Opinion
00 Civ. 404 (RCC)(FM)
November 14, 2003
REPORT AND RECOMMENDATION TO THE HONORABLE RICHARD C. CASEY
I. Introduction
Petitioner Jeff Smith ("Smith") brings this pro se habeas corpus proceeding, pursuant to 28 U.S.C. § 2254, to challenge two judgments entered by Justice Ronald A. Zweibel in Supreme Court, New York County. (See Pet. ¶¶ 1, 2). In the first case, following a jury trial, Smith was convicted on one count of Forgery in the Second Degree and one count of Criminal Possession of a Forged Instrument in the Third Degree, in violation of Sections 170.10(1) and 170.20, respectively, of the New York Penal Law ("Penal Law" or "PL"). (Id. ¶ 4). In the second case, Smith entered a plea of guilty to one count of Criminal Possession of a Forged Instrument in the Second Degree, in violation of Section 170.25 of the Penal Law. (Id. ¶¶ 4, 5).
The sentencing with respect to both cases took place on December 9, 1996. (Id. ¶ 2). In connection with the first case, Justice Zweibel sentenced Smith as a second felony offender to an indeterminate term of three and one-half to seven years on the second degree forgery count, to run concurrently with a definite one-year term on the third degree forged instrument charge. (Id. ¶¶ 3, 4). In connection with the second case, the Justice sentenced Smith to a consecutive indeterminate prison term of one and one-half to three years. (Id.).
Smith's petition raises four claims. His first three claims allege that the trial court erred by (1) denying his motion to suppress physical evidence; (2) denying his motion to suppress his statements; and (3) granting the People's motion to amend the indictment. (Id. ¶¶ 12(A)-(C)). Smith's final claim is that his trial counsel was ineffective. (Id. ¶ 12(D)).
For the reasons that follow, Smith's petition should be denied. Additionally, because Smith has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
II. Facts
A. First Case
1. Pretrial Suppression Hearing
On August 9, 1996, Justice Zweibel presided over a combinedMapp/Huntley hearing at which Police Officer Ronald McCall was the sole witness to testify. (See H. 2-36). Following the hearing, Justice Zweibel determined that Smith's briefcase was properly seized and searched incident to his arrest. (Id. at 51). Additionally, the Justice concluded that a later search of the briefcase at the police precinct was a lawful inventory search. (Id.) Finally, the Justice found that Smith's statements to the arresting police officers were voluntary and made during an investigatory stage, when Smith was "not under custodial interrogation" and was "free to leave." (Id. at 51-52).
See Mapp v. Ohio, 367 U.S. 643 (1961): People v. Huntley, 15 N.Y.2d 72 (1965).
"H" refers to the minutes of the pre-trial suppression hearing held August 9, 1996. "TI-" refers to the trial minutes of August 12, 1996. "TII-" refers to the separately-paginated trial minutes of August 13-14, 1996. "S" refers to the minutes of Smith's sentencing on December 9, 1996.
2. Trial
a. People's Case
The People's proof at trial would have permitted a reasonable juror to find as follows: On July 28, 1995, rental agent Tracy Holmes ("Holmes") was working at a National Car Rental ("National") branch located on West 40th Street in Manhattan when Smith arrived to rent a car. (TI-184, 189). Smith presented Holmes with a driver's license bearing the name "Jeff Smith" and a rental authorization letter bearing a central billing number. (Id. at 184-87, 194). The authorization letter purported to be from "Police Times" magazine. (Id. at 187). Smith also showed Holmes identification which he was wearing around his neck, stating that it was "from his job." (Id. at 188, 195). Although Holmes was unable to enter the billing number into her computer, Smith assured her that it was the correct number. (Id. at 185, 197). Holmes then dialed a telephone number on the authorization letter, but there was no answer. (Id. at 185). After Smith called the number and appeared to speak to someone, he instructed her to "add on a few more zeros." (Id. at 185-86). Once Holmes made this change the transaction was approved. (Id. at 186). Smith spent more than two hours at the West 40th Street National office in order to rent the car. (Id. at 187, 195).
Smith never was employed by "Police Times" and the magazine never had an account with National. (TII-50-53). Smith was a former civilian member of the American Federation of Police, the organization that publishes "Police Times, but even that membership had been terminated in 1984. (Id. at 41-44, 48-50).
