Opinion
19 Civ. 03696 (KMK)(JCM)
11-29-2023
PAULINO VALENZUELA, Petitioner, v. WILLIAM F. KEYSER, Superintendent of the Sullivan Correctional Facility, Respondent.
Honorable Kenneth M. Karas, United States District Judge
REPORT AND RECOMMENDATION
JUDITH C. MCCARTHY UNITED STATES MAGISTRATE JUDGE
Petitioner Paulino Valenzuela (“Petitioner”), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 21, 2019 (Docket No. 2) (the “Petition”). The District Attorney of Bronx County, on behalf of William F. Keyser, Superintendent of the Sullivan Correctional Facility (“Respondent” or the “State”), opposed the Petition on December 18, 2019. (Docket Nos. 14, 15). Petitioner filed a reply on January 28, 2020. (Docket No. 17). For the reasons set forth below, I respectfully recommend that the Petition be denied.
A pro se prisoner's papers are deemed filed at the time he or she delivers them to prison authorities for forwarding to the court clerk. See Houston v. Lack, 487 U.S. 266, 270 (1988); Walker v. Jastremski, 430 F.3d 560 (2d Cir. 2005) (analyzing the “Houston prison mailbox rule”). Petitioner certified that his Petition was delivered to the prison authorities for mailing on April 28, 2022. (Docket No. 1 at 11-12). Consequently, and because the timeliness of the Petition is not challenged, the Court adopts Petitioner's date for this filing and all other filings discussed herein.
I. BACKGROUND
A. The Crimes, Trial and Sentence
Petitioner's conviction in this case stems from events that took place on August 30, 2007 at his former place of employment. After being fired for threatening coworkers and supervisors, Petitioner filed an employment discrimination lawsuit against his former employer on February 6, 2006, alleging wrongful termination and retaliation based on national origin. (Trial Tr. at 879905); see also Valenzuela v. River Bay Corp., No. 06 Civ. 903 (DLC), 2007 WL 2435161 (S.D.N.Y. Aug. 24, 2007). The court dismissed the lawsuit on August 24, 2007, and in response Petitioner sought retribution against his former coworkers. Id. Specifically, on the morning of August 30, 2007, armed with a gun and homemade silencer, Petitioner went to a building where his former supervisors and colleagues were working and shot multiple people. (Id. at 507-50; 820-860; 926-36). His first victim was a former supervisor. Petitioner approached him, yelled “traitors like you need to be killed,” and shot him in the chest. Petitioner shot him again in the back of the head as the supervisor turned to run away. (Id. at 1015-44). Petitioner next shot three other workers; one was shot in the shoulder, another in the neck-paralyzing him-and Petitioner attempted to shoot a third when the gun malfunctioned and would not fire. (Id. at 51088; 604-12; 822-51).
The Court construes the evidence presented at trial in the light most favorable to the state. See, e.g., Murden v. Artuz, 497 F.3d 178, 184 (2d Cir. 2007).
“Trial Tr.” refers to the transcript of Petitioner's trial, held from March 11 through April 14, 2011. (Docket Nos. 13-12; 13-13; 13-14; 13-15; 13-16; 13-17; 13-18; 13-19; 13-20; 13-21; 13-22; 13-23; 13-24).
After his shooting rampage ended, Petitioner went to the Bronx Criminal Courthouse and surrendered. (Id. at 15-35). He approached an officer and informed him that he was in possession of a firearm, and that he had just used it to shoot and possibly murder numerous people. (Id.). He was taken into custody, advised of his Miranda rights, and confessed to shooting his co-workers because he was upset that his lawsuit was dismissed. (Docket No. 15 at 6-7). Petitioner was indicted on September 5, 2007, in the Supreme Court of the State of New York, Bronx County (“Bronx County Court”) for his actions, and pleaded not guilty to all charges. (Docket No. 14 at 2).
The case proceeded to trial, where Petitioner planned to rely on the extreme emotional disturbance (“EED”) defense. In his opening statement, defense counsel invoked the EED defense, promising the jury that he would present an expert psychological witness who would testify that Petitioner was not in control of his actions when the crimes occurred. (Docket No. 1312 at 1295-1300). However, in the middle of the trial, the expert refused to testify. (Trial Tr. at 1114-16). As a result, defense counsel moved for a mistrial, arguing that Petitioner would be greatly prejudiced if the trial were to continue since the defense relied on this expert and the EED defense during opening statements. (Id.). The Bronx County Court denied the motion, holding that it was too extreme of a remedy, and offered instead to allow the defense to take an extended recess to find a new expert witness. (Id. at 1120-26). Defense counsel rejected this offer and instead suggested that the parties stipulate that neither would call expert witnesses on the EED defense, and that the trial court would instruct the jury that expert testimony is not needed to establish the defense. (Id.). The State agreed and the trial resumed. (Id.).
The issue did not come up again until the State's summation when it mentioned the absence of a defense expert on the EED defense. (Id. at 1272-73). Defense counsel objected to this statement, but the objection was overruled, and the jury was instructed, as the parties agreed, that an expert was not required to successfully invoke the defense. (Id.). The trial court then charged the jury that the EED defense should only be considered on the Murder charge. (Id. at 1348-76). However, when deliberations were about to begin, defense counsel requested that the trial court also instruct the jury that the EED defense may apply to the Attempted Murder charges as well. (Id.). The State opposed the request as contrary to the parties' prior agreement and the Bronx County Court denied the request as untimely. (Id.).
Ultimately, Petitioner was convicted on April 18, 2011, of one count of Murder in the Second Degree, one count of Attempted Murder in the Second Degree (he was acquitted on the two other Attempted Murder charges), one count of Assault in the First Degree, and two counts of Criminal Possession of a firearm. (Id. at 1402-08). The Bronx County Court then sentenced Petitioner on May 5, 2011, to a term of twenty-five years to life on the Murder charge, twenty-five years to life on the Attempted Murder charge, twenty-five years to life on the Assault charge, and fifteen years imprisonment on each Criminal Possession charge-each to run consecutively except for one of the Criminal Possession charges, resulting in a total term of imprisonment of ninety years to life. (Sentencing Tr. at 14-15).
“Sentencing Tr. refers to the transcript of Petitioner's sentencing hearing, held on May 5, 2011. (Docket No. 1325).
B. Direct Appeal
Petitioner filed a direct appeal through counsel in August 2015, arguing that the Bronx County Court: (1) violated his right to due process of law when it applied the wrong legal standard in denying defense counsel's motion for a mistrial after Petitioner's only expert psychiatric witness-who defense counsel alluded to during opening arguments-refused to testify at trial, which the State exploited in its summation, (Docket No. 14-5 at 39-53); (2) deprived him of a fair trial by not instructing the jury that they could consider Petitioner's EED defense for the Attempted Murder charges, which was the result of defense counsel's ignorance of the law on this defense, (id. at 54-61); and (3) imposed an improper consecutive sentence for the Criminal Possession of a Weapon charges, (id. at 62-63). The State opposed Petitioner's direct appeal, (Docket No. 14-7), and while his appeal was sub judice, Petitioner filed a supplemental appellate brief, pro se, on February 3, 2016. (Docket No. 14-6). The brief reiterated the sentencing error argument from his counseled appellate brief while adding a claim of ineffective assistance of trial counsel for failure to: (i) demand a competency evaluation of Petitioner pursuant to New York Criminal Procedure Law (“N.Y. C.P.L.”) § 730.30, since the EED defense was invoked; and (ii) independently investigate whether Petitioner was competent to stand trial. (Id.). The State filed a reply on December 5, 2016. (Docket No. 14-7).
