Opinion
9:99-CV-0065 (GLS).
February 18, 2004
PAUL TOWNSEND, Petitioner, Pro Se Albany, NY, for the Petitioner.
HON. ELIOT SPITZER, Office of Attorney General, MARY E. HILL, ESQ., Assistant Atty. General, State of New York, The Capitol, Albany, NY, for the Respondent.
DECISION and ORDER
I. Background A. State Court Proceedings
According to the testimony adduced at trial, on December 23, 1994, Paul Townsend became unruly in the courtroom of Albany County Court Judge John G. Turner after Townsend was found guilty of violating the terms of his parole. See Transcript of Trial of Paul Townsend (12/5/95) ("Tr.") at PP. 71-72. Deputy Lanny Jensen of the Albany County Sheriff's Department then escorted Townsend out of the courtroom to an inmate holding area in the courthouse ( Tr. at P. 75). Due to the fact that Townsend's conduct was growing more disruptive, it was decided that he was to be brought back to the Albany County jail ( Tr. at P. 76). Deputy Jensen brought Townsend from the holding area and placed him in a sheriff's car ( Tr. at PP. 76-77). Once inside that vehicle, Townsend "totally went berserk, he tried kicking the windows out of the car, smashing his head off the safety screen. [He was] just like a pinball inside a pinball machine" ( Tr. at P. 79). Upon arriving at the Albany County jail, Deputy Jensen opened the rear door of his vehicle and directed Townsend to exit the automobile ( Tr. at P. 83). Townsend instead proceeded to head-butt Deputy Jensen in the "dead center" of his forehead ( Tr. at PP. 83-84). Joseph P. Carey, another Deputy Sheriff, observed Deputy Jensen's head snap back as he attempted to remove Townsend from the car ( Tr. at P. 113). Deputy Carey immediately went to assist Deputy Jensen, and as Deputy Carey reached for Townsend's shoulder, he "thrash[ed] around," causing Deputy Carey's hand to slip off Townsend's shoulder and strike a plexiglass partition in the vehicle ( Tr. at PP. 113-14, 126).
At the time, Townsend was described as being "uncontrollable" and was observed "screaming, kicking [and] fighting" ( Tr. at P. 76).
Deputy Jensen testified that as a result of the assault, he "saw stars" ( Tr. at P. 84).
Deputy Carey was subsequently treated for a sprained wrist at a nearby hospital ( Tr. at P. 117).
On May 16, 1995, an Albany County grand jury charged Townsend with two counts of second degree assault, the first count relating to the injuries sustained by Deputy Jensen, and the second count relating to Deputy Carey's injuries. See Record on Appeal ("Record") at PP. R2-3. Townsend was tried before a jury that commenced on December 5, 1995, with County Court Judge Thomas W. Keegan presiding. At the conclusion, Townsend was found guilty of both counts ( Tr. at PP. 252-53). On January 4, 1996, Judge Keegan sentenced Townsend as a second felony offender to concurrent terms of three and one-half to seven years imprisonment. See Sentencing Tr. (1/4/96) at PP. 15-16.
Townsend appealed his conviction and sentence to the New York State Supreme Court, Appellate Division, Third Department. That court affirmed, People v. Townsend, 248 A.D.2d 811 (3d Dept. 1998), and the Court of Appeals denied Townsend leave to appeal. People v. Townsend, 92 N.Y.2d 862 (1998). Following his direct appeal, Townsend filed an application for a writ of error coram nobis in which he alleged he received ineffective assistance of both trial and appellate counsel. See coram nobis application (11/9/98) (reproduced in Record at PP. R416-25). The Third Department denied that application on December 10, 1998. See People v. Townsend, No. 10962 (3d Dept. Dec. 10, 1998) ("December 1998 Order") (reproduced in Record at P. R444).
B. This Proceeding
Townsend filed his habeas petition pursuant to 28 U.S.C. § 2254 in this District on January 19, 1999. See Pet. On June 24, 1999, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed an answer and memorandum of law in opposition to the petition ( Dkt. Nos. 13-14 ). Townsend filed a reply memorandum ( Dkt. No. 16). On November 4, 2002, Townsend provided the court with his current address which indicates that he is no longer incarcerated ( Dkt. No. 20).
II. Discussion A. Release from Prison
Initially this court must determine whether Townsend's release from prison has rendered this action moot.