Smith renewed his rental on August 27, September 26, October 28, and November 27, 1995. (TII-102-08). These renewals were charged to the same billing authorization number as the original rental. (Id. at 104-09). Although the billing authorization letter indicated that the number was assigned to "Police Times," it actually belonged to a company called "Trend Western." (Id. at 104-06). By December, 1995, Smith had run up $10,000 in unpaid and unauthorized rental charges against the Trend Western account and was placed on a list of persons to whom National would not rent cars. (Id. at 110).
On December 27, 1995, Holmes was working at National's East 12th Street location in Manhattan. (TI-175). Shortly before 11 p.m., Smith arrived at that branch carrying a briefcase and asked to rent a car. (Id. at 176-77, 184). Holmes recognized Smith, who once again was wearing "something" around his neck. (Id. at 176, 188-89, 199). Smith presented Holmes with his driver's license and a rental authorization letter which stated that Smith was authorized to rent a car. (Id. at 176-77). The authorization letter was on "Independent News Services" letterhead, set forth a post office box and phone number, and purported to have been signed by "Donald Anderson." (See Id. at 181-82; see also Resp't's Mem. of L. in Opp. to Pet'r's Habeas Corpus Application ("Respondent's Br."), at 6).
Donald Anderson was the pen name of someone who wrote articles for "Police Times," but that person had not signed the rental authorization. (TII-42-43, 48-51). Additionally, "Police Times" was not associated with "Independent News Services." (Id. at 54).
Holmes recognized Smith's name from an e-mail listing persons to whom National employees should not rent cars. (TI-178, 198-99). After Holmes informed Smith that he was on the "do not rent list," Smith stated that he knew, but had "changed his driver's license." (Id. at 178). Holmes then called her supervisor for approval and began the rental process by entering into her computer the billing number that Smith had provided. (Id. at 178-79).
Following Holmes' call, her supervisor called the police. (Id. at 180). When Officer McCall and his partner arrived at the 12th Street location, Holmes gestured toward Smith. (TI-179-80; TII-5-7). After Officer McCall asked what the problem was, Smith responded that he was "having a problem renting" a car. (TII-7). Holmes then gave McCall the rental authorization letter that Smith had presented to her. (TI-182, 189; TII-9). In response to the police officers' request for identification, Smith pointed to the driver's license that he had given to Holmes and did not dispute that he was Jeff Smith. (TI-181; TII-39).
More police officers soon arrived, including Sergeant Timothy Sikorski, who questioned Smith outside the rental office about the authorization letter. (TI-I 83-84; TII-10-11, 86-87). Smith claimed that he was a "member of the press" working for Independent News Services, but could recall neither the address nor the post office box on the authorization letter. (TII-1 1, 39, 87). Smith also was wearing a "press pass" around his neck which falsely indicated that he was an "accredited newsperson of the Police Times, Independent News Services" and, therefore, "entitled to all privileges, courtesy, and cooperation due a news reporter." (Id. at 11-13).
The post office box set forth on the rental authorization letter was rented by the "Winston Churchill Foundation." (TII-56, 61, 65).
Following questioning, Smith was arrested. (Id. at 13, 86). In a patrol car on the way to the precinct, McCall inspected Smith's briefcase. (Id. at 14-15). At the precinct, he conducted a more thorough search of the briefcase, which contained an assortment of papers, including copies of rental authorization letters, at least one of which had blocks of text that were "pasted on to another piece of paper." (Id. at 15-17, 22). The briefcase also contained twelve laminated and three unlaminated "press passes," as well as a number of photographs of Smith. (Id. at 27-28).
b. Amendment of the Indictment
After the People rested, Smith moved to dismiss the first count of the indictment on the theory that it purported to charge Forgery in the Second Degree, but in fact charged Smith only with the lesser-included offense of Forgery in the Third Degree. (Id. at 113-123). On this basis, Smith argued that the Court should submit only the lesser-included offense to the jury. (Id. at 115).
Forgery in the Second Degree (which is a felony) and Forgery in the Third Degree (which is a misdemeanor) share several common elements. Thus, both offenses require that the defendant "with intent to defraud, deceive or injure another . . . falsely makes, completes, or alters a written instrument. . . ." PL §§ 170.05, 170.10(1) (McKinney 1999). The crime of Forgery in the Second Degree contains an additional element, however, which requires that the written instrument be one which
is or purports to be, or which is calculated to become or to represent if completed:
1. [a] deed, will, codicil, contract, . . . or other instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status. . . .
