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holding that trial court's refusal to give interested witness charge was not constitutional error, in part because the court had given a proper and lengthy instruction on how to properly assess the credibility and bias of witnesses
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01-CV-3877 (JG)
December 22, 2003
JIMMY TUNG, Fishkill Correctional Facility, Beacon, New York, for Petitioner Pro Se
RICHARD A. BROWN, District Attorney, Queens County, Kew Gardens, New York, for Respondent
MEMORANDUM AND ORDER
Jimmy Tung petitions for a writ of habeas corpus, challenging his convictions in state court arising out of a robbery in Queens, On November 21, 2003, I held oral argument, in which Tung participated by telephone conference. The petition is denied for the reasons set forth below,
BACKGROUND
The People's evidence at trial established that, on the afternoon of August 2, 1994, Lin Li and his wife, Huang Li Zben ("Mrs. Li") were in their second-floor Queens apartment when the doorbell rang, Li's wife opened the door, and petitioner Sui-Hing Tung (also known as "Jimmy Tung"), along with co-defendant Heung Sul and two unidentified men, rushed into the apartment, They identified themselves as members of the Green Dragon Gang.
Tung demanded that Li pay $40,000, with interest, that Li owed to "Lisa." Tung then proceeded to strike Li in the chest, to threaten to beat Li to death if he called the police, and to hit Li in the eye with Li's cell phone. At one point, Sul, who had a gun, pointed it at Li's head. Later, Tung held a Chinese chopping knife (from Li's apartment) to Li's throat, threatening to slice it. Meanwhile, the two unidentified men (who were never apprehended) grabbed Mrs. Li and pushed her into a closet, where she remained for about ten to twenty minutes, Before leaving the apartment, the gang members stole money, credit cards and Li's cellular telephone. After the gang's departure, Li could not find his wife and son in the apartment. Fearing that the intruders had taken them, he pursued the intruders. Despite Li's injuries, he chased the gang down. After struggling with Tung, Li grabbed the knife Tung was carrying and cut off part of Tung's finger,
Later that same day, responding to a radio call about a fight involving a knife, the police found Tung, bleeding, and Sul The responding police officer called an ambulance for Tung. The officer then proceeded to Li's apartment, and brought Li down to the station in handcuffs, along with Sul, for questioning. After investigation by the police, Li was let go and Tung and Sul were arrested,
Tung was charged with three counts of robbery in the first degree, three counts of burglary in the first degree, two counts of robbery in the second degree, two counts of unlawful imprisonment in the second degree and one count of criminal mischief in the fourth degree. He was tried along with Sul, Li and his wife testified as to the key events. Prior to deliberations, the court dismissed one count of unlawful imprisonment. After deliberations, the jury acquitted Tung of two counts of first-degree robbery (involving serious physical injury and the knife, respectively), one count of first-degree burglary and of criminal mischief. The jury convicted him of one count of robbery in the first degree (involving a gun), two counts of burglary in the first degree (involving physical injury and display of a firearm), two counts of robbery in the second degree, and one count of unlawful imprisonment in the second degree, Tung was sentenced as a second felony offender to concurrent prison terms of from nine to eighteen years on the first-degree robbery count and each of the first-degree burglary counts, from seven and one-half years to fifteen years on each of the second degree robbery counts, and one year on the second-degree unlawful imprisonment count. The judgment of conviction was entered on February 1, 1996.
In April of 1998, Tung, through counsel, appealed his judgment of conviction to the Appellate Division, Appellate counsel claimed that Tung's convictions violated due process and were against the weight of the evidence. Specifically, appellate counsel pointed to the fact that Tung's convictions rested on the testimony of (a) Li, who had cut off Tung's finger, and, if arrested or convicted of a crime, would be deported to China; and (b) Li's wife, who was dependant on LI financially and in terms of her immigration status. The Appellate Division rejected this challenge and affirmed Tung's conviction on October 13, 1998.See People v. Tung, 678 N.Y.S.2d 535 (2d Dep't 1998), It held that Tung's claim was unpreserved for appellate review but that "[i]n any event, viewing the evidence in a light most favorable to the People, we find that it was legally sufficient; to establish the defendant's guilt beyond a reasonable doubt. . . . [and] that the verdict of guilt was not against the weight of the evidence." Li (citations omitted). On December S, 1998, the New York Court of Appeals denied Tung's application for leave to appeal his conviction. People v. Tung, 92 N.Y.2d 1039 (1998).
On July 29, 1999, Tung filed his first habeas petition in this district. See Tune v. McCoy, 99-CV-4332 (JG), At Tung's request, I dismissed the petition without prejudice on March 2, 2000, to permit him to exhaust his state remedies.
On May 8, 2000, Tung filed a pro se motion in the state Supreme Court to vacate his judgment of conviction pursuant to section 440,10 of the New York Criminal Procedure Law ("CPL"). He claimed that he received ineffective assistance of trial counsel because in counsel's motion for a trial order of dismissal, he failed to alert the trial court to the specific instances where the People failed to prove his guilt and also because counsel failed to argue, and preserve for appellate review, that the victims' testimony was not credible and should be ignored entirely. See People v. Tung, Indict, No, 3650/94, slip. op. (N.Y.Sup.Ct. Queens County, July 13, 2000), The Supreme Court rejected Tung's arguments on the merits, Id. ft reasoned that Tung's trial counsel was not ineffective because, based on counsel's motion for dismissal, the trial court dismissed one count of unlawful imprisonment. Furthermore, the court stated, counsel's Failure to alert the trial court to the specific instances of credibility problems or problems of proof did not prejudice Tung, Id. The court also stated that Tung could have, but did not, raise this issue before the Appellate Division on direct appeal and that a motion to vacate cannot be used for additional appealId.
