Opinion
Civ. 00-5870 (LBS)
October 21, 2002
MEMORANDUM AND ORDER
Santiago Rivera ("Rivera" or "Petitioner") petitions pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In October, 1997, Rivera was convicted by a Kings County jury of one controlled substance and one weapons charge. On November 13, 1997, he was sentenced on those charges to concurrent terms of seven and one-half to fifteen years and one year, respectively. Rivera now raises various claims in his petition for habeas corpus relief. Applying a liberal construction because Petitioner is proceeding pro se, the Court discerns the following claims: 1) That his indictment was defective because the District Attorney never properly appealed the dismissal of a prior complaint; 2) that the District Attorney never notified him of his right to testify before the grand jury; 3) that the evidence against him was the fruit of a statement taken in violation of his Miranda rights; 4) that the search warrant in his case was not supported by probable cause; 5) that he was denied the right to a speedy trial; 6) that his trial counsel was ineffective for failing to obtain dismissal of the indictment and suppress evidence on the basis of the first four listed grounds; 7) that his trial counsel was ineffective for failing to notify him of his right to testify before the grand jury; and 8) that his appellate counsel was ineffective. The Court finds that the first six claims are procedurally defaulted, and that the seventh and eighth claims, though unexhausted, are nonetheless without merit.
Petitioner also argues, apparently in the alternative, that the search warrant was a forgery or that it never existed.
This claim is argued in the alternative with Petitioner's second claim: if the People failed to notify his counsel of the right to testify, then the indictment was defective; if the People did notify his counsel but the lines of communication broke down thereafter, then his counsel was ineffective.
I. Background
On December 11, 1996, the police arrested Rivera while executing a search warrant at 15 Argyle Road in Brooklyn. In a search of Rivera's person, the arresting officer discovered four packets of cocaine. (Transcript of Suppression Hearing, Sept. 23-24, 1997 ("Suppression Hearing"), at 97-98.) Without first reading him his Miranda warnings, the arresting officer asked Rivera "where the drugs were." Rivera responded that they were "in there." (Id. at 11, 24.) The police subsequently searched the apartment, and discovered in a bedroom dresser 65 packets of cocaine and a loaded .32 caliber revolver. (Transcript of Trial, Sept. 25-Oct. 7, 1997 ("Trial") at 624-25.) Two days later, Rivera was arraigned on multiple drug and weapons charges. Rivera's attorney notified the People of his intention to testify before the grand jury (Letter from Neil Ruskin to District Attorney, Dec. 13, 1996), but on January 22, 1997, the state court dismissed the charges without prejudice. See People v. Rivera, No. 15503/96 (N.Y.Sup.Ct. Sept. 23, 1997) (order denying motion under N.Y. Crim. Proc. L. § 30.30) (reviewing case chronology). In March, 1997, the District Attorney brought the case to the grand jury. According to the government, at this time Rivera's counsel "informed the People that defendant was waiving his right to testify," and on April 4, 1997, the grand jury indicted Rivera on three counts of Criminal Possession of a Controlled Substance in the Third Degree, one count of Criminal possession of a Controlled Substance in the Fifth Degree, and one count of Criminal Possession of a Weapon in the Second Degree. (Affidavit in Opposition to Petition for a Writ of Habeas Corpus ("Gov. Aff.") at 3-4).
