Opinion
No. 03 Civ. 910 (DLC).
August 20, 2004
Warren Smith, pro se, 00-A-2235, Comstock, NY, for Petitioner.
Willa J. Bernstein, Assistant Attorney General Office of the Attorney General of New York, New York, New York, for Respondent.
CORRECTED OPINION AND ORDER
The Conclusion of this Corrected Opinion identifies Magistrate Judge James C. Francis as the author of the Report and Recommendation in this action, correcting an error in the Opinion issued August 17, 2004.
On January 21, 2003, pro se petitioner Warren Smith ("Smith") filed this timely petition for habeas corpus relief pursuant to Title 28, United States Code, Section 2254. Smith seeks to vacate his 2000 conviction for one count of robbery and two counts of burglary following a jury trial. He makes the following claims: (1) that he was denied the right to counsel when the court declined to replace his appointed attorney prior to the date he was scheduled to testify before the grand jury, (2) that he was denied the right to be convicted by a unanimous jury and the right to effective representation by trial counsel who failed to raise this issue, (3) that there was insufficient evidence to support his robbery conviction, and (4) that he was denied the effective assistance of appellate counsel. Smith's petition was referred to the Honorable James C. Francis IV for a report and recommendation (the "Report"), which was issued on April 21, 2004. The Report recommends that the petition be denied. After receiving an extension of time, Smith filed objections to the Report on May 27. For the following reasons, the Report is adopted and the petition is denied.
Background
The following evidence was presented at trial and is described in further detail in the Report. On May 15, 1999, Smith knocked on the door of a hotel room where Cheuck Gin ("Gin") was staying with his family. Smith identified himself as a maintenance worker and said that he needed to check a leak in the bathroom. After Gin let Smith into the room, Smith told Gin to lie on the floor or he would blow his head off, and took $900 from the room. When Gin attempted to stand, Smith punched him on the side of the head, knocking him to the floor. Gin sustained a bump and a bruise on his head, which lasted about a week and made it difficult for Gin to chew. Smith was caught by a security camera entering the hotel and going up the stairs to the guest rooms just before the robbery, and returning to the lobby just after the robbery took place.
On May 26, 1999, Smith knocked on the door of Kevin Ferguson's ("Ferguson") hotel room, stating that he was a maintenance man and needed to check the bathroom. When Ferguson noticed that Smith was not wearing a uniform, he told him to leave and informed hotel security of the incident.
Michael McNulty ("McNulty") was staying at the same hotel that night and also received a knock on his door from Smith, who identified himself as a maintenance man needing to check a leak in the bathroom. When McNulty let Smith into the room, Smith pushed McNulty, told him that he had a gun, and stole approximately $69. As Smith was leaving the hotel, he was identified by Ferguson. Smith fled from a hotel security guard and was apprehended with $69 by nearby police. He was later identified by Gin.
On June 14, 1999, the grand jury charged Smith with one count of first degree burglary, N.Y. Penal Law § 140.30(4), and one count of second degree robbery, N.Y. Penal Law § 160.10(2) (b), in connection with the McNulty theft. On October 19, the grand jury voted to indict Smith for one count of first degree burglary and two counts of second degree robbery in connection with the Gin theft, but the indictment was not immediately filed. When the prosecution received a pro se document from Smith the following week indicating that he wished to testify, the prosecutor and Smith's attorney jointly agreed that the case would be reopened and Smith would have an opportunity to testify on October 28.
On October 28, Smith refused to speak to his attorney and stated that he wanted new counsel. The grand jury appearance was rescheduled for November 1 to allow Smith's attorney to move for substitution of counsel on October 29. The motion was granted, but the judge declined to appoint Smith new counsel until after the imminent grand jury appearance and directed his existing counsel to continue through that process. Smith became angry when approached by his attorney prior to the grand jury proceeding and refused to testify. The indictment previously voted by the grand jury was filed. Smith's motion to dismiss the indictment on the ground that he had been refused the right to testify was denied on November 17.
The indictments for the McNulty and Gin robberies were consolidated for trial, which began on March 2, 2000. After retiring to deliberate, the jury wrote a note asking, among other questions, what happens if a jury is hung on two charges but unanimous on other charges. The judge responded that he could take a partial verdict and directed the clerk to inquire of the jury. The clerk asked the foreperson whether the jury had reached a verdict as to any of the five counts, and the foreperson responded that they had. The clerk retrieved the verdict sheet, which the foreperson had left in the jury room. The following colloquy then took place:
THE CLERK: Just answer yes or no. Has the jury reached a 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 your 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.