On December 21, 2000, Tung, proceeding pro se, filed a petition for a writ of error coram nobis, alleging ineffective assistance of appellate counsel. The Appellate Division, Second Department, denied the writ on April 16, 2001, stating that Tung "has failed to establish that he was denied the effective assistance of appellate counsel," People v. Tung, 723 N.Y.S.2d 404 (2d Dep't 2001) (citation omitted).
On May 25, 2001, Tung filed the instant pro se petition for a writ of habeas corpus in this Court, challenging his convictions on the following grounds:
Tung gave his papers to prison officials for forwarding to this Court on May 25, 2001, and thus the papers are deemed to have been filed on that date. See, e.g., Houston v. Lack, 487 US. 266, 270 (1988); Hughes v. Irvin, 967 F. Supp. 775, 778 (E.D.N.Y. 1997).
(a) he was deprived of the effective assistance of appellate counsel on his direct appeal, and
(b) he was deprived of the effective assistance of counsel at trial,
On June 27, 2001, I issued an order directing respondent to inform the Court of the dates petitioner filed his post-conviction motion and petition for writ of error coram nobis in slate court, as well as the date petitioner's post-conviction motion was decided by the trial court and when his application for leave to appeal was filed with the Appellate Division, as those dates were, at that time, unclear. I was concerned that the petition may have been time-barred but did not have sufficient information to make that determination. After receiving the requisite information and briefing from the parties on this issue, on March 29, 2002, I issued an order denying respondent's motion to dismiss on timeliness grounds and staling that the petition would be decided on the merits.
DISCUSSION
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 US.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "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. § 22S4(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000): see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts,"Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case," Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle5 to `a set of facts different from those of the case in which the principle was announced,'" Wiggins v. Smith, 123 S, Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade, 53S US. 63, 123 S.Ct. 1166, 1175 (2003)).
Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citingWilliams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S.Ct. 1, 157 L.Ed.2d 1, 7 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 123 S.Ct. at 2535 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence," Id. (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Civ. 2000)).
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated inSellan v. Kuhlman:
[f]or the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S. C, § 2254(d)(1) to the state court's decision on the federal claim — even if the state court docs not explicitly refer to either the federal claim or to relevant federal case law.Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001),
In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C § 2254(e)(1).
B. Tung's Claims
At the outset, I note that respondent argues that the present (second) petition is tune-barred by the statute of limitations and thus, Tung can only press his current claims by amendment of his original petition (filed in 1999) under the "relation back" doctrine of Federal Rule of Civil Procedure 15(c). (Resp't Mem. Law Opp. Pet. at 7-12.) In light of the fact that I have already denied the respondent's motion to dismiss the current petition on timeliness grounds, see Tung v. Fischer, No. 01 CV 3877 (JG) (March 29, 2002), I do not consider this argument now.
1. Ineffective Assistance of Trial Counsel
Tung asserts that he was deprived of his Sixth Amendment right to effective assistance of counsel in the trial court because his trial counsel moved for a trial order of dismissal without alerting the court to: (a) the specific instances where the People failed in their burden of proof; and (b) to the Lis' incredible testimony, (Pef'r Mem. Law Supp. Pet. at 27.) Respondent answers that Tung is procedurally barred from raising this claim here because the state court's decision rested on an adequate and independent state procedural ground, In any event, respondent asserts, Tung did not suffer any prejudice because, among other reasons, defense counsel had already repeatedly brought out those very points mentioned by Tung throughout the trial, and as such, there was no need for counsel to have elaborated on them in support of his motion, (Resp't Mem. Law Opp. Pet. at 49, 56.)
a. The Procedural Bar
Federal habeas review of a state prisoner's claim is prohibited if a state court judgment denying the claim is based on an "adequate and independent state ground," Harris v. Reed, 4S9 U.S. 255, 261 (1992); Irvine v. Commissioner of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995), A procedural default in state court is an adequate and independent ground barring federal habeas review, Coleman v. Thompson, 501 U.S. 722, 750 (1591) (noting the State's interest in "channeling the resolution of claims to the most appropriate forum, in finality, and having the opportunity to correct [their] own errors");see also Lee v. Kemna, 534 U.S. 362, 376, 381 (2002) (noting the existence of a "small category" of "exceptional cases in which exorbitant application of a generally sound rule renders the slate ground inadequate to stop consideration of a federal question").
If a state court holding contains a plain statement that a claim is procedurally barred, then the federal habeas court may not review it, even if the state also rejected the claim on the merits in the alternative, See Harris, 489 U.S. at 264 n. 10 ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision) (emphasis in original). Where a state court "says that a claim is `not preserved for appellate review' and then ruled `in any event' on the merits, such a claim is not preserved," Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996),
The Appellate Division's decision rejecting Tung's claim reads, in relevant part, that:
There is no merit to defendant's arguments.
A judgment of conviction must be denied if there are sufficient facts on the record to have allowed adequate review of the issue on direct appeal but no such appellate determination occurred because defendant failed to raise the issue on appeal (CPL 440, 10[2] [c]). The issues raised in defendant's argument of ineffective assistance of counsel relates [sic] to matters on the record which could have been raised on direct appeal and decided by the Appellate Division ( see, People v. Cooks, 67 N.Y.2d 100).
* * *
Defendant has not shown that he had ineffective assistance of counsel at his trial In this case, defense counsel did make a motion for a trial order of dismissal and based on the motion to dismiss, the trial court dismissed one count of unlawful imprisonment. Counsel's failure to alert the court to the specific instances where the People failed to prove defendant's guilt and counsel's failure to argue that the victims' testimony was of doubtful credibility did not prejudice the defense or defendant's right to fair trial.
