Opinion
02 Civ. 1436 (JSR)(JCF)
October 23, 2003
REPORT AND RECOMMENDATION
Sergio Perez brings this habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Court, New York County, for two counts of robbery. In the petition, Mr. Perez argues that both his trial attorney and his appellate attorney provided ineffective assistance of counsel. Because these claims either are procedurally barred or lack merit, I recommend that the petition be denied.
Background
A. Factual Context
On May 10, 1995, at approximately 11:00 a.m., Zu Chaun Wang was preparing to eat lunch inside his parked van at the corner of Attorney and Stanton Streets in Manhattan. (Tr. at 212-13). After he entered the passenger side of the van, Mr. Wang was prevented from closing the door by two people. (Tr. at 213-14). These individuals pushed Mr. Wang's head to one side and demanded money. (Tr. at 214-15). Mr. Wang was able to see that the larger individual wore a white T-shirt and had darker skin than the other; the smaller individual wore darker-colored clothing and had lighter skin. (Tr. at 214, 216, 251-52).
"Tr." refers to the trial transcript.
Mr. Wang gave the robbers two rolls of quarters, which amounted to $20.00. (Tr. at 215). The perpetrators then took $100.00 from Mr. Wang's wallet and a cellular telephone from Mr. Wang's jacket. (Tr. at 215-16, 218). The individual wearing the white T-shirt placed his hand inside his shirt with a finger pointing outwards and told Mr. Wang that he had a gun. (Tr. at 217-18). After taking Mr. Wang's property, one of the robbers punched him in the face. (Tr. at 218).
Vidal Hernandez was a witness to the crime. From about ten feet away, he observed a "Spanish guy" punch a "Chinese guy" in the face, and a "Black guy" look in the victim's pockets. (Tr. at 270-71). Mr. Hernandez also observed the "Black guy" take a telephone and money from the victim. (Tr. at 274). When Mr. Hernandez yelled, "Stop, police," the perpetrators began running on Clinton Street, and Mr. Hernandez gave chase. (Tr. at 274-75).
Near the corner of Clinton and Stanton Streets, the robbers passed Detective Warren Lockley, an undercover police officer. (Tr. at 275, 361; H. at 14-15). Detective Lockley joined Mr. Hernandez in chasing the two individuals, who turned onto Houston Street and entered a dry cleaner. (Tr. at 286-87, 364; H. at 16-17). When the perpetrators exited a few seconds later, Mr. Hernandez caught the man later arrested by Detective Lockley and identified as Ralph Williams, while the other robber ran northward on Avenue B. (Tr. at 287-92, 373, 375-76; H. at 17-18, 41).
"H." refers to the transcript of the Mapp/Wade hearing held on September 22, 1995. At a Wade hearing held pursuant to United States v. Wade, 388 U.S. 218 (1967), the court determines whether a pre-trial identification resulted from impermissibly suggestive procedures. In aMapp hearing, the court decides whether evidence was seized in violation of the Fourth Amendment of the U.S. Constitution. Mapp v. Ohio, 367 U.S. 643 (1961).
Mr. Williams was taken to a bus shelter at the corner of Houston Street and Avenue B. (Tr. at 376-77; H. at 19-20). About 10-20 minutes later, police officers brought the petitioner, Sergio Perez, to the same bus shelter and placed him next to Mr. Williams. (Tr. at 292-93, 387; H. at 23). About five minutes after the petitioner arrived, Mr. Wang was brought to the bus shelter in a police vehicle. (Tr. at 379; H. at 21, 23). Mr. Wang positively identified the petitioner and Mr. Williams as the two individuals who had robbed him. (H. at 22-23).
B. Procedural History
The petitioner and Mr. Williams were charged with one count of First Degree Robbery in violation of New York Penal Law § 160.15(4) for committing a robbery while displaying a firearm; one count of Second Degree Robbery under Penal Law § 160.10(1) for committing a robbery with an accomplice; and one count of Second Degree Robbery under Penal Law § 160.10(2)(a) for causing physical injury during a robbery. The third count was subsequently dismissed. (Exh. A to Declaration of Darian B. Taylor in Opposition to Petition for a Writ of Habeas Corpus dated March 26, 2003 ("Taylor Decl."), at 40-43).
On September 22, 1995, a combined Mapp/Wade hearing was held on the petitioner's motion to suppress physical evidence seized from him, his pretrial statements, and testimony relating to pretrial identifications. (Exh. A to Taylor Decl. at 35-38). The petitioner's motion was denied in its entirety. (H. at 69-71).
During the jury trial, Mr. Wang was unable to make an in-court identification of the defendants, nor could he verify that he recognized the defendants during the bus shelter "show-up" on the day of the robbery. (Tr. at 229-30). Mr. Hernandez made an in-court identification of the petitioner and Mr. Williams as the two individuals whom he observed robbing Mr. Wang. (Tr. at 271, 309). On cross-examination, Mr. Hernandez also testified that he was asked by "the undercover detective" whether he recognized the petitioner as one of the individuals involved in the robbery; Mr. Hernandez answered, "yes" (Tr. at 340-41). Finally, Detective Lockley made an in-court identification of the defendants as the two individuals whom he observed running past him on the day of the robbery and who were apprehended and brought to the bus shelter show-up. (Tr. at 359-60, 387-88).
On October 10, 1995, the petitioner was convicted of two counts of Second Degree Robbery, one for committing the robbery by displaying a firearm and the other for having an accomplice in the crime. He appealed to the Appellate Division, First Department, asserting that the trial judge erred in refusing to suppress, or hold a Wade hearing with respect to, the identification testimony of Mr. Hernandez and Detective Lockley. (Brief for Defendant-Appellant ("Def. App. Br."), attached as Exh. B to Taylor Decl., at 14-20). The petitioner also challenged the trial judge'sSandoval ruling, which permitted the use of two prior convictions of the petitioner for impeachment purposes. (Def. App. Br. at 20-22).