Generally, a habeas petitioner's release from prison does not render that party's habeas corpus petition moot because § 2254 requires only that the petitioner be "in custody" at the time the petition is filed. Wheel v. Robinson, 34 F.3d 60, 63 (2d Cir. 1994); Cadilla v. Johnson, 119 F. Supp.2d 366, 371 n. 2 (S.D.N.Y. 2000). The Constitution's "case-or-controversy" requirement will also generally be satisfied by the typical habeas petition challenging the validity of the conviction because the incarceration (or restriction(s) imposed by the terms of the parole) "constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction." Spencer v. Kemna, 523 U.S. 1, 7 (1998); United States v. Mercurris, 192 F.3d 290, 293 (2d Cir. 1999) (citing Spencer).
In this case, Townsend's claims do not appear to have been rendered moot by his release from prison, he filed his habeas petition while in custody, and the collateral consequences which still exist as a result of his felony conviction preclude a finding that this matter is moot. Spencer, 523 U.S. at 12 ("it is an 'obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences'") (quoting Sibron v. New York, 392 U.S. 40, 55 (1968)); Binder v. Szostak, 96-CV-0640, 1997 WL 176353, at *1-3 (N.D.N.Y. Apr. 11, 1997) (Pooler, D.J.) (adopting Report-Recommendation of Magistrate Judge Gustave J. DiBianco) (citations omitted). Therefore, the court briefly reviews the standards of review to be utilized when considering the substance of Townsend's petition.
Examples of such collateral consequences include the inability to serve as a juror, engage in certain businesses, or vote. Johnson v. Levine, 00 CIV. 8402, 2001 WL 282719, at *1 (S.D.N.Y. Mar. 21, 2001).
B. Standards of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), a federal court may not grant habeas relief to a state prisoner on a 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 that was based on a unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d); see also, Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001). The AEDPA also requires that in any federal habeas corpus proceeding, "a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also, Boyette, 246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted). In interpreting the AEDPA, the Second Circuit has noted:
[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: 1) was the principle of Supreme Court case law relied upon in the habeas petition "clearly established" when the state court ruled?; 2) if so, was the state court's decision "contrary to" that established Supreme Court precedent?; 3) if not, did the state court's decision constitute an "unreasonable application" of that principle?Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)). A state court's decision is "contrary to" established Supreme Court precedent if it applies a rule that contradicts Supreme Court precedent, or decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Moreover, a federal court is not to consider whether the state court's determination was merely incorrect or erroneous, but instead whether it was "objectively unreasonable." Williams, 529 U.S. at 409; see also, Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001); Valtin v. Hollins, 248 F. Supp.2d 311, 314 (S.D.N.Y. 2003). The Second Circuit has noted that this inquiry admits of "[s]ome increment of incorrectness beyond error", though "the increment need not be great[.]" Francis S., 221 F.3d at 111.
C. Substance of Petition 1. Ground One
Townsend initially contends that Judge Keegan wrongfully denied his motion to dismiss the indictment ( Pet. at Ground One).
Under New York's Criminal Procedure Law ("CPL") § 290.10, the defense may move to dismiss a criminal indictment upon the ground that the trial evidence was not legally sufficient to establish the offense(s) charged in the indictment. A motion under CPL § 290.10 must be denied where the trial evidence, when viewed in the light most favorable to the People, is legally sufficient to support the jury's guilty verdict. People v. Phillips, 256 A.D.2d 733, 734-35 (3d Dept. 1998) (citation omitted). Since claims challenging the failure on the part of a trial court to dismiss an indictment necessarily implicate the sufficiency of evidence offered against the petitioner, Beverly v. Walker, 899 F. Supp. 900, 912 (N.D.N.Y. 1995) (Scullin, J.), aff'd, 118 F.3d 900 (2d Cir. 1997), the court reviews Supreme Court precedent which addresses the issue of challenges to convictions based upon sufficiency of evidence.