Defendant is attempting to use this motion to vacate the judgment of conviction as a method of appeal, However, this motion may not be used as a vehicle for an additional appeal,
Based on the foregoing, the motion to vacate the judgment of conviction is denied.People v. Tung, Indict. No. 3650/94, slip op, at 2-4 (N.Y.Sup.Ct., Queens County, July 13, 2000) (citations omitted).
The state court here did not rely on the independent and adequate state ground of procedural default. In order for the procedural bar to apply, the "state court must actually have relied on the procedural bar as an independent basis for its disposition of the case" by "clearly and expressly slat[ing] mat its judgment rests on a state procedural bar."Harris, 489 U.S. at 261-63) (quotations and citations omitted).
For example, in Harris, the Supreme Court reviewed a decision where the state court alluded to the fad that a procedural bar was operative without basing its decision on the bar, Specifically, the state appellate court had "referred to the `well-settled' principle of Illinois law that `those [issues] which could have been presented [on direct appeal], but were not, are considered waived'" and had stated that "`except for the alibi witnesses/ petitioner's ineffective-assistance allegations `could have been raised in [his] direct appeal.'"Harris, 489 U.S. at 258 (brackets in original, citations omitted), Nevertheless, the state court proceeded to consider and reject petitioner's ineffective-assistance claim on its merits. Id. The Supreme Court held that the claim was not procedurally barred; and would be decided on the merits, because although "the state court perhaps laid the foundation for such a holding by stating that most of the petitioner's allegations `could have been raised [on] direct appeal' . . . this statement falls short of an explicit reliance on a state-law ground." Id. at 266 (brackets in original).
In Jones v. Stinson, 229 F.3d 112 (2d Cir. 2000), the Second Circuit considered a similar ease. There, the state decision at issue did not actually recite that the issue was not preserved. It stated only that "[a]t no time during the trial did defense counsel articulate that the trial court's rulings improperly interfered with the ability to present a defense (see, People v. Zambrano, 114 A.D.2d 872, 494 N.Y.S.2d 904)." People v. Jones, 658 N.Y.S.2d 366, 368 (2d Dep't 1997), Although the Appellate Division did not provide an explanatory parenthetical to its Zambrano citation, inZambrano the court had ruled that the defendant was procedurally barred from presenting his claim on appeal. People v. Zambrano, 494 N.Y.S.2d 904, 905 (2d Dep't 1985). The Second Circuit determined that although the Appellate Division may have believed that Jones was procedurally barred from presenting the issue on appeal (as in the Zambrano decision), it did not plainly state such a holding, and thus the Second Circuit would presume that the Appellate Division did not intend to rely on the procedural bar. Stinson, 22 9 F.3d at 118-19.
As with the state court decisions in Harris andStinson, here, the state court merely set out the factual predicate for a holding based on a procedural bar, by stating that Tung's allegations could have and should have been raised on direct appeal. Although the state court cited to section 440.10(2)(c) of the CPL — which provides that the court must deny a motion to vacate a judgment when sufficient facts appear on the record to have allowed an appeal but the defendant unjustifiably failed to directly appeal — it did not clearly and expressly state that its judgment rested on this state procedural bar. Thus, I now proceed to consider the merits of Tung's claim.
b. The Merits
The Supreme Court has established the following standard for ineffective assistance claims:
First, the defendant must show that counsel's performance was deficient. This requires that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment, Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, to make out this type of claim, the petitioner must demonstrate both (1) that his attorney's performance fell below an "objective standard of reasonableness," Strickland, 466 U.S. at 688, and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. In assessing the reasonableness of counsel's performance, "[j] Judicial scrutiny of counsel's performance must be highly deferential," and the court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstance, the challenged action `might be considered sound trial strategy.'" Id. at 689 (citation omitted); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cm 1998): see also Yarborough, 157 L. Ed.2d at S ("[C]ounsel has wide latitude in deciding how best to represent a client . . ."),
In assessing counsel's performance, I "must conduct an objective review measured for `reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen `from counsel's perspective at the time.'" Wiggins, 123 So. Ct, at 2535 (citations omitted) (quoting Strickland, 466 U.S. at 688-89)). The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct" and has instead emphasized that "`the proper measure of attorney performance remains simply reasonableness under prevailing professional norms,'" Id. at 2535 (quoting Strickland, 466 U.S. at 688).
To establish the requisite effect of counsel's performance on the outcome of the proceeding, it is not sufficient if the petitioner shows merely that counsel's errors had "some conceivable effect" on the outcome, Strickland, 466 U.S. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. This determination, unlike the determination whether counsel's performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993),
Under these standards, Tung cannot prevail on his ineffective assistance of trial counsel claim, In New York, the motion for a Trial order of dismissal is go vented by section 290,10(1)(a) of the CPL, which states that such an order will issue "upon the ground that the trial evidence is not legally sufficient to establish the offense charged therein or any lesser included offense." N.Y. Crim. Proc, Law § 290.10(1)(a). In determining the motion, a court must view the evidence in the light most favorable to the People, People v. Vasquez, 530 N.Y.S.2d 601, 602 (2d Dep't 1988).