PL 170.10(1) (McKinney 1999).
Here, Count One of the indictment charged that Smith had committed the crime of Forgery in the Second Degree, on or about December 27, 1995, in that "with intent to defraud, deceive and injury another" he "falsely made, completed and altered a written instrument, the same being and purporting to be and calculated to become and to represent if completed, a written instrument, to wit, a rental authorization." (Pet. Ex. A) (block capitalization deleted). Smith contended that the indictment was defective because it failed to include any additional language alleging that the rental authorization that he had proffered to National on December 27 was an instrument which "does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status." In response, the prosecutor maintained that the indictment was facially sufficient, but he nonetheless moved to amend the indictment to include the missing statutory language.
Justice Zweibel denied Smith's motion, ruling from the bench that the grand jury had heard sufficient evidence to sustain the second degree forgery charge and had also been advised of the applicable law. (Til-126). In addition, the Justice granted the prosecutor's motion to amend the second degree forgery count go include the missing statutory language. (Id. at 127).
c. Defense Case
Smith did not call any witnesses to testify on his behalf.
d. Verdict and Judgment
On August 14, 1996, the jury convicted Smith of second degree forgery and third degree possession of a forged instrument. (Id., at 229-30). On December 9, 1996, Justice Zweibel sentenced Smith as a second felony offender to an indeterminate term of three and one-half to seven years on the forgery count, to run concurrently with a definite one-year term on the forged instrument count. (S. 3-4).
B. Second Case
On November 20, 1996, the People filed a Superior Court Information charging Smith with Criminal Possession of a Forged Instrument in the Second Degree — namely, the rental authorization letter that he used on July 28, 1995, to rent a National car. (See Pet. Ex. C (Superior Court Information No. 9976/96)). Smith subsequently entered a plea of guilty. (See S. 4). On December 9, 1996, after imposing sentence in connection with the first case, Justice Zweibel imposed a consecutive indeterminate prison term of one and one-half to three years on the criminal possession charge. (Id..).
C. Subsequent Proceedings
1. Motion to Vacate Judgment
In January 1997, Smith moved to vacate both judgments of conviction pursuant to Section 440.10 of the New York Criminal Procedure Law ("CPL"). (Aff. of Stacy Robin Sabatini, Esq., sworn to on Sept. 21, 2000 ("Sabatini Aff."), Ex. F (Mot. to Vacate J.) at 1-5). In his motion, Smith contended that (a) his guilty plea was coerced; (b) evidence was improperly admitted at his trial; (c) he was not allowed to be present at any bench conferences; and (d) the prosecutor and the court improperly addressed the jurors outside of Smith's presence, advising them that Smith was guilty regardless of his defense. (See Sabatini Aff. Ex. F at 1-5).
On April 9, 1997, Justice Zweibel denied Smith's motion. (Id., Ex. G). In his written decision, the Justice found that Smith's complaint of coercion was nothing more than "sour grapes" and that his attorney had represented him effectively by giving him a frank assessment of the strength of the People's case. The Justice also concluded that Smith's remaining claims were unsubstantiated, commenting that he had first-hand knowledge of the falsity of many of Smith's allegations since he was both the trial and sentencing judge. (Id. at 1-3).
Smith's petition includes as an exhibit a second Motion to Vacate Judgment dated October 4, 1999. (See Pet. Ex. G). Although this motion does not appear to have been decided by the state court, insofar as it raises issues which are before this Court for habeas review, the motion is plainly surplusage.
2. Direct Appeal
Smith appealed to the Appellate Division, First Department, from both judgments of conviction. In his brief, Smith argued that the evidence at trial was not legally sufficient to support the guilty verdicts and that those verdicts were against the weight of the evidence. (Id. Ex. B (Br. on Appeal) at 13-16). Smith also argued that the trial court had improperly allowed the People to amend the indictment to charge him with the previously uncharged crime of second degree forgery. (Id. at 17-23). Finally, Smith contended that if his appeal on these grounds was successful, his guilty plea should be vacated. (Id. at 24-25).