That procedure under the CPL, which is now referred to as a request for a trial order of dismissal, is derived from the prior practice utilized to secure the same result, the directed verdict of acquittal. Faux v. Jones, 728 F. Supp. 903, 907 (W.D.N.Y. 1990) (citing CPL § 290.10).
i. Clearly Established Supreme Court Precedent
The Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. See Jackson v. Virginia, 443 U.S. 307, 315 (1979); Fiore v. White, 531 U.S. 225, 228-29 (2001). In a challenge to the sufficiency of evidence presented at trial, federal courts are to determine "whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt." United States v. Powell, 469 U.S. 57, 67 (1984) (citing Jackson) (other citations omitted). Therefore, this court must determine whether the Third Department's decision which affirmed the denial of Townsend's motion to dismiss the indictment ( Townsend, 248 A.D.2d at 812) was contrary to, or involved an unreasonable application of, Jackson and its progeny. ii. Contrary to, or Unreasonable Application of, Supreme Court Precedent
The Jackson standard is clearly established federal law as determined by the Supreme Court in the context of claims alleging insufficiency of evidence. Huber v. Schriver, 140 F. Supp.2d 265, 276 n. 5 (E.D.N.Y. 2001) (citing Francis S., 221 F.3d at 114) (other citation omitted); see Santana v. Kuhlmann, 97 CIV. 3882, 2001 WL 1143182, at *7 (S.D .N.Y. Sept. 26, 2001).
In considering the sufficiency of the evidence, a court must look to state law to determine the elements of the crime. See Jackson, 443 U.S. at 324; Fama v. Commissioner of Correctional Services, 235 F.3d 804, 811 (2nd Cir. 2000) (citing Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999)). In New York, a person is guilty of second degree assault when, inter alia
with intent to prevent a peace officer, police officer, [or] a fireman . . . from performing a lawful duty . . . he causes physical injury to such peace officer, police officer, [or] fireman. . . .
CPL § 120.05(3).
In his petition, Townsend argues that Deputy Jensen successfully transported him to the Albany County jail without sustaining any injury, and therefore, the trial court was required to dismiss counts one and two of the indictment ( Pet. at Ground One).
Initially, the court notes that only the first count in the indictment related to Deputy Jensen ; the second count in that accusatory instrument charged Townsend with assaulting Deputy Carey. See Record at PP. R2-3. Neither Townsend's petition, his supporting memorandum of law or his reply brief specifically claim that Deputy Carey had fully completed his duty of transporting Townsend before Deputy Carey sustained the injury to his wrist. See Dkt. Nos. 1, 2, and 16. Thus, a literal reading of Townsend's petition and the documents that he has submitted in support of that application does not reveal a challenge to Townsend's conviction on the second count of the indictment based upon alleged insufficiency of evidence. However, since Townsend filed this action pro se and has litigated this matter without the benefit of counsel, the court will consider this claim broadly as one challenging the sufficiency of evidence presented as to both counts in the indictment. See Montalvo v. Newton, 98CIV. 8665, 2001 WL 1399527, at *4 (S.D.N.Y. Mar. 23, 2001) (habeas claims should be construed liberally) (citation omitted).
Townsend's appellate counsel argued that there was insufficient evidence to sustain either conviction because at the time the sheriffs' vehicles had arrived at the Albany County jail, neither Deputy Jensen nor Deputy Carey had been injured by Townsend. See App. Br. at PP. 4-6. Appellate counsel did not claim on appeal, and Townsend does not argue in this proceeding, that Deputies Jensen and Carey were not police officers or that they did not sustain any physical injury as a result of Townsend's actions on December 23, 1994.
Before the jury began deliberations, Townsend's counsel moved to dismiss the indictment ( Tr. at PP. 215-17). However, Judge Keegan denied that application, finding that there was sufficient evidence presented by the prosecution to create a question of fact for the jury as to whether Townsend was guilty of the crimes charged ( Tr. at PP. 217-18). In his charge to the jury, Judge Keegan specifically informed the jury that it was required to determine whether, inter alia: i) Deputies Jensen and Carey were performing their legal duty at the time of the assault; and, ii) Townsend's actions on December 23, 1994, were an attempt by him to prevent the deputies from performing their duty ( Tr. at PP. 233-37). The jury necessarily found that the prosecution had established the above elements when it found Townsend guilty of both charges ( Tr. at PP.252-53).
At the request of the jury, all elements of the crimes charged in the indictment were subsequently re-read to the jury ( Tr. at PP. 246-48).
In rejecting Townsend's appeal regarding the denial of the motion to dismiss the indictment, the Appellate Division found that:
it is clear that the responsibility of Jensen and Carey to "transport" defendant to the facility did not end as soon as their vehicle stopped moving and, in fact, this transportation included securing defendant inside the facility. Thus, a jury could reasonably infer that [Townsend's] actions were intended to prevent Jensen and Carey from carrying out their official duties.Townsend, 248 A.D.2d at 812.