On June 16, 1997, Rivera's attorney Neil Ruskin ("Ruskin") made an omnibus motion seeking, inter alia, to suppress the evidence obtained as a result of Rivera's non-Mirandized statement and to controvert the warrant pursuant to which Rivera was arrested and the Argyle Road apartment was searched. On September 2, 1997, a Kings County Supreme Court judge ordered the District Attorney to deliver to the defense copies of the documents underlying the search warrant (that is, the affidavit and the transcript of the application before the issuing magistrate) redacted to conceal the identity of a confidential informant. People v. Rivera, No. 15503/96 (N.Y.Sup.Ct. Sept. 2, 1997). At an unidentified later date, the same judge apparently determined that Rivera was not entitled even to a redacted version of the documents and sealed the entire file, but after an in camera inspection held that the warrant was supported by probable cause. (Suppression Hearing at 6-7, 43, 84-87; see also Gov. Aff. at 5 and n. 1.) On September 23, 1997, two days before the scheduled start of Rivera's trial, Ruskin filed a motion to dismiss the indictment pursuant to N.Y. Crim. Proc. L. § 30.30 on the ground that the District Attorney was not ready for trial within 180 days of the commencement of the action. After a hearing that day, a second Supreme Court judge denied the motion on the ground that only 166 days were chargeable to the government. Rivera, No. 15503/96 (N.Y.Sup.Ct. Sept. 23, 1997). On the same day, Supreme Court Justice Francois Rivera (no relation) held a suppression hearing in response to Ruskin's pretrial motion. At the hearing, Ruskin again moved unsuccessfully for disclosure of the documents underlying the search warrant. (Suppression Hearing at 42-44, 88, 91-93.) At the close of the hearing, Justice Rivera suppressed Petitioner's statement, but ruled that none of the physical evidence should be excluded because it either was or would inevitably have been discovered pursuant to the valid warrant. (Id. at 135-139.)
At trial, Rivera was convicted of one count of Criminal Possession of a Weapon in the Fourth Degree and one count of Criminal Possession of a Controlled Substance in the Third Degree (relating only to the drugs found on his person). (Gov. Aff. at 8.) Petitioner's appellate attorney, Edward Irizarry ("Irizarry"), filed a timely appeal raising as error only the length of Rivera's sentence and the failure of the § 30.30 motion. The Appellate Division unanimously denied both grounds, finding that the sentence was not excessive, and that Rivera's initial § 30.30 motion was barred because "[t]he defendant failed to provide the People with reasonable notice of his motion to dismiss the indictment. In any event, we find that the Supreme Court properly denied the defendant's motion." People v. Rivera, 270 A.D.2d 365, 704 N.Y.S.2d 873 (2d Dep't 2000) (citations omitted). Irizarry sought leave to appeal to the Court of Appeals, but on July 28, 2000, leave was denied. People v. Rivera, 95 N.Y.2d 857, 714 N.Y.S.2d 8 (2000). Acting without counsel, Rivera commenced the instant petition on September 28, 2000.
II. Discussion
A. Exhaustion and Procedural Default
"If anything is settled in habeas corpus jurisprudence, it is that a federal court may not grant the habeas petition of a state prisoner `unless it appears that the applicant has exhausted the remedies available in the courts of the State.'" Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) (quoting 28 U.S.C. § 2254 (b)(1)(A)). As a corollary to this rule, "a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred." Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991)); see also 28 U.S.C. § 2254 (b)(1)(B). "This apparent salve, however, proves to be cold comfort to most petitioners" because if claims are procedurally barred in state court, "federal habeas courts also must deem the claims procedurally defaulted." Aparicio, 269 F.3d at 90 (citing Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991)).
None of the claims Petitioner urges in his habeas petition were presented in his state court appeal. (See Brief for Defendant-Appellant Santiago Rivera (undated).) Each of these claims is therefore either unexhausted (if Petitioner can still file them in state court) or procedurally defaulted (if he cannot). Because Petitioner has already filed one direct appeal to the Appellate Division, and been denied leave to appeal to the Court of Appeals, he may no longer file another direct appeal. See Aparicio, 269 F.3d at 91 (citing N.Y. Crim. Proc. L. § 450.10(1); N.Y. Court R. § 500.10(a)). Petitioner may still seek collateral review in state court, but under New York law he may not seek collateral review of any claims he could have, but did not, raise on direct appeal. See id. (citing N.Y. Crim. Proc. L. § 440.10(2)(c)). Whether a claim could have been raised on direct appeal depends, in turn, on the adequacy of the record with regard to that claim at the time of the appeal. See Reyes, 118 F.3d at 139 (citing Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995)).