On June 22, 1999, the Appellate Division unanimously affirmed Smith's conviction, holding that "the verdict was based on legally sufficient evidence and was not against the weight of the evidence." People v. Smith, 693 N.Y.S.2d 106. 107 (Ist Dept. 1999). Additionally, the court found that the amendment of the forgery count was proper, because even without the amendment "this count of the indictment sufficiently charged defendant with forgery in the second degree, because its reference to . . . a 'rental authorization,' coupled with its reference to the applicable Penal Law section, provided defendant with fair notice of the charge."Id. The court also noted that, "[i]n any event, the [trial] court's amendment of this count did not change the theory of the prosecution or prejudice defendant." Id. (internal citation omitted).
The Court of Appeals summarily denied Smith's motion for leave to appeal on October 26, 1999. People v. Smith, 94 N.Y.2d 799 1999).
Smith's habeas corpus petition was filed on December 10, 1999.
III. Discussion
A. Standard of Review
A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 401 (1993). Instead, a state prisoner seeking habeas relief under Section 2254 must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petitioner bears the burden of proving, by a preponderance of the evidence, that his rights have been violated.Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides, in part, that:
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.28 U.S.C. § 2254(d)(1) (emphasis added).
As the Second Circuit noted in Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000), the Supreme Court has "construed the amended statute so as to give independent meaning to 'contrary [to]' and 'unreasonable.'" "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under the "unreasonable application" clause, a federal habeas court should "ask whether the state court's application of clearly established federal law was objectively unreasonable."Id. at 409. This standard does not require that reasonable jurists would all agree that the state court was wrong. Id. at 409-10. Rather, the standard "falls somewhere between 'merely erroneous and unreasonable to all reasonable jurists.'" Stinson, 229 F.3d. at 119 (quotingFrancis S. v. Stone, 221 F.3d 100, 109 (2d Cir. 2000)).
Section 2254(d)(2) further authorizes the federal courts to grant a habeas writ when a claim considered on the merits in state court "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."
Finally, to the extent that a habeas petition challenges factual findings, Section 2254(e)(1) provides that "a determination of a factual issue by a State court shall be presumed to be correct" and that "[t]he [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."
"If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail." Williams v. Taylor, 529 U.S. at 389. As discussed below, because Smith has failed to show that his conviction resulted from such constitutionally infirm proceedings in state court, he is not entitled to federal habeas relief.
B. Smith's Fourth Amendment Claim Cannot Be Considered
Smith's first ground for habeas relief is that his Fourth Amendment rights were violated through the "use of evidence gained due to an unconstitutional search and seizure by the police." (Pet. ¶ 12(A)). More specifically, Smith contends that while he was being questioned and his briefcase was taken by the police, he was not "lawfully and officially under arrest." (Id..).
"[F]ederal habeas corpus relief is not available on the ground that evidence produced at trial was the result of an unconstitutional search and seizure, unless the state denied the prisoner an opportunity for full and fair litigation of the claim." Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991) (citing Stone v. Powell, 428 U.S. 465 (1976)). Thus, a Fourth Amendment claim can be considered on habeas review only when (a) the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations, or (b) there is a corrective mechanism, but the defendant was unable to use it because of an "unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977)).
The State of New York clearly has provided defendants such as Smith with the necessary corrective procedures through CPL § 710. See Capellan, 975 F.2d at 70 n. 1 ("'federal courts have approved New York's procedure for litigating Fourth Amendment claims, embodied in [CPL] § 710.10 et seq. (McKinney 1984 Supp. 1988), as being facially adequate'") (quoting Holmes v. Scully, 706 F. Supp. 195, 201 (E.D.N.Y. 1989)); Vega v. Artuz, No. 97 Civ. 3775 (LTS), 2002 WL 252764, at *12 (S.D.N.Y. Feb. 20, 2002). Therefore, in order to secure habeas relief, Smith must demonstrate that there was a breakdown in the state process — which typically consists of some sort of "disruption or obstruction of a state proceeding." Capellan, 975 F.2d at 70 (quoting Shaw v. Scully, 654 F. Supp. 859, 864 (S.D.N.Y. 1987)). Smith has made no such showing here. Accordingly, because Smith was given a full and fair opportunity to litigate his Fourth Amendment claims prior to trial, his Fourth Amendment claims cannot be entertained.
