Opinion
03 Civ. 0910 (DLC) (JCF)
April 21, 2004
REPORT AND RECOMMENDATION
Warren Smith brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, New York County, for robbery and burglary. Mr. Smith contends that: (1) he was denied the right to counsel when the court agreed to replace his appointed attorney but declined to do so before he was scheduled to testify before the Grand Jury; (2) he was denied his right to be convicted only upon a unanimous verdict, as well as his right to effective representation of counsel when his trial attorney failed to raise this issue; (3) there was insufficient evidence to support the robbery conviction; and (4) he was denied adequate assistance of appellate counsel. The respondent acknowledges that the petition is timely and that all of the claims have been exhausted.
For the reasons set forth below, I recommend that the petition be denied.
Background
On May 15, 1999, Cheuk Gin, David Gin, and their parents were staying at the Quality Inn Hotel and Suites in Manhattan. (Tr. at 96, 128-29). At approximately 7:15 a.m., the petitioner knocked on the door of their room, identified himself as a maintenance worker, and said that he had to check a leak in the bathroom. (Tr.at 97, 129-30, 145). Although Mr. Smith was not wearing a uniform and did not display identification, Cheuk let him into the room.(Tr. at 98). After pretending to examine the bathroom, the petitioner closed the door to the room and ordered Cheuk to lie on the floor or he would "blow [his] fucking head off." (Tr. at 102-04, 120-23, 131). Cheuk complied, and Mr. Smith took $700 from his wallet, which was on the dresser. (Tr. at 104, 121, 132). The petitioner then asked David where the rest of the money was, and David replied that it was in the dresser. (Tr. at 105, 122, 134-35). Mr. Smith found David's pants in the dresser drawer and removed $200 from the pocket. (Tr. at 105-06, 135, 147). When Cheuk stood up despite Mr. Smith's order to stay down, the petitioner punched him in the side of the head, knocking him to his knees. (Tr. at 106-07, 135). Mr. Smith then ran out the door and down the stairs. (Tr. at 107, 135). David and his father gave chase but failed to catch up with him. (Tr. 108, 135-36, 147-48).
"Tr." refers to the transcript of the petitioner's trial.
Cheuk sustained a "bump and a little bruise" on his head from being punched. (Tr. at 107). These symptoms lasted about a week, during which time, Cheuk said, "it hurt just chewing." (Tr. at107). Cheuk did not, however, seek medical attention. (Tr. at123-24).
A security camera caught Mr. Smith entering the hotel at 7:01 a.m. on May 15, 1999, and going up the stairs to the guest rooms. The tape also showed him in the lobby at 7:20 a.m. (Tr. at 229, 231, 243-44, 251).
On May 26, 1999, Kevin Ferguson and his wife were staying at the Milford Plaza Hotel in Manhattan. (Tr. at 68-69). At about8:20 or 8:25 p.m., the petitioner knocked on their door, said he was a maintenance man, and asked to check the bathroom. (Tr. at69-71, 78-81). Mr. Ferguson saw through the peephole in the door that Mr. Smith was not wearing a uniform and told him to "get lost." (Tr. 69-71, 80-81). Mr. Ferguson then went to the hotel desk and informed security about the incident. (Tr. at 71-72, 82).
Michael McNulty was also staying at the Milford Plaza that night. (Tr. at 35). At about 8:30 p.m., the petitioner knocked on his door and said he was from maintenance and needed to check a leak in the bathroom. (Tr. at 35-36, 54). Mr. McNulty let him in, and after the petitioner looked in the bathroom, he said he needed to use the phone. (Tr. at 37-38, 57). Mr. McNulty, who had become suspicious, objected. (Tr. at 38). Then Mr. Smith pushed Mr. McNulty and said, "Just give me your money. Get down on the floor." (Tr. at 40, 52-53). Mr. McNulty told the petitioner to get out, but Mr. Smith put his hand in his pocket and said, "You know what this is . . . I've got a gun." He told Mr. Smith to lie on the floor "or you're going to get hurt." (Tr. at 40-42, 47-48, 52-53, 62-63). When Mr. McNulty complied, the petitioner took $17 or $19 from the victim's hand and an envelope containing $50 from his pocket. (Tr. at 42-44, 53). Mr. Smith then left, and Mr. McNulty called the hotel desk and reported the robbery. (Tr. at44-45, 64, 66).