The Sandoval hearing was held on September 27, 1995. At a Sandoval hearing, the court determines, in the event a defendant testifies at trial, whether the defendant's prior convictions are admissible as evidence. See People v. Sandoval, 34 N.Y.2d 371, 374, 357 N.Y.S.2d 849, 853 (1974).
On January 22, 1998, the Appellate Division affirmed Mr. Perez's conviction. People v. Perez, 246 A.D.2d 448, 667 N.Y.S.2d 244 (1st Dep't 1998). It held that Mr. Perez had not preserved at trial his claims concerning the identification testimony, and it refused to consider these claims on the merits. Id. at 448, 667 N.Y.S.2d at 245. The court also held that the Sandoval ruling was an appropriate exercise of the trial court's discretion. Id. Mr. Perez sought leave to appeal to the New York Court of Appeals, and the application was denied on May 27, 1998. People v. Perez, 91 N.Y.2d 1011, 676 N.Y.S.2d 139 (1998).
On February 2, 1999, Mr. Perez filed his first motion to vacate judgment pursuant to New York Criminal Procedure Law ("CPL") § 440.10, objecting to the identification testimony of Mr. Wang, Mr. Hernandez, and Detective Lockley. (Affidavit of Sergio Perez in Support of Motion to Vacate Judgment ("Perez 2/2/99 Aff.") dated February 2, 1999, attached as Exh. H to Taylor Decl., at 18-34). Mr. Perez also asserted that his trial counsel was ineffective in that he: (1) failed to object to the identification testimony of Mr. Wang, Mr. Hernandez, and Detective Lockley, (2) failed to present an opening statement, (3) had a conflict of interest arising from a threat by the trial court to sanction him, (4) failed to properly cross-examine witnesses and refute testimony, (5) made an inadequate investigation of facts pertaining to the case, (6) failed to present expert testimony concerning the unreliability of eyewitness identifications, including cross-racial identifications, (7) failed to object to the "bolstering and vouching" of witnesses by prosecutors, (8) failed to minimize prejudice during in-court identifications by seating the petitioner away from the defense table, and (9) failed to seek a severance of the petitioner's case from that of his co-defendant. (Perez 2/2/99 Aff. at 18, 21, 28, 31, 32, 34-50; Petitioner's Memorandum of Law in Reply to Opposition for a Writ of Habeas Corpus ("Pet. Reply Memo.") at 17-18). In two supplemental submissions, the petitioner further argued that his trial counsel was ineffective for failing to seek a dismissal of his indictment on the grounds that "false evidence" was presented to the grand jury by prosecutors, and that the supporting the indictment was insufficient. (Supplemental Affidavits of Sergio Perez in Support of Motion to Vacate Judgment dated August 24 and December 1, 1999, attached as Exh. J to Taylor Decl.; Pet. Reply Memo, at 18-19). Finally, the petitioner submitted a response to the prosecution's answer, adding that his trial counsel was ineffective for neglecting to investigate "foul play" by the police who failed to provide an interpreter for Mr. Wang at the bus shelter show-up. (Defendant's Response to People's Opposition to Motion to Vacate Judgment, attached as Exh. L to Taylor Decl., ¶ 7; Pet. Reply Memo, at 19).
On April 25, 2000, the New York Supreme Court denied Mr. Perez's first motion to vacate. The court held that "all of the defendant's claims regarding the identification issues . . . either were, or could have been, raised on direct appeal," and therefore could not be heard in a motion to vacate judgment. (Order of the Supreme Court of the State of New York dated April 25, 2000 ("4/25/00 Order"), attached as Exh. M to Taylor Decl. at 1). With respect to the ineffective assistance claims, the court held that the claims relating to trial counsel's alleged conflict of interest, failure to "make specific arguments to the court or the jury," and failure to seek a dismissal of the indictment were "based on the trial record and could have been raised on direct appeal" and were therefore barred. (4/25/00 Order at 2). Finally, the court held that Mr. Perez's claims relating to counsel's failure to investigate were moot, and that the petitioner's claims, "either viewed in isolation or as a whole," did not demonstrate that his trial counsel provided ineffective assistance. (4/25/00 Order at 3). The petitioner's application for leave to appeal to the Appellate Division was summarily denied on August 31, 2000. (Taylor Decl., Exh. P).
On October 18, 2000, Mr. Perez filed an application for writ of error coram nobis with the Appellate Division. He argued that his appellate counsel had been ineffective for failing to challenge the performance of trial counsel in neglecting to preserve the identification issues by objecting at trial. (Affidavit of Sergio Perez in Support of Application for Writ dated October 18, 2000 ("Perez 10/18/00 Aff."), attached as Exh. Q to Taylor Decl., at 4-7). Mr. Perez's application was denied in its entirety on June 21, 2001. (Taylor Decl., Exh. S).
On October 16, 2001, Mr. Perez filed a second motion to vacate judgment under CPL § 440.10 with the New York Supreme Court. In addition to other claims, Mr. Perez asserted new claims of ineffective assistance oftrial counsel on the grounds that his attorney: (1) failed to request aDunaway hearing to determine probable cause for his arrest, (2) failed to request a Wade hearing to challenge the show-up procedures, and (3) failed to request an independent source hearing. (Affidavit of Sergio Perez in Support of Motion to Vacate Judgment dated October 16, 2001, attached as Exh. T to Taylor Decl., at 8th-10th unnumbered pages). Mr. Perez's second motion to vacate judgment was summarily denied on January 14, 2002. (Taylor Decl., Exh. W). His application for leave to appeal to the Appellate Division was denied on April 12, 2002. (Taylor Decl., Exh. Z).