Townsend has not provided any evidence in his petition, supporting memorandum of law, or reply brief which demonstrates that the Appellate Division's finding that Judge Keegan's denial of Townsend's motion to dismiss the indictment was contrary to, or involved an unreasonable application of, Jackson. Therefore, Townsend's first ground for relief must be denied.
In arguing that he received ineffective assistance of appellate counsel, Townsend candidly admits that "the particular facts of petitioner's case did not preclude the Jury from a finding of guilt beyond a reasonable doubt to each element of the crime[s] charge[d]" ( Dkt. No. 2 at P. 5).
2. Unduly Harsh and Excessive Sentence
Townsend's second ground alleges that the sentence imposed by Judge Keegan was "unnecessarily harsh and excessive" ( Pet. at Ground Two).
However, in his traverse, Townsend concedes that this claim is without merit. See Dkt. No. 16 at (unnumbered) P. 3 ("I recognize that [the second ground in the petition] must fail. . . . [Therefore] I respectfully withdraw this point from the petition"). In light of the foregoing, the second ground for relief is deemed abandoned.
3. Ineffective Assistance of Appellate Counsel
Townsend's third ground alleges that he received ineffective assistance of appellate counsel ( Pet. at Ground Three). In support of this claim, Townsend claims that his appellate counsel should have argued on appeal that: i) Judge Keegan committed reversible error in denying trial counsel's request to dismiss juror number five from the panel of prospective jurors for cause; and ii) Townsend's trial counsel rendered ineffective assistance when he failed to move for a mistrial after Judge Keegan denied trial counsel's request to dismiss juror number fifteen from the panel of prospective jurors for cause. See Dkt. No. 2 at PP. 7-9. i. Clearly Established Supreme Court Precedent
The Supreme Court has held that "while impaneling a jury the trial court has a serious duty to determine the question of actual bias, and a broad discretion in its rulings on challenges therefore." Dennis v. United States, 339 U.S. 162, 168 (1950) (citations omitted). However, actual bias on the part of a juror is not the mere existence of a preconceived notion as to the guilt or innocence of the defendant. Rather, actual bias exists only when the juror cannot set aside that preconceived notion and render a decision based upon the evidence presented in court. Irvin v. Dowd, 366 U.S. 717, 723 (1981). Additionally, when confronted with a challenge regarding the composition of a petit jury, a federal habeas court must be confident that, in considering the totality of circumstances, the voir dire did not result in a jury which rendered the petitioner's trial fundamentally unfair. Murphy v. Florida, 421 U.S. 794, 799 (1975).
As to claims alleging ineffective assistance of counsel, the Sixth Amendment provides that: "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const., Amend. VI. This Amendment, which has been construed to require that indigents be provided with assigned counsel for their first appeals as of right, see Douglas v. California, 372 U.S. 353, 358 (1963), therefore requires the effective assistance of appellate counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970).
To establish ineffective assistance, a habeas petitioner must show both: i) that counsel's representation fell below an objective standard of reasonableness, measured in the light of the prevailing professional norms; and, ii) resulting prejudice that is, a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688-90 (1984); see also, Smith v. Robbins, 528 U.S. 259, 285 (2000) ("the proper standard for evaluating [petitioner's] claim that appellate counsel was ineffective . . . is that enunciated in Strickland"). ii. Contrary to, or Unreasonable Application of, Supreme Court Precedent
In Williams, the Supreme Court declared that "the rule set forth in Strickland qualifies as "clearly established Federal law[.]" Williams, 529 U.S. at 391.
Townsend asserts two separate theories in support of his claim that he received ineffective assistance of appellate counsel. First, he argues that his appellate counsel was required to claim on appeal that Judge Keegan committed error in denying trial counsel's request to dismiss juror number five from the panel for cause. Second, Townsend contends that his appellate attorney wrongfully failed to argue that he received ineffective assistance of trial counsel because Townsend's trial attorney failed to move for a mistrial after his request to strike juror number fifteen from the panel for cause was denied. See Pet. at Ground Three; Dkt. No. 2 at PP. 5-9.
At the time of jury selection during Townsend's trial, juror number five on the panel apparently indicated that she worked for the Department of Correctional Services and because of the manner in which Townsend "was moving around," she was "predisposed [to believe] that [Townsend] was acting and not telling the truth" ( Tr. at P. 42). After Judge Keegan denied counsel's request to dismiss the juror for cause, she was excused from the jury when Townsend's counsel exercised a peremptory challenge ( Tr. at P. 43). Townsend claims that Judge Keegan's actions in denying the challenge for cause regarding juror number five violated CPL § 270.20(2), and that appellate counsel's failure to raise this issue on appeal necessitates the granting of Townsend's habeas application ( Dkt. No. 2 at PP. 7-8).
The actual voir dire of the potential jurors was not placed on the record ( Tr. at P. 36). Rather, after voir dire of prospective panel members was conducted off the record, the attorneys placed on the record any objections they might have had regarding prospective jurors and their reasons for their objections ( Tr. at PP. 37-46).
Additionally, toward the end of voir dire, it was discovered that juror number fifteen had been a former client of the prosecuting attorney ( Dkt. No. 2 at PP. 8-9). Townsend's counsel unsuccessfully sought to strike that juror for cause based upon the foregoing ( see Tr. at P. 44), however, he failed to move for a mistrial after that application was denied. Townsend contends that Judge Keegan was required to dismiss juror number fifteen for cause ( Dkt. No. 2 at P. 9) (citing CPL § 270.20(1)(c) ), and that appellate counsel was ineffective in failing to argue on appeal that trial counsel improperly failed to file a motion for a mistrial under CPL § 280.10 after the request to strike juror number fifteen was denied.
In New York, prospective jurors who make statements that cast doubt on their ability to render an impartial verdict and who have not given unequivocal assurances of impartiality are not qualified to sit on a criminal jury. See People v. Blyden, 55 N.Y.2d 73, 78 (1982). Moreover, where there is evidence that the state of mind of a prospective juror is likely to preclude him or her from rendering an impartial verdict, see CPL § 270.20(1)(b), the juror must state a personal, unequivocal assurance that he or she will be able to render a verdict based solely on the evidence adduced at the trial. See People v. Torpey, 63 N.Y.2d 361, 367 (1984) (citation omitted). In considering whether a challenge to a prospective juror for cause was properly denied by the trial court, the Appellate Division reviews the " voir dire record as a whole, . . . giving due deference to the determination of the trial court." People v. Harris, 247 A.D.2d 630, 632 (2d Dept.), leave denied, 91 N.Y.2d 1008 (1998).
A trial judge's determination regarding a juror's impartiality is a factual determination by a trial court. Thompson v. Keohane, 516 U.S. 99, 111 (1995) (citation omitted). In the criminal matter below, Judge Keegan tacitly found juror number five to be impartial ( Tr. at P. 42), and specifically noted on the record that juror number fifteen "indicated he would have no difficulty about being fair and impartial" ( Tr. at P. 44). Townsend has not submitted anything in his petition which rebuts the finding of Judge Keegan that the above jurors could properly sit on the jury. Therefore, he has failed to establish that his attorney was objectively unreasonable because appellate counsel failed to argue in her appellate brief that the above-referenced motions regarding the jurors were improperly denied by the trial court.
Determination of factual issues made by a state court "shall be presumed to be correct," and a petitioner is required to rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Mask v. McGinnis, 233 F.3d 132, 139 (2d Cir. 2000).
Additionally, although Townsend claims his conviction would have been reversed had appellate counsel raised the claims relating to juror numbers five and fifteen on appeal ( Dkt. No. 2 at PP. 8-10), this argument appears to overlook the fact that the Third Department considered and rejected these claims in the context of Townsend's coram nobis application. See coram nobis application (11/9/98) at PP. 3-7 (reproduced in Record at PP. R420-24).
Although the Appellate Division denied Townsend's application for a writ of error coram nobis without referring explicitly to the Sixth Amendment or relevant federal case law, the Appellate Division indicated that his "ineffective assistance of counsel claim" was "denied." See December 1998 Order. Since there is no basis for believing that the Appellate Division rejected the claim on non-substantive grounds, the adjudication was "on the merits," and therefore, such decision should be reviewed under the deferential standards prescribed in 28 U.S.C. § 2254(d)(1). See Sellan, 261 F.3d at 314.
Moreover, the court has reviewed the appellate brief and supporting appendix filed on Townsend's behalf. See Record at PP. R339-77. That review demonstrates that appellate counsel's strategy was both reasonable and sound, particularly in light of the overwhelming evidence of Townsend's guilt adduced at trial. To prevail upon a claim alleging ineffective assistance of appellate counsel, Townsend must demonstrate that his counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." See Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2001). Thus, appellate counsel cannot be considered ineffective for making a strategic decision to abandon weaker arguments and instead, develop only those arguments more likely to succeed. Gonzalez v. Duncan, 00-CV-1857, 2001 WL 726985, at *6 (E.D.N.Y. June 22, 2001) (citing Jones v. Barnes, 463 U.S. 745, 753 (1983)) ("[a] brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound of strong and weak contentions"); see also, Parke v. United States, 97-CV-526, 1999 WL 242637, at *3 (N.D.N.Y. Apr. 22, 1999) (McCurn, S.J.), aff'd, 25 Fed.Appx. 72, 2002 WL 109475 (2d Cir.) (unreported), cert. denied, 537 U.S. 902 (2002).
Since: i) there is no evidence that Judge Keegan improperly denied the requests to strike the above-referenced jurors for cause; ii) the appellate brief filed by Townsend's counsel reveals a reasonable and sound appellate strategy; and, iii) Townsend has failed to establish that the Third Department's denial of the coram nobis application ( Record at P. R444) was contrary to, or represented an unreasonable application of, Strickland and its progeny, the third ground in the petition is denied. E.g. Gonzalez v. Duncan, 00-CV-1857, 2001 WL 726985, at *6 (E.D.N.Y. June 22, 2001) (denying habeas claim alleging ineffective assistance of appellate counsel where appellate brief reveals sound appellate strategy on part of attorney); Davis v. Keane, 2001 WL 13288, at *6 (E.D.N.Y. Jan. 4, 2001) (same), aff'd, No. 01-2110, 2002 WL 2009559 (2d Cir. Sept. 3, 2002); see also, Grace v. Artuz, 258 F. Supp.2d 162, 177 (E.D.N.Y. 2003) (denying habeas petition alleging ineffective assistance of appellate counsel where petitioner failed to show that the Appellate Division's decision rejecting such claim was contrary to or involved an unreasonable application of, clearly established Federal law). Therefore, Townsend's third ground for habeas relief is denied.
Since there is no evidence that Judge Keegan improperly denied the motions to strike those jurors, Townsend has a fortiori failed to demonstrate that Judge Keegan's decision denying the requests to strike for cause was either contrary to, or an unreasonable application of, Dennis, Irvin or Murphy.
4. Ineffective Assistance of Trial Counsel
The final claim raised in the petition alleges that Townsend's trial counsel wrongfully failed to move for a mistrial after Judge Keegan denied the motion to strike juror number fifteen for cause ( Pet. at Ground Four).
In opposing this aspect of the petition, respondent argues that Townsend never raised this claim in the state courts and therefore, it must be dismissed as unexhausted ( Dkt. No. 14 at PP. 7-8). In reply, Townsend appears to contend that he did exhaust this claim in the state courts ( Dkt. No. 16 at attached (unnumbered) P. 4) (claiming that "the arguments of the State concerning procedural deficiencies are unavailing").
Townsend argued that he received ineffective assistance of trial counsel in his coram nobis application ( Record at PP. R422-23). Although a coram nobis application is only properly utilized to assert a claim alleging ineffective assistance of appellate counsel, see People v. Bachert, 69 N.Y.2d 593, 595-96 (1987), the fact that Townsend raised his claim regarding trial counsel in that application does not establish that the claim is unexhausted. In Aparicio v. Artuz, 269 F.3d 78 (2d Cir. 2001), the Second Circuit was confronted with a claim that one of the petitioner's two federal habeas claims alleging ineffective assistance of trial counsel was unexhausted because it had only been raised in the context of a coram nobis application. Aparicio, 269 F.3d at 89. That court noted that although the Appellate Division did not specifically address petitioner's argument regarding ineffective assistance of trial counsel, that claim was necessarily adjudicated by that court when it denied petitioner's coram nobis application. Aparicio, 269 F.3d at 92. The Aparicio court therefore found the claim to have been exhausted, notwithstanding the fact that it was (improperly) asserted in a coram nobis application.
That claim alleged ineffective assistance regarding trial counsel's failure to request that the county court provide the jury with an instruction concerning eyewitness identification. Aparicio, 269 F.3d at 87-88.
The Second Circuit agreed with the district court and the respondent that petitioner's other ineffective assistance of trial counsel claim (which alleged that his trial attorney improperly failed to object to the indictment on double jeopardy grounds), was unexhausted. Aparicio, 269 F.3d at 90-91.
