Opinion
99 Civ. 12281 (GEL)
January 24, 2002
George Rowe, New York, NY, pro se.
Bruno V. Gioffre, Jr., Assistant Attorney General (Eliot Spitzer, Attorney General of the State of New York), New York, NY, for Respondent.
OPINION AND ORDER
Petitioner George Rowe applies to this Court pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming that he was denied the right to effective assistance of trial counsel and that his guilt was not proven beyond a reasonable doubt. On December 13, 2001, United States Magistrate Judge Ronald L. Ellis, to whom the case had been referred, issued a Report and Recommendation ("RR"), recommending that the petition be dismissed in part without prejudice, for lack of exhaustion of state remedies, and, in part with prejudice, for likelihood of procedural default. The RR also instructed the parties that objections to the recommendation must be filed by December 27, 2001.
The Court received objections from Rowe on December 27, 2001. In that submission, Rowe does not address the procedural issues discussed in the RR, but instead reiterates the arguments in support of his claims on the merits. Rowe also expressed discontent with the short time frame within which he was required to file his opposition to the RR, with what he claimed was a failure to give him adequate notice of that deadline, and with the alleged failure of the District Attorney's office to address mail regarding this case to his correct mailing address.
Rowe's frustration with these logistical issues is understandable — having given this Court formal notice of his change of address on February 29, 2000, he can certainly reasonably expect that the District Attorney's office would use that address in all official correspondence concerning this case. Moreover, Judge Ellis, responding to a similar complaint by Rowe, specifically ordered respondent to do exactly that.See Rowe v. New York, No. 99 Civ. 12281 (DLC) (RLE) (S.D.N.Y. July 26, 2000) (docket entry no. 11). To the extent that future correspondence with the petitioner is required in this case, the District Attorney is, once again, ordered to use the address that officially has been entered on the Court's docket. As for the tenday time period within which to file objections to the RR, Congress has prescribed that period by statute, 28 U.S.C. § 636(b)(1), Judge Ellis' RR provided clear notice of the deadline, and Rowe was able to and did meet the deadline with his objections.
Nevertheless, the Court is authorized to extend the deadline for filing objections, and under other circumstances would be inclined to construe Rowe's objections liberally as a request for additional time. In this case, however, Rowe's arguments on the merits of his claims are not responsive to the RR's rather technical conclusions concerning habeas procedure, and the Court therefore concludes that an extension of time for him to elaborate on those arguments is unwarranted. In view of the Court's disposition of the matter, Rowe will have a further opportunity, if he wishes, to address the merits of the case, and to invite Rowe at this stage of the case to submit additional argument on the technical procedural issues now facing the Court would only result in further delay.
We therefore turn to the issues presented by the RR, which lead us into the familiar but nevertheless intricate procedural labyrinth of habeas corpus law.
I. Ineffective Assistance
In his RR, Judge Ellis concludes that although Rowe did claim raise a claim of ineffective assistance on his direct appeal, his present ineffective assistance claim nevertheless should be deemed unexhausted because it rests on a different set of facts than those presented to the state court. RR at 7-9. That conclusion is correct. For a habeas court to reach the merits of an ineffective assistance claim, "all of [the] allegations must have been presented to the state courts, allowing them the opportunity to consider all the circumstances and cumulative effect of the claims as a whole." Caballero v. Keane, 42 F.3d 738, 740-41 (2d Cir. 1994) (internal quotation marks and citation omitted). The whole point of the exhaustion requirement is to permit the state court a fair opportunity to consider a defendant's claims before a federal court undertakes to review the state court judgment. If the state court has not had such an opportunity to assess counsel's performance, because the claim of ineffective assistance that was made on direct appeal did not present a complete picture of the "all the circumstances" and the cumulative effect of the claimed derelictions, then the purpose of the exhaustion requirement has not been served. It is true that "dismissal is not required when evidence presented for the first time in a habeas proceeding supplements, but does not fundamentally alter, the claim presented to the state courts." Caballero, 42 F.3d at 741. Where, however, the new allegations do "fundamentally alter" the claims presented to and rejected by the state courts, it follows that the new claim has
3 not been properly exhausted.
