the state's procedural rule. Garcia, 188 F.3d at 76-77 (citations omitted); Levine, 44 F.3d at 126. A further exception exists where the petitioner can show that the denial of habeas relief would leave unremedied a "fundamental miscarriage of justice;" namely, a person who is actually innocent has been convicted and incarcerated because of a constitutional violation. See Murray v. Carrier, 477 U.S. 478, 495-96 (1986); Fama v. Commissioner of Correctional Services, 235 F.3d 804, 809 (2d Cir. 2000); Strogov v. Attorney General of State of NY, 191 F.3d 188, 193 (2d Cir. 1999), cert. denied, 530 U.S. 1264 (2000). Therefore, the court must initially determine whether the state court found that Patterson was procedurally barred from raising the claims he asserted in his CPL motion.
In the decision denying Patterson's motion to vacate his conviction, Judge Rosen stated:
Criminal Procedure Law § 440.10(2)(c) states that a motion to vacate must be denied when the defendant has failed to raise the ground or issue on direct appeal although the opportunity to do so existed. Furthermore, a post-conviction motion should not be utilized as a substitute for an appeal. In the instant case, the defendant failed to argue [ineffective assistance of trial counsel] on direct appeal and may not argue any claims that he omitted or failed to argue previously.
Were the Court to consider the merits of defendant's claim of ineffective assistance of counsel, the motion would, likewise, be denied.See August 1998 Decision at P. 2.
Thus, in finding that Patterson was procedurally barred from raising his ineffectiveness claim in his CPL motion, Judge Rosen specifically cited CPL § 440.10(2)(c). CPL § 440.10(2)(c) is a procedural bar to relief. See Artuz v. Bennett, 531 U.S. 4, 10-11 (2000); Ramirez v. Attorney General of State of New York, 280 F.3d 87, 89 (2d Cir. 2001); see e.g., Nichols v. Kelly, 923 F. Supp. 420, 424-25 (W.D.N.Y. 1996) (discussing procedural bars to federal habeas relief attributable to CPL §§ 440.10(2)(c) and (3)(a)) (citation omitted).
In his reply, Patterson argues that "the highest court reviewing the 440 motion never clearly or expressly stated that the judgment rested on state [ sic] procedural bar," and that this court must therefore consider the substance of Patterson's claim ( Dkt. No. 9 at ¶ 6). This argument appears to be based upon the fact that the Appellate Division, in denying Patterson's application for leave to appeal Judge Rosen's decision, did not indicate that Patterson had procedurally defaulted on his ineffectiveness claim. However, where the Appellate Division has denied an application for leave to appeal to that court, federal courts must look to the decision of the trial court (which is considered the last state court rendering a judgment in the case) when determining whether a petitioner's claim is procedurally barred. See Jones, 2003 WL 1563780, at *50 (citations and internal quotation omitted) (emphasis added).
The Third Department denied Patterson's leave application without referencing Judge Rosen's August 1998 Decision. See December 1998 Order at P. 1.
In denying Patterson's CPL motion, Judge Rosen determined that Patterson had procedurally defaulted on his ineffectiveness claim. See August 1998 Decision at P. 2. Although Judge Rosen alternatively found that Patterson's CPL motion was substantively without merit ( August 1998 Decision at PP. 2-3), in instances where a state court has expressly found both a failure to preserve the argument for appellate review and "alternatively" or "in any event" that the argument lacks merit, the procedural bar to federal habeas review applies. Fama, 235 F.3d at 810 n. 4 (citing Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996)); see Velasquez v. Leonardo, 989 F.2d 7, 9 (2d Cir. 1990) ("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). Therefore, this court cannot consider the substance of Patterson's ineffectiveness claim absent legal cause for his failure to raise this claim in his appeal and resulting prejudice, or evidence that the court's failure to review the claims would result in a fundamental miscarriage of justice. Dixon v. Miller, 293 F.3d 74, 80-81 (2d Cir.), cert. denied, 537 U.S. 955 (2002); Parson v. Portuondo, 259 F. Supp.2d 309, 311 (S.D.N.Y. 2003).
To establish "cause," a petitioner must show that some objective, external factor impeded his ability to comply with the state's procedural rule. Coleman v. Thompson, 501 U.S. 722, 753 (1991); McCleskey v. Zant, 499 U.S. 467, 493 (1991); Cummings v. Artuz, 237 F. Supp.2d 475, 485 (S.D.N.Y. 2002). Examples of external factors include "interference by officials," ineffective assistance of counsel, or proof that "the factual or legal basis for a claim was not reasonably available" at trial or on direct appeal. Murray, 477 U.S. at 488; United States v. Helmsley, 985 F.2d 1202, 1206 (2d Cir. 1993); Cummings, 237 F. Supp.2d at 485.
In his reply memorandum, Patterson appears to argue that his appellate counsel wrongfully failed to assert as a basis for appeal a claim that he had received ineffective assistance of trial counsel ( Dkt. No. 9 at ¶ 7). Patterson contends that the poor performance of his appellate counsel in failing to raise ineffective assistance of trial counsel on appeal establishes cause for his procedural default ( Id.). However, Patterson has never claimed in any state court proceeding that he received ineffective assistance of appellate counsel. See e.g., Pet. at ¶ 11 (indicating that Patterson's only state court challenge to his conviction following his direct appeal was his CPL motion). Thus, any claim that Patterson's appellate counsel rendered ineffective assistance is necessarily unexhausted in the state courts, and an unexhausted claim may not be used to establish cause for the procedural default of an underlying claim. See Zelaya v. Mantello, 00CIV. 0865, 2003 WL 22097510, at *5 (S.D.N.Y. Sept. 10, 2003); Santiago v. McGinnis, CIV.00-5870, 2002 WL 31946709, at *4 (E.D.N.Y. Oct. 21, 2002); see e.g., Murray, 477 U.S. at 489; Carey v. Supt., 99-CV-0821, slip op. at 5 (N.D.N.Y. Sept. 29, 2003) (McAvoy, S.J.) (citing Murray).
Patterson was represented by Thomas J. O'Hern, Esq. at trial and by Jerald Rosenthal, Esq. on appeal.
Since Patterson has not established cause for his failure to raise his ineffectiveness claim in his direct appeal, the court need not decide whether he has suffered prejudice because federal habeas relief is generally unavailable as to procedurally barred claims unless both cause and prejudice are demonstrated. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); Pou v. Keane, 977 F. Supp. 577, 581 (N.D.N.Y. 1997) (Kahn, J.).
Additionally, the evidence adduced at trial demonstrates that Patterson is not actually innocent of the crime of which he was convicted. According to the trial testimony, Smith observed Patterson repeatedly assaulting Maye with an iron bar as Patterson was expressing his desire to kill Maye ( Tr. at PP. 167-69, 173). Smith's testimony was corroborated by Terry Drake, who testified that he observed Patterson striking Maye between five to seven times with an iron stick or pipe ( Tr. at PP. 219-23). Soon after attacking Maye, Patterson informed Wright that he had assaulted an individual with a pipe, and that he believed he had killed him ( Tr. at PP. 156-57). Finally, Dr. Jungeun Lee, a pathologist, testified that there were virtually no defensive wounds on Maye's body and that he had died "due to [a] collapsed larynx and bleeding in the airway," as well as multiple injuries to his face ( Tr. at PP. 346-47).
Patterson argues that a "miscarriage of justice" will result if this court fails to consider the merits of his habeas petition ( Dkt. No. 9 at ¶ 7).
Maye appeared to have sustained one defensive wound on his finger ( Tr. at P. 342). Dr. Lee subsequently testified that Maye was unconscious when he sustained most of his injuries ( Tr. at P. 348).
In sum, Patterson has failed to establish either cause for his failure to raise his ineffectiveness claim in his direct appeal or that this court's failure to review this claim would result in a fundamental miscarriage of justice. Therefore, the court denies this claim on this procedural basis. WHEREFORE, based upon the above, it is hereby
The court notes that Patterson has not offered any evidence which indicates that Judge Rosen's alternative ruling in his August 1998 Decision, which denied Patterson's CPL motion alleging ineffective assistance of counsel on the merits, was contrary to, or an unreasonable application of, the Supreme Court's holding in Strickland v. Washington, 466 U.S. 668, 688-90, 694 (1984).
ORDERED, that Patterson's habeas petition is DENIED and DISMISSED; and it is further
ORDERED, that the Clerk of Court serve a copy of this Decision and Order upon the parties by regular mail; and it is further ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings (including any appeal of this Decision and Order filed by any party).
IT IS SO ORDERED.