Opinion
99 Civ. 10605 (GEL)
July 26, 2001
Jan Hoth-Uzzo, Center for Appellate Litigation, New York, New York, for Petitioner Craig Thornton.
David Camuzo, Assistant Attorney General, New York, New York (Eliot Spitzer, Attorney General of the State of New York, of counsel), for Respondent Edward Reynolds.
OPINION AND ORDER
Petitioner Craig Thornton petitions for a writ of habeas corpus, challenging his conviction for sale of cocaine. On April 30, 2001, the Honorable Henry B. Pitman, United States Magistrate Judge, issued the attached Report and Recommendation ("RR"), recommending denial of the petition. On May 30, 2001, having secured an extension of time to object, Thornton submitted a letter objecting to the RR. As amplified by the following observations, and with the minor exception noted below, the objections are denied and the RR is adopted as the Opinion of the Court.
The essential issue in the case is whether the state court's denial of Thornton's claim of ineffective assistance of counsel 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). Petitioner argues that his lawyer was ineffective in allowing him to testify admitting all elements of the offense while failing to raise an entrapment defense.
For the reasons ably described by Judge Pitman, an entrapment defense on these facts was hardly viable. Accepting arguendo petitioner's own version of events, and disregarding the testimony of the undercover officer, the evidence of inducement was extremely weak at best, petitioner responded readily to little more than a request for drugs, and an entrapment defense would have opened the door to evidence of petitioner's prior conviction for sale of marijuana. Under these circumstances, even assuming that counsel's failure to argue entrapment was deficient, petitioner cannot establish that, but for counsel's errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 694(1984).
Under the dire facts facing counsel, moreover, that the state court's finding that the choice of a meritless agency defense over a meritless entrapment defense was not deficient was not an "unreasonable application" of Strickland. Whatever the precise meaning of this somewhat perplexing statutory standard, see Williams v. Taylor, 529 U.S. 362(2000), the state court's conclusion was entirely reasonable;
While technically deficient, the agency defense portrayed defendant as a mere possessor of drugs who was arrested essentially for doing someone a favor. Defense counsel clearly sought to make defendant appear sympathetic. Given the overwhelming evidence of guilt, this Court cannot say that this tactic made his attorney ineffective.
(Pet. at A123-24.)
Petitioner cites two out-of-circuit decisions that, he argues, establish that it is intrinsically deficient performance for a defense lawyer to allow his client to testify and admit the elements of an offense without requesting an entrapment instruction. See Toro v. Fairman, 940 F.2d 1065 (7th Cir. 1991); Capps v. Sullivan, 921 F.2d 260 (10th Cir. 1990). Petitioner contests Judge Pitman's distinction of these cases on the ground that they did not address a case in which an agency defense was presented (RR at 16 n. 3), arguing that the inapplicability of the agency defense, and the likelihood that counsel was actually pursuing a simple strategy of nullification, make those cases fully applicable. (Letter of Jan Hoth-Uzzo objecting to RR, dated May 30, 2001, at 2.)
Even if petitioner is correct about counsel's strategy, Toro and Capps are still distinguishable. First, to the extent that broad statements in those cases can be read to suggest that adopting a nullification strategy in which a defendant admits his guilt without explicitly arguing entrapment is always deficient performance, those statements were dicta that go well beyond the facts of the cases before the courts. In both cases, the courts specifically found that other strategies were viable: in Toro, the primary holding of the case was that counsel was ineffective in not recommending acceptance of a plea bargain, 940 F.2d at 1067-68, and the court found that a reasonable doubt strategy in which defendant did not testify "would have been a viable tactical decision," id. at 1069. In Capps, the court specifically found that an entrapment defense would have been viable, and that the result of the trial would have been different had an entrapment instruction been sought. 921 F.2d at 263. Thus, the Capps court did not hold that a nullification strategy was always improper, only that it was deficient for counsel to fail to raise "an entrapment defense that has some support in the evidence" id. at 262 — indeed, sufficient support that the defense might have been viable.
Moreover, the entire discussion of whether counsel's trial strategy satisfied the first prong of the Strickland test was unnecessary to the decision, because the court concluded that Toro had failed to show that he was prejudiced by the strategy. Id. at 1069.
This case is different, because, as both the state judge and Judge Pitman demonstrate, there was really no basis for granting an entrapment instruction here. Nor does petitioner even contend that a reasonable doubt defense was a viable strategy, or that his attorney counseled against an acceptable plea offer.
Second, Toro and Capps both predate the 1996 Amendments to Section 2254 that established the "reasonable application" test. In Strickland, the Supreme Court clearly advised that in assessing the objective deficiency of counsel's performance, courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." 466 U.S. at 689 (internal quotations omitted). Even if I thought that the broadest dicta in Toro and Capps reflected the better view of Strickland, I could not conclude that a state trial judge "unreasonably applied" Strickland in taking a different view, and finding that where there was overwhelming evidence that the defendant had committed the elements of the offense, and an entrapment defense was not viable, a desperate gamble on nullification represented a reasonable strategic response to desperate circumstances. For these reasons, and for the reasons ably set forth by Judge Pitman, I accept the recommendation to deny Thornton's petition.