As to the credibility issue, Tung's trial counsel had vigorously elicited evidence undermining the credibility of the Lis. (See infra Part B.2.a.) Trial counsel had made crystal clear the defense position that the Lis could not be believed, and it was hardly necessary to reiterate that position at the close of the case. Moreover, even if Tung's counsel had explicitly argued the credibility issue as a basis for dismissal there was no "reasonable probability" that the trial judge would have granted the motion. See, e.g., N.Y. Crim. Proc, Law § 70.10(1) ("`legally sufficient evidence' means competent evidence which, if accepted as true, would establish every element of an offense charged . . .") (emphasis added); People v. Thompson, ( 501 N.Y.S.2d 418, 425 (N.Y. Sup, Ct., Queens County, 1993) ("The judge may not issue a trial order of dismissal based upon an assessment of the quality or weight of the evidence, or upon the judge's personal impression of the credibility of the witnesses.") (citations omitted). Indeed, counsel's failure to explicitly argue the credibility of the prosecutor's witnesses more likely reflects an astute professional judgment mat such arguments fall flat in that context because the trial court must accept such testimony as true.
Here, if the fact finder believed the testimony of Li and his wife, then the evidence would have bean legally sufficient. Li testified that Tung, after demanding money, hit Li in the chest, and hit him in the eye with a cellular telephone, and that Sul pointed a gun at him, hit him with it and pushed him down onto the floor. (Trial Tr. at 205-10). Li also testified that Tung took Li's wallet and removed two credit cards and some money. (Id. at 212.) Moreover, there was testimony that the two unidentified men, who were with Tung and Sul, forced Mrs. Li into a closet during these events, (Id. at 209,432,) This testimony was sufficient to make out the charges on which the jury convicted: robbery in the first degree (involving a gun), two counts of burglary in the first degree (involving physical injury and display of a firearm), two counts of robbery in the second degree, and one count of unlawful imprisonment in the second degree.
In short, I agree with the state court mat trial counsel's failure to explicitly argue credibility when seeking a trial order of dismissal did not prejudice Tung, At the very least, f cannot say that the state court's determination was an unreasonable application ofStrickland.
For the same reasons, I find Tung's other arguments on this subject to be unavailing. He claims that his trial counsel also unreasonably failed to alert the trial court as to the dubious nature of the evidence against him for a litany of other reasons: there was no gun recovered, the police investigation was poor, the police never dusted Li's apartment for fingerprints, the blood on Li's wall was never tested, and, finally, Tung was only arrested because there was a Chinese interpreter at the police station on the night in question but no Korean interpreter to listen to Sul's story. (Pet'r Mem. Law Supp. Pet. at 31-32.) In the context of a sufficiency-based motion, these details were rendered meaningless by the fact that two eyewitnesses (the Lis) testified that Tung committed the crimes charged, Surely, that evidence was sufficient to convict, I also note that the trial court dismissed one count of the indictment (one of the unlawful imprisonment counts), (See Trial Tr. at 574,) Therefore, I cannot say that the state court's determination that Tung's trial counsel was not ineffective was an unreasonable application of Strickland
2. Ineffective Assistance of Appellate Counsel
Tung argues that appellate counsel erred in not presenting the following claims on appeal: (1) that the trial court improperly curtailed defense counsel's cross-examination of the Lis; and (2) that the trial court erred in refusing to charge the jury that fortune-telling was a crime, that Li was an interested witness, and that there were federal regulations on immigration bearing on the trial, (Pet'r Mem. Law Supp. Pet. at 15, 21-23,) Respondent asserts that the inclusion of these arguments by appellate counsel in his briefing would have been futile because the Appellate Division had already rejected them both, on virtually identical facts, in affirming co-defendant Sul's conviction, (Resp't Mem. Law Opp. Pet. at 23.) Respondent further contends that the claims would not have been successful because defense counsel was able to question the Lis about their motives to lie, and that the trial court properly charged the jury.
Although the Supreme Court formulated the Strickland test in the context of examining a claim of ineffective assistance of trial counsel, the same test applies to claims regarding the performance of appellate counsel. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). The second prong is different, however; the petitioner must establish that "there was a reasonable probability that [his] claim would have been successful before the [state's highest court],"Mayo, 13 F.3d at 534 (brackets in original, quotations and citations omitted),
It is well-established that, on appeal, counsel need not present every nonfrivolous argument that could be made. See id. at 533;see also Evitts v. Lucey, 469 U.S. 387, 394 (1985) (emphasizing that appellate counsel "need not advance every argument, regardless of merit, urged by the appellant,") (emphasis in original, citation omitted). Rather, counsel is expected to winnow out the weaker arguments and focus on the stronger ones, Jones v. Barnes, 463 U.S. 745, 751-52 (1983), Reviewing courts should not employ hindsight to second-guess an appellate attorney's strategy choices, See Mayo, 13 F.3d at 533. A petitioner, however, may establish constitutionally inadequate performance if he shows that his appellate counsel omitted material and obvious issues while pursuing matters that were patently and significantly weaker. Cf. Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("[R]elief may be warranted when a decision by counsel cannot be justified as a result of some kind of plausible trial strategy.").
Under these standards, I find Tung's claim to be without merit. At the outset, I note that the Appellate Division had already concluded, in Sul's case, that the trial court's rulings during cross-examination and its charges to the jury, were not erroneous:
Contrary to the defendant's assertions., the trial court did not err by restricting the cross examination of prosecution witnesses regarding their motive to falsify. The trial court has broad discretion to limit cross examination when questions are repetitive, irrelevant or only marginally relevant, concern collateral issues, or threaten to mislead the jury. The trial court did not improvidently exercise its discretion here,
Nor did the trial court err in refusing to charge the jury that the alleged fortune-telling by the complainant was a crime, The defense sought such an instruction in order to link the alleged fortune-telling to the risk of the complainant's deportation to his native China. However, the allegations of fortune-telling were not established at trial. In any event, the characterization of fortune-telling as a bad act, both in the defense summation and the court's charge, was sufficient to alert the jury to the issue of the complainant's credibility,People v. Sul, 652 N.Y.S.2d 57, 58 (2d Dep't 1396) (internal citations omitted). Considering that the court had already ruled, on the specific facts of Tung's case, that these claims were not meritorious, Tung's appellate counsel sensibly chose not to present the same issues again to the Appellate Division, Tung's reliance on the Second Circuit's opinion in Mayo, where it stated that "the attorney's omission of a meritorious claim cannot be excused simply because an intermediate appellate court would have rejected it," 13 F.3d at 533-34, is misplaced. The present case is different fromMayo, because here the Appellate Division had decided the same issue on the same set of facts in the same case. These circumstances clearly rendered the Sixth Amendment and jury charge claims weaker man the sufficiency claim that was raised by Tung's appellate counsel. Regardless, I do not believe that appellate counsel was deficient in failing to brief either issue, for the reasons I explain below,
The New York Court of Appeals denied Sul's leave to appeal this decision on February 18, 1997. People v. Sul, 89 N.Y, 2d 986 (1997). As noted earlier, Tung's appellate counsel filed his brief in the Appellate Division in April 1998.