[Jurors two through twelve similarly confirmed their verdict.]
THE CLERK: 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.
The jury was unable to reach a verdict as to counts one and two, stemming from the McNulty robbery, and a mistrial was declared as to those counts. On April 6, Smith was sentenced as a violent felony predicate offender to concurrent terms of imprisonment of twenty years on the burglary count and twelve years on each robbery count.
Smith moved pursuant to New York Criminal Procedure Law Section 440.10 to set aside the verdict on the ground that he had been denied effective assistance of counsel and that the trial court had accepted the verdict of a less-than-unanimous jury. This motion was denied without opinion on April 18, 2001. The Appellate Division denied leave to appeal on June 21. Smith then brought a direct appeal, arguing, inter alia, that he had been deprived of the right to counsel during the grand jury proceedings and that there was insufficient evidence that Gin had sustained a physical injury as required for second degree robbery. The Appellate Division affirmed the conviction on May 8, noting that there was legally sufficient evidence of physical injury. People v. Smith, 726 N.Y.S.2d 12 (1st Dep't 2001). The Court of Appeals denied leave to appeal on July 9.
On December 11, 2001, Smith filed an application for a writ of error coram nobis, contending that he had been denied effective assistance of counsel by virtue of his attorney's failure to raise the issue of a non-unanimous verdict at trial. The motion was denied without opinion by the Appellate Division on August 8, 2002.
Discussion
A reviewing court "may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The court shall make a de novo determination of those portions of the report to which objection is made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides that a petition for habeas corpus relief
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 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) (emphasis supplied). AEDPA further mandates that a state court's determination of a factual issue shall be presumed correct and may be rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e) (1).
1. Right to Counsel at the Grand Jury Proceedings
The Report correctly concludes that Smith was not denied his right to counsel at the grand jury proceedings when new counsel was not appointed until after the date he was scheduled to testify. A criminal defendant's Sixth Amendment right to counsel does not include the right to a meaningful attorney-client relationship or guarantee that a defendant will be represented by the lawyer of his choice. Morris v. Slappy, 461 U.S. 1, 13-14 (1983); United States v. John Doe 1, 272 F.3d 116, 122 (2d Cir. 2000). There is no evidence that Smith's counsel was unable to advise him at the grand jury proceedings. Smith does not object to the Report's discussion of this claim.
2. Right to a Unanimous Verdict
The Report properly finds that a criminal defendant in state court has no federal constitutional right to a unanimous verdict in a non-capital trial. Schad v. Arizona, 501 U.S. 624, 634 n. 5 (1991); Johnson v. Louisiana, 406 U.S. 356, 362-63 (1972);United States v. Pachay, 711 F.2d 488, 494 (2d Cir. 1983). The cases cited by Smith in his objections, such as Duncan v. Louisiana, 391 U.S. 145 (1968), discuss a defendant's right to a jury trial itself and do not identify a federal right to a unanimous jury in state court.
The Report goes on to analyze Smith's claim that the trial judge accepted a non-unanimous verdict, however, noting that Smith may have received ineffective assistance if his counsel failed to object to a non-unanimous verdict, which is prohibited under New York law. The Report appropriately decides that Smith does not demonstrate that his attorney's performance was inadequate because the attorney declined to raise the issue of the jury's unanimity at trial. To prevail on a claim of ineffective assistance, a petitioner must demonstrate that "(1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." United States v. Birkin, 366 F.3d 95, 100 (2004) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)).
The rejection of Smith's Section 440.10 motion without opinion reflects the state court's judgment that the verdict was unanimous. The trial transcript supports the finding that the jury's partial verdict was unanimous despite the foreperson's temporary confusion. Smith has not presented evidence sufficient to rebut the presumption established by AEDPA, 28 U.S.C. § 2254 (e) (1), that the state court's factual finding is correct.
Smith contends, for example, that the fact that the foreperson left the verdict sheet in the jury room indicates that the jury was not prepared to announce a verdict as to the third, fourth and fifth counts. When questioned by the court clerk, the foreperson responded that the jury had reached a verdict with respect to counts three, four and five. The foreperson stated that the jury found the defendant guilty on each of these counts. Despite his initial, momentary confusion, the foreperson confirmed that he agreed with this verdict. All twelve jurors subsequently confirmed their votes, and none objected to the clerk's final reading of the verdict.