Judge Pitman also recommended that I deny a certificate of appealability and certify that any appeal would not be taken in good faith. I accept the former recommendation. (RR at 18.) Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." I cannot in good conscience find that this standard has been met. While there may be a genuine question, given the opinions in Toro and Capps, about whether counsel's strategy was sufficiently unwise to satisfy the first part of the Strickland test,Strickland makes plain that the federal constitutional right to effective assistance of counsel is only denied where both aspects of that test are satisfied — that is, where there is a "reasonable probability" that any deficiency of performance affected the outcome of the trial. 466 U.S. at 694. Petitioner has not come close to making that showing. My own independent review of petitioner's testimony at trial accords completely with the conclusion of Judge Pitman and the state judge that petitioner's testimony simply did not, as a matter of law, establish a viable entrapment defense, and that it, like the somewhat different version presented by the state, establishes his guilt. There is no "reasonable probability" that the jury would have been any more likely to have been moved by confusion or sympathy to return a not guilty verdict had defense counsel argued "entrapment," than they were by counsel's effort to argue "agency." I see no substantial issue about this that would justify issuing a certificate of appealability.
Of course, petitioner remains free to seek a certificate of appealability from the Court of Appeals See, e.g., Soto v. United States, 185 F.3d 48, 51 n. 3 (2d Cir. 1999).
On the other hand, I respectfully decline to follow Judge Pitman's recommendation that I certify that any appeal taken from this Order would not be taken in good faith. The statutory consequence of such a certification would be that any appellate proceedings could not be takenin forma pauperis. 28 U.S.C. § 1915(a)(3). In the context of criminal appeals, the Supreme Court has held that good faith "must be judged by an objective standard. We consider a defendant's good-faith in this type of case demonstrated when he seeks appellate review of any issue not frivolous." Coppedge v. United States, 369 U.S. 438, 445(1962). At first blush, it might appear that the certification of lack of good faith under this standard follows from the denial of a certificate of appealability. As the Second Circuit has held, "the `substantial showing' requirement for granting a COA is satisfied if the issues involved in a petition are debatable among jurists of reason, could be resolved in a different manner, or are adequate to deserve encouragement to proceed further." Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 n. 4(1983) (certificate of probable cause)). On the other hand, "[a]n appeal is frivolous where it lacks an arguable basis in law or fact." Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995); see also Nietzke v. Williams, 490 U.S. 319(1989). There would seem to be little, if any, difference between "debatable" issues and "arguable" ones.
The statute provides in apparently absolute language that if a trial court certifies that an appeal is not taken in good faith, "[a]n appeal may not be taken in forma pauperis." I do not presume to address whether the Court of Appeals nevertheless has the inherent power to review the trial court's determination, and that Court presumably has inherent power to grant in forma pauperis status once an appeal has been taken.
Although habeas corpus petitions are formally civil actions, the Second Circuit has held that a habeas petition is not a "civil action" for purposes of 28 U.S.C. § 1915(a)(2). Reyes v. Keane, 90 F.3d 676, 678 (2d Cir. 1996). While the same considerations that apply to subsection (a)(2), which was added to the statute by the Prison Litigation Reform Act of 1995, may not apply to the earlier-enacted subsection (a)(3), or to the Supreme Court's interpretation of it as to "criminal appeals" in Coppedge, the Court assumes, in the absence of contrary authority, that the Coppedge standard applies to in forma pauperis applications in habeas appeals as well as in direct criminal appeals.
Nevertheless, the determinations under §§ 2253(c)(2) and 1915(a)(3) appear to be different, both in function and in the language used by Congress. Looking to the statutes themselves, as opposed to the judicial glosses on them, it seems evident that the showing required for proceeding in forma pauperis ("good faith") is a less stringent standard than that for obtaining a certificate of appealability ("substantial showing of the denial of a constitutional right"). The functions are also different. Congress has not provided an appeal as of right from the denial of habeas corpus, but has required the habeas petitioner to seek permission to appeal. The typical habeas petitioner has already presented his legal arguments to invalidate his conviction through direct appeal, and state prisoners have generally also had the benefit of state collateral attack. In this situation, whether rich or poor, a prisoner must persuade a court assessing whether to authorize the appeal that the merits of an appeal are such as to "deserve encouragement to proceed further." Lucidore, 209 F.3d at 112.
Denial of leave to proceed in forma pauperis, on the other hand, discriminates between litigants on the basis of wealth, baring the courthouse door entirely to those who cannot pay filing fees. At least in criminal cases, where liberty is at stake, courts should be slow to impose a financial hurdle on prisoners seeking to vindicate their rights. As the Supreme Court warned in Coppedge, in forma pauperis standing should only be denied in the criminal context in the same circumstances as a proceeding would be dismissed as frivolous if the filing fee had been paid. Coppedge, 369 U.S. at 447-48. This seems a stiffer standard than that applied to approving certificates of appealability. While I am reluctant to distinguish degrees of frivolity or levels of lack of merit, it appears very unlikely that if Thornton could afford to pay filing fees, and could take an appeal as of right, the Court of Appeals would dismiss his appeal as jurisdictionally frivolous, rather than simply affirming the judgment.
In this case, moreover, petitioner is represented by counsel, who has an independent ethical obligation not to proceed with frivolous claims, and who has argued to the Court both that a certificate should be granted and that certification of lack of good faith should not issue.
Therefore, the Court declines to certify, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this decision would not be taken in good faith. In all other respects, the recommendations of the Magistrate Judge are adopted.
CONCLUSION
The petition for a writ of habeas corpus is dismissed. A certificate of appealability will not be issued. The Report and Recommendation is adopted as the Opinion of the Court, as supplemented and modified in this Opinion and Order.
SO ORDERED