On April 23, 2002, Mr. Perez filed a second motion for a writ of error coram nobis with the Appellate Division. In addition to other claims, Mr. Perez asserted that his appellate counsel was ineffective for failing to challenge his arrest and the show-up procedures. (Affidavit of Sergio Perez in Support of Application for Writ dated April 23, 2002 ("Perez 4/23/02 Aff."), attached as Exh. A (second series) to Taylor Decl.). Mr. Perez did not assert that appellate counsel was deficient for failing to challenge trial counsel's performance in any additional respect. (Perez 4/23/02 Aff.; Notice of Motion to Amend Writ of Error Coram Nobis dated May 2, 2002, attached as Exh. B (second series) to Taylor Decl.). Mr. Perez's motion was denied on August 22, 2002. (Taylor Decl., Exh. F (second series)).
Mr. Perez filed the instant petition on February 25, 2002. In this petition, he raises only the claims concerning the effectiveness of his trial and appellate attorneys. (Petition for Writ of Habeas Corpus at 5).
Discussion
When a state court judgment rests on independent and adequate state law grounds, including a petitioner's failure to meet state procedural requirements, a federal court may not consider the petitioner's substantive claims. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); Jones v. Stinson, 229 F.3d 112, 117 (2d Cir. 2000). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). When the "last reasoned opinion on the claim explicitly imposes a procedural default," there is a presumption that a later decision did not disregard the procedural bar and consider the merits of the claim. Id.
If a petitioner defaults a claim pursuant to an independent and adequate state procedural rule, "federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; Levine v. Commissioner of Correctional Services, 44 F.3d 121, 126 (2d Cir. 1995). A petitioner establishes cause when he shows that "some objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986); accord Coleman, 501 U.S. at 753. Examples of cause for default include a showing that the factual or legal basis for a claim was not reasonably available, interference by officials that made compliance with the rule impracticable, or ineffective assistance of counsel. See Murray, 477 U.S. at 488.
A. Ineffective Assistance of Trial Counsel
In his first claim, Mr. Perez contends that he was denied the effective assistance of trial counsel for the reasons cited in his two motions to vacate the judgment of conviction. As discussed below, most of Mr. Perez's contentions are procedurally barred. The one contention that is not — counsel's alleged failure to investigate facts — lacks merit.
1. Claims in First Motion to Vacate Judgment
In denying Mr. Perez's first motion to vacate, the New York Supreme Court held that the following claims could not be heard, as they either were or could have been raised on direct appeal: (1) "all . . . claims regarding the identification issues," (2) "[t]he claim that counsel had an actual conflict of interest," (3) "claims alleging that counsel was ineffective for failing to make specific arguments to the court or the jury based on the testimony at trial," and (4) "claims that counsel was ineffective for failing to move to dismiss the indictment." (4/25/00 Order at 2-3). These findings were based on two procedural rules: CPL § 440.10(2)(a), which prohibits collateral relief for claims previously determined on appeal, and CPL § 440.10(2)(c), which bars collateral relief for claims that a defendant failed to raise on direct appeal. The decision of the New York Supreme Court therefore relied on independent and adequate state grounds, and federal review is barred. Coleman, 501 U.S. at 729-30;Jones, 229 F.3d at 117.
While the decision cites to § 440.10(2)(b) (barring collateral relief for claims that are pending on direct appeal), the court's statement that the petitioner's claims "could have been raised on direct appeal" makes clear that a citation to § 440.10(2)(c) was intended.
Moreover, the subsequent decision of the Appellate Division denied Mr. Perez's application for leave to appeal without comment. Accordingly, this Court must look through that decision to the last explained state court decision — the decision of the New York Supreme Court on the petitioner's first motion to vacate — to ascertain the grounds for the state court judgment. Nunnemaker, 501 U.S. at 803. As noted above, the explicit finding of procedural default in that decision precludes federal review for the enumerated claims.
The precluded claims can be reasonably construed to encompass the following deficiencies of trial counsel, as alleged by the petitioner in his first motion to vacate: (1) failure to object to the identification testimony of Mr. Wang, Mr. Hernandez, and Detective Lockley, (2) failure to present an opening statement, (3) conflict of interest arising from the trial court's threat to sanction counsel for appearing late to a pretrial hearing, (4) failure to properly cross-examine witnesses and refute testimony, (5) failure to present expert testimony concerning the unreliability of eyewitness identification, including cross-racial identification, (6) failure to object to the "bolstering and vouching" of witnesses by prosecutors, and (7) failure to seek a dismissal of his indictment on the basis of "false evidence" presented by prosecutors to the grand jury, as well as the insufficiency of evidence supporting the indictment.
The alleged deficiencies of trial counsel not encompassed by the finding of procedural default in the New York Supreme Court decision are: (1) inadequate investigation of facts (including "foul play" by police at the show-up), (2) failure to minimize prejudice during in-court identifications by seating the petitioner away from the defense table, and (3) failure to seek a severance of the petitioner's case from that of his co-defendant.
The failure to seat the petitioner away from the defense table and the failure to seek severance are nevertheless barred by procedural default. Under CPL § 440.10(2)(c), if the basis for an ineffective assistance claim is contained in the record and the petitioner fails to raise it on direct appeal, he has procedurally defaulted. See Taylor v. Kuhlmann, 36 F. Supp.2d 534, 545 n. 9 (E.D.N.Y. 1999); Garcia v. Scully, 907 F. Supp. 700, 706 (S.D.N.Y. 1995). Here, the basis for these two claims clearly appears in the record of the state proceedings, and the petitioner failed to raise the issues on direct appeal. Therefore, this claim is barred.
As to the claim of inadequate investigation, this contention, by definition, cannot be based on the state court record, as the alleged deficiencies of trial counsel may have prevented material facts from being introduced at trial. See United States v. Leone, 215 F.3d 253, 255-56 (2d Cir. 2000) (claims of ineffective assistance generally appropriate for collateral attack on conviction because factual basis not reflected in trial record); Billy-Eko v. United States, 8 F.3d 111, 115 (2d Cir. 1993) (same). Accordingly, the petitioner did not default this claim by failing to raise it on direct appeal. Nevertheless, as discussed below, this claim lacks merit.
