Opinion
02-CV-3430 (JBW), 03-MISC-0066 (JBW)
July 18, 2003
JUDGMENT ORDER
The petition for a writ of habeas corpus is denied for the reasons stated orally on the record at a hearing before this court at which petitioner was present by telephone. This memorandum briefly addresses petitioner's claims.
Complainant accused petitioner of rape, sexual abuse, and lesser charges. She claimed that he punched her, held a knife to her neck and raped her. Petitioner was arrested and charged with first degree rape, first degree sexual abuse, and several counts of assault, weapons and menacing. At his jury trial he testified that the sexual contact was with her consent; she denied that she consented. He was convicted on the first degree sexual abuse and third degree assault charges, and acquitted of all other counts, including first degree rape.
Petitoner was sentenced to 3-1/2 to 7 years in prison. His convictions were affirmed on appeal. No state collateral proceedings were initiated.
Petitioner claims (1) that various problems with the grand jury proceedings deprived petitioner of due process of law; (2) that the first degree sexual abuse count in the indictment was Newton, 295 F.3d 270, 278 (2d Cir. 2002). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
B. Procedural Bar
Petitioner's second and third claims (alleging the introduction of false testimony and the ineffective assistance of counsel) are procedurally barred. After disposing of petitioner's claims regarding the sufficiency of the evidence and the trial court's supposedly erroneous refusal to admit the audiotape recording, the Appellate Division held that "the defendant's remaining contentions, including those raised in his supplemental pro se brief;, are unpreserved for appellate review [. . .], and, in any event, without merit." People v. Grant, 265 A.D.2d 571, 696 N.Y.S.2d 884, 885 (N.Y.App.Div.2d Dep't 1999). The Appellate Division's use of the conjunction "and" is critically important. When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000) (emphasis added). However, when a state court "says that a claim is `not preserved for appellate review' and then ruled `in any event' on the merits, such a claim is not preserved." Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996) (emphasis added). Here, the Appellate Division made it clear that the claims were procedurally barred in the first instance, and lacked merit in the second.
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "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 (1991).
Petitioner claims to be able to show both cause and prejudice. He argues that the cause of the procedural default in this case was the ineffective assistance of counsel. See Traverse for Petitioner ("Traverse"), at 31. The court will accept, arguendo, that petitioner is able to show cause and prejudice for his procedural default, and reviews the claims on the merits.
IV. Analysis
A. Insufficient Evidence
Petitioner argues that the evidence presented at trial was legally insufficient to convict him of burglary. There was conflicting testimony at trial concerning the extent of the relationship between Bailey and petitioner. Bailey claimed that he did not know petitioner well; petitioner claimed that he and Bailey were good friends. The fact that Bailey had a picture of petitioner which he showed to Flowers would seem to indicate that Bailey and petitioner knew each other fairly well.
Petitioner's argument with regard to the purported insufficiency of the evidence is that there are numerous possible innocent explanations for why petitioner's fingerprint was found on Bailey's cable receiver. For example, petitioner suggests that the fingerprint could have been left when he was a guest at Bailey's apartment, when he helped Bailey move, or when he helped Bailey set up his stereo and television equipment.
Petitioner's argument ignores the relevant legal standard for determining sufficiency of the evidence. The relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997).
The fact that innocent explanations for the fingerprint exist does not vitiate the fact that a reasonable juror could decide, based on this and other evidence, that the fingerprint was left during the course of the burglary. Petitioner's argument is erroneously predicated on the notion that the fingerprint was the sole piece of evidence leading to his conviction. In fact, other evidence ties petitioner to the crime. Flowers saw petitioner knocking on Bailey's door earlier in the morning. He later saw petitioner moving quickly away from the house with a red cart full of items. A red cart was stolen from Bailey's house. Construing all of the evidence in the light most favorable to the People, a reasonable juror could have found petitioner guilty of burglary.
B. Introduction of Materially False Testimony
Petitioner's second claim is related to his first. He claims that Bailey presented perjured testimony before the grand jury and during trial, depriving petitioner of his right to a fair trial. In particular, he argues that Bailey misstated the nature of his relationship with petitioner, and that contrary to Bailey's sworn testimony, he and petitioner were close social acquaintances.
Petitioner's argument concerning the introduction of purportedly false testimony before the grand jury lacks merit. Any claims of deficiencies in state grand jury proceedings are generally not cognizable in a habeas corpus proceeding in federal court because any deficiencies have been rendered harmless by conviction at trial by a petit jury assessing petitioner's guilt under a heightened standard of proof. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989). The relevant question is whether materially false testimony was introduced at trial.