In the meantime, Mr. Ferguson had told Robert Noonan, a hotel security officer, about his encounter with the petitioner. (Tr. at72, 81, 83, 159-61). While Mr. Ferguson and Mr. Noonan were in the lobby, the petitioner exited from the elevator and Mr. Ferguson identified him as the man who was posing as a maintenance worker.(Tr. at 72-73, 83-84, 161-62). When Mr. Noonan attempted to detain Mr. Smith, the petitioner fled. (Tr. at 73-74, 85-86, 162-65).Mr. Noonan and Mr. Ferguson gave chase, and Mr. Smith was ultimately apprehended in a nearby subway station by a plain clothes police officer. (Tr. at 75-76, 87-88, 166-67, 199-200). When the petitioner was searched at the station house, he had $69 in cash, apparently the same money that had been stolen from Mr. McNulty.(Tr. at 181, 183-85, 217-18). Officers did not find a gun.
On June 14, 1999, the grand jury charged Mr. Smith with one count each of Burglary in the First Degree (N.Y. Penal Law § 140.30(4)) and Robbery in the Second Degree (N.Y. Penal Law § 160.10(2)(b)) for the robbery of Mr. McNulty. Thereafter, on October 13, 1999, the petitioner was placed in a lineup and viewed by Cheuk and David Gin. (Tr. at 108, 136-37, 263-65). Cheuk positively identified Mr. Smith as the man who had robbed them, while David, who narrowed his selection to Mr. Smith and one other man, ultimately chose the other man. (Tr. at 108-10, 137, 140-42, 149-51).
The prosecution presented evidence concerning the Gin robbery to the grand jury on October 14 and 19. (Affirmation of Gregory Rofman dated Dec. 1, 1999 ("Rofman Aff."), attached as third document in Exh. N to Declaration of Willa J. Bernstein dated Sept.29, 2003 ("Bernstein Decl."), ¶ 4.) At the end of the second day, the grand jury voted to indict, but the indictment was not immediately filed. (Rofman Aff., ¶ 5). On October 25, the prosecution received a pro se document from the petitioner dated October 19 indicating that he wished to testify before the grand jury. (Rofman Aff., ¶ 7). The Assistant District Attorney then advised Mr. Smith's attorney, Charles Castellon, of this communication, and they agreed that the case would be reopened and the petitioner would be given the opportunity to testify on October 28. (Rofman Aff., ¶ 8).
On that day, however, Mr. Smith refused to speak with his attorney and said he wanted a new one. (Rofman Aff., ¶ 9). Accordingly, the Assistant District Attorney rescheduled Mr. Smith's grand jury appearance for November 1, and Mr. Castell on arranged to move for substitution of counsel on October 29.(Rofman Aff., ¶ 10).
Mr. Castellon made his motion before Justice Carol Berkman. She agreed to relieve him and to assign substitute counsel at a later date, but because of the petitioner's imminent appearance before the grand jury, she directed Mr. Castellon to continue as counsel throughout that process. (Rofman Aff., ¶ 11; Order dated Dec. 16, 1999 ("Order"), attached as fourth document in Exh. N to Bernstein Decl., third unnumbered page n. 3).
On November 1, Mr. Smith was brought to the grand jury area to testify. However, when Mr. Castellon approached to advise him, the petitioner became angry, said Mr. Castellon was no longer his attorney, and refused to testify. (Rofman Aff., ¶ 12). Later that day, the indictment previously voted by the grand jury was filed. It charged Mr. Smith with one count of Burglary in the First Degree and two counts of Robbery in the Second Degree in connection with the robbery of Cheuk and David Gin.
On November 17, 1999, the petitioner, through his new attorney, moved to dismiss that indictment on the grounds that he had been denied the right to testify before the grand jury. (Notice of Motion, attached as first document in Exh. N to Bernstein Aff.). Justice Berkman denied the motion, finding that Mr. Smith had lost the opportunity to testify in the grand jury because of his own failure to cooperate with his prior counsel. (Order at fourth unnumbered page).
This indictment was then consolidated for trial with the earlier indictment relating to the McNulty robbery, and trial commenced before the Honorable Ira Beal and a jury on March 2, 2000. After hearing the evidence, the jury returned a guilty verdict on one count of burglary and two counts of robbery in connection with the robbery of the Gins. (Tr. at 381-85). It was unable to reach a verdict with respect to the charges stemming from the McNulty robbery, and a mistrial was declared as to those counts. (Tr. at 395-99). On April 6, 2000, Mr. Smith was sentenced as a violent felony predicate offender to concurrent prison terms of twenty years on the burglary count and twelve year son each robbery count. (S. Tr. at 14).
"S. Tr." refers to the transcript of the sentencing proceeding.
The petitioner then appealed to the Appellate Division, First Department. He argued that: (1) he was deprived of the right to counsel because the court refused to substitute counsel until after the grand jury proceedings were complete; (2) the court should not have allowed defense counsel to waive sequestration of the jury when the petitioner was not present in the court room, and (3) there was insufficient evidence that Cheuk Gin had sustained a physical injury, a required element of second degree robbery. (Bernstein Decl., Exh. A). On May 8, 2001, the Appellate Division affirmed the conviction, finding that there was adequate proof of physical injury, that the court properly exercised its discretion in delaying substitution of counsel, and that waiver of sequestration does not require the defendant's consent.People v. Smith, 283A.D.2d 208, 726 N.Y.S.2d 12 (1st Dep't 2001). On July 9, 2001 the New York Court of Appeals denied leave to appeal. People v. Smith, 96 N.Y.2d 907, 730 N.Y.S.2d 806 (2001) (table).
Prior to filing his direct appeal, Mr. Smith had moved to set aside the verdict pursuant to New York Criminal Procedure Law ("CPL") § 440.10. In that motion, he contended that he had been denied effective assistance of counsel and that the trial court had accepted the verdict from a less-than-unanimous jury. (Bernstein Decl., Exh. F). On April 18, 2001, Justice Beal denied this motion without opinion (Bernstein Decl., Exh. G), and on June 21, 2001, the Appellate Division denied leave to appeal that decision. (Bernstein Decl., Exh. J).
On December 11, 2001, Mr. Smith filed an application for awrit of error coram nobis with the Appellate Division. He argued that he had been denied effective assistance of appellate counsel because his attorney had not raised the issue of the non-unanimous verdict and had not contested the court's acceptance of a partial verdict. (Bernstein Decl., Exh. K). The Appellate Division denied the motion on August 8, 2002. People v. Smith, 297 A.D.2d 468, 747N.Y.S.2d 68 (1st Dep't 2002) (table).
Mr. Smith then filed the instant petition, which was signed on January 16, 2003 and received by the Court on January 21, 2003.
Prior to passage of the Antiterrorism and Effective Death Penalty Act (the "AEDPA"), factual findings made by a state court after an evidentiary hearing were presumed correct in a federal habeas proceeding, but federal courts were not required to defer to state court determinations of law and of mixed questions of law and fact. See Thompson v. Keohane, 516 U.S. 99, 107-12 (1995); Brown v. Artuz, 283 F.3d 492, 497 (2d Cir. 2002). Under the AEDPA, however, a writ of habeas corpus may not issue "with respect to any claim that was adjudicated on the merits in State court proceeding sunless the adjudication . . . 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).
A decision is contrary to clearly established Federal law if it "contradicts the governing law" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from" the Supreme Court. [Williams v. Taylor, 529 U.S. 362,] 405-06 (2000). An unreasonable application of federal law is more than an incorrect application, but the petitioner need not show that all reasonable jurists would agree that a state court determination is incorrect in order for it to be unreasonable. Id. at 409-12. Instead, a federal court should review a state court's interpretation of federal law using a standard of objective reasonableness. Id. at 409. Objective unreasonableness includes an unreasonable refusal "to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d 36, 45 n. 2 (2d Cir. 2002). The "increment of incorrectness beyond error . . . need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111(2d Cir. 2000) (internal quotation marks omitted).
Yunq v. Walker, 296 F.3d 129, 135 (2d Cir. 2002).
The AEDPA standard applies to this case since Mr. Smith filed his petition after the Act's effective date. See Brown, 283 F.3d at 498 n. 2. Nevertheless, since each of the petitioner's claims fails under the less deferential pre-AEDPA standard, there is no need to conduct the AEDPA's more intricate analysis. Cf. Kruelski v. Connecticut Superior Court for the Judicial District of Danbury, 316 F.3d 103, 106-07 (2d Cir. 2003) (suggesting, in post-AEDPAcases, that habeas courts assess first whether state court's ruling was erroneous under "correct interpretation" of the federal law a tissue, then whether the ruling was unreasonable).
A. Right to Counsel at the Grand Jury
At the outset, it is not entirely clear that Mr. Smith has raised in the instant petition the issue of his right to counsel during the grand jury proceedings. His ineffective assistance of counsel claim appears to focus on the failure of his attorney to challenge the supposedly less-than-unanimous verdict, an issue that will be addressed below. However, the issue of Mr. Smith's right to counsel at the grand jury stage was raised on direct appeal and was characterized as "[t]he prominent leave worthy question" in his application for leave to appeal to the New York Court of Appeals. (Letter dated May 23, 2001 from Laura Burde, attached as second document in Exh. D to Bernstein Aff.). Further, the respondent has fully addressed this issue in answering the petition. (Respondent's Memorandum of Law in Opposition to Petition for aWrit of Habeas Corpus at 21-25). Therefore, it is appropriate for this Court to consider it.
In evaluating a claim of an alleged violation of the Sixth Amendment right to counsel, "the appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such."United States v. Cronic, 466 U.S. 648, 657 n. 21 (1984). This is because "the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers."Wheat v. United States, 486 U.S. 153, 159 (1988) (citations omitted). "These limitations apply whether an attorney is privately retained or appointed by the state. Although an indigent is entitled to appointed counsel, he is not guaranteed counsel of his choice."Pizarro v. Bartlett, 776 F. Supp. 815, 819 (S.D.N.Y. 1991) (citation omitted).
These principles came into play in Jackson v. Keane, No. 93Civ. 5826, 1994 WL 281831 (S.D.N.Y. June 23, 1994). In that case, the criminal defendant had a falling out with his attorney, who was relieved. Before new counsel was appointed, however, the defendant's case was presented to the grand jury and an indictment issued. At no point did either the outgoing attorney or the court advise the defendant of his right to testify before the grand jury. Id. at *2. Nevertheless, the federal district court rejected the defendant's habeas claim because he had not been prejudiced: "[p]etitioner retained his right and opportunity to test all available defenses before the petit jury at trial, despite his unwilling forfeiture of an opportunity to test the sufficiency of the evidence before the grand jury." Id. at *3 (quotation marks, citation, and alterations omitted).
In this case, the basis for rejecting Mr. Smith's claim is even stronger. In contrast to the accused in Jackson, he was fully aware of his right to testify before the grand jury. Accordingly, his forfeiture of that right was not "unwilling." Mr. Smith could have listened to the advice of Mr. Casellan and then, if he chose, proceeded to testify before the grand jury. There is simply no evidence that Mr. Castellan was incapable of properly advising the petitioner. The fact that Justice Berkman acceded to Mr. Smith's desire for new counsel does not in itself prove otherwise. Thus, any disadvantage to Mr. Smith from failing to testify before the grand jury was a result of his own pique, not of a deprivation of the right to counsel.
B. Right to a Unanimous Verdict
Mr. Smith claims that with respect to the counts on which he was convicted, the jury was not unanimous. He derives this assertion from the following interchange that took place when the jury returned a partial verdict:
THE CLERK: Just answer yes or no. Has the jury reach eda verdict as to count one?
THE FOREPERSON: No.
THE CLERK: Has the jury reached a verdict as to count two?
THE FOREPERSON: No
THE CLERK: Has the jury reached a verdict as to count three?
THE FOREPERSON: Yes
THE CLERK: Has the jury reached a verdict as to count four?
THE FOREPERSON: Yes
THE CLERK: Has the jury reached a verdict as to count five?
THE FOREPERSON: Yes
THE CLERK: As to count number three, charging the defendant with burglary in the first degree, how do you find the defendant; guilty or not guilty?
THE FOREPERSON: Guilty.
THE CLERK: As to the fourth count, charging the defendant with robbery in the second degree, how do you find the defendant; guilty or not guilty?
THE FOREPERSON: Guilty.
THE CLERK: As to the fifth count, charging the defendant with robbery in the second degree, how do you find the defendant; guilty or not guilty?
THE FOREPERSON: Guilty
THE CLERK: Thank you. Please be seated. Ladies and gentlemen of the jury, listen to your verdict, your partial verdict, as it stands recorded. You say through your foreperson that you find the defendant guilty of burglary in the first degree under the third count and guilty of robbery in the second degree under the fourth and fifth counts and so say you all.
THE COURT: Mr. Farber, do you want me to poll the jury? MR. FARBER: Yes, please.
THE CLERK: Ladies and gentlemen of the jury, you say through your foreperson that you find the defendant guilty of burglary in the first degree under the third count and guilty of robbery in the second degree under the fourth and fifth counts.
Juror number one, is that your verdict as to those counts?
THE FOREPERSON: Whether he's —
THE COURT: Are those yours verdicts as to the third, fourth and fifth counts?
THE FOREPERSON: My verdict? Not guilty.
THE COURT: Are those your verdicts as to the third, fourth and fifth counts, what you just told us? Is that your verdict?
THE FOREPERSON: Yes, that's my verdict.
(Tr. at 381-84). Thereafter, the clerk polled the remaining jurors who all acknowledged their agreement with the guilty verdict as to counts three, four, and five, corresponding to the charges relating to the Gin robbery. (Tr. at 384-85). Finally, the clerk stated:
Ladies and gentlemen of the jury, listen to your partial verdict as it stands recorded. You, and each of you, find the defendant guilty of burglary in the first degree under the third count, guilty of robbery in the second degree under the fourth count and guilty of robbery in the second degree under the fifth count in all respects and so say you all.
(Tr. at 385). Justice Beal then returned to questions that the jury had about the first two counts relating to the McNulty robbery. (Tr. at 385).
As a threshold matter, there is no federal constitutional right to a unanimous verdict in a state criminal case. See Schad v. Arizona, 501 U.S. 624, 634 n. 5 (1991); Johnson v. Louisiana, 406U.S. 35, 362-63 (1972) (state law permitting conviction on basis of nine of twelve jurors not violation of due process); Apodaca v. Oregon, 406 U.S. 404, 411 (1972) (state law permitting conviction by ten of twelve jurors not violation of Sixth Amendment). Nevertheless, unanimity is required by the law of New York. CPL § 310.80. Therefore, if Mr. Smith's counsel had mistakenly failed to object to a non-unanimous verdict, the petitioner might have received ineffective assistance.
But that was not the case. Generally, in a habeas corpus proceeding:
a determination of a factual issue by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.28 U.S.C. § 2254 (e)(1). And, in particular, "[a]n appellate court must rely on the trial judge's appraisal of the unanimity of a verdict." United States v. Alarcon-Simi, 300 F.3d 1172, 1177 (9th Cir. 2002).
In this case, in rejecting Mr. Smith's § 440.10 motion, Justice Beal necessarily found that the guilty verdict was, infact, unanimous. This finding is amply supported by the record. It is true that the jury foreperson was initially confused when the court clerk began polling the jury with regard to counts three, four, and five. This is understandable in light of the facts that:(1) the foreperson had just finished reciting the verdict on behalf of the entire jury and (2) counts one and two were still open. However, Justice Beal immediately confirmed that the foreperson's verdict was consistent with that the foreperson had just announced in court. (Tr. at 383-84). Furthermore, the court clerk again reiterated the verdict, and there was no suggestion of dissent by any jury member. (Tr. at 385). Thus, the petitioner has failed to show by clear and convincing evidence that Justice Beal erred in finding that the verdict was unanimous.
Not only does Mr. Smith's substantive claim lack merit, but his associated ineffective assistance claim fails as well. In order to obtain habeas relief due to ineffective assistance of counsel, the petitioner must demonstrate that (1) counsel's performance was deficient, and (2) the deficient performance was prejudicial to the defense. Strickland v. Washington, 466 U.S.668, 687 (1984); see also Lockhart v. Fretwell, 506 U.S. 364, 369(1993). In assessing whether the attorney's performance was deficient, a reviewing court must determine whether his conduct "fell below an objective standard of reasonableness" given the facts and circumstances of the particular case.Strickland, 466U.S. at 688. A habeas corpus court must be "highly deferential "and indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.Id. at 689. The "prejudice" prong of the Strickland test requires a "showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable," and that "but for" the claimed errors of counsel, the trial result would have been different. Id. at 687, 694.
Here, it was entirely reasonable for Mr. Smith's attorney to interpret the response of the jury foreperson as endorsing the guilty verdict, and counsel's decision not to challenge the verdict as non-unanimous was therefore fully justified. Furthermore, for the reasons discussed above, any such challenge would have been doomed, and the determination not to advance it was not prejudicial to the petitioner.