In this case, Rowe argued on direct appeal that his trial counsel was constitutionally ineffective, and therefore should have been dismissed, because (1) he insisted that he could not represent Rowe effectively due to a breakdown in communication, and (2) he acted against Rowe's interests by repeatedly telling the court, outside the presence of the jury, that the evidence against Rowe was overwhelming and he had no chance of acquittal. RR at 3-4. Before this Court, Rowe argues that trial counsel was ineffective because (1) he failed to contact witnesses that Rowe claimed would have attested to his innocence, and (2) he failed effectively to cross-examine the State's witnesses concerning inconsistencies in their testimonies. As Judge Ellis correctly concludes, these new factual allegations are not "merely supplemental" to those raised on direct appeal, but could "fundamentally alter" his ineffective assistance claim. See Caballero, 42 F.3d at 741. The claims presented in this Court are not only based on different facts than those presented on direct appeal, but one of those claims also rests on facts outside the record. Under these circumstances, the new allegations of ineffective assistance present facts and legal theories that have not been presented to the state courts, and thus have not been exhausted.
Rather than recommend that Rose be required to exhaust this entire claim, however, the RR proceeds to bifurcate Rowe's ineffective assistance claim into two separate subclaims, one based on failure to contact witnesses and the other based on ineffective cross-examination. The RR concludes that the former subclaim, because it is based on evidence outside the trial record, may be raised in a motion to vacate the conviction pursuant to New York Criminal Procedural Law § 440.10, but that the latter subclaim would be collaterally barred by operation of N.Y. Crim. P.L. § 440.10(c)(2), because it is based on evidence contained in the trial record but was not raised on direct appeal. Judge Ellis therefore recommends that the cross-examination claim should be deemed exhausted but procedurally defaulted and dismissed with prejudice. RR at 9-10.
This approach, however, would result in the distortion of Rowe's ineffective assistance claim. Such a claim by its nature requires a court to "`consider all the circumstances'" and "to look at the `totality of the evidence before the judge and jury'" to determine whether counsel's representation was deficient. Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quoting Strickland v. Washington, 466 U.S. 668, 688-89, 695-96 (1984)); see also Stouffer v. Reynolds, 168 F.3d 1155, 1163-64 (10th Cir. 1999). 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."Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (citing Strickland v. Washington, 466 U.S. 668, 695-96 (1984)). It therefore would be particularly inappropriate to conclude that Rowe has procedurally defaulted certain aspects of his ineffective assistance claim based on an artificial division of that claim which would distort the application of the Strickland standard. Cf. United States v. Arvizu, ___ S.Ct. ___, 2002 WL 46773, slip op. at 8 (Jan. 15, 2002) (rejecting, as inconsistent with "totality of the circumstances" standard for evaluating constitutionality of brief investigatory stops under Fourth Amendment, a "divide-and-conquer analysis" by which the court evaluated and rejected several individual factors in isolation from each other). Indeed, no actual state court judgment has found Rowe to be collaterally barred from raising any aspect of his ineffective assistance claim in state court, and it seems unlikely that a state court would whittle away the factual basis for Rowe's claim in the face of Strickland's clear mandate to "consider all the circumstances" and the "totality of the evidence" when evaluating claims of ineffective assistance of counsel. Strickland, 466 U.S. at 688-89, 695-96; Lindstadt, 239 F.3d at 199.
N.Y. Crim. P.L. § 440.10(2)(c) requires denial of a petitioner's motion to vacate a judgment if "sufficient facts appear on the record . . . to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion," but the petitioner unjustifiabl[y]" failed to raise that ground or issue on direct appeal. That rule cannot bar consideration of Rowe's allegation that his trial counsel was ineffective in failing to contact witnesses, which could not have been raised on direct appeal. Once that allegation has properly been presented, it no longer can be said that "sufficient facts appear on the record" to have permitted review of Rowe's entire ineffective assistance claim without running afoul of Strickland's totality-of-the-circumstances-based standard.
The Court therefore declines to follow the RR's recommendation that part of Rowe's ineffective assistance claim be dismissed with prejudice as procedurally defaulted. Rather, the Court concludes that the entire ineffective assistance claim presented on habeas has not been properly presented to the state courts, and must be exhausted there before being available for federal habeas review.