In this case, Townsend clearly argued in his coram nobis application that he received ineffective assistance of trial counsel. See Record at PP. R422-23. As in Aparicio, the Appellate Division did not refer to Townsend's trial counsel claim in denying the coram nobis application. December 1998 Order at P.1. Nevertheless, since the Third Department adjudicated this claim, Townsend's fourth ground for relief, which alleges ineffective assistance of trial counsel, has been exhausted. Therefore, the court considers the substance of this claim.
The Aparicio court noted that the Appellate Division had "not even acknowledge[d] [the] existence" of petitioner's trial counsel claim . Aparicio, 269 F.3d at 92.
i. Clearly Established Supreme Court Precedent
Claims alleging ineffective assistance of trial counsel are considered in light of the Strickland standard noted above. See Strickland, 466 U.S. at 688-90; see also, Wiggins v. Smith, ___ U.S. ___, 123 S.Ct. 2527, 2535 (2003) (noting that the Supreme Court has "established the legal principles that govern claims of ineffective assistance of counsel in Strickland").
ii. Contrary to, or Unreasonable Application of, Supreme Court Precedent
Townsend claims that his trial counsel rendered ineffective assistance because he failed to move for a mistrial following the denial of his request to strike juror number fifteen from the panel for cause ( Pet. at Ground Four).
The portion of the voir dire transcript regarding trial counsel's motion to strike juror number fifteen reveals the following colloquy:
Mr. Caplan: Your Honor, can I make one more for cause? Can we go back to that real quick? Number 15, he was a client of [the Assistant District Attorney].
The Court: You didn't mention that earlier.
ADA: Yeah, he mentioned it the first time through that he was a client.
The Court: No; I'm saying he didn't.
Mr. Caplan: I just realized I forgot. If I could go back to that.
The Court: He's a former client of yours years ago, he indicated he would have no difficulty about being fair and impartial.
Mr. Caplan: Okay.
The Court: And I don't recall either one of you going further into it during your voir-dire; so, denied.
Mr. Caplan: Okay.
Tr. at P. 44.
To prevail on a motion for a mistrial under CPL § 280.10, Townsend's counsel was required to establish that the denial of his request to strike juror number fifteen constituted "an error or legal defect in the proceedings . . . which [was] prejudicial to [Townsend] and deprive[d] him of a fair trial." See CPL § 280.10(1); see also, Wilson v. Senkowski, 02 CIV. 0231, 2003 WL 21031975, at *12 (S.D.N.Y. May 7, 2003) (citing CPL § 280.10(1)). Townsend has not provided any evidence which rebuts Judge Keegan's factual finding that juror number fifteen could render an impartial verdict in his trial.
Where a petitioner seeks habeas relief based upon his contention that his counsel rendered ineffective assistance by failing to file or pursue a motion, courts are to consider the reasonableness of counsel's actions, the legal soundness of the unfiled motion and the sufficiency of counsel's performance in the context of counsel's entire representation. Martuzas v. Reynolds, 983 F. Supp. 87, 92 (N.D.N.Y. 1997) (Pooler, J.) (adopting Report-Recommendation of Magistrate Judge David R. Homer). Based upon the court's review of the voir dire transcript, the court concludes that it was not objectively unreasonable for Townsend's trial attorney to refrain from filing a motion for a mistrial because his motion to strike juror fifteen was denied by Judge Keegan. Nor is there any evidence that the motion was legally appropriate in light of that juror's responses during the voir dire, or that counsel's performance in the context of his entire representation of Townsend was inadequate.
Since Townsend failed to establish that his trial attorney's conduct was objectively unreasonable, the court need not consider whether there was any resulting prejudice because a habeas petitioner "must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense." Pavel v. Hollins, 261 F.3d 210, 216 (2d Cir. 2001) (emphasis in original) (internal quotations and citation omitted).
Since Townsend has not demonstrated that his trial counsel's conduct was objectively unreasonable, he has necessarily failed to establish that the Appellate Division's tacit denial of this aspect of Townsend's coram nobis application was either contrary to, or an unreasonable application of, Strickland and its progeny. Thus, this fourth ground for relief must be denied.
WHEREFORE, based upon the above, it is hereby
ORDERED, that Townsend's petition is DENIED and DISMISSED; and it is further
ORDERED, that the Clerk serve a copy of this Decision and Order upon the parties by regular mail; and it is further
ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings (including any appeal of this Decision and Order filed by any party).
IT IS SO ORDERED.