Before the Appellate Division, counsel for Sul argued that the trial judge erroneously sustained baseless objections to defense counsel's attempts to elicit relevant information on cross-examination pertaining to Li's motive to lie. Specifically, Sul's appellate counsel argued that"[e]ach of die areas of cross-examination [was] . . . designed specifically to show that Lin Li was not abiding by the terms of his Green Card visa, was not gainfully employed, was involved in shady and/or outright illegal activities, and thus, once arrested, had every motive to fabricate these charges and shift blame for what transpired in his apartment to the defendants." (Sul's App. Div. Br. at 18; see also id. at 19-22.) Sul's appellate counsel similarly argued that the trial court unfairly restricted cross-examination of Li's wife, in particular, whether she participated in her husband's fortune-telling, and whether she was subject to deportation if her husband was convicted of a crime, (Id. at 22.) Appellate counsel also complained that the trial court should have charged the jury that: (a) fortune-telling was a crime under the New York Penal Law (in order for defense counsel to advance the theory that Li had a motive to fabricate the charges against Sul, so as to avoid deportation); (b) Li was an interested witness (again based on his green card status and possible deportation); and (c) there are federal regulations bearing on conditions of residency. (Id. at 26-29.)
a. The Cross-Examinations of the Lis
Although the defendant's right to cross-examine witnesses "is one of the most firmly established principles under Supreme Court law,"Cotto v. Herbert, 331 F.3d 217, 248 (2d Cir. 2003), it is not absolute. A criminal defendant is entitled to a fair trial, not a perfect one. See Ross v. Oklahoma, 487 U.S. 81, 91 (1988) (citation omitted). It is well established that a trial court "retain[s] wide latitude . . . to impose reasonable limits on . . . cross-examination based on concerns about, among other things, . . . interrogation that is repetitive or only marginally relevant."Delaware v. Van Arsdall, 475 US. 673, 679 (1986); see also Jones v. Berry, 880 R2d 670, 673 (2d Cir. 1989).
The question here is whether defense counsel bad a meaningful opportunity to cross-examine the Lis in order to establish Tung's theory of the case, see, e.g., Roussopoulos v. McGinnis, No. 00-CV-1826 (JG), 2002 WL 31641605, at *7 (E.D.N.Y. Nov. 18, 2002),i.e., that the Lis were really the perpetrators of the crime and lied to cover up their illegal activities so as not to risk deportation. My review of the transcript convinces me that Tung's counsel did have such a meaningful opportunity and did receive a fair trial.
Tung complains that his Sixth Amendment right to confront the witnesses against him was unconstitutionally frustrated because the trial judge sustained the prosecutor's objections to questions seeking to elicit "the complainant's motive to lie and to the basic question of the credibility of these charges [against Tung]," (Pet'r Mem. Law Supp. Pet. at 15.) In particular, Tung argues, his defense counsel was unable to "show that Lin Li was not gainfully employed, was involved in shady and/or outright illegal activities, and thus, once arrested, had every motive to fabricate these charges and shift blame for what transpired in his apartment to the defendants," (Id.)
Putting aside the fact that all of the instances of which Tung complains occurred during Sul's lawyer's cross-examination of Li and not during his own lawyer's cross-examination (Tung's lawyer was the first to question Li), the record reflects that both defense counsel were able to question Li about these matters although Li did not always provide defense counsel with their desired answer. Indeed, the record reveals that both counsel were given wide latitude to explore these issues.
As for Tung's own lawyer, I find that he was able to sufficiently question Li on the matters relating to Tung's theory of the case. In fact, he was given almost Ml reign to elicit information concerning Li's supposed fortune-telling business and as to his other "shady" businesses;
DEFENSE: Now, let me understand something, Mr. Li; what do you do for a living?
PROSECUTION: Objection irrelevant.
THE COURT: Overruled,
LI: I'm a. person who — I'm working for Democracy in China; and also, I'm a person in the religious group, Xin-Zheng group.
* * *
DEFENSE: Did you have any other business, Mr., Li?
LI: Yeah, I am a supporter for the Chinese religions, art, and culture,
* * *
DEFENSE: Is that a paid position? Do you get paid for doing that?
LI: Whatever they like to pay they pay. If they want to pay, if they don't want to pay they don't pay.
DEFENSE: What other businesses did you have in August of 1994?
PROSECUTION: Objection to this, Judge.
THE COURT: No, I'll take it. But I'm not going into the businesses.
DEFENSE: Were there any other businesses that you had in 1994 at about this lime we're talking about?
LI: I invested in stock.
DEFENSE: Did you also tell fortunes?
LI: Yes, I know how to fortune tell.
DEFENSE: Was that your primary source of income in August and July of 1994?
LI: No.
DEFENSE: Did you advertise in Chinese newspapers with regard to your fortune telling business?
PROSECUTION: Objection
DEFENSE: Judge, this goes directly to People's 1 in Evidence [Li's advertisement].
THE COURT: I will take it, I will take it. Simply get some background, we are not flushing out any details. Did you advertise in the Chinese newspapers of you[r] ability to fortune tell?
LI: No.
DEFENSE: Would you take a look at People's 1-B in Evidence, Just the little thing you referred to as your business card?
LI: Yes,
DEFENSE: Did you place that advertisement?
LI: Yes.
DEFENSE: Can you tell us what that is?
LI: That's advertise,
DEFENSE: In the Chinese newspaper?
LI: Yes.
DEFENSE: Is that an advertisement that you paid in order to make money as a fortune teller?
LI: Actually, the advertisement is not about future teller. Actually, I am a Buddhist, one of the small branchs [sic] of buddhists which names Xin-Zheng, and I was trying to tell people about messages from our organization. DEFENSE: Does that advertising call you "The Great Master of Fortune Telling."
LI: No, this is not a great master of fortune teller, this is actually of great master of healing people. Yuan-Ming, Yuan-Ming is making the life better.
DEFENSE: Does that refer to your ability to tell people what is going to happen to them if they follow what you tell them?
PROSECUTION: Objection, Judge
THE COURT: Well, I'll take this, arid then we're off it. . . .
LI: No.
* * *
DEFENSE: Do you say in that [advertisement] that you have the power to avoid unlucky happenings happen to people, and to help people enjoy joy and fortune?
LI: Yes.
* * *
DEFENSE: Was it your business to have people come to your apartment in response to that advertisement?
LI: Yes.
DEFENSE: And to pay you money to conduct that business with regard to that advertisement?
LI: Some of them don't pay, some of them send me some desserts or cooky [sic], But some of them will give me some envelopes.
(Trial Tr. at 262-67, 269-70.) After this line of questioning, Tung's defense attorney requested a break and explained that he was doing so at that time because he had "completed this line" of questioning. (Id. at 271.)
Sul's lawyer, as well, had adequate opportunity to present Li to the jury as a fortune-teller. Of particular note is the fact that the trial judge permitted Sul's counsel to read into evidence a translation of an advertisement, by Li, of what defense counsel purported to be Li's fortune-telling business. (Id. at 384-85.) The cross-examination transcript demonstrates that Sul's counsel was able to adequately question Li about Li's purported fortune-telling business and his other sources of income:
Again, I address Sul's attorney's cross here, in detail, since it is that portion of the cross which Tung challenges.
DEFENSE: [D]o you remember giving the answer that you are involved in counseling and fortune telling?
LI: No.
DEFENSE: What do you do for a living, sir; what is your employment?
LI: My main job is to still participate in Chinese government activity,
DEFENSE: Arc you employed by anybody?
LI: No,
* * *
DEFENSE: And isn't it a fact; sir, that you work for yourself in the capacity of counseling people and predicting fortunes for people?
LI: No, that is not correct,
DEFENSE: That is not correct, sir? Isn't is a fact that you advertise in Chinese newspapers in this county that you are a Great Master of Fortune Telling? Don't you do that?
LI: No, I didn't say fortune telling. I say Yuan Ming, It's not a fortune teller, it's a member of Yuan Ming,
* * *
DEFENSE: Is it your testimony, sir, that at the heading of [your] business card — does it not say "Great Master of Fortune Telling"?
LI: No, that's not. This not fortune teller, this say that I'm from Xin-Zheng branches of Buddhism.
* * *
DEFENSE: Do you not predict good fortunes for people as a living?
LI: No, no, no, I preach the principals [sic] from the Xin-Xheng branches of Buddhism to people. . . .
DEFENSE; Sir, you testified . . . that people often come to your apartment for spiritual guidance and advice; is that correct?
Sul's counsel continued to try to elicit this information. Thus, the trial judge rightfully exercised his discretion to sustain the prosecutor's objections based on this repetitious questioning. (See Trial Tr. at 385-86.) The trial judge also properly sustained the prosecutor's objection to the following questions by Sul's attorney to Li: "Sir, do you have the ability to predict the outcome of this trial?" and "Can you predict whether this jury believes you are lying right now?" (Id., at 386,)
LI: Yes.
DEFENSE: And in return for your spiritual advice and guidance they often give you presents and money; correct?
LI: If they are willing to give me money, or give — but I don't ask them.
DEFENSE: You don't charge a fee for your services, sir?
LI: No.
DEFENSE: And if you are not employed by anyone and you don't charge a fee for your services then how [d]o you make money?
PROSECUTION: Objection, irrelevant
THE COURT: No, it's all right. I'll allow it. Go slow,
LI: First, point, okay, after I came to United States, the United States government offered me one-year expense to cover my living expense for learn and observing the systems of the United States, Secondly, when I came from Hong Kong to here I brought some money with me. Also, I had make speech in Hong Kong and university and they paid me for the speech fee . . .
* * *
DEFENSE: So it's your testimony that you make money from the money that you saved while living in China and also from money that the United States government has given you?
PROSECUTION: Objection, no such testimony,
THE COURT: Sustained. He already testified, counsel, yon don't have to repeat it,
DEFENSE: How much money did you bring with you from you [sic] China?
PROSECUTION: Objection.
THE COURT: Sustained.
* * *
DEFENSE: During the time of this alleged incident, August 2, 1994, what other source of income did you have besides the one that you just testified to?
THE COURT: If any.
LI: No.
DEFENSE: Is it fair to say that right now, as you're sitting in this jury box, or this witness box, you're not making any income besides the one that you testified?