2. Claims in Second Motion to Vacate Judgment
The New York Supreme Court issued a summary denial with respect to Mr. Perez's second motion to vacate, and the subsequent decision of the Appellate Division denied Mr. Perez's application for leave to appeal without comment. Of the three ineffective assistance claims raised in Mr. Perez's second motion to vacate, two were raised in the first motion to vacate, and are procedurally barred by the independent and adequate state grounds set forth in the state court decision on that motion: (1) failure to request a Wade hearing to challenge the bus shelter show-up procedures, and (2) failure to request an independent source hearing with respect to the identification testimony.
The only issue not raised in the first motion to vacate — trial counsel's failure to request a Dunaway hearing to determine probable cause for the petitioner's arrest — clearly appears in the record of the state proceedings, and the petitioner could have raised the issue on direct appeal. This claim is therefore barred by procedural default under CPL § 440.10(2)(c).
3. Cause and Prejudice
Mr. Perez's ineffective assistance claims concerning trial counsel which are barred by procedural default can only be considered if the petitioner is able to demonstrate cause for the default and resulting prejudice, or a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. Mr. Perez has asserted that these claims were forfeited as a result of the ineffective assistance of his appellate counsel. (Pet. Reply Memo, at 22). This contention, if substantiated, could constitute cause for procedural default. See Murray, 477 U.S. at 488-89.
However, "[t]he exhaustion doctrine . . . generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Id. at 488-89. Moreover, "a claim of cause for procedural default is not itself excepted from the doctrine of procedural default. Thus, a petitioner may not bring an ineffective assistance claim as cause for a default when that ineffective assistance claim itself is procedurally barred." Reyes v. Keane, 118 F.3d 136, 140 (2d Cir. 1997) (citations omitted).
In his first application for writ of error coram nobis, Mr. Perez asserted that the deficiency of appellate counsel caused him to forfeit his ineffective assistance claim concerning trial counsel, but only as it related to trial counsel's failure to preserve the "identification issues" raised in Mr. Perez's first motion to vacate judgment. (Perez 10/18/00 Aff. at 4). Accordingly, this cause for default has been presented to the state court, and is therefore exhausted.
As to all other claims concerning trial counsel (with the exception of the failure to investigate, which is considered on its merits below), Mr. Perez did not argue in state court, in his second application for writ of error coram nobis or elsewhere, that the ineffective assistance of appellate counsel caused him to forfeit those claims. Accordingly, the cause for default as to those claims is not exhausted.
The unexhausted claims are not barred by procedural default in state court. In New York, the appropriate procedure for asserting a claim of ineffective assistance of appellate counsel is to file an application for a writ of error coram nobis in the Appellate Division. See Dumas v. Kelly, 105 F. Supp.2d 66, 74 (E.D.N.Y. 2000); Cowan v. Artuz, 96 F. Supp.2d 298, 304 (S.D.N.Y. 2000); People v. Bachert, 69 N.Y.2d 593, 595-96, 516 N.Y.S.2d 624-25, (1987). Mr. Perez can still apply for this writ because there is no time limit for filing such an application. See Dumas, 105 F. Supp.2d at 74; Harris v. Artuz, No. 99 Civ. 5019, 2000 WL 358377, at *3 (S.D.N.Y. April 7, 2000); People v. Richetti, 302 N.Y. 290, 298 (1951).
I note that the court reached a different conclusion in Richter v. Artuz, 77 F. Supp.2d 385, 395 (S.D.N.Y. 1999). As in this case, the petitioner in Richter sought to excuse a procedural default on the ground that he was represented by incompetent counsel on appeal. The court rejected that argument, stating that "[t]he claim of ineffective assistance of counsel has never been presented to the state courts. It therefore cannot serve as cause for the procedural default with respect to the third ground of this habeas petition." Id. (citing Reyes v. Keane, 118 F.3d 136, 140 (2d Cir. 1997)). However, the reliance on Reyes was misplaced. In that case, the petitioner argued that ineffective assistance of trial counsel was the cause for procedural default, and he conceded that the ineffective assistance claim was procedurally barred.Reyes, 118 F.3d at 138-40. By contrast, in Richter and in the instant case, the ineffective assistance of appellate counsel claim is not forfeited because it may still be litigated in state court.
Notwithstanding the absence of procedural default, this Court may choose to consider the unexhausted claims on their merits. Previously, a petitioner in a habeas corpus proceeding was required to exhaust all available state court remedies for each claim prior to federal review.Rose v. Lundy, 455 U.S. 509, 522 (1982). However, with the enactment of the Anti-Terrorism and Effective Death Penalty Act (the "AEDPA"), Pub.L. 104-132, 110 Stat. 1214 (April 24, 1996), the habeas corpus statute has been amended to provide that "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). Thus, if the federal court finds that all the claims lack merit, the court has discretion to dismiss the petition on its merits even though it may contain some unexhausted claims. Conversely, if some of the claims are not "patently frivolous" and it would not be futile to send the unexhausted claims back to state court, the federal court should dismiss the petition as unexhausted. See Ojeda v. Artuz, No. 96 Civ. 5900, 1997 WL 283398, at *3 n. 5 (S.D.N.Y. May 29, 1997); Edkin v. Travis, 969 F. Supp. 139, 142 n. 1 (W.D.N.Y. 1997).
Based on these principles, it is appropriate to consider Mr. Perez's alleged cause for default (i.e., ineffective assistance of appellate counsel), as it relates to all of his claims concerning trial counsel. Though seemingly anomalous, Mr. Perez's claim that appellate counsel was deficient for failing to challenge the performance of trial counsel makes it necessary to consider the trial counsel claims on their merits. I will therefore address the trial counsel claims below, even though the finding of procedural default on those claims would normally preclude such consideration.
B. Ineffective Assistance of Appellate Counsel
In order to obtain the reversal of a conviction due to ineffective assistance of counsel, the petitioner must demonstrate that (1) his counsel's performance was deficient, and (2) the deficient performance was prejudicial to the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). This standard also applies to assistance of appellate counsel. See McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999);Mavo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994); Lawrence v. Artuz, 91 F. Supp.2d 528, 539 (E.D.N.Y. 2000).
With respect to the first prong of the Strickland test, the petitioner "must show that counsel's representation fell below an objective standard of reasonableness. . . . [T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances."Strickland, 466 U.S. at 688. The "prejudice" prong of the Strickland test requires a "showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable," and that "but for" the claimed errors of counsel, the trial result would have been different.Id. at 687, 694.
Appellate counsel is not obliged to identify every possible error in the record or to "raise every nonfrivolous issue that the defendant requests." Jones v. Barnes, 463 U.S. 745, 754 n. 7 (1983). There is a "strong presumption of attorney competence," and the court's standard of review of an appellate counsel's performance is "highly deferential."Kimmelman v. Morrison, 477 U.S. 365, 381, 383 (1986). Moreover, a reviewing court should not second-guess a reasonable, professional judgment made by appellate counsel. See Barnes, 463 U.S. at 754; McKee, 167 F.3d at 106; Mavo, 13 F.3d at 533; Avincola v. Stinson, 60 F. Supp.2d 133, 148 (S.D.N.Y. 1999).
In the present case, Mr. Perez argues only that his appellate counsel should have challenged the effectiveness of his trial counsel as a grounds for direct appeal. (Pet. Reply Memo, at 22). This contention, if substantiated, could provide cause for default of the trial counsel claims. For the reasons discussed below, none of the alleged deficiencies of trial counsel rendered him ineffective under constitutional standards. Accordingly, appellate counsel did not provide ineffective assistance or provide cause for default of the claims of ineffectiveness of trial counsel.
1. Failure to Object to Identification Testimony
The gravamen of Mr. Perez's claim is that his trial counsel was deficient for failing to object at trial to the in-court identifications provided by Mr. Wang, Mr. Hernandez, and Detective Lockley. Since the direct appeal was denied in part because of the petitioner's failure to preserve his claims concerning identification testimony (i.e., by a trial objection), Mr. Perez asserts that this shortcoming of his trial counsel was an obvious issue that should have been raised on direct appeal.
Mr. Perez's contention fails for several reasons. With respect to Mr. Wang's testimony, Mr. Perez's claim is clearly meritless because Mr. Wang did not offer any identification testimony at trial, either by making an in-court identification or confirming that he had previously identified Mr. Perez during the pre-trial show-up. As Mr. Wang's "identification testimony" did not constitute any of the evidence presented against the petitioner, Mr. Perez cannot show that, "but for" the failure to object by trial counsel, the outcome of the trial would have been different.Strickland, 466 U.S. at 694.
With respect to Mr. Hernandez and Detective Lockley, Mr. Perez asserts, as he did on direct appeal, that these in-court identifications should have been suppressed because the prosecution failed to provide notice under CPL § 710.30(1)(b). Mr. Perez adds that Mr. Hernandez's identification was inadmissible because the show-up procedures were overly suggestive and were obviated by Mr. Wang's earlier participation in the show-up. Mr. Perez argues that his trial counsel was deficient for failing to object on these grounds during trial.
Mr. Perez's claims concerning Mr. Hernandez and Detective Lockley lack merit. As an initial matter, the record shows that the issue of whether Mr. Hernandez and Detective Lockley identified the petitioner at the show-up — a factual prerequisite to Mr. Perez's entitlement to § 710.30(1)(b) notice and due process protections during the show-up — was in dispute at trial. The testimony offered during the Wade hearing and at trial established that Mr. Hernandez and Detective Lockley were present during the bus shelter show-up. (H. at 19-23; Tr. at 377-79, 415). At trial, Mr. Hernandez testified on cross-examination, "[The undercover detective was] asking me, this is the guy you saw in the robbery. I say, yes." (Tr. at 341). However, this testimony was contradicted by that of Detective Lockley, who stated, "I didn't have any discussions with [Mr. Hernandez]" about Mr. Perez at the bus shelter. (Tr. at 415).
Even assuming, however, that Mr. Hernandez did make a pre-trial identification, the show-up procedures did not warrant the exclusion of his in-court identification. The constitutional validity of an in-court identification is analyzed according to a two-step process. First, the court must determine whether the procedure by which the initial, pre-trial identification was obtained was impermissibly suggestive. See United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994); Bond v. Walker, 68 F. Supp.2d 287, 301-02 (S.D.N.Y. 1999), aff'd, 242 F.3d 364 (2d Cir. 2000). If so, the admission of the evidence will nevertheless satisfy constitutional standards if the identification was independently reliable. See Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Wong, 40 F.3d at 1359. In determining whether an identification is independently reliable, courts must examine the "totality of the circumstances," including the opportunity of the witness to view the suspect at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the perpetrator, the level of certainty demonstrated by the witness, and the length of time between the crime and the identification. Neil v. Biggers, 409 U.S. 188, 199-200 (1972); accord Brathwaite, 432 U.S. at 114; Dunnigan v. Keane, 137 F.3d 117, 128 (2d Cir. 1998).
In this case, the suggestiveness of the show-up procedures was already considered in the pre-trial Wade hearing, after which the trial judge found, "[t]here was no suggestiveness on the part of the police in terms of their actions in creating a show-up, and anything that was said in connection with the show-up that would cause it to cross the line to be overly suggestive." (H. at 70). This ruling was equally applicable to Mr. Hernandez, as he allegedly participated in the same show-up.