A conviction based on perjured testimony is analyzed under the Due Process Clause of the Fourteenth Amendment. Napue v. Illinois, 360 U.S. 264, 269 (1959). Under this standard, a conviction must be set aside if "the prosecution knew, or should have known, of the perjury," and "there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976). The Court of Appeals for the Second Circuit has thus far declined to "draw the contours of the phrase `should have known.'" Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir. 2003). The Court of Appeals has decreed that, because the Supreme Court has not clearly established that habeas relief is available in the complete absence of prosecutorial knowledge of perjury, AEDPA prevents granting of the writ on such grounds. Id. at 345 n. 2 (after AEDPA, habeas petitioners can no longer rely on Sanders v. Sullivan, 863 F.2d 218 (2d Cir. 1998), in which habeas relief was granted in the absence of prosecutorial knowledge of perjury).
Here it is not obvious that there was any perjury by a prosecution witness: his characterization of the relationship might have been, in his own mind, accurate.
Even assuming, arguendo, falsity and that petitioner has shown that the prosecutor had real or constructive knowledge of the falsity, petitioner fails to show that falsity affected the jury's decision. The alleged falsity concerns the extent to which Bailey and petitioner knew each other. Bailey claimed that he hardly knew petitioner; petitioner claimed that he knew Bailey quite well and that he had previously visited Bailey's apartment. Petitioner contends that the difference in testimony is material, because falsity on Bailey's part would lend credence to petitioner's claim that he left the fingerprint on the cable receiver when he was visiting Bailey's apartment. However, as noted supra, whether or not petitioner was at one point a guest in Bailey's apartment, a juror could nonetheless find that the fingerprint was left during the course of the burglary. Moreover, a jury could find petitioner guilty based on the other evidence — his presence at Bailey's apartment and the fact that he was later seen hurrying around the corner with a red cart full of items.
C. Ineffective Assistance of Counsel
Petitioner's third claim is that he received the ineffective assistance of trial counsel. In particular, he claims that trial counsel failed to investigate, prepare, and present at least two potential witnesses — Anna Sezerino and Lola Allen. Ms. Sezerino was Bailey's landlord and Ms. Allen was petitioner's landlord when Bailey and petitioner lived in the same apartment building. According to affidavits provided by petitioner, both claim that Bailey and petitioner were close friends and that petitioner frequently visited Bailey. Ms. Sezerino's affidavit adds that petitioner was a "constant visitor" to Bailey's apartment. Although petitioner mentions only Ms. Sezerino and Ms. Allen in his petition, he also alleges that his trial counsel was ineffective for not investigating, preparing, and presenting testimony of Eddie Williams, whom petitioner states could have testified to the fact that petitioner had visited Bailey's current apartment. In his Traverse, petitioner faults his trial counsel for not investigating, preparing, or presenting four additional witnesses: a landlord, Harold Denten, Mark Price, and Mr. Peters. Petitioner claims these witnesses could have testified to the fact that petitioner installed stereo and television equipment in Bailey's apartment. See Traverse, at 33. Petitioner only mentions these four witnesses in his Traverse and does not include affidavits.
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose —"to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and 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. See also United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same).
In the instant case, petitioner claims that although his trial counsel intended to interview Ms. Sezerino and Ms. Allen, she failed to do so after receiving the audiotape from petitioner's wife. See Traverse, at 45 n. 4. According to petitioner, trial counsel elected not to interview the witnesses based on her belief that the tape recording would exonerate petitioner. As noted supra, the audiotape was ruled inadmissible.
Petitioner is unable to meet the high standard enunciated in Strickland. Trial counsel's decision not to conduct the interviews, although perhaps ill-advised in hindsight, were not unreasonable at the time it was made. The trial court's decision not to admit the tapes was questionable, but that issue is not raised by petitioner. In addition, petitioner was not necessarily prejudiced by counsel's failure to investigate, prepare, and present the additional witnesses mentioned above. Their testimony, if believed, would establish that petitioner and Bailey were close friends and that petitioner had repeatedly visited the apartment where Bailey used to live. This testimony would discredit Bailey's testimony to the contrary and would bolster petitioner's argument that the fingerprint was innocently left on the cable receiver. There was, however, sufficient evidence for a jury to convict petitioner even in the absence of an incriminating fingerprint.
V. Conclusion
The petition for a writ of habeas corpus is dismissed.
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. A certificate of appealability is granted with respect to petitioner's ineffective assistance of counsel claim for not calling witnesses who would have impeached the state's chief witness.
Petitioner has a right to seek a certificate of appealability on any other issue from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).
SO ORDERED.