PROSECUTION; Objection.
THE COURT: Sustained.
(Id. at 386-89.) The trial court's sustaining of the prosecutor's objection at this point, after the previous questioning concerning Li's income, was entirely proper. Continued questioning as to this issue plainly had become repetitive.
In addition, Sul's counsel successfully questioned Li as to his immigration status:
DEFENSE: Did you apply for a Green Card with the Department of Immigrations on September 30, 1991?
PROSECUTION: Objection, relevance,
THE COURT: I'll take in on credibility. I'll allow it
LI: Yes,
* * *
DEFENSE: Mr. Li, isn't it a fact, sir, that if you are accused of a crime, or convicted of a crime, you will be deported to your home country of China?
LI: Yes.
(Id. at 368, 374,)
With respect to the cross-examination of Mrs. Li, Tung complains that defense counsel was unconstitutionally prevented from asking her whether: (a) she participated in her husband's fortune-telling; (b) people regularly came to her apartment to seek advice from her husband; (c) she was subject to deportation if her husband was convicted of a crime; and (d) the wall hangings in her apartment were illustrative of the Lis' fortune-telling business, (Pet'r Mem. Law Supp. Pet, at 18.) Tung is wrong on this score as well. Though the trial court sustained an objection to counsel's sole question to Mrs. Li seeking to learn whether she participated in her husband's fortune-telling business (a question that improperly assumed the existence of such a business) (Trial Tr. at 484), almost immediately thereafter, counsel was permitted repeatedly to ask the witness whether she had told the police that her husband read tarot cars for a living, or did business as a fortune-teller, which she denied (id. at 485). The trial judge properly exercised his discretion in not allowing Tung's counsel to ask Mrs. Li if people regularly come to your home to receive advice from your husband pursuant to his position as a missionary" (id. at 485-86), in light of the fact that such questioning was repetitive, and at that point, only marginally relevant. As to the deportation issue, because that question called for a legal conclusion, it was properly excluded. Last, whether or not the Lis had "photographs or pictures of dragons" on their apartment walls (id. at 501), was not particularly relevant, and thus was properly precluded by die trial court.
In short, this is not a case where the trial court precluded defense counsel from presenting their defense, as in Olden v. Kentucky, 488 U.S. 227 (1998) (petitioner's Confrontation Clause rights violated when he was not allowed to confront the alleged victim about her extramarital affair, which provided her motive to lie and cover up the fact that she had had consensual sex with the petitioner, according to petitioner's theory of the ease), or in United States v. Reindcau, 947 F.2d 32, 35 (2d Cir. 1991) ("the trial court's curtailment of the cross-examination effectively precluded the presentation of their defense"). Accordingly, based on the above discussion, I conclude that the Appellate Division's application ofStrickland here was not unreasonable. Thus, Tung is not entitled to the writ on this ground.
b. The Jury Charges
Tung also argues that appellate counsel was deficient in failing to appeal on the basis of the trial court's error to submit certain charges to the jury. (Pet'r Mem. Law Supp. Pet. at 22-27,) In particular, he faults appellate counsel for not raising the trial court's failure to charge the jury that fortune-telling is a crime, that Li was an interested witness due to his immigration status, and that there are federal regulations pertaining to the conditions of residency in the United States under a green card status. (Id.) As related earlier, Sul raised these very issues on appeal, and the Appellate Division rejected them. (See supra Part B.2,)
At trial, defense counsel asked the trial court to charge the jury that fortune-telling is a crime under the New York Penal Law. The trial judge refused, stating that the grounds "had not been made out" (id. at 479), although the court allowed defense counsel to refer to it in summation as a "bad act" (id. at 593-98), Relatedly, defense counsel requested that the court charge that Lin Li was an interested witness. (Id. at 588-89) (arguing to the court that Li had a motive to lie because, based on his visa status, he would be deported if he were charged and convicted of a crime, and thus when he was brought into custody prior to the defendants' arrest., he had a strong motive to lie,) The court denied this request, but gave the jury a general interested witness charge. (Id. at 694-96,) The court also dented defense counsel's similar request to incorporate into the charges federal regulations pertaining to the conditions of residency in the United States under a green card visa. (Id. at 594-98.)
Tung argues that it was erroneous for the trial judge not to have charged the jury with respect to fortune-telling because the jury was not alerted to the fact that Li was "fabricating these charges in order to cover up criminal activity on his part and to avoid deportation and incarceration in China . . . it was critical to the defense that the jury understand that Lin Li was involved in crimes, not merely "bad acts' in order for them to understand the defense theory of impeachment." (Pet'r Mem. Law Supp. Pet, at 23,) With respect to the remaining issues, he claims that the judge's failure to make the requested charges denied him of a fair trial because the defense position was not explained (id. at 23-24), and that there was ample evidence in the record to require the court to make those charges (id. at 24), Because the lack of these charges deprived him of a fait trial, Tung asserts, his appellate counsel was necessarily ineffective in failing to raise them on appeal. (Id. at 25.)
I do not agree with Tung that his appellate counsel was constitutionally deficient for failing to raise these issues on appeal. At the outset, I note that the Appellate Division had already rejected these very same claims in Tung's co-defendant's appeal, (See supra Part B.2.) Additionally, first, with respect to the fortune-telling charge, I agree with the trial court that defense counsel failed to make out the underlying facts warranting such a charge. During extensive cross-examination of Li on this subject, he denied that he was a fortune-teller or earned money as a fortune-teller, (See supra Part B.2.a.) Even if mere had been sufficient testimony mat Li had engaged in criminal fortune-telling, however, such a charge would not have been appropriate. There was no showing that the possibility of the state preferring charges against Li might depend on the result of Tung's trial and thus Li's testimony against Tung was not biased in that regard. To the extent that fortune-telling may have detracted from Li's credibility, the court permitted the jury to hear about it during defense summations, and the characterization of fortune-telling as a bad act was sufficient to suit counsel's purposes at trial.