By Decision and Order, dated January 26, 2017, the Supreme Court of the State of New York, Appellate Division, First Judicial Department (the “First Department”), modified Petitioner's sentence on the two Criminal Possession counts to run concurrently rather than consecutively, but otherwise affirmed his conviction on all counts. People v. Valenzuela, 47 N.Y.S.3d 249 (1st Dep't 2017). The First Department affirmed that the Bronx County Court correctly denied Petitioner's motion for a mistrial stating:
[W]e find that even though the court used inapplicable ‘manifest necessity' nomenclature, the context of its ruling demonstrates that it was in essence applying the proper ‘prejudicial' standard. We conclude, based on all the circumstances, that defendant's inability to call the expert was not so prejudicial as to warrant a mistrial. The trial court offered to grant a substantial adjournment for defendant to obtain another expert, and it offered to expedite the process. Ultimately, neither the prosecution nor the defense called any expert witnesses regarding the EED defense. Furthermore, the court permitted defendant to assert the defense based on nonexpert evidence, and it charged the jury that no expert testimony was necessary to establish that defense. In any event, any error was harmless because, even with expert testimony, there is no reasonable possibility that defendant could have established his affirmative defense by a preponderance of the evidence. There was overwhelming evidence to refute that defense, including defendant's extensive premeditation of this crime of revenge, his calm surrender to authorities, and his statements undermining an EED defense.Id. at 251 (citations omitted). Furthermore, the First Department held that the prosecutor's reference in summation to the lack of a defense expert “d[id] not warrant reversal” because “any prejudice was cured by the court's jury instruction.” Id. In addition, the First Department rejected Petitioner's argument that the jury should have been instructed to consider the EED defense as to the Attempted Murder charges, holding that “defendant was not prejudiced because he was acquitted on two of those counts, and . . . the EED defense was so weak that there was no reasonable possibility that such a charge would have led to a more favorable verdict on the remaining count.” Id. Finally, the First Department held that the competence argument advanced in Petitioner's pro se brief was “unreviewable on direct appeal” because it involved “matters outside the record.” Id. at 252. Subsequently, Petitioner sought leave to appeal the First Department's Decision and Order to the New York Court of Appeals (the “Court of Appeals”), which was summarily denied on April 4, 2017. People v. Valenzuela, 57 N.Y.S.3d 723 (N.Y. 2017), reconsideration denied, 70 N.Y.S.3d 456 (N.Y. 2017).
C. N.Y. C.P.L. § 440.10 Motions
Petitioner collaterally attacked his conviction on February 15, 2018, filing a motion to vacate the judgment under N.Y. C.P.L. § 440.10. (Docket No. 14-9). In his pro se brief, Petitioner made one claim: that his counsel was ineffective at trial for failing to conduct an independent investigation of Petitioner's mental competence once he learned that Petitioner had recently been admitted to the hospital, had a history of mental illness, and previously suffered a traumatic head injury. (Id. ¶¶ 4-15). The State opposed this motion on May 9, 2018, (Docket No. 14-10), and Petitioner filed a reply on June 4, 2018. (Docket No. 14-13). On October 24, 2018, while the motion was pending, Petitioner filed a pro se “Motion for an Addendum Argument,” raising a new basis for his Sixth Amendment ineffective assistance of counsel claim: that defense counsel should have investigated and then alerted the trial court that Petitioner was hard of hearing, so that an evidentiary hearing could be held on the issue. (Docket No. 14-15 at 7-8). The State filed its opposition to this “Addendum Argument” on February 21, 2019, and Petitioner filed a reply on March 23, 2019. (Docket No. 14-17).
The Bronx County Court denied the initial motion on October 26, 2018, holding that it was procedurally defective since Petitioner did not attach an affidavit from trial counsel “regarding the deficiency in performance, or an explanation to the court for failure to provide such an affidavit.” (Docket No. 14-14 at 3-4). Subsequently, on March 15, 2019, the Bronx County Court denied Petitioner's “Motion for an Addendum Argument” as well, holding that it had the same procedural defect as the prior motion. (Docket No. 14-18). The trial court denied leave to appeal both motions on July 18, 2019. (Docket No. 14-20).
D. The Petition
On April 21, 2019, Petitioner filed the instant Petition. (Docket No. 2). The State filed its opposition on December 18, 2019. (Docket Nos. 13, 14, 15, 16). Petitioner filed a reply on January 28, 2020. (Docket No. 17). Construing the Petition broadly, see Williams v. Kullman, 722 F.2d 1048, 1051 (2d Cir. 1983) (holding that pleading requirements in habeas proceedings should not be “overly technical and stringent”), Petitioner asserts four claims: (1) that he was deprived of his right to a fair trial and due process of law under the Fourteenth Amendment when the trial court denied his motion for a mistrial under the wrong legal standard after Petitioner's only expert psychiatric witness-who defense counsel alluded to during opening arguments- refused to testify at trial, which the State exploited in its summation; (2) that he was denied effective assistance of counsel for his attorney's failure to timely request that the trial court charge the jury with the EED defense on the Attempted Murder charges; (3) that defense counsel was ineffective for failing to request a competency exam even though the defense had invoked the EED defense; and (4) that defense counsel was ineffective for failing to notify the trial court of Petitioner's alleged hearing disability. (Docket No. 2 at 4, 16-62). In support of these arguments, Petitioner attached as exhibits to the Petition a reply brief he filed in support of his appeal to the First Department, his affidavit in support of his motion to vacate the judgment, and his affidavit in support of his “Addendum Argument.” (Id.).
II. APPLICABLE LAW
“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”). Harrington v. Richter, 562 U.S. 86, 97 (2011). “Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254.” Visich v. Walsh, No. 10 Civ. 4160 (ER) (PED), 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013). The procedural and substantive standards are summarized below.
If Petitioner does not have access to cases cited herein that are available only by electronic database, then he may request copies from Respondent's counsel. See Local Civ. R. 7.2 (“Upon request, counsel shall provide the pro se litigant with copies of such unpublished cases and other authorities as are cited in a decision of the Court and were not previously cited by any party.”)
A. Exhaustion as a Procedural Bar
A habeas petition may not be granted unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b). As the statute prescribes:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant. ...
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254(b)-(c).
Exhaustion requires a prisoner to have “fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts.” Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (internal quotations omitted). If a petitioner “cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court.” Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001); see also Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (even “a minimal reference to the Fourteenth Amendment” presents a federal constitutional claim to the state courts). A petitioner may fairly present his claim even without citing to the U.S. Constitution, by, inter alia: “(a) [relying] on pertinent federal cases employing constitutional analysis, (b) [relying] on state cases employing constitutional analysis in like fact situations, (c) [asserting] . . . [a] claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) [alleging] . . . a pattern of facts that is well within the mainstream of constitutional litigation.” Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). Fair presentation includes petitioning for discretionary review in the state's highest appellate court. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999) (“[A] state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement”).
However, “a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.” Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotations omitted). In such cases, although the claim is technically unexhausted, the district court may deem the claim to be exhausted but procedurally barred from habeas review. See id. at 140 (“[A] claim is procedurally defaulted for the purposes of federal habeas review where ‘the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'”) (quoting Coleman v. Thompson, 501 U.S. 722, 735 (1991)).