C. Smith's Miranda and Double Jeopardy Claims Are Procedurally Defaulted
A court may not grant a writ of habeas corpus unless it appears that the applicant has exhausted all available state court remedies,or there is an absence of state corrective process,or circumstances render that process ineffective to protect the petitioner's rights. 28 U.S.C. § 2254(b)(1)(A), (B). As a defendant charged with a crime in New York State, Smith unquestionably had an effective process available to him through the state statutes governing appeals in criminal cases. See CPL § 450.10. Accordingly, to satisfy the statutory exhaustion requirement, Smith must show that he presented "the substance of the same federal constitutional claim that he now urges upon the federal courts to the highest court in the . . . state." Aparicio v. Artuz, 269 F.3d 78, 89-90 (2d Cir. 2001) (citations and internal quotation marks omitted). To meet this requirement, it is not necessary that the federal constitutional claim be presented to the state courts in haec verba, Indeed, there are a number of ways in which the claim may be presented, including:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Dave v. Attorney Gen, of N.Y., 696 F.2d 186, 194 (2d Cir. 1982).
Judged by these standards, two of the claims in Smith's petition plainly are unexhausted. First, as his second ground for relief, Smith claims that his conviction was obtained "in part pursuant to an unlawful arrest and violation of this constitutional rights." (Pet. ¶ 12(B)). In that regard, he alleges that while he was being questioned by the police he "was not advised that he had the right not to answer any questions and a right to counsel." (Id.). He further alleges that he would have been stopped had he attempted to leave the area. (Id.).
In his ruling at the conclusion of the pretrial suppression hearing, Justice Zweibel determined that the statements that Smith made prior to his formal arrest were the product of a lawful noncustodial interrogation. Having failed to appeal that ruling, to the Appellate Division as part of his direct appeal, Smith has not presented this claim to an "appropriate state court," Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981), and his claim is therefore unexhausted.
In his January 1997 motion to vacate the judgments of conviction, Smith did assert that "material evidence" was "obtained contrary to constitutional provisions," but he did not make any specific allegations regarding the admission of his statements at trial. (See Sabatini Aff, Ex. F).
As his third ground for relief, Smith contends, in substance, that he was placed in double jeopardy as a consequence of the trial court's decision to amend the indictment during the course of the trial. (Pet. ¶ 12(C)). Although Smith did allege as part of his direct appeal that the trial court's amendment of the second degree forgery charge was improper, he relied exclusively on state law as a basis for this claim. (See Sabatini Aff. Ex. B at 17-23). Accordingly, this claim too is unexhausted.
A federal habeas court may treat an unexhausted claim as exhausted when it is clear that it is "procedurally barred by state law and, as such, its presentation in the state forum would be futile." Aparicio, 269 F.3d at 90. Accord Reyes v. Keane, 118 F.3d 136. 139 (2d Cir. 1997). In that circumstance, however, because the state forum would treat the claim as procedurally barred, the federal habeas court must also deem the claim procedurally defaulted. Aparicio, 269 F.3d at 90 (citing Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991)). Consequently, federal habeas review is precluded unless the petitioner can demonstrate either "cause for the default and actual prejudice as a result of the alleged violation of federal law" or "that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. Accord Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996). To make the latter showing, a petitioner must establish that he is "actually innocent."Aparicio, 269 F.3d at 90.
Pursuant to CPL § 440.10(2)(c), a prisoner who has prosecuted a direct appeal may not subsequently seek collateral review of an issue that could have been raised on appeal but was not. See Bossett v. Walker, 41 F.3d 825. 829 (2d Cir. 1994). Accordingly, because Smith's Miranda and Double Jeopardy Clause claims could have been presented on direct appeal, both claims have been procedurally defaulted. Moreover, Smith has not shown either "cause and prejudice" or "actual innocence," nor is there any reason to believe that either of these required showings could be made. This Court is therefore barred from entertaining these claims. See Coleman, 501 U.S. at 748-50; Aparicio, 269 F.3d at 90.
B. Merits of Smith's Claims
Although the Court need only address claims which are exhausted, it is understandable that an inmate such as Smith, who is serving a lengthy prison sentence, would want the merits of each of his claims to be reached. Moreover, there is always the possibility (however remote) that another court could reach a different conclusion as to the preliminary issues of procedural forfeiture and exhaustion. For these reasons, notwithstanding the jurisdictional problems previously identified, I have considered each of Smith's claims other than his Fourth Amendment claim on the merits. See 28 U.S.C. § 2254(b)(2) ("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."). As shown below, none of those claims warrants the issuance of a writ of habeas corpus.
1. Miranda Claim
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court established a prophylactic rule requiring a suspect to be advised of his rights before being subjected to a custodial interrogation. If questioning is undertaken in violation of Miranda, any improperly-obtained statements resulting therefore cannot be used as part of the prosecutor's case-in-chief. Dickerson v. United States, 530 U.S. 428, 443-44 (2000).
