Opinion
00 Civ. 8126 (PAC) (RLE).
October 21, 2005
Angel Quinones, Shawangunk Correctional Facility, Wallkill, NY, Pro se Petitioner.
Elizabeth F. Bernhardt, Assistant District Attorney, Bronx County, Bronx, NY, Attorney for Respondent.
REPORT AND RECOMMENDATION
To the HONORABLE PAUL. A. CROTTY, U.S.D.J.:
I. INTRODUCTION
Pro se petitioner Angel Quinones ("Quinones") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction of December 9, 1993, in New York State Supreme Court, Bronx County. Quinones was convicted of murder in the second degree, attempted murder in the second degree, robbery in the first degree, and two counts of criminal use of a firearm in the first degree. He was sentenced to an indeterminate term of imprisonment of twenty-five years to life for murder, to run concurrent with indeterminate terms of eight and one-third to twenty-five years for robbery, and twelve and one-half to twenty-five years for criminal use of a weapon. These sentences were to run consecutively with his concurrent indeterminate terms of eight and one-third to twenty-five years for attempted murder in the second degree, and twelve and one-half to twenty-five years for the second count of criminal use of a weapon. He is currently serving his sentences at Shawangunk Correctional Facility in Wallkill, New York.Quinones challenges his conviction and asserts that: 1) he was denied material evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); 2) he was denied effective assistance of appellate counsel in violation of the Sixth Amendment; 3) he received consecutive rather than concurrent sentences; and 4) various aspects of the jury instructions prejudiced his trial. For the reasons set forth below, I recommend that Quinones's petition be DISMISSED.
II. BACKGROUND
The State alleged that Quinones and his co-defendant, Rasheed Rice, shot Stanley Mobley to death on March 19, 1992, and severely wounded his brother, Michael, rendering him a quadriplegic. The prosecution's evidence at trial was primarily substantiated by two eyewitnesses — a fourteen year-old boy, Joseph Morales, and the surviving complainant, Michael Mobley. At trial, Morales testified that he was on his way home from a grocery store at 3:00 a.m. when he saw Quinones and Rice shoot the Mobley brothers. Prior to trial, defense counsel asked the prosecutor to produce any exculpatory evidence. Before Morales testified, the prosecutor revealed that Morales was a witness in an unrelated criminal proceeding in Manhattan County, and that although there was no formal agreement, Morales and his family had received reimbursement for their relocation expenses in exchange for their testimony in the other proceeding. Affidavit of Elizabeth F. Bernhardt (Assistant District Attorney, Bronx County) ("Bernhardt Aff.") at ¶ 6, submitted with Respondent's Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus ("Resp. Opp.").Following Quinones's conviction, his appellate counsel discovered that Morales had testified in the other case concerning his drug-gang-related activities as a thirteen year-old employee of the Wild Cowboys gang. See Bernhardt Aff. ¶ 7. Quinones appealed, charging that the State had withheld this impeachment evidence in violation of Brady, and filed a motion to vacate the conviction pursuant to Criminal Procedure Law ("CPL") § 440.10. The motion was denied on July 11, 1996, and the conviction unanimously affirmed by the Appellate Division on June 30, 1998. People v. Quinones, 675 N.Y.S.2d 61 (App.Div. 1st Dep't 1998). The Appellate Division specifically found "there [was] no reasonable possibility that disclosure of potential impeachment material contained in the eyewitness's Grand Jury testimony in an unrelated case . . . could have affected the verdict." Id. The Appellate Division reasoned that Morales was never criminally prosecuted for the various unlawful acts he committed at the age of thirteen, and that he received no express or implied promises of leniency from the prosecution. Id. The Appellate Division also pointed out that Morales's testimony was corroborated by that of Michael Mobley. Id.
Mobley testified that Quinones shot his brother to death. Shortly after the crime, Mobley accurately described Quinones and his co-defendant, and "unhesitatingly identified defendant at trial." Quinones, 675 N.Y.S.2d at 61; see Trial Transcript ("Tr.") at 594, 598-600. Mobley, however, had previously failed to identify Quinones at a lineup held on June 1, 1992, less than three months after the shooting. Tr. at 667. The Appellate Division found that "that error was explained by evidence that defendant's appearance had changed between the time of the incident and the lineup." Quinones, 675 N.Y.S.2d at 61. Review of Quinones's Brady claim was denied by the New York Court of Appeals on September 29, 1998. People v. Quinones, 92 N.Y.2d 929 (1998).