Under New York law, defendants are permitted only one direct appeal. See Dasney v. People of the State of New York, No. 15-cv-5734 (RJS), 2017 WL 253488, at *5 (S.D.N.Y. Jan. 19, 2017) (citing N.Y. Ct. App. R. § 500.20); see also Roa v. Portuondo, 548 F.Supp.2d 56, 78 (S.D.N.Y. 2008) (“Any attempt to raise these claims at this stage as part of a direct appeal would be rejected because a criminal defendant is entitled to only one direct appeal and one application for leave to appeal to the Court of Appeals.”). Petitioners must raise record-based claims by direct appeal rather than by a collateral motion in state court. See, e.g., O'Kane v. Kirkpatrick, No. 09 Civ. 05167 (HB)(THK), 2011 WL 3809945, at *7 (S.D.N.Y. Feb. 15, 2011) (“[A]ll claims that are record-based must be raised in a direct appeal. . . . It is only when a defendant's claim hinges upon facts outside the trial record, that he may collaterally attack his conviction by bringing a claim under CPL § 440.10.”), report and recommendation adopted, 2011 WL 3918158 (S.D.N.Y. Aug. 25, 2011); Lowman v. New York, No. 09-CV-0058T (MAT), 2011 WL 90996, at *9 (W.D.N.Y. Jan. 11, 2011) (“Collateral review of this claim-by way of another CPL § 440 motion-is also barred because the claim is a matter of record that could have been raised on direct appeal, but unjustifiably was not.)” (citing N.Y. C.P.L. § 440.10(2)(c)).
This rule states, in relevant part, that a letter application for leave to appeal “shall indicate . . . (2) that no application for the same relief has been addressed to a justice of the Appellate Division, as only one application is available.” N.Y. Ct. App. R. 500.20(a) (emphasis added).
N.Y. C.P.L. § 440.10(2)(c) states, in relevant part, that a court must deny a § 440.10 motion to vacate judgment when “[a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him. . . .”
To avoid the procedural default of an unexhausted claim, a petitioner may show “cause for the default and prejudice, or that failure to consider the claim will result in miscarriage of justice, i.e., the petitioner is actually innocent.” Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003).
B. Adequate and Independent State Grounds as a Procedural Bar
“It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that ‘is independent of the federal question and adequate to support the judgment.'” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729). This preclusion applies even if the state court alternatively rules on the merits of the federal claim, so long as there is an adequate and independent state ground that would bar the claim in state court. See, e.g., Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); accord Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).
“A state court decision will be ‘independent' when it ‘fairly appears' to rest primarily on state law.” Taylor v. Connelly, 18 F.Supp.3d 242, 253 (E.D.N.Y. 2014) (quoting Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006)). Typically, a ground is adequate “only if it is based on a rule that is ‘firmly established and regularly followed' by the state in question.” Garcia, 188 F.3d at 77 (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); see also Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003). A decision that a state procedural rule is inadequate should not be made “lightly or without clear support in state law.” Garcia, 188 F.3d at 77 (internal quotations omitted). However, “there are ‘exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.'” Cotto, 331 F.3d at 240 (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)). In determining whether a case is “exceptional” in that the state ground should be held inadequate, the Second Circuit uses the following factors as “guideposts”:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had substantially complied with the rule given the realities of trial, and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Id. (internal quotations omitted).
To avoid a procedural default based on independent and adequate state grounds, a petitioner must “show ‘cause' for the default and ‘prejudice attributable thereto,' . . . or demonstrate that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.'” Harris, 489 U.S. at 262 (quoting Murray v. Carrier, 477 U.S. 478, 485, 495 (1986)).
C. AEDPA Standard of Review
When a federal court reaches the merits of a habeas petition, AEDPA prescribes a “highly deferential” standard for reviewing state court rulings. Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015). An application for a writ of habeas corpus:
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1)-(2).
Courts have interpreted the phrase “adjudicated on the merits” in AEDPA as meaning that a state court “(1) dispose[d] of the claim on the merits, and (2) reduce[d] its disposition to judgment.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (internal quotations omitted). Courts examine the “last reasoned decision” by the state courts in determining whether a federal claim was adjudicated on the merits. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”).
If a state court adjudicates a federal claim on the merits, the Court must apply AEDPA deference to that state court ruling. 28 U.S.C. § 2254(d)(1)-(2). In the context of AEDPA deference, the phrase “clearly established Federal law” means “the holdings, as opposed to the dicta, of [the Supreme Court of the United States'] decisions as of the time of the relevant statecourt decision.” Williams v. Taylor, 529 U.S. 362, 365 (2000). “A state court decision is contrary to such clearly established federal law if it ‘applies a rule that contradicts the governing law set forth in the Supreme Court's cases' or ‘if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent.'” Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d Cir. 2015) (quoting Boyette v. Lefevre, 246 F.3d 76, 90 (2d Cir. 2001)). A state court decision involves an “unreasonable application” of Supreme Court precedent if: (1) “the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case,” or (2) “the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407.
If, by contrast, a state court does not adjudicate a federal claim on the merits, “AEDPA deference is not required . . . [and] conclusions of law and mixed findings of fact and conclusions of law are reviewed de novo.” DeBerry v. Portuondo, 403 F.3d 57, 66-67 (2d Cir. 2005).
For a federal court to find a state court's application of Supreme Court precedent unreasonable, the state court's decision must have been more than “incorrect or erroneous” - it must have been “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). In other words, “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of [the state court's] decision.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 665 (2004)). However, “the trial court's decision need not teeter on ‘judicial incompetence' to warrant relief under § 2254(d).” Alvarez v. Ercole, 763 F.3d 223, 229 (2d Cir. 2014) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). If a state court decision does not contain reasons for the dismissal of a defendant's federal claim, the Court must “consider ‘what arguments or theories . . . could have supported[] the state court's decision,' and may grant habeas only if ‘fairminded jurists could [not] disagree that those arguments or theories are inconsistent with the holding in a prior decision of' the Supreme Court.” Lynch v. Superintendent Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (alterations in original) (quoting Richter, 562 U.S. at 102).
When reviewing an application for a writ of habeas corpus, “a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting the state court's factual holding by “clear and convincing evidence.” Id.; see also Chapman v. Vanzandt, No. 96 CIV. 6940 (JGK), 1997 WL 375668, at *4 (S.D.N.Y. July 8, 1997).
III. DISCUSSION
A. Petitioner's Motion for a Mistrial
Petitioner argues that his rights under the due process clause of the Fourteenth Amendment were violated when the Bronx County Court denied his motion for a mistrial after the defense's expert witness refused to testify and the State “exploited” this absence during its summation. (Docket No. 2 at 19-34). Specifically, Petitioner argues that: (i) the trial court employed the wrong legal standard in denying the defense's motion; and (ii) the motion should have been granted since the defense relied on the expert during its opening statement, and Petitioner was prejudiced as a result. (Trial Tr. at 1296). In response, the State contends that the trial court's decision to deny the motion was not contrary to, nor an unreasonable application of, federal law, and that defense counsel made a strategic decision not to call a new expert witness on the EED defense. (Docket No. 15 at 1-20).
As a threshold matter, the Bronx County Court's decision to deny Petitioner's motion was a ruling on the merits and, thus, is entitled to AEDPA deference. 28 U.S.C. § 2254(d)(1)-(2). The trial court held that, there was no “manifest necessity” for a mistrial because the EED defense “can be done without an expert.” (Trial Tr. at 1123). It further offered the defense an extended adjournment, even if it meant losing some jurors, so that a new expert could be found. (Id. at 1123-25). In affirming the trial court's denial of the motion, the First Department noted that the remedial measures offered by the trial court (e.g., an extended adjournment and instruction to the jury that the defense does not require expert testimony) were sufficient, and even though the court used incorrect nomenclature for the legal standard it was “in essence applying the proper” one, and any error was harmless since the evidentiary record “undermined [the] EED defense.” Valenzuela, 47 N.Y.S.3d at 251. Thus, the decision to deny Petitioner's motion for a mistrial was made on the merits. Under the AEDPA, deference “stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings,” but only allows a writ to be issued “where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents.” Richter, 562 U.S. at 102.