There can be little question that Rivera could have raised on direct appeal his first five claims (his objections to the indictment and grand jury proceedings, his Fourth and Fifth Amendment suppression claims, and his speedy trial claim). None of these claims would have required the creation of an additional record to permit "adequate review." N.Y. Crim. Proc. L. § 440.10(2)(c).
Indeed, Rivera asserts that he did raise his speedy trial claim, in the form of his appeal of the denial of his § 30.30 motion. A New York § 30.30 statutory claim, however, is distinct from a federal constitutional speedy trial claim. See, e.g., Rodriguez v. Miller, 1997 U.S. Dist. LEXIS 14742, *3-*6 (S.D.N.Y. Sept. 29, 1997) (Baer, J.). In his appellate briefs, Petitioner continually referred to his claim as one under § 30.30 rather than under the federal Constitution; his analysis was geared toward the state statute rather than the Sixth and Fourteenth Amendments; and he cited only state cases. (Brief for Defendant-Appellant Santiago Rivera; Reply Brief for Defendant-Appellant Santiago Rivera, Oct. 15, 1999.) The People responded in the same terms. (Respondent's Brief, Sept. 17, 1999.) Although a habeas petitioner "is not required . . . to cite chapter and verse of the Constitution to satisfy the exhaustion rule," he must nonetheless "fairly apprise the state court of a federal constitutional claim by relying on federal and state cases that employ a constitutional analysis, asserting the claim in terms that call to mind a specific right protected by the Constitution, or alleging facts that fall well within the mainstream of constitutional litigation." Levine, 44 F.3d at 124 (quoting Dave v. Attorney General, 696 F.2d 186, 192-94 (2d Cir. 1982) (en banc)). Rivera's § 30.30 appellate brief is therefore not sufficient to exhaust a federal constitutional speedy trial claim. See Rodriguez, 1997 U.S. Dist. LEXIS 14742, at *6 (holding that "a CPL section 30.30 claim does not present the state court with the same factual and legal issues as a Sixth Amendment speedy trial claim"). The Court therefore finds that each of Petitioner's first five claims is both exhausted and procedurally defaulted.
The exhaustion of Rivera's ineffective assistance of trial counsel claims presents a more complicated question. Rivera premises his ineffective assistance claim partly on Ruskin's failure to win the suppression motion, controvert the search warrant, and obtain dismissal of the indictment. The Court assumes that the record of the proceedings would have been sufficient to permit Rivera to raise these grounds on direct appeal. See, e.g., Aparicio, 269 F.3d at 90-91 (assuming that an ineffective assistance claim relating to failure to object to the indictment could have been raised on appeal); Reyes, 118 F.3d at 139 (finding that an ineffective assistance claim could have been raised on appeal). Insofar as Petitioner's ineffective assistance claim rests on these grounds, then, it can no longer be raised collaterally in state court, and should be deemed both exhausted and procedurally barred.
But Rivera also claims ineffective assistance on the ground that Ruskin may have failed to communicate to Rivera the latter's right to testify before the grand jury — a matter not contained within the trial record. The Court finds that this claim could hypothetically be raised via a § 440.10 collateral attack, and that an ineffective assistance claim premised on this alleged failure to communicate therefore remains unexhausted. See People v. Harris, 109 A.D.2d 351, 360, 491 N.Y.S.2d 678 (2d Dep't) (finding that an ineffective assistance claim should be heard under § 440.10 because the record "[o]bviously" did not reflect communications between counsel and defendant), appeal denied, 66 N.Y.2d 919, 489 N.E.2d 779 (1985); Caballero v. Keane, 42 F.3d 738, 740-41 (2d Cir. 1994) (finding an ineffective assistance claim unexhausted where it "raise[s] a matter clearly outside of the trial record"); Rowe v. New York, 2002 U.S. Dist. LEXIS 1142, *9 n. 1 (S.D.N.Y. Jan. 25, 2002) (Lynch, J.) (finding that an ineffective assistance claim premised on failure to contact witnesses was unexhausted because it could not have been raised on direct appeal).