The key question is whether a defendant questioned without having been "Mirandized" was in custody at the time that he gave the statements that he seeks to suppress. See Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (the "obligation to administer Miranda warnings attaches . . . only when there has been such a restriction on a person's freedom as to render him in custody.") (internal quotation marks omitted). The Supreme Court has held "two discrete inquiries" must be made to determine whether a person is "in custody" — a consideration of "the circumstances surrounding the interrogation" and "given those circumstances, [whether] a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave."Thompson v. Keohane, 516 U.S. 99, 112 (1995). Because the first of these inquiries is "purely an issue of fact," federal courts must "presume that the state courts' findings are correct." Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) (citing Tankleff v. Senkowski, 135 F.3d 235, 243 (2d Cir. 1998); see 28 U.S.C. § 2254(e)(1)). The second presents a mixed question of fact and law. Thompson, 516 U.S. at 112-13. Among the factors that courts may consider in determining whether questioning was custodial are
whether a suspect is or is not told that she is free to leave, see Campaneria v. Reid, 891 F.2d 1014, 1021 n. 1 (2d Cir. 1989); the location and atmosphere of the interrogation, see Oregon v. Mathiason, 429 U.S. 492, 494-95 (1977); the language and tone used by the police, see United States v. Guarno, 819 F.2d 28, 31-32 (2d Cir. 1987); whether the subject is searched, frisked, or patted down, see United States v. Wilson, 901 F. Supp. 172, 175 (S.D.N.Y. 1995); and the length of the interrogation, see Berkemer [v. McCarty], 468 U.S. [420,] 437-38 [(1984)].Tankleff, 135 F.3d at 244 (parallel citations omitted).
Miranda warnings are not required simply because police officers question a suspect in coercive circumstances. See,e.g., Stansbury v. California, 511 U.S. 318, 325 (1994) ("Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest."); United States v. Cota, 953 F.2d 753, 756-59 (2d Cir. 1992) (suspect not in Miranda custody even when she was removed from her car at gunpoint and handcuffed due to police officers' safety concerns). Here, there is nothing about the initial questioning of Smith that suggests a need for him to have been given Miranda warnings. When the police first arrived at the National rental location, their preliminary questions were simply intended to determine whether there was a problem and, if so, what it was. Although the questioning continued outside the rental office, there is no indication that Smith was taken there by force. Indeed, Officer McCall's uncontradicted testimony was that he "stepped inside and said, '[c]ould you step outside, please." (H. 22). Smith also never asked to leave or was he told that he could not leave. (Id. at 7). Given these circumstances, a reasonable person clearly would not have felt that he lacked the ability to terminate the questioning and leave the area. There is nothing in the record, nor any analogy in case law to suggest that Smith was subject to a custodial interrogation. Moreover, even if this question were not entirely free from doubt, Smith has not shown, as he must, that Justice Zweibel's determination that Smith was not in custody when he was questioned at the National location was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Smith's Miranda claim is therefore meritless.
2. Double Jeopardy Claim
In an effort to craft a double jeopardy claim, Smith contends that "after [the] trial was over . . . and the jury dismissed, the prosecution moved to amend the indictment" and the judge granted that application. (Pet. ¶ 12(C)). The trial transcript establishes, however, that this was not the actual sequence of events. Instead, it is clear that the prosecution sought to amend the indictment after the close of its case in response to the defense's motion to dismiss the second degree perjury count. (See TII-120-22). Thereafter, before returning its guilty verdict, the trial jury was specifically instructed about the elements that the People were required to establish in order to prove that charge. (Id. at 192-98). The jury was further instructed that if it found Smith guilty of the second degree forgery count, it was not to consider the third degree forgery count. (Id. at 198). Consistent with these instructions, the jury returned a verdict of guilty on the second degree (felony) forgery count and not the third degree (misdemeanor) forgery count. (Id. at 229-30).
A double jeopardy violation occurs when a person is punished for thesame crime more than once. United States v. Chacko, 169 F.3d 140, 145 (2d Cir. 1999) (citing U.S. v. Dixon, 509 U.S. 688, 696 (1993)). Here, Smith was convicted after a jury trial on one count of Forgery in the Second Degree and later was sentenced for that crime. Smith was not convicted, nor was any sentence imposed, with respect to the crime of Forgery in the Third Degree. Accordingly, even if one were to assume that both those charges are identical, there has been no double jeopardy violation here.