Here, Petitioner asserts that the denial of his motion for a mistrial was contrary to the Supreme Court's holdings in United States v. Perez, 22 U.S. 579 (1824), and Drope v. Missouri, 420 U.S. 162 (1975), while the State argues that Renico v. Lett, 559 U.S. 766 (2010), is the controlling authority on the issue. The Court agrees with the State that Renico is the controlling case since it is the most recent authority from the Supreme Court on a trial court's inherent authority to determine whether to declare a mistrial. 559 U.S. at 773 (“[t]he clearly established Federal Law [on whether a mistrial was properly granted] is largely undisputed”). In Renico, the Supreme Court considered whether the Michigan Supreme Court's failure to follow Sixth Circuit precedent on declaring a mistrial after a jury deadlocked warranted federal habeas relief. The Court answered in the negative, holding that habeas courts must uphold “the trial judge's exercise of discretion-while not necessarily correct” if it was not objectively unreasonable. Id. at 778. While trial judges “may declare a mistrial whenever . . . there is a manifest necessity for doing so” this standard “cannot be interpreted literally” and the court “is not required to make explicit findings of manifest necessity nor to articulate on the record all the factors which informed the deliberate exercise of [] discretion.” Id. at 773-75 (citations and internal quotations omitted).
The Supreme Court further held that it is not the role of a habeas court to determine “whether the trial judge was right or wrong,” only whether its ruling was objectively unreasonable. Id. at 778 n.3. Thus, it is not relevant to the Court's habeas review whether the trial court used the correct legal standard under New York State law. Id. at 779 (“failure to apply [state common law] cannot independently authorize habeas relief under AEDPA” since it does not “constitute clearly established federal law, as determined by the Supreme Court”) (internal quotations omitted). In denying Petitioner's motion for a mistrial, the trial court held that “there is no manifest necessity, because [the EED defense] can be done without an expert.... Does it put a different spin on your defense? It does. But, it does not rise to the level of a mistrial.” (Trial Tr. at 1123). Since this decision employed the correct legal standard under Supreme Court precedent (even though it is contrary to New York's standard) and “AEDPA prevents defendants-and federal courts-from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts,” Petitioner is not entitled to habeas relief on this ground. Renico, 599 U.S. at 779.
Moreover, even if Petitioner was correct that Perez and Drope are controlling, he still would not be entitled to habeas relief since the Bronx County Court's ruling was not an unreasonable application of, nor contrary to, the holdings in either case. In Perez, the Supreme Court held that trial courts have inherent authority to declare a mistrial before the jury reaches a verdict even if the defendant does not consent, and that this does not bar future prosecution for the same crimes. 22 U.S. at 580 (“[w]e think, that in all cases of this nature, the law has vested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated”). The Perez Court further held that in considering whether to declare a mistrial, trial courts must “exercise [] sound discretion . . . [and] the greatest caution,” and only discharge the jury “under urgent circumstances, and for very plain and obvious causes.” (Id.).
That is exactly what the Bronx County Court did here. When defense counsel moved for a mistrial because its expert witness refused to testify, the trial court acted within its discretion by denying the request and offering a number of curative options, including: (1) a lengthy adjournment so that a new expert could be procured; (2) allowing the EED defense to be presented, but giving jurors an instruction that expert testimony is not required to establish it; or (3) accepting a stipulation by the parties that neither side would call expert witnesses on the defense. (Trial Tr. at 1123-26). The decision to proceed was consistent with the Supreme Court's holding in Perez, which stressed that juries should be discharged only “under urgent circumstances.” Perez, 22 U.S. at 580. In fact, the Perez Court used the same “manifest necessity” test that the Bronx County Court used in denying the motion for a mistrial in this case. Id. While this legal standard is contrary to New York State's standard on the issue (see N.Y. C.P.L. § 280.10(1)), it further buttresses that the trial court's decision was not inconsistent with the Supreme Court's holding in Perez. Finally, even if the Bronx County Court's decision was questionable, the Court may not disturb it unless “fairminded jurists could [not] disagree that” it is inconsistent with Supreme Court precedent. Lynch, 789 F.3d at 311 (internal quotations omitted); see also Golb v. Att'y Gen. of the State of New York, 870 F.3d 89, 97 (2d Cir. 2017) (“[t]he standard is deliberately difficult to meet and highly deferential”) (internal quotation omitted). That is not the case here.
The State argues in a footnote that “petitioner's claim regarding the standard for the mistrial application is procedurally defaulted” since defense counsel did not object to the legal standard applied during trial. (Docket No. 15 at 15 n.4). However, the State then goes on to address the merits of the claim anyway. (Id. at 15-25). Since both the State and the First Department addressed the claim on the merits, see Valenzuela, 47 N.Y.S.3d at 251 (“that [the Bronx County Court] was in essence applying the proper ‘prejudicial' standard”), the Court will do the same here while affording the First Department's decision AEDPA deference. Jamison v. Berbary, No. 01 CIV. 5547 (RMB)(AJP), 2002 WL 1000283, at *13 (S.D.N.Y. May 15, 2002).
Furthermore, the Supreme Court in Drope addressed what level of competence is required for a defendant to stand trial and whether he or she can be tried in abstentia due to a self-inflicted wound. The Supreme Court held that the test is whether the defendant's “mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense” Drope, 420 U.S. at 171. While this may be relevant to Petitioner's ineffective assistance of counsel claim regarding his alleged incompetence, see infra Section III.C.2, it is irrelevant to his mistrial claim since he did not cite mental incompetence as a ground for his request for a mistrial. Nor is it relevant to the EED defense, which is based only on a defendant's mental state at the time of the criminal act. (See, e.g., Trial Tr. at 1114). Here, the witness that refused to appear-leading Petitioner's request for a mistrial-was not being called to testify on Petitioner's competence generally, as would be relevant under Drope, but to his state of mind at the time the crimes were committed, in support of the EED defense. (Trial Tr. at 1115) (“Had [the psychological expert] told me at any time prior to jury selection or before opening that he wouldn't support [the EED defense], certainly I wouldn't have raised it”). Therefore, Drope is inapplicable, and the trial court's decision was not contrary to, nor an unreasonable application of, the case.
Petitioner also argues that defense counsel's reference to anticipated testimony from its expert witness, who later refused to testify, during voir dire and opening statements was “prejudicial” and weighed in favor of a mistrial. However, this prejudice was mitigated by: (1) a jury instruction that expert testimony was not required to establish the EED defense; and (2) the State's agreement not to call their own expert witnesses on the EED defense either. (Trial Tr. at 1120-26). “In any event[,] . . . whether the trial judge was right or wrong” is not for the habeas court to decide as long as it was not objectionably unreasonable. Renico, at 1865 n.3. Indeed, Petitioner's argument also presupposes that the State was not similarly prejudiced when the parties' agreed that neither side would call an expert on the EED defense, even though it was still presented to the jury. However, there is no evidence in the record to support this inference.
Accordingly, I respectfully recommend denying Petitioner's claim that the Bronx County Court violated his due process rights under the Fourteen Amendment by denying defense counsel's motion for a mistrial.