On August 6, 1999, this Court's Pro Se Office received Quinones's original habeas petition, advancing the single claim that the prosecutor withheld exculpatory evidence in violation of Brady. On October 4, 1999, Quinones moved to withdraw this petition, in order to pursue state remedies on other claims. District Judge Loretta A. Preska granted Quinones's motion to dismiss his petition voluntarily without prejudice, but warned him that the Antiterrorism and Effective Death Penalty Act ("AEDPA") imposes a one-year limitations period on habeas corpus petitions. See Order, filed November 1, 1999 ("Preska Order").
On August 20, 1999, Quinones had petitioned the New York State Appellate Division, First Department, for a writ of error coram nobis, claiming that he had been denied the effective assistance of appellate counsel. This petition was denied on June 1, 2000. People v. Quinones, 714 N.Y.S.2d 626 (App.Div. 1st Dep't 2000). On June 30, 2000, Quinones sought leave to appeal to the New York State Court of Appeals, but the application was denied on August 2, 2000. Bernhardt Aff., Exh. 14.
Quinones thereupon returned to federal court, submitting the identical habeas petition he had submitted on August 6, 1999. This submission was received in the Pro Se Office on August 9, 2000, and on October 23, 2000, the Court sua sponte ordered Quinones to amend his petition to indicate clearly whether he had exhausted his state remedies. See Order, filed October 23, 2000 ("Mukasey Order 1"). Quinones filed the amended habeas petition on January 10, 2001, raising an additional claim of ineffective assistance of appellate counsel, the claim he had addressed in his second round of state court post-conviction proceedings. Petitioner's Amended Petition ("Am. Pet.") ¶ 7. Quinones pointed out three issues which his counsel had not raised in state court. Id. at ¶ 9-10. He asked to be allowed to return to state court to exhaust these claims. Id. at ¶ 11. The Court indicated that while Quinones could withdraw his petition without prejudice, and file a new petition at a later date, any new petition might be time-barred because Quinones appeared to have passed the AEDPA's one-year statute of limitations. See Order, filed February 15, 2001 ("Mukasey Order 2"), at 3-4.
The Court first ordered Quinones to show cause by written affirmation why the statute of limitations should not bar his petition for habeas corpus relief. Id. Quinones mailed an affirmation arguing that his writ of error coram nobis was pending in state court until its denial on June 1, 2000, and his application to appeal the denial was rejected on August 2, 2000. See Petitioner's Affirmation, filed April 23, 2001 ("Pet. Aff."). He argued that the AEDPA's limitations period was tolled during the time in which the state court reviewed his petition, and that he had complied with every deadline imposed by the AEDPA. Id. The case was referred to the undersigned on May 16, 2002, and reassigned to District Judge Paul Crotty on August 10, 2005.
III. ANALYSIS
A. Timeliness
Pursuant to the AEDPA, a one-year statute of limitations applies to petitions for writs of habeas corpus by state prisoners. 28 U.S.C. § 2244(d). The Second Circuit has held that the limitations period "does not begin to run until the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or — if the prisoner elects not to file a petition for certiorari — the time to seek direct review via certiorari has expired." Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001).
Pursuant to 28 U.S.C. § 2244(d)(2), the one-year limitations period may be tolled during the pendency of "a properly filed application for State post-conviction or other collateral review." This tolling provision merely "excludes time during which properly filed state relief applications are pending but does not reset the date from which the one-year statute of limitations begins to run." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) ( per curiam ), cert. denied, 531 U.S. 840 (2000). The time in which a habeas petition is pending in federal court does not toll the one-year limitations period. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
Quinones's conviction became final on December 28, 1998, ninety days after leave to appeal to the Court of Appeals was denied. Williams, 237 F.3d at 151. His pending application with the Appellate Division for a writ of error coram nobis, dated August 20, 1999, tolled the statute of limitations from that date until the Appellate Division denied his application on June 1, 2000. See Pet. Aff.; 28 U.S.C. § 2244(d)(2). Quinones's amended habeas petition was received in the Pro Se office on August 9, 2000, before expiration of the limitations period. Because the limitations period was tolled while his coram nobis application was pending in state court, the petition is therefore timely.