Even if the procedures were suggestive, however, the testimony of both Mr. Hernandez and Detective Lockley had sufficient independent reliability to be admissible. Both witnesses, for instance, had excellent opportunities to view the petitioner. Mr. Hernandez testified that he observed the robbery from only ten feet away (Tr. at 271), and Detective Lockley testified that he observed the petitioner and Mr. Williams as they ran past him on the same side of the sidewalk, presumably only a few feet away. (Tr. at 361, 364). Subsequently, Mr. Hernandez and Detective Lockley observed the petitioner at the bus shelter show-up, which took place within 10-20 minutes of Mr. Williams' arrest and only a short time longer after the robbery. (Tr. at 292-93, 387). There is no evidence that Mr. Hernandez and Detective Lockley had any significant distractions during their observations of the petitioner. Finally, both witnesses provided extremely confident in-court identifications. (Tr. at 309, 398-88).
For all these reasons, Mr. Perez's challenges to the show-up procedures and identification testimony lack merit. Accordingly, his trial counsel did not provide ineffective assistance by failing to raise these issues at trial, and Mr. Perez's appellate counsel was not deficient for declining to challenge trial counsel's performance in this regard.
2. Failure to Present Opening Statement
Mr. Perez also objects to his trial counsel's decision to forego an opening statement at trial. As discussed above, the eyewitness identifications of Mr. Perez presented at trial constituted strong and reliable evidence on which to convict him. As an opening statement by trial counsel does not constitute evidence, it would not have refuted any of the evidence presented against the petitioner. Accordingly, Mr. Perez has not shown that, but for the absence of his counsel's opening statement, the outcome of his trial would have been different.Strickland, 466 U.S. at 694.
3. Conflict of Interest
Mr. Perez argues that his trial counsel was constrained by a conflict between counsel's and Mr. Perez's interests because the trial judge threatened to impose a sanction on counsel for appearing late to a pretrial hearing. (Perez 2/2/99 Aff. at 39; S. at 59). An assertion that a conflict of interest violates a defendant's Sixth Amendment right to counsel can take the form: "(a) that the district court's knowledge of a possible conflict imposed upon it a duty of inquiry; (b) that there was a "per se" conflict; (c) that there was an actual conflict; and (d) that there was a potential conflict." Armienti v. United States, 234 F.3d 820, 823 (2d Cir. 2000).
"S" refers to the transcript of the Sandoval hearing held on September 27, 1995.
Mr. Perez's trial counsel did not face a "per se" actual or potential conflict of interest with the petitioner, nor was the state court notified of any such conflict. Specifically, counsel's interest in avoiding a sanction depended entirely on following the trial judge's instructions to appear on time to court proceedings. Such a course of action (which counsel evidently followed) in no way conflicted with the petitioner's interest in obtaining zealous representation from his counsel; indeed, it further enhanced the petitioner's interests. Accordingly, trial counsel did not provide ineffective assistance in this regard.
4. Failure to Cross-examine Witnesses and Refute Testimony
Mr. Perez asserts that his trial counsel failed to properly cross-examine or refute the testimony of prosecution witnesses. Specifically, he points to several alleged discrepancies in Mr. Hernandez's testimony, including: (1) his characterization of the robbery as mere "fighting," (2) his statement that Mr. Wang was hit "several times," not just once (as indicated by Mr. Wang), (3) his failure to notice that Mr. Perez wore a jacket on the day of the robbery, and (4) his statement that he ran at full speed with a "foot long" flashlight in his pants. (Perez 2/2/99 Aff. at 32-33, 35). Mr. Perez asserts that trial counsel failed to cross-examine on or refute these points at trial.
None of the alleged flaws in Mr. Hernandez's testimony supports the petitioner's claim of ineffective assistance. With respect to the "fighting" characterization, the record shows that defense counsel did highlight this discrepancy through the testimony of Detective Michael Swain, to whom the disputed statement was made (Tr. at 636); Mr. Hernandez was also cross-examined extensively on this issue (Tr. at 323-25, 344). Additionally, the record shows that Mr. Hernandez was cross-examined on the number of times he observed Mr. Wang being hit (Tr. at 313), and on Mr. Hernandez's ability to run with a flashlight in his pants (Tr. at 316-17). The record does not show that Mr. Hernandez ever testified about the clothing worn by the petitioner on the day of the robbery; the issue of whether counsel properly cross-examined on this issue is therefore moot. As a whole, the record makes clear that defense counsel did challenge Mr. Hernandez's testimony in numerous respects, and that attacking the credibility of this witness was a central element of the petitioner's defense. Accordingly, Mr. Perez has not shown that trial counsel's performance "fell below an objective standard of reasonableness."Strickland, 466 U.S. at 688.
Mr. Perez also points to alleged inconsistencies in the testimony of the police officers — Detective Frank Horvath and Officer John DiMare — who chased and apprehended the petitioner after his co-defendant was arrested. Specifically, Mr. Perez asserts that his trial counsel should have challenged: (1) Detective Horvath's ability to view the petitioner's face while chasing Mr. Perez from behind and in a vehicle traveling at a high speed, (2) Officer DiMare's ability to identify the petitioner despite having lost sight of Mr. Perez during the chase, and (3) an alleged inconsistency in Detective Horvath's and Officer DiMare's testimony concerning the identity of the person observed climbing over a fence near East Houston and Pitt Streets. (Perez 2/2/99 Aff. at 36).
As with Mr. Hernandez's testimony, none of these specific points supports Mr. Perez's ineffective assistance claim. The crux of Mr. Perez's defense rested on the fact that he was apprehended after the key eyewitnesses (Mr. Hernandez and Detective Lockley) caught Mr. Williams but lost sight of his accomplice; the prosecution relied on the testimony of Detective Horvath and Officer DiMare to prove that the accomplice was Mr. Perez. In response to this testimony, defense counsel aggressively cross-examined both Detective Horvath and Officer DiMare on their ability to observe and subsequently identify Mr. Perez. Counsel questioned Detective Horvath about the traffic conditions on the street (Tr. at 496), the distance between his vehicle and Mr. Perez, and possible obstructions to Detective Horvath's view (Tr. at 498-99), the focus of Detective Horvath's attention and whether he lost sight of the petitioner (Tr. at 502-03), and the specific portions of Mr. Perez's body that Detective Horvath observed (Tr. at 504). Officer DiMare was questioned about the distance between him and Mr. Perez (Tr. at 564), whether he had a face-front view (Tr. at 564-65), and the fact that Officer DiMare lost sight of the petitioner (Tr. at 567). The issue of the second individual observed climbing a fence on Houston Street (and who the petitioner alleges was an alternative suspect) was also explored extensively on cross-examination. (Tr. at 569-70). The record makes clear that all the issues raised by the petitioner with respect to Detective Horvath's and Officer DiMare's testimony were in fact addressed by his counsel, and therefore considered by the jury. Accordingly, trial counsel's actions were reasonable under constitutional standards.
5. Inadequate Investigation of Facts
Mr. Perez argues that trial counsel failed to investigate facts pertinent to his case, including: (1) "foul play" by the police in failing to provide an interpreter for Mr. Wang during the bus shelter show-up, (2) statements from merchants verifying the suggestiveness of the show-up, (3) circumstances of the undercover drug surveillance operation conducted on the day of the robbery, (4) police reports referring to a "White Baseball Cap" worn by the perpetrator and "fighting" (as opposed to a "robbery") at the scene of the crime, (5) documentation of weather conditions on the day of the robbery, (6) the presence (or absence) of the petitioner's fingerprints on Mr. Wang's cell phone, and (7) the ability of Willie Smallwood, superintendent of 210 Stanton Street, to observe the petitioner's arrest from where he stood. (Perez 2/2/99 Aff. at 23, 34-35, 42-43). While the petitioner's claim of inadequate investigation was not procedurally defaulted, it nevertheless lacks substantive merit.
First, with respect to show-up procedures, Mr. Perez's claims concerning "foul play" by the police are moot, since Mr. Wang did not offer any identification testimony at trial. Mr. Perez also appears to argue that, because the "body language" and "cat calls" of spectators contributed to the suggestiveness of the bus shelter show-up, statements from area merchants were needed to challenge the show-up procedures during the Wade hearing. (Perez 2/2/99 Aff. at 23). However, the petitioner does not proffer what the merchants would have stated with respect to the show-up. The record shows that defense counsel did inquire on cross-examination about the number of people in the vicinity. (H. at 54). Counsel also addressed several other aspects of the show-up, including statements made to the victim before the identification (H. at 47), the physical surroundings at the bus shelter (H. at 48), the fact that Mr. Perez was handcuffed (H. at 54), and conversations among the police officers before and during the show-up. (H. at 55). As Mr. Perez fails to specify what additional information the area merchants could have provided, this aspect of his ineffective assistance claim fails.
Second, while the details of the drug surveillance operation may have aided in identifying any potential distractions that Detective Lockley had on the day of the robbery, the record shows that Detective Lockley was adequately cross-examined on this issue. He was asked, for example, "So, when these two people first came running around the corner, your attention was rivetted on that undercover?" to which Detective Lockley answered, "Yes." (Tr. at 390) (emphasis added). Subsequently, Mr. Perez's counsel argued in his closing statement, "The point is, the robbery happened quickly, [Detective Lockley's] focus is on the undercover, two people run past him." (Tr. at 669). The record shows that the jury did consider the possibility that Detective Lockley may have been distracted. As further details of the drug surveillance operation would have added little more to this evidence, Mr. Perez has not shown that his counsel was deficient for failing to investigate those details.
With respect to the additional police reports, Mr. Perez first cites to a statement of Mr. Wang, which does not contain a reference to a "White Baseball Cap" as alleged by the petitioner. (Perez 2/2/99 Aff. at 35 Exh. C). Moreover, Mr. Wang was cross-examined extensively regarding his recollection of the petitioner's clothing. (Tr. at 242-44, 253, 256-57, 259-61). With respect to the "fighting" reference, defense counsel did introduce this evidence through the testimony of Detective Swain and by cross-examining Mr. Hernandez.
As to the weather conditions, cell phone, and Mr. Smallwood's testimony, these points relate to collateral matters that would not have materially advanced the petitioner's defense. Mr. Perez appears to argue that documented proof of weather conditions would have impeached Detective Lockley's testimony. (Perez 2/2/99 Aff. at 35). But the record makes clear that Detective Lockley was adequately cross-examined, and the fact that he may not have recalled clearly whether it was raining on the day of the robbery would not have materially improved the petitioner's case. Second, while Officer DiMare's testimony was introduced to show that the petitioner was observed dropping a "black leather case" on the ground (thereby linking the petitioner to the cell phone, which was recovered from a third party) (Tr. at 559), this evidence was admittedly circumstantial and formed a weaker part of the prosecution's case. The stronger evidence was the eyewitness identifications of Mr. Hernandez and Detective Lockley. Moreover, the absence of the petitioner's fingerprints on the cell phone would not have demonstrated the petitioner's innocence, as the surface of the phone could have been altered after it was returned to the victim. Finally, Mr. Smallwood's testimony represented only a peripheral part of the prosecution's case, as the testimony of Detective Swain and Officer DiMare were more crucial in identifying the petitioner following the arrest of Mr. Williams.
Thus, the petitioner has not proved that his counsel's alleged failure to adequately investigate facts was unreasonable, or that it affected the outcome of the trial.
6. Failure to Present Expert Testimony on Eyewitness Identification
Mr. Perez asserts that his trial counsel should have presented expert testimony on the unreliability of eyewitness identifications, particularly with respect to cross-racial identification and the effects of stress and weapons on eyewitness observations. (Perez 2/2/99 Aff. at 45-46). While the petitioner's Sixth Amendment right to call witnesses on his behalf applies to expert witnesses, see Washington v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001); Agard v. Portuondo, 117 F.3d 696, 705 (2d Cir. 1997), this right is limited by "the requirements of relevancy and by the trial court's traditional discretion to prevent prejudicial or confusing testimony." Agard, 117 F.3d at 704. Courts have traditionally relied upon cross-examination and jury instructions as mechanisms to alert the jury to any inaccuracies or inconsistencies in the testimony of an eyewitness. See, e.g., United States v. Kime, 99 F.3d 870, 884-85 (8th Cir. 1996); United States v. Rincon, 28 F.3d 921, 925-26 (9th Cir. 1994). Where expert testimony on eyewitness identifications would confuse the jury, it has been excluded. See United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999); United States v. Serna, 799 F.2d 842, 850 (2d Cir. 1986).