B. The State's Reference to the Absent Expert Witness During Summation
Petitioner's further asserts that the State violated his rights under the Fourteenth Amendment when the prosecutor invoked the absence of expert testimony from a psychiatrist during its closing argument, despite the parties' agreement that neither side would call experts on the EED defense. (Docket No. 2 at 25-27). Specifically, the State argued during its closing:
Members of the jury, in the evidence before you in this case there is nothing that even remotely explains to you what extreme emotional disturbance [is]. There is no psychiatrist testimony in this case. [Defense counsel objects at this point and the trial court overrules the objection.] There is no explanation of any sort of mindset of this defendant on the day in question, except some lines in a videotaped statement that he says I was depressed....There is no evidence before you to support extreme emotional disturbance....The defendant did not lose his mind. Members of the jury, he lost his temper.(Trial Tr. at 1272-75). In response, the State contends that: (i) the prosecutor's comments during summation were in direct response to defense counsel's statements during his closing argument pleading the EED defense and thus were not improper; (ii) any prejudice to Petitioner from the comments was cured by the jury instructions the trial court gave after closing arguments; and (iii) Petitioner would have been convicted even if the prosecutor had not made the comments, given the overwhelming evidence that he was not suffering from an EED at the time the crime was committed. (Docket No. 15 at 20-27).
The State also commented during summation “[t]hat you can't cause someone to become a quadriplegic and say oh, I didn't intend to kill you. You show him what he did that day is murder, it's attempted murder, it's against the law and there is no justifiable excuse.” (Trial Tr. at 1288). However, defense counsel did not contemporaneously object to these statements, thus, Petitioner's claim that they were improper is not preserved for habeas review. Coleman v. Berbary, No. 10 CV 2344 (RJD), 2011 WL 686410, at *2 (E.D.N.Y. Feb. 16, 2011) (“[a] petitioner's failure to preserve a claim at trial is not a mistake that a habeas court may simply overlook”) (citing Coleman, 501 U.S. at 732).
While not explicitly framed as such, this argument is essentially one of prosecutorial misconduct. On habeas review, a petitioner seeking to establish prosecutorial misconduct has an “extremely high” burden. See Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994). “The acts in question must be egregious enough to amount to a denial of constitutional due process, rendering the trial ‘fundamentally unfair.'” Ortiz v. Barkley, 558 F.Supp.2d 444, 455-56 (S.D.N.Y. 2008) (quoting Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990)); see also United States v. Martinez, 769 Fed.Appx. 12, 16 (2d Cir. 2019) (“[w]hen prosecutorial misconduct is alleged, ‘a new trial is only warranted if the misconduct is of sufficient significance to result in the denial of the defendant's right to a fair trial.'”) (quoting United States v. McCarthy, 54 F.3d 51, 55 (2d Cir. 1995)). “In determining whether the prosecutor's behavior deprived the petitioner of a fair trial, [the court] consider[s] ‘the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the misconduct.'” Moore v. Conway, 476 Fed.Appx. 928, 930 (2d Cir. 2012) (quoting United States v. Elias, 285 F.3d 183, 190 (2d Cir. 2002)).
Under this exacting standard, habeas relief based on prosecutorial misconduct during summation is unavailable unless the prosecutor's comments “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” See Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Prosecutors have “wide latitude in summation, . . . and [are] entitled to comment upon evidence presented at trial and to urge the jury to draw reasonable inferences from that evidence.” Moore v. Greiner, No. 02 Civ. 6122 (SAS)(DF), 2005 WL 2665667, at *15 (S.D.N.Y. Oct. 19, 2005); see also United States v. Roldan-Zapata, 916 F.2d 795, 807 (2d Cir. 1990), cert. denied, 499 U.S. 940 (1991) (“[I]n summation[,] counsel are free to make arguments which may be reasonably inferred from the evidence presented.”). Even if a prosecutor's comments are improper, a petitioner is not entitled to habeas relief unless “he suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict.” See Bentley, 41 F.3d at 823; see also Darden, 477 U.S. at 181 (“it is not enough that the prosecutors' remarks were undesirable or even universally condemned.”).
Petitioner fails to make such a showing. Here the prosecutor's reference to the absence of a defense expert on Petitioner's emotional state at the time of the crime was in direct response to comments made by defense counsel in summation. Specifically, defense counsel stated, “you're probably sitting there and saying or thinking what's an extreme emotional disturbance? . . . It's not a psychiatric or clinical diagnosis, or a psychological diagnosis. What it requires is for you to look at the totality of the circumstances . . . it's one of those things that you know it when you see it.” (Trial Tr. at 1249-50). Thus, the prosecution's reference to the lack of expert testimony on Petitioner's psychological state at the time of the crime could be perceived as rebuttal to defense counsel's statement that “you know it when you see it.” (Id.). Since prosecutors are given broad leeway to respond in their summation to comments made by defense counsel, habeas relief is unwarranted on this claim. United States v. Martinez, 419 Fed.Appx. 34, 35 (2d Cir. 2011) (“The government is afforded ‘broad latitude in the inferences it may reasonably suggest to the jury during summation.' As summations-and particularly rebuttal summations-frequently require improvisation, courts will not lightly infer that every remark is intended to carry its most dangerous meaning”) (quoting United States v. Casamento, 887 F.2d 1141, 1189 (2d Cir. 1989)).
Moreover, to the extent the prosecutor's comments were prejudicial and facially improper, they still would not warrant relief since the trial judge's jury instructions cured the impropriety. In evaluating a petitioner's claim of unfair trial due to a prosecutor's improper comments during summation, the court must consider: “(1) the severity of the alleged misconduct, (2) the curative measures taken, and (3) the likelihood of conviction absent any misconduct.” United States v. Harry, 308 Fed.Appx. 516, 517 (2d Cir. 2009). Here, the trial judge instructed the jury that, “the affirmative defense of extreme emotional disturbance is an [sic] defense that must be proven by the defendant by a preponderance of the evidence, but there is no requirement that there be psychiatrist testimony accompanying the defense.” (Trial Tr. at 1239, 1297-98). This curative instruction rebutted any inference the jury drew from the prosecutor's comment about the absence of expert testimony from a psychiatrist on Petitioner's EED defense. See Barnard v. Burbary, 452 F.Supp.2d 178, 193 (W.D.N.Y. 2006) (“The Supreme Court has held consistently, ‘[w]e generally presume that jurors follow their instructions'”) (collecting cases and quoting Smith v. Texas, 543 U.S. 37, 46 (2004)).
Furthermore, Petitioner would have likely been convicted regardless of the prosecutor's comments during summation, as there was no indication anywhere in the record that he suffered from an EED when the crimes were committed. To the contrary, the evidence overwhelmingly indicated that he was a disgruntled former employee who resorted to violence when the legal system dismissed his employment discrimination lawsuit. (See, e.g., Trial Tr. at 886 (S.D.N.Y. pro se clerk testifying that Petitioner stated “he understood what he had to do” after being told his lawsuit was dismissed); Id. at 917 (prosecution witness testifying that Petitioner stated “[t]raitors like you need to be killed” before shooting his former supervisor); Id. at 216-18 (police detective testifying that during Petitioner's taped confession “[h]e was calm,” and that he “didn't observe the defendant to have any injuries whatsoever”); Id. at 16 (officer testifying that when Petitioner approached him in the Bronx Criminal Court building to confess to killing his former supervisor, “[h]e was calm....He just came up to me and just said, I killed someone.”)). His calm and controlled demeanor, as well as his comments made prior to and during the crime, indicate that he was not suffering from an EED when he shot three people, killing one.
Accordingly, I conclude and respectfully recommend denying Petitioner's claim that his Fourteenth Amendment due process rights were violated by the prosecution's statements during summation.
C. Petitioner's Ineffective Assistance of Counsel Claims
Petitioner's remaining claims are based on alleged ineffective assistance of trial counsel. Specifically, Petitioner claims that defense counsel was ineffective by failing to: (1) make a timely request that the trial court charge the jury with the EED defense on the Attempted Murder charges; (2) request a competency exam for Petitioner, since the defense had invoked the EED defense; and (3) notify the trial court of Petitioner's alleged hearing disability. (Docket No. 2 at 4-62).