The Court is aware that some courts have articulated a presumption against "bifurcating" ineffective assistance claims. See, e.g., Rowe, 2002 U.S. Dist. LEXIS 1142, at *7 ("Because a claim of ineffective assistance of counsel `can turn on the cumulative effect of all of counsel's actions, all his allegations of ineffective assistance should be reviewed together.'") (quoting Rodruguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991)); see also Caballero, 42 F.3d at 741 (finding an ineffective assistance claim unexhausted even though some of the underlying bases had been presented to the state court). Other courts have without analysis divided ineffective assistance claims into subparts for a variety of reasons, including partial exhaustion or default, or simply for clarity of discussion. See, e.g., Rodriguez v. Mitchell, 1996 U.S. App. LEXIS 3155, *4-*5 (2d Cir. Feb. 23, 1996) (unpublished opinion) (affirming the district court's dismissal of an ineffective assistance claim insofar as it was premised on the failure to cross examine a witness and failure to permit the defendant to testify, but dismissing the claim as unexhausted insofar as it was premised on the trial attorney's alleged schizophrenia); Rodriguez v. Mitchell, 252 F.3d 191, 196 (2d Cir. 2001) (explaining the holding in the unpublished opinion).See also Aparicio, 269 F.3d at 87-88 (analyzing separately "ineffective assistance of trial counsel for failing to request the eyewitness identification instruction" and "ineffective assistance of trial counsel for failing to object to the indictment on double jeopardy grounds").
The Court finds that where the unexhausted portion of the claim is clearly without merit and would add nothing to the overall evaluation of the ineffective assistance claim, the concerns expressed in Rowe are by their own terms inapplicable. In such a case, bifurcation of the claim would not "distort the application of the Strickland standard." Rowe, 2002 U.S. Dist. LEXIS 1142, at *8. The unexhausted element here fails to contribute to the "cumulative effect" of the other elements because the failure to notify Petitioner of his right to testify at the grand jury could not have been prejudicial within the meaning of Strickland v. Washington, 466 U.S. 668 (1984). See discussion in text, infra.
Rivera's ineffective assistance of appellate counsel claim, for obvious reasons, could not have been decided on direct appeal, and must be raised in state court before it is exhausted for habeas purposes. See Aparicio, 269 F.3d at 87 n. 1 (noting that the writ of coram nobis is available in New York to raise claims of ineffective assistance of appellate counsel).
A determination that several of Rivera's claims are procedurally defaulted is not the end of the inquiry regarding those claims. A federal district court may entertain otherwise defaulted habeas claims if the petitioner 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 v. Thompson, 501 U.S. 722, 750 (1991); see also Aparicio, 269 F.3d at 90. Construing his petition liberally, the Court finds that Petitioner asserts as cause for the failure to appeal his first five claims the ineffective assistance of his appellate counsel. Ineffective assistance of counsel can indeed constitute cause to excuse procedural default. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Murray v. Carrier, 477 U.S. 478, 488-89 (1986)); see also Aparicio, 269 F.3d 78 at 91. Before it can be raised as cause, however, the ineffective assistance claim must itself be exhausted in state court. Carpenter, 529 U.S. at 451-52. As established above, Rivera's ineffective assistance of appellate counsel claim remains unexhausted, and therefore may not now be invoked as cause to excuse the default of his other claims.
