Opinion
02 Civ. 3529 (JSM)
January 27, 2003
For Petitioner: Julia Pamela Heit, Esq., New York, N.Y. 10003
For Respondent: Robin Lamont, Assistant District Attorney Westchester County Westchester County Courthouse, White Plains, New York
ORDER AND OPINION
Gjelosh Joseph Rukaj, who was convicted in the New York State Supreme Court, Westchester County, of Murder in the Second Degree and two counts of Criminal Possession of a Weapon in the Second Degree, brings this action pursuant to 28 U.S.C. § 2254, seeking to vacate his conviction.
Petitioner contends that both his trial and appellate counsel were ineffective, that his due process rights were violated by ex parte communications between the court clerk and the jury concerning the jurors' concerns about their safety, that the evidence against him was insufficient to sustain the murder charge and that his due process rights were violated because a critical piece of evidence was missing.
In addition to contesting Petitioner's claims on the merits, the State argues that the Court should not consider certain of Petitioner's claims because he failed to exhaust his remedies in the state courts. However, 28 U.S.C. § 2254 (b)(2) gives the Court the discretion to deny unexhausted claims on the merits. Given the fact that, as demonstrated below, these claims are utterly lacking in merit, the Court will exercise its discretion and decide the claims on the merits.
Before turning to Petitioner's specific claims it must be noted that Congress has limited the jurisdiction of the federal courts to provide relief under 22 U.S.C. § 2254:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.See Generally Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000). None of the claims asserted by the Petitioner meets this standard.
Petitioner's ineffective assistance of trial counsel claim relates to his counsel's conduct in connection with certain ex parte communications between the court clerk and the jury. Near the end of the trial, the judge advised counsel that when the court clerk was discussing with the jurors their schedules for the period of deliberations, some of the jurors raised concerns about their safety in leaving the courthouse after the verdict. These concerns were apparently the result of obvious hostility in the courtroom between supporters of the defendant and the family of the victims. Upon being told of these concerns, the judge directed the clerk to tell the jurors that their concerns would be addressed. Some jurors responded that they would like different parking arrangements away from the courthouse. The judge consulted with an officer in charge of security and directed the clerk to tell the jury that he had been in contact with this officer and that they would be protected. Some of the jurors indicated that they wanted to be able to park at a remote location and be transported to and from the courthouse.
It was nor until after these communications had taken place that defense counsel was informed of these events. While the court first discussed the issue solely with counsel, Petitioner was ultimately advised of the facts and was present at discussions with the court.
While defense counsel made it clear at these discussions that he did not think that a mistrial was in Petitioner's interest, he strongly felt that the decision had to be left to Petitioner. When Petitioner was questioned by the court, he stated that he did not want a mistrial, but that if something happened between that day, Thursday, and Monday, when the case was to be submitted to the jury, he would want to reconsider the issue. It was agreed that, if there were subsequent problems, Petitioner would not be held to his waiver. On the following Monday, defense counsel stated that Petitioner had reconsidered his position and now wanted a mistrial. The court denied the application, stating that Petitioner had waived his claim and the jurors were present and seemed satisfied with the arrangements for their security. At this point, defense counsel stated that his letter to the court was withdrawn in favor of Petitioner's right to guide his own destiny. Although the court offered to put the fax it had received from defense counsel into the record, this was not done at that time and there is no indication that Petitioner saw the letter at that time. Sometime after the jury's verdict, Petitioner obtained a copy of counsel's fax to the court in which counsel indicated that if a motion for a mistrial was granted, he would want to be relieved because he could not represent someone who acted against his advice.
In addition to opposing this claim on the merits, Respondent claims that the court cannot consider this issue because it was procedurally defaulted in the state courts because Petitioner failed to assert it on his direct appeal. Indeed, when Petitioner did raise the claim in a motion pursuant to New York CPLR § 440.10, the state court rejected the claim on the ground that it was procedurally barred because the facts giving rise to the claim appeared on the trial record and the issue had not been raised on appeal.
It is well-settled that when a "state prisoner has defaulted his federal claims in state court 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 v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565 (1991); Yist v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 2593 (1991); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996); Johnson v. Dufrain, No. 99 Civ. 12019, 2001 WL 406261, *5 (S.D.N.Y. Apr. 20, 2001).