In this case, the admission of expert testimony would not have aided the jury. With respect to Mr. Hernandez, testimony concerning cross-racial identifications was irrelevant, as he shares the same ethnic background as the petitioner. There is also no evidence that Mr. Hernandez observed a weapon. With respect to Detective Lockley, testimony concerning stress and weapons would have been irrelevant, as he did not witness the robbery (or weapons associated with it) and was merely standing on the street when the two robbery suspects ran past him. Finally, with respect to Detective Horvath and Officer DiMare, these witnesses did not observe any weapons, and the circumstances of the chase and arrest of the petitioner were not so unusual as to create more stress than that felt by any police officer during a routine stop of a fleeing suspect. Under these circumstances, expert testimony about the various factors affecting eyewitness observations would have added little beyond the credibility challenges that Mr. Perez's counsel raised through cross-examination. Accordingly, counsel was not deficient for failing to introduce the expert testimony at trial.
7. Failure to Object to "Bolstering and Vouching" by Prosecutors
The petitioner argues that his trial counsel should have objected to the prosecution's "bolstering and vouching" of their own witnesses. In supporting this contention, however, Mr. Perez cites only to a portion of the prosecutor's opening statement, in which no references are made to witness testimony. (Perez 2/2/99 Aff. at 42; Tr. at 209). In the absence of evidentiary support, Mr. Perez's ineffective assistance claim must fail.
8. Failure to Minimize Prejudice During In-Court Identifications
As discussed above, the eyewitness identifications of Mr. Perez presented at trial constituted strong and reliable evidence on which to convict him. The petitioner has failed to show that this evidence could have been affected merely by changing the location of the petitioner's seating during trial. The decision to seat Mr. Perez at the defense table was therefore a reasonable "strategic choice" made by counsel,Strickland, 466 U.S. at 690, and should not be second-guessed.
9. Failure to Seek Severance of Trial
The petitioner argues that his trial counsel should have sought to sever his trial from that of his co-defendant, Mr. Williams. Under CPL § 200.40(1), a court may, "for good cause shown," order a defendant to be tried separately from his co-defendants. Good cause shall include a finding that the defendant "will be unduly prejudiced by a joint trial."Id.
Mr. Perez has not shown that his joint trial with Mr. Williams caused undue prejudice to his defense, nor that good cause for severance otherwise existed. Mr. Perez appears to argue that, as with the issue of where Mr. Perez was seated during trial, a joint trial with Mr. Williams may have affected the accuracy of in-court identifications. (Perez 2/2/99 Aff. at 49-50). However, as discussed above, the eyewitness identifications offered by Mr. Hernandez and Detective Lockley were strong and independently reliable. As these identifications pertained toboth defendants, there is no evidence that a severance would have improved the strength of Mr. Perez's case. Accordingly, this aspect of Mr. Perez's ineffective assistance claim also fails.
10. Failure to Seek Dismissal of Indictment
The petitioner asserts that his counsel should have moved to dismiss his indictment mid-trial based on "false evidence" presented to the grand jury and on the insufficiency of the evidence. Both claims are meritless. To the extent that Mr. Wang's positive identification of the petitioner in grand jury proceedings (in light of his subsequent failure to identify Mr. Perez at trial) can be deemed to constitute "false evidence," it was rendered harmless by the trial jury's finding of guilt beyond a reasonable doubt. See United States v. Mechanik, 475 U.S. 66, 70 (1986). Moreover, under CPL § 210.20(2) and § 255.20(1), a motion to dismiss an indictment based on insufficiency of the evidence must generally be filed within 45 days after arraignment and before the commencement of trial. If made during trial, such a motion would be dismissed. Accordingly, the petitioner has not shown that his trial counsel was deficient for failing to seek a dismissal of the indictment mid-trial.
11. Failure to Request Wade Hearing on Show-up Procedures
For the reasons discussed above, the petitioner has failed to show that his trial counsel would have been successful in challenging the identification testimony of Mr. Hernandez and Detective Lockley at aWade hearing. In the absence of evidence that the alleged errors of his counsel affected the outcome of the trial, Mr. Perez's ineffective assistance claim fails.
12. Failure to Request Independent Source Hearing
For the reasons discussed above, the in-court identifications provided by Mr. Hernandez and Detective Lockley were solid and independently reliable. As trial counsel would not have succeeded in challenging the admissibility of this testimony, he did not provide ineffective assistance of counsel by failing to object at trial.
13. Failure to Request Dunaway Hearing
This claim is clearly meritless because the petitioner's trial counsel did, in effect, request a probable cause determination for the petitioner's arrest through his pretrial motion to suppress evidence. The trial judge explicitly considered the issue during the Mapp/Wade hearing, after which he held, "[t]he police clearly had probable cause to make an arrest and search and seize any property as a lawful incident to that lawful arrest." (H. at 70). Accordingly, trial counsel did not provide ineffective assistance by declining to request a second hearing to determine whether probable cause existed for the arrest.
Conclusion
Mr. Perez has procedurally defaulted most of his ineffective assistance claims concerning trial counsel. Nevertheless, Mr. Perez's claim that the default should be excused because appellate counsel was deficient for failing to challenge the performance of trial counsel compels me to consider the merits of the trial counsel claims. That analysis leads to the conclusion that neither trial counsel nor, accordingly, appellate counsel provided ineffective assistance in violation of the petitioner's constitutional rights.
I therefore recommend that this petition for writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Jed S. Rakoff, Room 1340, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.