“Ineffective assistance claims are evaluated under the framework provided in Strickland v. Washington, 466 U.S. 668 (1984).” Reynart v. Griffin, 11-CV-0748 (PKC), 2017 WL 6626247, at *9 (E.D.N.Y. Oct. 9, 2017). There are two elements of an ineffective assistance of counsel claim under Strickland. First, a successful ineffective assistance claim requires a showing that “counsel's representation fell below an objective standard of reasonableness,” and second, it requires that “there [be] a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” See Strickland, 466 U.S. at 68796. With respect to the first element, a petitioner must show that “counsel's performance was deficient,” considering “the reasonableness of counsel's actions under all circumstances, [and] keeping in mind that a ‘fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight.'” Swanton v. Graham, No. 07-CV-4113 (JFB), 2009 WL 1406969, at *10 (E.D.N.Y. May 19, 2009) (quoting Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005)). In evaluating this prong, the court must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” See Strickland, 466 U.S. at 689.
The second element “focuses on prejudice to the defendant.” Swanton, 2009 WL 1406969, at *10. Strickland's “reasonable probability” standard for this element entails errors serious enough to “undermine confidence in the outcome.” 466 U.S. at 694. Since “there are countless ways to provide effective assistance in any given case and . . . even the best criminal defense attorneys would not defend a particular client in the same way[,] . . . reasonable, but unsuccessful strategic choices cannot provide the basis for ineffective assistance of counsel.” Speringo v. McLaughlin, 202 F.Supp.2d 178, 190-91 (S.D.N.Y. 2002). “A court need not decide both prongs of the Strickland test for ineffective assistance of counsel if a party has made an insufficient showing on one.” McCollough v. Bennett, No. 02-cv-5230, 2010 WL 114253, at *8 (E.D.N.Y. Jan. 12, 2010).
1. Jury Charge
Petitioner argues that he was denied effective assistance of counsel due to his attorney's failure to know that the EED defense applies to charges of Attempted Murder, which resulted in defense counsel's failure to timely request that the jury be charged as such. (Docket No. 2 at 3). In support of this argument, Petitioner contends that the State's witnesses “certainly contended [that he] shot the others who were the subject of the attempted murder charges,” and that “since [he] was entitled to the extreme emotional disturbance charge for the murder count, he was entitled to it for the other attempted murder counts, all of which were part of a single shooting spree.” (Id. at 29). As to his counsel's performance at trial, he argues that defense counsel admitted “that he did not act as a reasonably competent attorney and research the applicable law until after the trial was done” and that “there was simply no ‘objective' strategy for not timely requesting the charge as to all the applicable charges.” (Id. at 31).
The State responds that defense counsel's decision not to invoke the EED defense for the Attempted Murder charges was a strategic choice that any “reasonably competent attorney faced with the extremely challenging circumstances presented” would have made since “two psychiatrists analyzed petitioner's conduct and ultimately found the EED defense lacking.” (Docket No. 15 at 41). Furthermore, the State argues that regardless of whether a reasonably competent attorney would have made a similar decision, there was no prejudice to Petitioner since: (1) the jury rejected the EED defense for the murder of the first victim, which occurred prior in time to the attempted murder of the other two victims, so it would “strain[] credulity” that the jury would have concluded that Petitioner was suffering from an EED at the time of those acts; (2) “that the jury acquitted petitioner for two out of the three attempted murder charges,” proving counsel's effectiveness; and (3) that Petitioner failed to prove he was suffering from an EED at all. (Id. at 41-42).
At the outset, the Court notes that this claim was reviewed on the merits by the First Department and is thus entitled to AEDPA deference. On appeal, the First Department affirmed the trial court's denial of defense counsel's request to charge the jury with the EED defense for the Attempted Murder charges, holding that he “was not prejudiced because he was acquitted on two of [the Attempted Murder] counts, and, as noted, the EED defense was so weak that there is no reasonable possibility that such a charge would have led to a more favorable verdict on the remaining count.” Valenzuela, 47 N.Y.S.3d at 251. The Supreme Court has emphasized that when a habeas petitioner brings a claim for ineffective assistance of counsel, AEDPA review is “doubly deferential,” and gives “both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013).
Here, Petitioner cannot establish either prong under Strickland or its progeny. First, defense counsel's initial decision not to request that the jury be charged with the EED defense on the Attempted Murder charges was reasonable under the circumstances. The defense expert on Petitioner's psychological state at the time of the crime had just refused to testify that the EED defense applied, and the State had proffered its own expert witness on the same point. Thus, it was not unreasonable for defense counsel to decide to limit the EED defense only to the Murder charge as agreed to by the parties. Defense counsel's subsequent decision, after the jury had already been charged, to request that the trial court call the jury back and instruct them that the EED defense may also apply to the Attempted Murder charges could have been a legitimate trial strategy to avoid having to present evidence to support the application of the defense to the Attempt charges after having just lost his expert witness who was going to testify in support of the defense. Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (“[a]ctions or omissions by counsel that might be considered sound trial strategy do not constitute ineffective assistance.”)
Furthermore, defense counsel's admission that he was ignorant of the law on the application of the defense to inchoate offenses does not change this analysis because “even if counsel told [Petitioner] that [he] thought [he] was ineffective, [Petitioner] still must present evidence of any such alleged incompetency and that he was prejudiced thereby.” Hector v. United States, Nos. 1:12-CR-183 (TWT)(JSA), 1:17-cv-948 (TWT)(JSA), 2019 WL 3209448, at *6 (N.D.Ga. May 9, 2019), report and recommendation adopted, 2019 WL 3203009 (N.D.Ga. July 16, 2019), aff'd, 822 Fed.Appx. 921 (11th Cir. 2020); see also Hoffman v. Lazaroff, No. 5:14-cv-1367, 2015 WL 5729578, at *5 (N.D. Ohio Sept. 28, 2015) (“[a]ppellate counsel's alleged statements to the petitioner concerning her feeling that she argued an issue on appeal incorrectly does not provide sufficient support to proceed on claim of ineffective assistance of appellate counsel”); Lee v. Hershberger, No. RDB-09-2203, 2011 WL 6258466, at *5 (D. Md. Dec. 13, 2011) (holding that that a petitioner did not meet the first prong of Strickland “[d]espite defense counsel's post-trial change of heart about her strategy”); Pacyon v. New York State Parole, No. 90-CV-0796E(H), 1995 WL 264676, at *1 (W.D.N.Y. Apr. 25, 1995) (“a criminal defendant's representation is not constitutionally ineffective just because trial counsel admits to inexperience and expresses doubts about his adequacy”).
Second, even if defense counsel's conduct was deficient, Petitioner has failed to establish that he was prejudiced as a result. He was acquitted of two of the three Attempted Murder charges presented to the jury, which establishes, at least on a facial level, that defense counsel was not ineffective. See, e.g., Arevalo v. Artus, 104 F.Supp.3d 257, 267 (E.D.N.Y. 2015) (holding that earning an acquittal of certain charges “is evidence of effective assistance of counsel.”) Moreover, as the First Department held, the evidence that Petitioner was not suffering from an EED at the time of the incident was overwhelming. See Supra Section III.B. Indeed, the jury rejected the EED defense on the Murder charge. Thus, it would be illogical to assume that the jury would then have accepted the EED defense for less serious charges (i.e. Attempted Murder) stemming from later acts during the same incident. In other words, Petitioner's argument is that while the jury found that he was not suffering from an EED initially (when he murdered his former supervisor in cold blood) he then had an emotional disturbance moments later when he shot two others. The Court is not required to, and will not, stretch the bounds of logic to sustain an ineffective assistance of counsel claim.