The merit of Rowe's ineffective assistance claim turns significantly on matters outside the present record, including what witnesses Rowe claims could have testified in his behalf, what they would have said at trial, what Rowe told counsel about these witnesses, and what efforts if any counsel made to locate those witnesses (with what result). Rowe's petition addresses none of these issues, asserting only in the most summary way that his attorney told him he "would contact my witnesses," but that Rowe later learned that "he never did." Pet. at 5. His reply papers, however, provide considerable information about these matters. Reply dated 7/22/00, at 4-5. In any state court motion, Rowe would be well advised to provide as much detail as he can about the potential testimony of these witnesses, ideally with supporting affidavits from the witnesses (if they can be found at this late date).
II. Failure to Prove Guilt Beyond a Reasonable Doubt
The RR also recommends that Rowe's second claim, that his guilt was not proven beyond a reasonable doubt, should be deemed procedurally defaulted and, since he has failed to show cause and prejudice for the default, dismissed with prejudice. RR at 10 (citing N.Y. Crim. P.L. § 440.10(2)(c)). There is no question that Rowe has failed to exhaust state remedies with respect to that claim — he did not raise the issue on direct appeal, and he has not as yet sought post-conviction relief from any state court. Nevertheless, the RR essentially recommends that the claim be deemed exhausted but procedurally defaulted because a state court, as an adequate and independent state law ground for dismissal, would likely find the claim collaterally barred under N.Y. Crim. P.L. § 440.10(2)(c). RR at 10; see also Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994) ("[I]f the petitioner no longer has `remedies available' in the state courts under 28 U.S.C. § 2254(b), we deem the claims exhausted."). This recommended characterization of Rowe's second claim appears to be consistent with Second Circuit precedent, which permits a court to deem a claim to be exhausted "if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile."Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001); see also Reves v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); Bossett, 41 F.3d at 829. But cf. Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990) (holding that unexhausted claim must be presented to state court notwithstanding likelihood of procedural bar under state law, since federal courts "have no authority to declare as a matter of state law that an appeal from the denial of [state court motion for collateral relief] is unavailable");Bloomer v. Costello, 2001 WL 62864, at *3-*5 (S.D.N.Y. Jan. 24, 2001) (discussing tension within Second Circuit precedent between Pesina and subsequent case law). It is therefore quite possible that the second claim is ripe for decision in federal court.
Moreover, the record is adequate to permit denial of this claim on the merits. The evidence at Rowe's trial was amply sufficient to permit a reasonable jury to find defendant guilty beyond a reasonable doubt. An undercover police officer testified that he personally bought two vials of crack from Rowe for ten dollars, in broad daylight, and that Rowe had taken the vials from a black film canister hidden in a garbage can. This testimony was corroborated by a second officer who testified that she observed the undercover in conversation with Rowe. The undercover also radioed an accurate description of the crack seller's physical appearance and clothing to a backup team, which promptly arrested Rowe, who perfectly met the description, leaving the scene of the sale in possession of the buy money. A member of the back up team testified that as he prepared to search Rowe after his arrest, he observed a black film canister containing ten vials of crack at Rowe's feet.
Rowe argues here, as he argued at trial, that he never sold drugs to the undercover officer, and that the testimony of the officers was false. But it is not for a federal court on habeas review to second-guess the jury's determination of whom to believe. This Court's role is limited to deciding whether the prosecution's evidence, if believed by the jury, would be sufficient to establish guilt beyond a reasonable doubt. Beyond question, it was.
III. Disposition
If Rowe's first claim is unexhausted and his second claim is deemed exhausted but procedurally defaulted or without merit, then Rowe's is a so-called "mixed petition" containing both unexhausted and (constructively) exhausted claims. See Zarvela v. Artuz, 254 F.3d 374, 378 (2d Cir. 2001). District courts presented with mixed petitions have three basic options. If the petition is "hopeless," in that it is "so patently meritless that [it is] destimed for denial," Jones v. Senkowski, ___ F.3d ___, 2001 WL 1230800, at *4 (2d Cir. Oct. 5. 2001), the district court may exercise limited discretion to deny the petition 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). Plainly, denial of Rowe's petition on the merits under 28 U.S.C. § 2254 (b)(2) is not an option in this case. Given that the primary claim of counsel's failure to investigate rests on facts outside the record, it cannot be said that his unexhausted claim of ineffective assistance of counsel is "so patently meritless that [it is] destimed for denial."Jones, 2001 WL 1230800, at *4.
