Opinion
Case No. 03-CV-5193 (FB).
August 4, 2004
JULIO SMITH, pro se, Comstock, New York, for the Petitioner.
CHARLES J. HYNES, ESQ., District Attorney, Kings County, By: LINDA BREEN, ESQ., Assistant District Attorney, Brooklyn, NY, for the Respondent.
MEMORANDUM AND ORDER
Pro se petitioner Julio Smith ("Smith") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his June 7, 1999 conviction in a non-jury trial in New York Supreme Court, Kings County, of four counts of sodomy in the first degree, two counts of rape in the first degree, two counts of sexual abuse in the first degree, two counts of endangering the welfare of a child, and one count of promoting an obscene sexual performance of a child, resulting in two consecutive sentences of twenty five years to life. Smith alleges six grounds for relief: 1) ineffective assistance of both trial and appellate counsel, based on his claim that trial counsel failed to gather evidence which Smith alleges could have demonstrated his innocence and that appellate counsel failed to pursue this issue on appeal; 2) that the Appellate Division erred in determining that an error at trial was harmless; 3) that his sentence is excessive; 4) that he was not allowed to testify before the grand jury; 5) that he was denied the right to a fair trial, and 6) "procedural error." Respondent argues that Smith's first claim has not been exhausted in the state courts and that all his claims are without merit.
I.
Only federal issues can be raised on habeas review. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68 (1991). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), habeas relief may not be granted for claims that were adjudicated on their merits by the state court unless the state court decision (1) 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) 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). Factual determinations made by the state court "shall be presumed to be correct," and the presumption can be overcome only by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
II.
Although Smith unsuccessfully moved for error coram nobis relief on ineffective assistance grounds in the state courts twice, once based on claims of ineffective assistance of trial counsel, once based on ineffective assistance of appellate counsel, he did not raise his current basis for this claim in either motion. See People v. Smith, Respondent's Exhibit D (unpublished decision denying claims of ineffective assistance of trial counsel) and People v. Smith, 756 N.Y.S.2d 861 (2d Dep't 2003) (denying claims of ineffective assistance of appellate counsel). Therefore, the ineffective assistance of counsel claims Smith now seeks to raise are unexhausted because they have never been presented to the state courts. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process"). An ineffective assistance of counsel claim must itself be exhausted. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
Where one or more claims in a habeas petition have not been fully exhausted, the petition is considered "mixed." Zarvela v. Artuz, 254 F.3d 374, 378 (2d Cir. 2001). When presented with a mixed petition, the Court, in its discretion, "can offer the petitioner the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims," or it can "deny [the] petition on the merits." Pratt v. Greiner, 306 F.3d 1190, 1197 (2d Cir. 2002) (quotations and citations omitted); see also 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."). Although Smith has failed to fully exhaust his state remedies, the Court opts to deny his petition on the merits.
Smith argues that his trial counsel was ineffective for not gathering and putting forward evidence that would have established his innocence, and that his appellate counsel was in turn ineffective for not raising this claim on appeal. These claims are evaluated under the two prong standard of Strickland v. Washington, 466 U.S. 668 (1984), whereby a defendant must show that counsel's representation "fell below an objective standard of reasonableness" based on "prevailing professional norms," 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 688, 694.
As described in cursory fashion by Smith in his papers, his claim is that trial counsel should have obtained through subpoena the bathrobe worn by one of his victims and conducted DNA testing on it, and should also have obtained a letter Smith sent to his aunt. Smith alleges that the accusations against him were manufactured by his aunt as an act of revenge for this letter.
Smith's victims were his niece and nephew.
Neither of these alleged pieces of evidence possesses probative value. The robe in question was owned by Smith and worn by one of his victims on the night Smith sexually assaulted her. Smith does not appear to be arguing that DNA testing would point to another assailant, but rather that a lack of his DNA on the robe would establish that no sexual assault occurred. Even accepting, arguendo, that Smith's DNA would not have been found on the robe, this would in no way serve to vitiate the abundance of other evidence of the assault, let alone to exonerate Smith.
The assault in question took place in Smith's home, while he was babysitting his niece.
Smith's claim that a letter he wrote to his aunt could somehow demonstrate that his aunt subsequently orchestrated an elaborate and successful conspiracy to frame him is singularly implausible. Because these alleged failures on the part of trial counsel do not satisfy either prong of the Strickland standard, this claim must fail, taking Smith's claim against appellate counsel with it.
Smith next takes issue with the Appellate Division's determination that the erroneous admission of testimony regarding some generally characteristic behavior of pedophiles given by a detective who was not qualified as an expert was harmless "in light of the overwhelming evidence of the defendant's guilt and the likelihood that the court would have convicted the defendant even if it had excluded the testimony." People v. Smith, 737 N.Y.S.2d 880, 880-81 (2d Dep't 2002). In assessing whether the erroneous admission of evidence was harmless, the principal factors to be considered are the importance of the witness' wrongly admitted testimony, and the overall strength of the prosecution's case. See generally Brecht v. Abrahamson, 507 U.S. 619, 639 (1993). In assessing the importance of wrongly admitted testimony, the Court considers whether the testimony concerned "an issue that is plainly critical to the jury's decision." Hynes v. Coughlin, 79 F.3d 285, 291 (2d Cir. 1996), and "whether that testimony was material to the establishment of the critical fact or whether it was instead corroborated and cumulative." Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000).
The substance of the testimony the Appellate Division found to be erroneously admitted was that the detective had previously recovered sexually explicit photographs of children taken during the course of their sexual abuse, and the detective's statement that, in her experience, a boy and girl could both be victims of the same offender. However, there was direct evidence establishing both that Smith had taken such photographs during the course of abusing his victims, and that he had sexually abused victims of both genders. Thus the erroneously admitted evidence was merely cumulative, and was abundantly corroborated by the direct evidence of Smith's guilt.
The error here would therefore be harmless under either the standard enunciated in Brecht v. Abrahamson, 507 U.S. 619 (1993) (error harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict") or Chapman v. California, 386 U.S. 18 (1967) (error harmless if beyond a reasonable doubt it did not contribute to the verdict). See, e.g., Dallio v. Spitzer, 343 F.3d 553, 569 (2d Cir. 2003) (noting that the Second Circuit has not determined which standard applies on habeas review while finding error was harmless under either).
Smith also claims that his sentence is unconstitutionally severe. As his sentence is within the statutorily prescribed limits for his crimes, there is no violation of his constitutional rights. See Hutto v. Davis, 454 U.S. 370 (1982).
Smith's claim that he was not allowed to testify before a grand jury does not present a federal constitutional claim under § 2254, see Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989), and is in any event belied by the record. See Respondent's Exhibit K (Affirmation of Assistant District Attorney Breen in Opposition for a Writ of Error Coram Nobis).
Smith's cursory claims that he was denied the right to a fair trial and of "procedural error" are too vague to permit review. See, e.g., Dory v. Commissioner of Correction, 865 F.2d 44, 45 (2d Cir. 1989) ( habeas claims based on "vague, conclusory, or palpably incredible" allegations may be summarily dismissed).