Smith further argues that the trial judge erred in interpreting the jury's note, which inquired about how the jury should proceed when it was hung on two counts and unanimous on the others, as indicating that the jury had reached a partial verdict. Again, the foreperson and members of the jury confirmed that the jury had reached a unanimous verdict with respect to three counts.
Smith maintains that his attorney's decision not to object to the partial verdict was both objectively unreasonable and prejudicial. His conclusory arguments, however, are unpersuasive. The Report correctly found that an objection to the jury's partial verdict would have been fruitless and that Smith suffered no prejudice as the record demonstrates the jury's unanimous finding of guilt with respect to counts three, four and five.
Smith also argues for the first time in his objections that his trial counsel was ineffective for failing to raise at trial the judge's handling of the jury's note. He claims that the judge failed to read the note into the record and to provide his counsel an opportunity to respond to the portion of the note concerning the jury's unanimity with respect to some of the charges. There is no need to address this contention since it was not raised in Smith's petition. It is worth noting, however, that defense counsel stated that he had read the jury note and proceeded to discuss with the judge in detail an appropriate response to the first question posed by the jury. He did not propose any reply to the jury's inquiry about a partial verdict.
3. Insufficiency of the Evidence
The Report correctly determines that Smith has failed to prove that there was insufficient evidence of physical injury to Gin to support a conviction for robbery under New York Penal Law Section 160.10. A petitioner bears a "very heavy burden" in presenting a petition on grounds of insufficient evidence.Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (citation omitted). The petitioner must show that a state court's finding that there was sufficient evidence to support a verdict was "an unreasonable application of clearly established federal law." Id. at 180. Evidence was presented to the jury that Gin sustained a bump and bruise to his head that resulted in a week of pain and caused him difficulty chewing. There is no basis to find that the Appellate Division's ruling that this was legally sufficient to establish physical injury is objectively unreasonable.
Under New York law, an element of robbery is that the defendant or another participant "[c]auses physical injury to an person who is not a participant in the crime." N.Y. Penal Law § 160.10. "Physical injury" is defined as "impairment of physical condition or substantial pain." N.Y. Penal Law § 10.00(9).
4. Ineffective Assistance of Appellate Counsel
The Report properly finds that Smith has failed to establish that his appellate counsel was ineffective by declining to raise on appeal the issue of the jury's unanimity. The two-prongStrickland standard, requiring that a petitioner demonstrate his counsel's deficient performance and prejudice resulting from that performance, applies to claims of inadequate assistance by appellate counsel. Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 197 (2d Cir. 2002). There is a strong presumption that an appellate counsel's decisions fall within the wide range of reasonable professional assistance, and an attorney is not obligated to "raise every nonfrivolous issue that the defendant requests." Jameson v. Coughlin, 22 F.3d 427, 429 (2d Cir. 1994) (citation omitted); see also Clark v. Stinson, 214 F.3d 315, 321 (2d Cir. 2000). Appellate counsel may be found ineffective for failing to raise "significant and obvious" issues while pursuing "clearly and significantly weaker" issues on appeal. Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) (citation omitted).
Smith objects to the Report's conclusion that a challenge to the unanimity of the jury was frivolous, relying on People v. Pickett, 473 N.Y.S.2d 157, 157 (1984). In Pickett, however, the Court of Appeals upheld an order requiring a new trial when a trial judge had failed to inquire of a juror who said she was voting under duress. Id. This case does not provide support for Smith's claim as there is no indication that any of the jurors rendering the partial verdict was under duress.
There is no need to address Smith's argument, raised for the first time in his objections, that appellate counsel was ineffective for failing to raise the issue of the judge's handling of the jury note.
It is also unnecessary to address Smith's argument that the trial judge improperly delivered an Allen charge when the jury was unable to reach a verdict as to the first two counts. A mistrial was subsequently declared, and Smith was not convicted of counts one and two.
Conclusion
The recommendation of Magistrate Judge James C. Francis is adopted and the petition is dismissed. In addition, I decline to issue a certificate of appealability. The petitioner has not made a showing of a denial of a federal right, and appellate review is therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235 (2d Cir. 1998). I also find pursuant to Title 28, United States Code, Section 1915 (a) (3), that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 US 438, 445 (1962). The Clerk of Court shall dismiss this petition.SO ORDERED: