Opinion
97 Civ. 3775 (LTS) (JCF)
October 19, 2001
REPORT AND RECOMMENDATION
TO THE HONORABLE LAURA T. SWAIN, U.S.D.J.:
The Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), Pub.L. 104-32, 110 Stat. 1214, was intended to streamline the processing of habeas corpus petitions by, among other things, establishing a one-year statute of limitations. In this case, however, it has contributed to the creation of a procedural morass. The petitioner, William Vega, Jr., seeks a determination on the merits of the habeas corpus petition he brought pursuant to 28 U.S.C. § 2254. The respondent has moved for reconsideration of the Court's determination that the petition is timely.
For the reasons set forth below, I recommend that the application for reconsideration be granted but that the Court adhere to the finding that the petition is not time-barred, albeit for reasons different from those previously relied on. However, I further recommend that the petition be denied because it fails on the merits.
Procedural History
In 1990, William Vega, Jr. was indicted for Murder in the Second Degree and related crimes for beating to death his fifteen-month-old nephew. (Appendix In Support of Answer Opposing Petition for a Writ of Habeas Corpus ("Appendix"), Exh. A). The facts of the crime will be described in more detail below. On October 21 and 22, 1991, a hearing was held before the Honorable Richard B. Lowe, III in New York State Supreme Court, New York County, to determine whether statements made by Mr. Vega to the police as well as articles of clothing found in his apartment should be suppressed. The court denied the motion (Tr. 110-18), and on November 27, 1991, the petitioner was convicted of the murder charge on a plea of guilty. He was sentenced to a term of twenty-five years to life in prison. (Appendix, Exh. E).
"Tr." refers to the transcript of the hearing on Mr. Vega's suppression motion held on October 21 and 22, 1991.
Mr. Vega's attorney filed an appeal, arguing that the sentence imposed was excessive and that the petitioner's statement and his clothing should have been suppressed because they were obtained in violation of his Miranda rights. (Appendix, Exh. F). Mr. Vega himself sought permission to file a supplemental pro se brief in which he proposed to raise the following claims: (1) that the trial court wrongly refused to afford him a hearing concerning admission of evidence about prior bad acts; (2) that his videotaped statement should have been suppressed because he was in custody when he made the statement and the prosecution failed to show that the tape had not been tampered with; (3) that the court wrongly denied suppression of the clothing based only on the testimony of the investigating police officers; and (4) that the sentence was excessive. (Appendix, Exh. G). The Appellate Division, First Department denied Mr. Vega's application initially and on reconsideration. (Appendix, Exhs. I, J, K, L). Then, on April 26, 1994, it affirmed the petitioner's conviction, People v. Anonymous, 203 A.D.2d 192, 611 N.Y.S.2d 156 (1st Dep't 1994), and on September 27, 1994, the Court of Appeals denied leave to appeal. People v. Anonymous, 84 N.Y.2d 865, 618 N.Y.S.2d 11 (1994).
On September 23, 1996, Mr. Vega moved to vacate the judgment of conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10, contending that (1) his suppression motion had been wrongly denied; (2) the videotaped statement had been admitted without a proper foundation; (3) his trial counsel had been ineffective in that he failed to investigate the circumstances of the petitioner's alleged consent to the search that resulted in seizure of the clothing; and (4) he would not have pled guilty but for the erroneous denial of his suppression motion. (Appendix, Exh. Q). This motion was denied on November 26, 1996, and leave to appeal was denied on March 27, 1997. (Appendix, Exhs. S, V).
Mr. Vega then submitted a petition for a writ of habeas corpus dated April 23, 1997, which was received by this Court on April 29, 1997. In the petition, Mr. Vega argues that: (1) his statements to the police and the physical evidence seized by them were obtained in violation of his Miranda rights; (2) the videotape of the statement was admitted without a proper foundation; (3) the physical evidence was obtained as the result of an illegal search; (4) he was denied effective assistance of counsel at the suppression hearing and on appeal; and (5) the erroneous denial of his suppression motion led him to plead guilty. Recognizing that his claim of ineffective appellate counsel was unexhausted, Mr. Vega then wrote to the Court asking that his petition be held in abeyance or dismissed without prejudice. In a Report and Recommendation dated July 7, 1997, I stated that while there was no authority to hold the petition "in abeyance," it should be dismissed without prejudice. By Order dated August 31, 1998, the Honorable Michael B. Mukasey, U.S.D.J., adopted that recommendation and dismissed the petition.