Petitioner attempts to establish cause for his failure to raise this issue on appeal by arguing that his appellate counsel was ineffective in not raising it on appeal. As will be discussed below, that claim is without merit and thus this claim is procedurally barred.
In any event, there is nothing in the incident relating to the jurors' concerns about their safety that establishes that defense counsel was ineffective or that the trial judge did anything that violated Petitioner's due process rights. While Petitioner's counsel criticizes the action of the trial judge and defense counsel with regard to this incident, there is no showing that anything that occurred "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 22 U.S.C. § 2254. There was nothing in the communications with the jury that suggested that any of the jurors had prejudged the case or bore any hostility to Petitioner. In these circumstances, the judge would have been acting well within his discretion in denying a mistrial even if Petitioner had not waived his right to seek a mistrial. See United States v. Whitford, 199 F.3d 1324 (2d Cir. 1999); United States v. Parker, 903 F.2d 91, 102 (2d Cir. 1990)
In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. Here, Petitioner has totally failed to demonstrate that he was prejudiced by his trial counsel's conduct.
Petitioner's attack on his appellate counsel is equally without merit. Petitioner's appellate counsel filed a seventy-four page brief raising five issues. Petitioner now faults appellate counsel for not asserting ineffective assistance of trial counsel, for not asserting that the indictment should have been dismissed because a material witness was allowed to serve on the grand jury that indicted Petitioner, and for not challenging the trial court's justification charge. In Jones v. Barnes, 463 U.S. 745, 752-53, 103 S.Ct. 3308, 3313 (1983), the Supreme Court rejected the argument that appellate counsel had an obligation to raise every non-frivolous ground for reversal, stating:
Although Petitioner's counsel refers to this individual as a key fact witness," this individual, an ambulance attendant who helped to treat Petitioner at the scene of the shooting and to transport him to the hospital, was not called as a witness by either side. Thus, it is impossible to perceive how Petitioner was prejudiced by the fact that this person was on the grand jury that indicted him particularly since this individual refrained from participating in the grand jury's deliberations and its vote.
There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review. This has assumed a greater importance in an era when oral argument is strictly limited in most courts — often to as little as 15 minutes — and when page limits on briefs are widely imposed. See, e.g., Fed. Rules App. Proc. 28(g); McKinney's 1982 New York Rules of Court §§ 670.17(g)(2), 670.22. Even in a court that imposes no time or page limits, however, the new per se rule laid down by the Court of Appeals is contrary to all experience and logic. A brief that raises every colorable issue runs the risk of burying good arguments — those that, in the words of the great advocate John W. Davis, "go for the jugular," Davis, The Argument of an Appeal, 26 A.B.A.J. 895, 897 (1940) — in a verbal mound made up of strong and weak contentions. See generally, e.g., Godbold, Twenty Pages and Twenty Minutes — Effective Advocacy on Appeal,
30 SW.L.J. 801 (1976)
Here, the issues which Petitioner faults his counsel for not raiding were of dubious merit and appellate counsel's choice of issues to raise on appeal was well within the range of tactical strategy that is left to the professional judgment of defense counsel, and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
Petitioner's attack on the sufficiency of the evidence does not establish grounds for habeas relief. As the Second Circuit observed inFarrington v. Senkowski, 214 F.3d 237, 240-241 (2d Cir. 2000):
"[A] state prisoner "is entitled to habeas corpus relief [only] if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Einaugler, 109 F.3d at 839 (quoting Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Appellant bears the burden of rebutting the presumption that all factual determinations made by the state court were correct. See 28 U.S.C. § 2254 (e).
While the evidence established that both Petitioner and one of his victims fired at each other and that Petitioner was severely wounded, the medical evidence established that the unarmed victim whom Petitioner was found guilty of murdering had been shot three times from the back. This evidence provided ample reason for the jury to reject Petitioner's argument that he was justified in shooting the victim in self-defense.
Petitioner's final claim is that there may have been some impropriety in the handling of the shirt he wore on the night of the shooting and that parts that might have been subjected to forensic tests were missing. Petitioner cites not a single authority in support of this argument and fails even to articulate a constitutional argument in support of his claim. As Respondents note, the issue of the condition of the shirt was raised at trial and was not raised on appeal. There is no showing that the state court's handling of this issue "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 22 U.S.C. § 2254.
For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2254 is denied and the action is dismissed. In addition, the Court determines that the petition presents no question of substance for appellate review and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2); see Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.