On June 30, 2000, Quinones sought leave to appeal the Appellate Division's decision to the New York State Court of Appeals. Supplementary Affidavit of Elizabeth F. Bernhardt ("Bernhardt Supp. Aff."), at ¶ 7. The Court of Appeals denied leave on August 2, 2000, noting that the Appellate Division's denial was not appealable. Id. at ¶ 8. The pendency of the Court of Appeals application does not toll the limitations period because further appellate review was unavailable once the Court of Appeals denied leave to appeal. Hizbullahankhamon v. Walker, 255 F.3d 65, 70 (2d Cir. 2001).
B. Exhaustion
Generally, a federal court may not consider a petition for habeas corpus unless the petitioner has exhausted all state judicial remedies. See 28 U.S.C. § 2254(b)(1)(A). The exhaustion doctrine requires a habeas petitioner challenging a state conviction on federal grounds to have presented his or her claims to the state courts first. See Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 191 (2d Cir. 1982) ( en banc ), cert. denied, 464 U.S. 1048 (1984). In Rose v. Lundy, 455 U.S. 509, 522 (1982), the Supreme Court established that district courts "must dismiss habeas petitions containing both unexhausted and exhausted claims." However, since Lundy, the AEDPA amendments allow district courts to deny a habeas petition on the merits even if some of the claims have not been exhausted. 28 U.S.C. § 2254(b)(2). See Witt v. Fisher, 2002 WL 1905946, *4 n. 3 (S.D.N.Y. Aug. 19, 2002).
Quinones's amended petition presents a "mixed petition" of exhausted and unexhausted claims. He has fully exhausted his Brady claim and the initial grounds for his ineffective assistance of appellate counsel claim by pursuing the appropriate state-court relief. Quinones's new claims, however, have never been presented to the state courts. As outlined below, I find each of these claims to be without merit, and therefore recommend that the Court deny Quinones's petition even though it contains unexhausted claims.
C. Merits of the Brady Claim
The prosecution may not suppress evidence favorable to an accused "where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution." Brady, 373 U.S. at 87. Suppression of such evidence is considered a violation of due process and unfair treatment towards the accused, possibly rendering the trial inequitable. Id. The government has an affirmative duty to disclose material exculpatory or impeachment evidence, regardless of whether it is requested by the defense. United States v. Jackson, 345 F.3d 59, 68-69 (2d Cir. 2003). A new trial is not, however, granted automatically even if a court finds that evidence possibly useful to the defense was withheld. The court must find that the evidence is material. Giglio v. United States, 405 U.S. 150, 154 (1972). Evidence is considered "material" if there is a reasonable probability that, had the evidence favorable to the accused been disclosed, the result of the court proceeding would have been different. See Kyles v. Whitley, 514 U.S. 419, 434 (1995).
Three elements comprise any successful Brady claim: first, the evidence at issue must be favorable to the accused, either because it is exculpatory or impeaching; second, the evidence must have been suppressed by the State, either willfully or inadvertently; and third, prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 281-82 (1999); United States v. Coppa, 267 F.3d 132, 140 (2d Cir. 2001). Neither the first nor third element is established here.
1. The Evidence is Not Sufficiently Favorable
Quinones claims that although the prosecutor revealed some Brady material regarding Morales prior to his trial testimony, he failed to reveal information concerning Morales's involvement with the sale of drugs at the age of thirteen. See Affirmation, Jeffrey Udell, submitted in support of CPL § 440.10 motion ("Udell Aff."), Resp. Exh. 1, ¶ 16-21. Quinones argues that if the jury had known about Morales's prior bad acts in the drug trade, a reasonable possibility exists that it would have reached a different result. Id.
The evidence indicating that Morales participated in illegal drug-related activities is not definitively exculpatory or impeaching. Morales had not been charged for any crime, and the information was likely inadmissible for impeachment purposes. See People v. Alvino, 71 N.Y.2d 233, 242-43 (1987) (holding that evidence of similar uncharged crimes is excluded for policy reasons because it may induce the jury to base a finding of guilt on collateral matters). See also Badr v. Hogan, 555 N.Y.S.2d 249, 251 (1990) (stating that cross-examination with respect to specific immoral, vicious, or criminal acts must have some tendency to show moral turpitude to be relevant to credibility). Inadmissible evidence cannot support a Brady claim because it cannot be used to impeach.
Furthermore, speculation of an agreement between either the Bronx or Manhattan District Attorney's Office and Morales could not serve as valid impeachment material. There was no evidence to show an implicit agreement or that Morales received any express or implied promises of leniency for his testimony in the other trial. Quinones, 675 N.Y.S.2d at 61. Given the factual findings of the trial court, the evidence at issue does not pass the first hurdle of a Brady materiality showing. Strickler, 527 U.S. at 281.
2. Quinones Has Not Shown Sufficient Prejudice
Under the third component of Brady, if the evidence of Morales's various unlawful acts is to be taken as impeachment material, Quinones must demonstrate that prejudice ensued because this information was not disclosed. Strickler, 527 U.S. at 281. Even assuming that the government's Brady obligation required pretrial disclosure of Morales's involvement in the other trial and his prior bad acts, the failure to disclose caused no prejudice in Quinones's trial. First, as noted above, the information probably would not have been usable at trial. Second, there is no reasonable possibility that disclosure of the potential impeachment material could have affected Quinones's verdict, given that a second eyewitness, Michael Mobley, provided independent identification testimony. A new trial is generally not required when the testimony of a witness is corroborated by other testimony, or when the suppressed impeachment evidence merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable. United States v. Payne, 63 F.3d 1200, 1210 (2d Cir. 1995). Mobley was at the scene of the crime and rendered a quadriplegic after being shot in the back at close range. See Tr. at 628. Both Morales and Mobley testified that they saw Quinones fire the gun. Id. at 580-88, 819. While Mobley failed to identify Quinones at a lineup prior to trial, the error was attributed to Quinones's changed appearance between the time of the murder and the lineup. Quinones, 675 N.Y.S.2d at 61. The lineup took place approximately three months after the shooting, at which time Quinones had more facial hair than he did at the time of the crime. Tr. at 727. To explain his failure to identify Quinones at the lineup, Mobley testified to the grand jury that he "only glanced" at the shooter at the time of the crime. Id. However, at trial he insisted he had a "fair look" and that the man he saw was the defendant. Id. at 669, 672. The state court considered the contradiction and still found that Mobley's testimony, combined with that of Morales, did not suggest that Quinones received an inequitable trial.
The AEDPA restricts a federal court with respect to claims adjudicated on the merits in state court. 28 U.S.C. § 2254(d)(1). The court may only issue a writ if the state court adjudication resulted in a decision that (1) "was contrary to clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) ( quoting 28 U.S.C. § 2254(d)(1)); Shabazz v. Artuz, 336 F.3d 154, 160-61 (2d Cir. 2003). Because Quinones is unable to demonstrate the materiality of the evidence pertaining to Morales's prior involvement in the drug trade or a deal between the witness and the Bronx or Manhattan District Attorney's Office, he has failed to meet the standards articulated in § 2254(d)(1) . I therefore recommend that Quinones's Brady claim be DENIED.
D. Merits of the Ineffective Assistance of Counsel Claim
Quinones's amended petition lists various issues he claims his appellate counsel should have addressed in his first application for a writ of error coram nobis. Quinones raised two of the issues in his second application: 1) his counsel's decision not to file an Anders brief; and 2) his counsel's decision not to argue for application of a federal standard in consideration of his Brady claim. Other issues in the petition have not been raised in state court: 1) that he received consecutive sentences for felony murder and robbery rather than concurrent sentences, Am. Pet. at ¶ 9; 2) that the trial court instructed the jury that the prosecution's failure to preserve evidence deprived the prosecution of inspecting that evidence when the charge should also have stated that the failure to preserve evidence deprived the defense of an opportunity to inspect the evidence, id. at ¶ 10.; and 3) that the trial court's charge lowered the standard of proof for the prosecution by referring to the jury's duty to render a true verdict rather than referring to evidence or lack of evidence as the basis for a true verdict. Id. at ¶ 11.