To the extent Petitioner is also arguing that the trial court violated his rights under the Sixth and Fourteenth Amendments by failing to charge the jury that the EED defense could apply to the Attempted Murder charges, (Docket No. 2 at 4), this claim is procedurally barred from habeas review as Petitioner did not include any argument on it in either his direct appeal to the First Department, his N.Y. C.P.L. § 440.10 motion or the “Addendum Argument” to his § 440.10 motion he submitted shortly thereafter. See McKethan v. Mantello, 292 F.3d 119, 122 (2d Cir. 2002) (holding that claims are not exhausted unless the petitioner has “informed [the state appellate courts] about both the factual and legal bases for the federal claim” and that if the claim can no longer be raised under state law, then it “will be deemed exhausted” and procedurally barred from habeas review).
Accordingly, I conclude and respectfully recommend denying Petitioner's claim that he was denied effective assistance of counsel when his defense attorney failed to timely request an EED defense jury charge for the inchoate offenses.
2. Petitioner's Competence to Stand Trial
Petitioner next claims that defense counsel was ineffective for failing to investigate his competence and “exercise his right to a competency examination . . . mandated by C.P.L. § 730.” (Docket No. 2 at 39-42). In support of this claim, Petitioner argues that he “had an extensive history of mental disabilities due to a traumatic head injury as a child, and trial counsel, who was informed of those matters by defendant never investigated or brought them to the court's attention.” (Id. at 38.) In addition, Petitioner contends that “in any event, the court should have ordered an examination on its own” since he invoked the EED defense at trial. (Id. at 42). The State argues in response that neither defense counsel nor the trial court had reason to doubt his competence and the claim is, therefore, meritless. (Docket No. 15 at 32) (“a review of the trial transcript supports the conclusion that petitioner presented at trial as competent, and reveals no incidents that could have provided either his attorney or the trial court with cause to order further psychiatric evaluation.”)
The Supreme Court has held that a defendant cannot be tried if he is mentally incompetent. Indiana v. Edwards, 554 U.S. 164, 169-70 (2008). In evaluating competence, trial courts must determine: “(1) whether the defendant has a rational as well as a factual understanding of the proceedings against him and (2) whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” Id. (internal quotations omitted); see also Drope, 420 U.S. at 171 (“[i]t has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial”). However, “[a] hearing to determine the mental competency of a criminal defendant is required only if the court has reasonable cause to believe that the defendant has a mental defect rendering him incompetent.” United States v. Zhou, 428 F.3d 361, 379 (2d Cir. 2005) (internal quotation omitted). Notably, “[t]he question of competency to stand trial is limited to the defendant's abilities at the time of trial, and failure to conduct a full competency hearing is not a ground for reversal when the defendant appears competent during trial.” United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986) (citations omitted); see also Rollins v. Leonardo, 733 F.Supp. 763, 768 (S.D.N.Y. 1990) (same), aff'd, 938 F.2d 380 (2d Cir. 1991).
Here, the record indicates that neither defense counsel nor the trial court had reason to doubt Petitioner's competence during the pendency of the case. First, Petitioner was examined by two different mental health professionals prior to trial (the defense's expert witness in support of the EED defense and the State's rebuttal expert witness on the EED defense), neither of whom found Petitioner incompetent. To the contrary, Petitioner's own expert stated in his report that at the time of the examination Petitioner was, “well-groomed, calm and cooperative” as well as “alert and fully oriented.” (Docket No. 14-11 at 8). While this expert also reported that he believed Petitioner suffered from an EED at the time the crimes were committed, he later refused to testify at trial, (see supra Section I.A), and, regardless, competence “is limited to defendant's ability at the time of trial.” Vamos, 797 F.2d at 1150; see also United States v. Gabb, 80 F. App'x 142, 145 (2d Cir. 2003) (“the question of competency and reasonable cause to doubt it must focus upon the defendant's ability at the time of trial, not any conduct discovered or analyzed after the fact”) (emphasis in original).
The same is true for the State's expert witness who reported that Petitioner “was alert and responsive during the examination. He was appropriately dressed and personal hygiene was well maintained. He sustained eye contact throughout the interview.” (Docket No. 14-12 at 9) (“There was no evidence of thought disorder or thinking disturbance: no loose associations, no flight of ideas, no paranoid or persecutory ideation, no fixed false beliefs (delusions), and no unusual preoccupations.”). Thus, prior to trial, defense counsel had no reason to suspect Petitioner was not competent to stand trial. See, e.g., Pallonetti v. Racette, No. 11-CV-3563 (SLT), 2014 WL 4161957, at *3 (E.D.N.Y. Aug. 19, 2014) (denying a similar claim where the petitioner was “examined by three different mental health experts, two of whom were retained by the defense, and not one of those experts even intimated that [he] was unable to comprehend the nature of the proceedings or assist in his defense.”)
Second, Petitioner participated extensively in his own defense at trial. For example, the trial transcript includes numerous references to defense counsel discussing strategic decisions with Petitioner, such as whether to proceed with the EED defense and whether he should testify in his own defense. (See Trial Tr. at 1162 (“I would just like to inform the Court that my client and I have a disagreement as to how to proceed with respect to the presentation of the EED defense. My client is insisting that we proceed by way of having another doctor”); Id. at 1175 (“I discussed that with my client and he's indicated that he will not be testifying at trial”)). Thus, his current claim of incompetence “should be treated with skepticism” since there were “several instances in which he engaged with . . . his attorney, and exhibited an overall demeanor of competence.” Smith v. New York, No. 20-CV-9708 (LJL), 2023 WL 359568, at *23 (S.D.N.Y. Jan. 20, 2023) (denying habeas relief on incompetence claim where “Petitioner points to no remarks, behavior, or other conduct that would indicate that he was incompetent to stand trial” and “exhibited no outbursts or other erratic behavior during his proceedings”).
Third, Petitioner's assertion that he notified defense counsel of his prior mental illness and head injuries, (Docket No. 15 at 34 n.9), does not alter the Court's conclusion as “[i]t is well-established that some degree of mental illness cannot be equated with incompetence to stand trial.” Vamos, 797 F.2d at 1150; Cohn v. United States, 1:19-CR-00279 (LEK), 2023 WL 4670839, at *12 (N.D.N.Y. July 10, 2023) (“[a] defendant's mental illness does not categorically warrant a competency hearing”); Alexis v. Griffin, No. 11-cv-5010 (DLC)(FM), 2014 WL 3545583, at *17 (S.D.N.Y. July 18, 2014) (“[e]ven when a defendant has been hospitalized, the relevant inquiry remains whether the defendant has the ability to consult with his lawyer with a reasonable degree of rational understanding and to understand the proceedings against him”) (internal quotations omitted), report and recommendation adopted, 2014 WL 5324320 (S.D.N.Y. Oct. 20, 2014). As a result, Petitioner has failed to establish that defense counsel was ineffective under either of the Strickland factors. Two mental health professionals attested to Petitioner's competence, he participated extensively during trial in his own defense, and he exhibited no signs prior to or during trial that he did not understand the proceedings. Thus, defense counsel's failure to request a competency hearing was not objectively unreasonable. Moreover, even if it was objectively unreasonable, “the failure to conduct a full competency hearing is not a ground for reversal when the defendant appeared to be competent during trial,” United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995). Thus, Petitioner cannot establish that “but for” defense counsel's failure to request a competency hearing “the result of the proceeding would have been different.” Strickland, 466 U.S. at 688; see also Kirsh, 54 F.3d at 1071 (holding that “the question of competency focuses on a defendant's abilities at the time of trial”).
Correspondingly, the trial court did not violate Petitioner's due process rights by not ordering, sua sponte, a competency hearing or examination. “While there is some variation in the procedures used in the New York and federal courts, the standard to be employed by the trial judge under New York or federal case law is the same” for determining whether to order a competency hearing. Medina v. McGinnis, No. 04 Civ. 2515 (SHS)(AJ), 2004 WL 2088578, at *11 (S.D.N.Y. Sept. 20, 2004). “Expressed another way, the trial court must order a hearing when there is reasonable ground for believing that the defendant may be incompetent to stand trial.” Id. (internal quotations omitted). Pursuant to N.Y. C.P.L. § 730.30, a trial court in New York is required to “issue an order of examination when it is of the opinion that the defendant may be an incapacitated person.” However, “[u]nder New York law, a trial court need not order a competency hearing when it is satisfied ‘from the available information that there is no proper basis for questioning the defendant's sanity.' This is the case even when the defendant has a history of mental problems.” Rollins, 733 F.Supp. at 768 (quoting People v. Armlin, 371 N.Y.S.2d 691, 696 (N.Y. 1975) and People v. Sterling, 421 N.Y.S.2d 121, 122 (2d Dep't 1979)). Therefore, for the same reasons defense counsel was not ineffective for failing to request a competency hearing, the trial court did not violate Petitioner's due process rights by not ordering one and by denying his § 440.10 motion on the same basis.
While the State is correct that, “[t]here is a split among habeas courts in the Second Circuit on how to address a motion court's denial under N.Y. C.P.L. § 440.30(4)” as either an “independent and adequate state procedural bar to habeas review” or a “decision on the merits” subject to AEDPA deference, (Docket No. 15 at 35 n.10), the Court need not resolve the split here. “If § 440.30(4)(d) constitutes an independent and adequate state ground, Petitioner is procedurally barred from asserting the claim on habeas review because he has neither shown sufficient cause for his procedural default, or resulting prejudice [], nor has he alleged actual innocence. On the other hand, if [the trial court's denial of Petitioner's motion] constitutes a judgment on the merits, it is neither contrary to, nor an unreasonable application of, federal law.” White v. West, No. 04-CV-02886 (RRM), 2010 WL 5300526, at *24 (E.D.N.Y. Dec. 6, 2010); see also Festus v. Noeth, 17-CV-3941 (JMA), 2020 WL 7042666, at *22 n.14 (E.D.N.Y. Nov. 30, 2020) (same).
Accordingly, I conclude and respectfully recommend that Petitioner's claim that he was deprived effective assistance of counsel due to his attorney's failure to request a competency hearing, or that the trial court should have ordered one sua sponte, should be denied.
3. Petitioner's Alleged Hearing Disability
Petitioner's final claim is that defense counsel was ineffective for failing to notify the trial court that he was hard of hearing and could not understand the proceedings. (Docket No. 2 at 52). Relying on a § 440.10 motion filed after his conviction and the case Pierotti v. Harris, 350 F.Supp.3d 187 (E.D.N.Y. 2018), Petitioner claims that he “has had a history of hearing impairment issues,” and trial counsel “was made aware of the hearing impairment” from early on and should “have made the court implicitly aware of it.” (Id.). The State counters that Petitioner exhibited no signs of a hearing impairment at trial, that the reports he is relying on evaluated his mental competence not hearing ability, and that Pierotti is distinguishable from this case. (Docket No. 15 at 36-39).
Petitioner's claim fails under both Strickland factors. First, there is no indication in the record that Petitioner was unable to hear the proceedings or communicate with defense counsel. Rather, the transcripts contain numerous instances where defense counsel spoke to him without issue. (Docket No. 15 at 32-33, 37). In addition, the transcript also indicates that defense counsel and the court's interpreter diligently alerted the trial judge when there were issues with Petitioner's listening equipment (which he used to obtain a simultaneous English to Spanish translation of the proceedings). (See, e.g., Trial Tr. at 197) (defense counsel responding “it seems he can” when the court asked if Petitioner could hear him); (Id. at 1116) (“INTERPRETER: I think his batteries for his hearing aid need to be changed, so if he can change them. THE COURT: All right.”); (Id. at 1395) (“INTERPRETER: There is a lot of static on the equipment, and I may have to request another one. THE COURT: So see if you can. See if he is hearing the static now....[DEFENSE COUNSEL]: No. It is still static.”)).
Second, Petitioner's reliance on the expert reports evaluating his mental competence at the time of the crime to demonstrate his hearing impairment is misplaced. Neither expert indicated an inability to communicate with Petitioner due to hearing loss. (See Docket Nos. 11 at 8; 12 at 4). Nor were the interview conditions similar to the trial proceedings where Petitioner wore headphones throughout. (Docket No. 13-11 at 1245) (“[n]ow as you see he has headphones and this lady right here to your left-to your right that is the interpreter. He requires the use of the Spanish speaking interpreter”). Therefore, defense counsel's decision not to raise the issue with the trial court was entirely reasonable under the circumstances. Furthermore, Petitioner has offered no evidence that “but for” defense counsel's decision not to raise his hearing loss with the court, the result of the proceedings would be different. Strickland, 466 U.S. at 688, 694.
Finally, Petitioner's reliance on Pierotti is misplaced. In Pierotti, the petitioner: (1) “would normally rely on two hearing aids, [but] had none” at trial; (2) was examined by an “expert audiologist” who concluded that he “would not have been able to consistently hear or understand any of the speakers in th[e] courtroom without accommodations[;]” (3) suffered due to “the logistics of the courtroom,” which “compounded [his] inability to hear” since witnesses and the judge sat far away from his table; (4) had difficulty communicating with his attorney; and (5) submitted numerous affidavits from family members, as well as his attorney attesting to his hearing loss. 350 F.Supp. at 195-99. In contrast, Petitioner: (1) wore only one hearing aid, which the trial court ensured was functioning properly, (Trial Tr. at 1116); (2) relied on psychological experts to support his hearing deficiency claim, even though they were retained only to evaluate his mental competence, (Docket Nos. 11-12); (3) did not submit affidavits from defense counsel or family members attesting to his inability to hear the proceedings against him; (4) was able to communicate with defense counsel during trial without issue, (Docket No.15 at 32-33, 37); and (5) would not have been effected by poor acoustics in the courtroom since he was wearing headphones to receive a simultaneous English to Spanish translation during trial, (Id. at ¶ 39 n.12). Thus, this case bears little resemblance to Pierotti.
Notably, neither of these experts testified that Petitioner was unable to hear or communicate with them during their examinations. Dr. Barday (Petitioner's retained expert) stated only that Petitioner “appeared older than his stated age and secondary to sight and hearing problems, he wore a hearing aid in his right ear as well as glasses,” (Docket No. 14-11 at 8), while Dr. Berger (the State's retained expert) just noted in his report that in 2008, while at Bellevue Hospital, Petitioner recounted a head injury in 2001 that caused “loss of hearing in the right ear,” (Docket No. at 5).
Accordingly, I conclude and respectfully recommend denying Petitioner's claim that defense counsel was ineffective for failing to raise his hearing disability at trial.
IV. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend that the Petition be denied. Further, because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
The Clerk of Court is requested to mail a copy of this Report and Recommendation to the pro se Petitioner at the address listed on the docket, as well as to Five Points Correctional Facility, 6600 State Route 96, Caller Box 119, Romulus, New York 14541, which is the facility that the New York State Department of Corrections and Community Supervision lists as his current residence.
Incarcerated Lookup, New York State Department of Corrections and Community Supervision, https://nysdoccslookup.doccs.ny.gov/ (last visited Nov. 29, 2023).
V. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from the receipt of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed.R.Civ.P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Kenneth M. Karas at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Requests for extensions of time to file objections must be made to the Honorable Kenneth M. Karas and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).