C. Sufficiency of the Evidence
The standard for habeas corpus review of the sufficiency of the evidence is well-settled. There is a "very heavy burden placed upon a defendant challenging the sufficiency of the evidence underlying his conviction." Knapp v. Leonardo, 46 F.3d 170, 178(2d Cir. 1995) (internal quotations and citation omitted). "To succeed, [the petitioner] must demonstrate that viewing the evidence in the light most favorable to the government, . . . no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt."Id. (internal quotations and citations omitted); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Mr. Smith contends that the prosecution failed to prove the element of physical injury with respect to the robbery convictions. Under New York law:
A person is guilty of robbery in the second degree when he forcibly steals property and when . . . [i]n the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . [c]lauses physical injury to any person who is not a participant in the crime [.]
N.Y. Penal Law § 160.10. "Physical injury," in turn, is defined as "impairment of physical condition or substantial pain." N.Y. PenalLaw § 10.00(9).
Evidence that Mr. Smith punched Cheuk Gin hard enough to knock him to the floor, to cause a bump and bruising, and to result in a week of pain each time the victim tried to chew is sufficient to establish the element of physical injury under this definition. It is true that "petty slaps, shoves and kicks do not amount to physical injury under the statute."People v. Pope, 174 A.D.2d 319, 321, 571 N.Y.S.2d 205, 207 (1st Dep't 1991) (internal quotation marks and citations omitted). Nevertheless, the question of whether a victim incurred a physical injury and suffered substantial pain is generally an issue for the jury.See People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 352-53 (1994); People v. Rojas, 61 N.Y.2d 726, 727, 472 N.Y.S.2d 615, 616 (1984). And, the fact that the victim does not seek medical treatment, while a relevant consideration, is not dispositive.See Guidice, 83 N.Y.2d at 636, 612 N.Y.S.2d at 353;Pope, 174 A.D.2d at 321, 571N.Y.S.2d at 207. Thus, New York courts have sustained verdicts based on a finding of physical injury where the victim complained of a week of throbbing pain in his little finger, see Pope, 174A.D.2d at 321, 571 N.Y.S.2d at 207, and where the victim suffereda bloodied and swollen lip. See People v. Marsh, 264 A.D.2d 647, 647, 696 N.Y.S.2d 14, 15 (1st Dep't 1999);People v. Spry, 232A.D.2d 232, 232-33, 648 N.Y.S.2d 86, 86 (1st Dep't 1996). By these standards, the jury could well have found that Cheuk Gin sustained physical injury when struck with sufficient force to knock him to the ground, and when the blow caused bruising as well as pain that lasted a week.
D. Assistance of Appellate Counsel
Finally, Mr. Smith argues that he was denied effective assistance of appellate counsel because his attorney declined to raise the issue of jury unanimity. The general requirements for a petitioner to prove inadequate assistance of counsel — demonstrating that counsel's performance was deficient and that it prejudiced the defense — apply to appellate counsel as well. See McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994); Lawrence v. Artuz, 91 F. Supp.2d 528, 539 (E.D.N.Y. 2000).
Mr. Smith cannot meet that standard. His appellate attorney submitted a thorough brief raising issues that included the claim of deprivation of the right to counsel and the claim of insufficient evidence. His attorney was fully justified in choosing not to argue the far weaker claim concerning jury unanimity. Counsel is not obliged to identify every possible error in the record or to "raise every nonfrivolous issue that the defendant requests." Jones v. Barnes, 463 U.S. 745, 754 n. 7(1983); see also Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998). Also, there is a "strong presumption of attorney competence," and the court's standard of review of an appellate counsel's performance is "highly deferential." Kimmelman v. Morrison, 477 U.S. 365, 381, 383 (1986). Moreover, a reviewing court should not second guess reasonable professional judgments made by appellate counsel. See Jones, 463 U.S. at 754; Jackson, 162 F.3d at 85;Mayo, 13 F.3d at 533; Avincola v. Stinson, 60 F. Supp.2d 133, 147 (S.D.N.Y. 1999). For an appellate attorney to be found ineffective for failing to raise certain issues, the court must determine that "significant and obvious" issues were abandoned while "clearly and significantly weaker" issues were pursued. Mayo, 13 F.3d at 533. That was not the case here. As discussed above, the claim regarding jury unanimity had little chance of success, and it was within the discretion of competent counsel to decide not to pursue it.
Conclusion
For the reasons set forth above, I recommend that Mr. Smith's application for a writ of habeas corpus be denied and the petition be dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Denise L. Cote, Room 1040, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.