1. State Court Adjudication of Initial Ineffective Assistance of Counsel Claim
In order to establish an ineffective assistance of counsel claim, a defendant must show: (1) "that counsel's performance was deficient," in that the attorney "made errors so serious" that the representation fell below "an objective standard of reasonableness;" and (2) "that counsel's errors were so serious as to deprive the defendant of a fair trial." Strickland, 466 U.S. at 687-88. The Strickland test applies to appellate as well as trial counsel. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
The Appellate Division referred to a single case in denying Quinones's second application for writ of coram nobis based on ineffective assistance of appellate counsel: People v. De la Hoz, 520 N.Y.S.2d 386 (App.Div. 1st Dep't 1987). Order, Appellate Division, First Department, June 1, 2000; see Resp. Exh. 12. In De la Hoz, the petitioner based his claim on the fact that his attorney had not filed a Saunders [ People v. Saunders, 384 N.Y.S.2d 161 (App.Div. 1st Dep't 1976)] brief, the state-court equivalent of an Anders [ Anders v. California, 386 U.S. 738 (1967)] brief. De la Hoz, 520 N.Y.S.2d at 386. A Saunders or Anders brief is filed when an attorney cannot identify any non-frivolous issue for appeal and requests to withdraw from the case. Saunders, 384 N.Y.S.2d at 161. Applying Strickland v. Washington, 466 U.S. 668 (1984), the court in De la Hoz found none of the issues the petitioner raised would warrant reversal, noting that, instead of a Saunders brief, his attorney had raised non-frivolous issues for appeal, which is the "preferred procedure." De la Hoz, 520 N.Y.S.2d at 388. While the Appellate Division provided no discussion in Quinones's case, the citation to De la Hoz indicates the same reasoning is to be applied here. Instead of filing a Saunders brief, Quinones's counsel filed a brief focusing on a non-frivolous issue — the Brady claim. As the court stated in De la Hoz, counsel's decision is the better strategy, and does not demonstrate ineffective assistance of counsel. Id.
Similarly, Quinones's complaint that counsel did not argue the federal standard for ineffective trial assistance challenges a question of strategy. Not only did his counsel file a lengthy brief on the Brady issue, but may also have chosen the better strategy. See People v. Valardi, 76 N.Y.2d 67, 77-78 (1990) (comparing the state law standard — whether there was a "reasonable possibility" that withheld evidence could have affected the result of the proceeding — to the federal standard of "reasonable probability"). Furthermore, by including citations to federal law, Quinones's counsel raised a federal issue so as not to jeopardize future federal relief.
The Appellate Division's rejection of Quinones's claims of ineffective assistance of counsel was not an "unreasonable application" of Strickland. "[J]udicial scrutiny of counsel's performance must be highly deferential." Cowan v. Artuz, 96 F. Supp. 2d 298, 304 (S.D.N.Y. 2000) ( quoting Strickland, 466 U.S. at 689)). Additionally, "[a] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." United States v. Mocombe, 2000 WL 488464, *2 (S.D.N.Y. Apr. 24, 2000) ( quoting Strickland, 466 U.S. at 689)). There must be a reasonable probability that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694; see also Keiser v. New York, 56 F.3d 16, 18 (2d. Cir. 1995). Not finding such a probability, the Appellate Division appropriately denied Quinones's application.
2. New Ineffective Assistance of Counsel Claims
The three additional issues raised by Quinones in his petition add no merit to his claim of ineffective assistance of counsel. Under Strickland 's two-part "performance" and "prejudice" test, Quinones fails to demonstrate "performance so deficient," and "errors so serious as to deprive [him] of a fair trial." Strickland, 466 U.S. at 687-88.
a. Deficient Performance
To demonstrate deficient performance, Quinones must show that counsel's performance was "objectively unreasonable under professional standards prevailing at the time." See Cowan, 96 F. Supp. 2d at 305 ( quoting Grady v. Artuz, 931 F. Supp. 1048, 1061 (S.D.N.Y. 1996)). "Appellate counsel's performance will not be deemed unreasonable merely because [he] failed to `advance every nonfrivolous argument.'" Urena v. New York, 160 F. Supp. 2d 606, 612 (S.D.N.Y. 2001) ( quoting Mayo, 13 F.3d at 533). A petitioner will establish constitutionally inadequate performance when he shows that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo, 13 F.3d at 533. This is not the case here. Quinones's appellate counsel raised critical arguments on appeal; the Brady claim was clearly a non-frivolous issue. "[C]ounsel may focus on key issues and `winnow out weaker arguments.'" Urena, 160 F. Supp. 2d at 612 ( quoting Jones v. Barnes, 463 U.S. 745, 751 (1983)). By simply pointing out other issues his counsel could have raised, Quinones has not established deficient performance rising to the level of ineffective assistance of counsel under Strickland.
b. Prejudice
To meet the second prong of showing prejudice, Quinones must establish the reasonable probability that, but for appellate counsel's failure to raise a particular claim, the result of the appellate proceeding would have been different. See Strickland, 466 U.S. at 694. Quinones has made no demonstration of prejudice to his case in reference to the issues he raises here. Two of these issues, consecutive sentencing and the adverse inference charge, were raised by counsel for Quinones's co-defendant on appeal. Respondent's Supplementary Memorandum of Law at 14. In People v. Rice, 636 N.Y.S.2d 751 (App.Div. 1st Dep't 1996), the Appellate Division affirmed the co-defendant's conviction, demonstrating that, even had Quinones's counsel raised these issues, his conviction would also likely have been affirmed.