Nor is it clear that the RR's proposed variant on this approach — dismissing the petition in part without prejudice, as unexhausted, and in part with prejudice, as (constructively) exhausted but (likely) procedurally defaulted — is a viable option. That approach certainly would not have been permitted prior to the 1996 amendments to 28 U.S.C. § 2254. See Rose v. Lundy, 455 U.S. 509, 510 (1982) (mixed petition must be dismissed, without prejudice, in its entirety, "leaving the prisoner with the choice of returning to state court to exhaust his claims or amending or resubmitting the habeas petition to present only exhausted claims to the district court"). Nor does it appear to be authorized by the current version of § 2254(b)(2), which permits a habeas Court to deny a petition — not particular claims within that petition — on the merits, despite a failure to exhaust state remedies. In any event, the option suggested by the RR does not seem particularly attractive. A denial of part of Rowe's petition for procedural default would constitute a disposition on the merits and, as such, would potentially prejudice any future petition for federal habeas relief — even on Rowe's unexhausted claim of ineffective assistance — under 28 U.S.C. § 2244(b)'s limitations on "second or successive" petitions. See Aparicio, 269 F.3d at 90; Bloomer, 2001 WL 62864, *4 n. 3. This would hardly be fair to petitioner.
That leaves the Court with two options: "either [to] dismiss the petition [in its entirety] without prejudice, or, if appropriate, retain jurisdiction over the petition and stay further proceedings pending the exhaustion of state remedies." Id. at *2; Zarvela, 254 F.3d at 382; see also Duncan v. Walker, 121 S.Ct. 2120, 2130 (2001) (Stevens, J., concurring); Newton v. Coombe, No. 95 Civ. 9437, 2001 WL 799846, at *9 (S.D.N.Y. July 13, 2001). The former option normally requires the district court to "include in the dismissal order an appropriate explanation to a pro se petitioner of the available options and the consequences of not following required procedures," such as the effect of the one-year limitations period set forth in 28 U.S.C. § 2244 (d), while the latter option requires the district court's stay to be "explicitly condition[ed] upon . . . the prisoner's pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief interval, normally 30 days after state court exhaustion is completed."Zarvela, 254 F.3d at 381-82. While the choice between these two options is "generally" to be left to the discretion of the district court, id. at 382, in some instances — including those "where an outright dismissal `could jeopardize the timeliness of a collateral attack'" under the one-year limitations period in 28 U.S.C. § 2244(d) — staying the petition and retaining jurisdiction pending exhaustion "will be the only appropriate course." Id. at 380 (quoting Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000)).
In this case, Zarvela compels the conclusion that the only appropriate course of action is conditionally to stay Rowe's petition and retain jurisdiction pending exhaustion of state remedies. Rowe's state court conviction became final on April 7, 1999, when leave to appeal to the New York Court of Appeals was denied. People v. Rowe, 93 N.Y.2d 902 (1999); see 28 U.S.C. § 2244(d)(1)(A). He acted with dispatch to file the instant federal habeas petition on December 22, 1999 — approximately 107 days before the end of the one-year limitations period set forth in 28 U.S.C. § 2244(d). However, the limitations period has not been tolled during the considerable period of time — over two years — in which Rowe's habeas petition has been pending before this Court. Duncan, 121 S.Ct. at 2130. Dismissal of Rowe's petition would therefore "`jeopardize the timeliness of a collateral attack,'"Zarvela, 254 F.3d at 380, since it 10 would immediately render Rowe time-barred from filing any subsequent federal habeas petition that renews the claims asserted here.
The petition was initially assigned to another judge of this Court, who in turn referred it to the magistrate judge for an RR on March 8, 2000. It was fully submitted in August 2000; the RR was eventually issued, as noted above, in December 2001; and petitioner's objections were filed on December 27, 2001, when the matter for the first time became ripe for decision.
Accordingly, it is hereby ORDERED that:
All proceedings on this petition for habeas corpus are stayed, to give petitioner an opportunity to exhaust his state remedies on the ineffective assistance claim, subject to the conditions (1) that petitioner files a motion to vacate his conviction in state court, pursuant to New York Criminal Procedural Law § 440.10, within 30 days of this order, and (2) that petitioner returns to this court to renew his petition within 30 days after the state courts have completed their review of his claims. If petitioner fails substantially to fulfill both of these conditions, the Court will vacate the stay nunc pro tunc as of the day of this order, and his petition may be dismissed. See Zarvela, 254 F.3d 381-82.