Smith's petition also incorporates as an exhibit a second motion to vacate judgment which does not appear to have been addressed by the State courts. (Pet. Ex. G). As the Respondent correctly observes, that motion can be read to allege that Smith was subjected to double jeopardy when he was charged in a Superior Court Information with Possession of a Forged Instrument in the Second Degree in connection with his first rental of a National vehicle on July 28, 1995. (See Resp't's Br. at 26-27).
Even if this claim had been exhausted, it would have to be denied because the forged instrument possession charge that Smith was convicted of at trial related to the rental authorization that he had in his possession on December 27, 1995. There is no basis for Smith's suggestion that the prosecutor's decision to charge in a separate instrument that he committed a different crime on a different date violates the Double Jeopardy Clause.
3. Ineffective Assistance Claim
Smith also claims that his conviction was obtained "in part" through the ineffective assistance of his counsel. (Pet. ¶ 12(D)). Smith alleges that he had a "change of three counsels, fresh from law school that did not put up a strong defense" for him. (Id..). He further contends that his trial counsel, "who only one time [sic] objected to the amended indictment, coerced and forced [him] to plea to the [Superior Court Information] with the threat of being given 'life in prison.'" (Id..). In his first motion to vacate judgment, Smith also contended that his counsel sought to browbeat him into pleading guilty to the charges that were eventually tried. (See Pet. Ex. E (Smith Aff. at 2)).
To prevail on an ineffective assistance of counsel claim, Smith must demonstrate that (a) his counsel's performance "fell below an objective standard of reasonableness" and (b) there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). In this case, Smith's trial counsel, Schanti Narra, Esq., of the Legal Aid Society, made pre-trial motions to suppress the statements that Smith had made to the police as well as the physical evidence found in his briefcase. (H. 36-44). At the suppression hearing, she thoroughly cross-examined McCall. (Id. at 15-36). She also conducted cross-examinations of the prosecution's trial witnesses and made appropriate objections. (See e.g., TII-38-39, 49, 51-52). At the conclusion of the People's case, she moved to dismiss both counts of the indictment, tendering an eleven-page brief to Justice Zweibel. (Id. at 113-34). Ms. Narra also gave substantive opening and closing arguments. (TI-171-73; TII-139-58). Although she was unable to spare Smith from a guilty verdict, this comes as no surprise since the proof against him was overwhelming. There consequently is no basis for Smith's ineffective assistance claim, which, in Justice Zweibel's words, amounts to nothing more than "sour grapes." (Sabatini Aff. Ex. G. at 2).
Smith's claim that his counsel improperly coerced him into pleading guilty is also frivolous. Addressing this claim in his decision denying Smith's post-trial motion to vacate the judgment of conviction, Justice Zweibel observed as follows:
His attorney advised defendant of his options, the strength of the case against him and the possible sentence he could receive. This is not undue pressure, but rather effective representation by his attorney. . . . It is clear to this Court that defendant pled guilty to the SCI in order to obtain a more favorable sentence in the trial case while avoiding the possibility of an enhanced sentence if indicted and convicted on the count in the SCI.
(Id. at 2-3). In his Petition, Smith has not shown, as he must, that this decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).
4. Speedy Trial Claim
Finally, in his reply papers, Smith claims that he was denied the right to a "speedy trial" pursuant to CPL § 30.30. (See Pet'r's Mem. of L. in Resp. to Resp't's Opp. at 20-23). Smith did not raise this claim on his direct appeal or as part of his Section 440.10 motion in January 1997. (See Sabatini Aff., Exs. B, F). In any event, a violation of CPL § 30.30, even if established, does not give rise to a federal constitutional claim. See, e.g.,Gonzalez v. Garvin, No. 99 Civ. 11062 (SAS), 2002 WL 655164, at *2 (S.D.N.Y. Apr. 22, 2002); Rodriguez v. Miller, No. 96 Civ. 4723 (HB), 1997 WL 599388, at *2 (S.D.N.Y. Sept. 29, 1997).
IV. Conclusion
For the foregoing reasons, Smith's habeas petition should be denied. Furthermore, because Smith has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have any objections to this Report and Recommendation, they must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Richard Conway Casey, United States District Judge, and to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Casey. Any failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).