B. Analysis
Given that Rivera's petition contains both exhausted and unexhausted claims, it constitutes a so-called mixed petition. In 1982, the Supreme Court in Rose v. Lundy, 455 U.S. 509, 510 (1982), announced the rule that a mixed petition must be dismissed in its entirety. "Under AEDPA, however, `an 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.'" Turner v. Artuz, 262 F.3d 118, 122 (2d Cir. 2001) (per curiam) (quoting 28 U.S.C. § 2254 (b)(2)). A district court faced with a mixed petition now has the option of 1) "offer[ing] the petitioner `the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims,'" or 2) "dismiss[ing] the petition with a judgment on the merits." McKethan v. Mantello, 292 F.3d 119, 122 (2d Cir. 2002) (quoting Rose, 455 U.S. at 510).
In this case, although the Court finds that two of Petitioner's claims are unexhausted, it elects to dismiss them on the merits "because, regardless of what the State courts might decide upon further consideration of the federal issue," Petitioner is not entitled to relief in federal court. Saldana v. New York, 850 F.2d 117, 120 (2d Cir. 1988). The interests underlying the exhaustion requirement would not be served by mandating that Petitioner return to state court to exhaust claims for the sole purpose of having them later rejected in this Court. By the same token, the determination that Petitioner is not entitled to any federal court relief on these claims "is not meant to prejudice any relief which may still be available to [Petitioner] under state law in the New York courts." Saldana, 850 F.2d at 119.
First, the Court finds that Rivera's unexhausted ineffective assistance of trial counsel claim (that is, the claim premised on attorney Ruskin's alleged failure to notify Rivera of his right to testify before the grand jury) lacks merit. To establish ineffective assistance, a defendant must demonstrate "not only that his counsel's representation was fundamentally defective, but also that, but for the counsel's errors, there is a reasonable probability that the result of the proceeding would have been different." Aparicio, 239 F.3d at 95 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Assuming arguendo that Ruskin did in fact fail to notify Rivera of his right to testify, and that it was "fundamentally defective" for him to do so, Rivera has failed to demonstrate prejudice therefrom. Not only does he offer no indication of what testimony he might have given before the grand jury that would have convinced its members not to indict, but his subsequent conviction by a petit jury under the reasonable doubt standard makes it highly unlikely he could have convinced the grand jury of the absence of probable cause. See Afflic v. New York, 2002 U.S. Dist. LEXIS 5625, *4-*5 (Martin, J.); Green v. Artuz, 990 F. Supp. 267, 273 (1998) (Baer, J.). Petitioner's seventh claim is therefore dismissed on the merits.
Similarly, the Court finds that Rivera's claim of ineffective assistance of appellate counsel is without merit. "Although theStrickland test was formulated in the context of evaluating a claim of ineffective assistance of trial counsel, the same test is used with respect to appellate counsel." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Indulging, as we must, "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, 466 U.S. at 689, the Court cannot find that it was unreasonable for Irizarry to focus his appeal on the potentially winnable § 30.30 motion and forgo the dubious grand jury, indictment, suppression, and ineffective assistance of trial counsel claims. "This process of `winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)). "Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." Mayo, 13 F.3d at 533 (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1985)).
Rivera's § 30.30 claim in all likelihood appeared relatively strong. The Supreme Court's denial of the initial motion was apparently based on an erroneous calculation of the number of days chargeable to the government. (See Rivera, (N.Y.Sup.Ct. Sept. 23, 1997) (calculating 41 days between January 22, 1997 and April 4, 1997); Brief for Defendant-Appellant Santiago Rivera at 8 ("[T]he lower court inexplicably omitted the month of March.") (emphasis in original).)) The Court finds no reason to believe that Petitioner's proposed alternative grounds of appeal were "clearly stronger." For similar reasons, the Court finds as well that Petitioner has failed to demonstrate any "`reasonable probability' that [his] claim would have been successful" had it contained any of the alternative grounds. Mayo, 13 F.3d at 534 (quoting Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992)).
Indeed, the Appellate Division did not address this reasoning and based its affirmance on other grounds. See Rivera, 270 A.D.2d at 365.