Second, there was no need for the "interested witness" charge. A general charge on the assessment of witnesses is sufficient to alert the jury to the need to scrutinize "interested witnesses," see, e.g., People v. Inniss, 83 N.Y.2d (553, 659 (1994) (general instruction that the jury "could consider the interest or bias of any witness in assessing the credibility of that person" was sufficient to convey the need to scrutinize particular witness's testimony where he testified in exchange for charges against him on an unrelated crime being dropped), unless the victim has a direct penal or personal interest in the outcome of the case. See People v. Walker, 636 KY.S.2d 252, 253 (4th Dep't 1995) (rejecting defendant's contention that the court erred in refusing to charge the jury that the complainants maybe interested witnesses where court gave general charge that the jury may consider whether any witness had an Interest in the outcome of the case that might affect his or her testimony and defense counsel did not assert that complainants had a direct penal or personal interest in the outcome of the case); People v. Diaz, 540 N.Y.S.2d 907, 909 (3d Dep't 1989).
Here, the trial court delivered a lengthy charge to the jury on the evaluation of witness testimony, which alerted the jury to this issue (albeit generally):
You should ask yourself was the witness neutral . . . reliable and trustworthy in the recital of the fact[s]; was the witness demonstrably bias[ed] or prejudic[ed] or did the witness have a demonstrable reason to falsify. . . . Consider. . . . the interest or lack of interest in the outcome of the case, the motive to tell the truth or not as to credibility.
(Trial Tr. at 694-96,) There has been no showing that the Lis had a direct penal or personal interest in the outcome of the case. As respondent points out, Tung made no showing that, in the event of an acquittal, Li himself would likely be charged with any crime (Resp't Mem. Law Opp, Pet. at 42), and there has been no indication that the Lis filed or were planning to file a civil suit against Tung. Moreover, defense counsel's extensive cross-examination of Li would have alerted the jury to any bias or interest that Li may have had in the trial's outcome.
Third, and last, Tung cannot now raise the trial court's failure to charge on the federal immigration regulations because Tung's trial counsel never joined in co-counsel's request to so instruct the jury. (Trial Tr. at 594, 598-599.) See N.Y. Crim. Proc, Law § 470,05(2) (contemporaneous objection required to preserve issue of law for appellate review). In any event, this claim is lacking in merit for the same reasons that the fortune-telling argument failed. Thus, the Appellate Division's application of Strickland here was not unreasonable and therefore Tung is not entitled to the writ on this ground, either.
c. Other Claims of Ineffective Assistance of Appellate Counsel
Tung's remaining contentions are similarly deficient. He asserts that his appellate counsel cannot be deemed effective where he raised only "a single unpreserved issue that had absolutely no chance of winning. . . .", (Pct'r Mem. Law Further Supp. Pet, at 12.) As mentioned earlier, appellate counsel raised one issue on appeal — that Tung's convictions violated due process and were against the weight of the evidence due to the Lis' incredible testimony and motives to lie — which the Appellate Division rejected as both unpreserved and without merit. Although counsel raised only this one issue in the Appellate Division, that does not lead to the conclusion that Tung urges.See Washington v. Walsh, No, 01-CV-250 (JG), 2002 WL 2003207, at *2, 7 (E.D.N.Y. Aug. 1, 2002) (even though appellate counsel raised two grounds for appeal, both of which were adjudicated unpreserved for appeal, appellate counsel not ineffective underStrickland). And even assuming appellate counsel's failure to raise the claims discussed above satisfied Strickland's first prong, Tung has not demonstrated how the result would have been different if the claims had been made.
Last, Tung argues that appellate counsel was deficient inasmuch as he failed to seek permission from Tung, or at least to confer with him, as to what issues to raise on appeal, (Pet'r Mem. Law Further Supp. Pet. at 11-12, 14.) This argument is wholly unfounded. Counsel need not confer with his client about such issues of legal strategy. See Jones, 463 U.S. at 751 ("N[o] . . . decision of this Court suggests, however, that the indigent defendant has a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points. . . . a per se rule that the client, not the professional advocate, must be allowed to decide what issues are to be pressed . . . [would] seriously undermine the ability of counsel to present the client's case in accord with counsel's professional evaluation,");Ennis v. LeFevre, 560 F.2d 1072, 1075 (2d Cir. 1977) ("While all would agree that the decision whether to take an appeal from a criminal conviction is a critical one committed ultimately to the defendant himself, decisions concerning which legal issues will be urged on appeal are uniquely within the lawyer's skill and competence, and their resolution is ultimately left to his judgment.")
The Ennis court also made clear that "if counsel failed to press an argument that had obvious merit, or if he failed to act as an advocate on petitioner's behalf . . . then [a defendant] may have been denied the effective assistance of counsel, and that issue may be raised notwithstanding the otherwise binding nature of the challenged decision made by counsel." Ennis, 560 F.2d at 1076 (internal citations omitted). This caveat does not apply here, however, as there is absolutely no merit to the claims that Tung sought for his trial counsel to press.
In sum, the state court's rejection of Tung's claim on the merits cannot reasonably be characterized as an unreasonable application of theStrickland standard. Thus, this claim, too, fails to entitle Tung to habeas relief.
CONCLUSION
For the foregoing reasons, the petition is denied. Because Tung has failed to make a substantial showing of a denial of a constitutional right, no certificate of appeal ability shall issue.
So Ordered.