As for the third issue, Quinones claims the judge's jury charge appealed to the jurors' "moral obligations," rather than their responsibility to consider the evidence. Am. Pet. ¶ 11. However, the record reflects that the Court instructed the jury to "decide this case solely and totally on the basis of the evidence or the lack of evidence presented to you in this courtroom." Tr. at 1172. As for an appeal to the jury's "moral obligations," Am. Pet. ¶ 11, the section of the jury charge at issue is simply a routine reference to the jurors' responsibilities. Tr. at 1264.
In light of the foregoing, Quinones has not demonstrated ineffective assistance of counsel. A review of the record indicates that his appellate counsel's performance was neither deficient nor laden with errors that deprived him of a fair trial. I recommend, therefore, that Quinones's claim of ineffective assistance of appellate counsel be DENIED.
E. Merits of the Unexhausted Claims
The exact standard for denial of unexhausted claims under 28 U.S.C. § 2254(b)(2) remains unclear. Conyers v. McLaughlin, 2000 WL 33767755, *7 n. 5 (N.D.N.Y. Jan. 27, 2000). Some courts have applied a "patently frivolous" standard, id ; see Rodrigues v. Miller, 1997 WL 599388, at *3 (S.D.N.Y. Sept. 29, 1997), while others have asked the question whether "it is perfectly clear that the [petitioner] does not raise even a colorable federal claim." Cowans v. Artuz, 14 F. Supp.2d 503, 506 (S.D.N.Y. 1998) ( quoting Lambert v. Blackwell, 134 F.3d 506, 514-15 (3d Cir. 1997)). I find it unnecessary to decide which standard should apply, because under either standard, Quinones's unexhausted claims should be denied.
1. Consecutive vs Concurrent Sentencing
Quinones claims that he should have received concurrent rather than consecutive sentences for his felony murder and first degree robbery charges. In fact, Quinones did receive concurrent sentences for those charges. Bernhardt Aff, Exh. 6, at 2. His sentences for second degree murder, first degree robbery, and one count of criminal possession of a firearm ran concurrently, and his sentences for second degree attempted murder and a second count of criminal possession of a weapon ran consecutive to those sentences. Id. Moreover, "[t]here is `no constitutionally cognizable right to concurrent, rather than consecutive, sentences.'" United States v. McLean, 287 F.3d 127, 136-37 (2d Cir. 2002) ( citing United States v. White, 240 F.3d 127, 135 (2d Cir. 2001)). I recommend this claim be DENIED.
2. Adverse Inference Charge
Quinones claims that the charge regarding evidence destroyed by the prosecution was improper because the judge focused on the prosecution's inability to inspect the evidence once it was destroyed, rather than the defense's opportunity to inspect it, thereby lowering the standard of proof. Am. Pet. ¶ 10. However, the actual charge did not refer to either side's ability to inspect the evidence, but instead instructed the jury that if they were not satisfied with the State's explanation for the destruction of the evidence, the jury could infer that the items "would not have supported the People's case." Tr. at 1200-03. The adequacy of the charge was reviewed by the Appellate Division upon appeal by Quinones's co-defendant. "The adverse inference charge was a sound exercise of the court's discretion, assuming any sanction was required in the first place." Rice, 636 N.Y.S.2d at 752 (noting the probative value of the destroyed evidence was "marginal" and the destruction "inadvertent"). Accordingly, I recommend that this claim be DENIED.
3. Jury Charge
A review of the record shows that the jury charge contained exactly the instruction Quinones now claims the charge lacked. This claim "does not raise even a colorable federal claim," and is "patently frivolous." Cowans, 14 F. Supp. at 506-07. I recommend this claim be DENIED.
IV. CONCLUSION
For the foregoing reasons, I recommend that the petition be DISMISSED.Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Paul A. Crotty, 500 Pearl Street, Room 2102, and to the chambers of the undersigned, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Sec'y of Health Human Serv., 892 F.2d 15, 16 (2d Cir. 1989) ( per curiam ); 28 U.S.C. §§ 636(b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).