Beginning with Petitioner's objection to his indictment following the dismissal of the initial complaint, the District Attorney correctly points out that there is no requirement to appeal a dismissal without prejudice before refiling. The statutes referenced by Petitioner do not require otherwise. See, e.g., People v. Nuccio, 78 N.Y.2d 102, 104-6, 571 N.Y.S.2d 693 (1991) (rejecting statutory and double jeopardy challenges to renewal of prosecution after the dismissal of a complaint). Petitioner's assertion that he was never notified of his right to testify at the grand jury, the Court finds, was more properly presented as a claim that his own counsel never passed along the notification, and in that guise the Court has already addressed the claim. Addressing next Petitioner's claim that the evidence found in the apartment should have been suppressed as fruit of the non-Mirandized statement, the Court finds that there is no indication that Justice Rivera's refusal to suppress would have been reversed on appeal. Given the uncontroverted evidence at the suppression hearing that the police arrived at the Argyll Road apartment armed with a search warrant with the purpose of searching for drugs, it would have been an uphill battle for trial or appellate counsel to avoid the well-established inevitable discovery exception to the exclusionary rule, see Nix v. Williams, 467 U.S. 431, 444 (1984), or even its somewhat more restrictive New York analog, see People v. Stith, 69 N.Y.2d 313, 319-20, 514 N.Y.S.2d 201 (N.Y. 1987) (mandating the exclusion of the illegally seized evidence itself but not "the product of that evidence"). With regard to the search warrant claim, Petitioner again sets forth no credible reason that an appellate court would have disagreed with the Supreme Court's in camera finding of probable cause. Finally, given that the Court has already found meritless the grounds underlying Petitioner's ineffectiveness of trial counsel claims, it finds as well that it was not unreasonable for Petitioner's appellate counsel not to raise his predecessor's ineffectiveness on direct appeal.
The District Attorney offered evidence that Rivera's attorney waived by telephone on his client's behalf the right to testify at the grand jury, and that the assistant district attorney handling the case promptly noted this in the case file. The only rebuttal Petitioner offers is that he never heard about the waiver from his counsel.
Furthermore, the New York Court of Appeals has explicitly approved the procedures employed by the state in sealing the materials underlying the warrant. See People v. Castillo, 80 N.Y.2d 578, 587, 592 N.Y.S.2d 945 (1992). Castillo procedures have also been found to satisfy federal due process concerns. See Hunte v. Keane, 1999 U.S. Dist. LEXIS 14671, *30-*36 (E.D.N.Y. Aug. 24, 1999) (Raggi, J.).
To the extent that Petitioner maintains that appellate counsel was ineffective for not appealing on the ground that the search warrant was a forgery, or that it never existed, the Court finds this claim without merit.
III. Conclusion
For the reasons outlined above, the Court finds that Petitioner's claims regarding the validity of his indictment, his right to testify at the grand jury, the validity of his search warrant, the admissibility of the evidence used against him, his right to a speedy trial, and the ineffective assistance of trial counsel (except as that claim relates to trial counsel's alleged failure to notify Petitioner of his right to testify at the grand jury) are all procedurally defaulted because Petitioner failed either to raised them in state court at the proper time or to establish cause for that failure. The Court finds further that although Petitioner's ineffective assistance of appellate counsel claim and his ineffective assistance of trial counsel claim, insofar as it relates the alleged lack of communication, are as yet unexhausted they are without merit as well. The petition is DISMISSED in its entirety.
Because petitioner has failed to make a substantial showing that he was denied a constitutional right, this court will not issue a certificate of appealability. See 28 U.S.C. § 2253 (c)(2); see also Lucidore v. New York State Division of Parole, 209 F.3d 107, 112 (2d Cir. 2000) (holding that a substantial showing exists when (i) the issues involved in the case are debatable among jurists of reason, or (ii) a court could resolve the issues in a different manner, or (iii) the questions are adequate to deserve encouragement to proceed further). The Clerk of the Court is directed to close this case.
SO ORDERED.