On November 16, 1998, Mr. Vega filed an application for a writ of error coram nobis in the Appellate Division raising his claims of ineffective appellate counsel. (Memorandum of Law in Support of Motion to Vacate Order Granting Rule 60(B) Relief and to Dismiss Petition ("Respondent's 60(b) Brief"), Exh. D). The Appellate Division denied that motion on July 1, 1999.
On October 7, 1999, this Court received an undated habeas corpus petition from Mr. Vega, substantially identical to the one that had previously been dismissed without prejudice, except that it indicated that the issues concerning appellate counsel had now been litigated in state court. On December 28, 1999, Judge Mukasey filed an order construing the new petition as a motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure for reconsideration of the order dismissing the first petition. He then granted the motion and reopened the case.
Subsequently, the respondent moved to vacate Judge Mukasey's order and to dismiss the second petition as time-barred. In a Report and Recommendation dated August 16, 2000, I found that, although Walker v. Artuz, 208 F.3d 357, 360 (2d Cir. 2000), dictated that the statute of limitations had tolled while Mr. Vega's first petition was pending in this Court, the second petition was nevertheless time-barred unless either: (1) the dismissal of the first petition had been properly vacated, or (2) there was some further basis for tolling. I then reasoned that Mr. Vega's second petition could not be construed as a timely motion to vacate under Rule 60(b) because it had been filed more than a year after the first petition had been dismissed. I also found no basis for equitable tolling of the limitations period. Consequently, I recommended that the order reopening the first petition be vacated and the second petition be dismissed as time-barred.
Mr. Vega filed objections to my report and pointed out that although his CPL § 440.10 motion had been pending from September 23, 1996 to March 27, 1997, I had failed to toll this period in my calculations. The respondent's counsel agreed and conceded that the second petition was therefore timely. Counsel emphasized, however, that this concession was made only under constraint of the Second Circuit's holding in Walker, which was then under review by the United States Supreme Court, reserving the right to assert the time-bar if Walker were overturned. Accordingly, the Honorable Laura T. Swain, U.S.D.J., to whom the case had been reassigned, declined to adopt my Report and Recommendation and ordered the respondent to answer the petition.
After the respondent answered, however, the Supreme Court reversed Walker and held that the statute of limitations for a habeas corpus petition is not tolled during the period when another federal habeas petition is pending. Duncan v. Walker, U.S. 121 S.Ct. 2120, 2129 (2001). The respondent therefore seeks reconsideration of Judge Swain's decision not to dismiss Mr. Vega's petition. This issue has been referred to me along with the petition itself for a further Report and Recommendation.
Statute of Limitations
In light of Duncan, the revised calculation of the timeliness of Mr. Vega's petition is straightforward. Because his conviction became final prior to the enactment of the AEDPA, the statute of limitations began to run on April 24, 1996. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). From that date until Mr. Vega filed his CPL § 440.10 motion, 152 days elapsed. The limitations period then tolled until March 27, 1997 when the Appellate Division declined to grant leave to appeal denial of that motion. It ran again from that date until November 16, 1998 when Mr. Vega filed his coram nobis application, an additional 599 days. It was during that period that the first habeas corpus petition was pending in this Court. Finally, the limitations period ran again from July 1, 1999 when the coram nobis application was denied until October 7, 1999 when the second federal petition was filed. This adds another 98 days, for a total of 849 days that were not tolled: well beyond the one-year limitations period.
Thus, the analysis reverts, though by a different path, to the initial conclusion in my prior Report and Recommendation: the petition is time-barred unless the first petition can be resurrected or the limitations period can be equitably tolled. When Judge Swain declined to adopt my previous report she did not need to reach those issues. Now, however, they must be addressed.
On these questions, another case decided after my prior report, Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001), provides important guidance. In that case, the petitioner filed a federal habeas corpus petition two days before the statute of limitations would have expired. Id. at 377. The petitioner then asked to withdraw his petition without prejudice in order to exhaust certain claims in state court, and the district court granted that request. Id. However, by the time the petitioner had exhausted his state remedies and refiled in federal court, more than two days had passed during which he had no pending state proceeding, and the court dismissed the petition as untimely. Id. at 377-78.
The Second Circuit reversed and, in so doing, established several principles relevant to the instant case. First, it determined that when a petitioner files a "mixed petition" containing both exhausted and unexhausted claims, the district court may either dismiss the entire petition without prejudice or dismiss only the unexhausted claims while staying the exhausted ones so that the petitioner can proceed in state court without jeopardizing the timeliness of his federal habeas claims. Id. at 380. Second, even if a petition was initially dismissed in its entirety, a court may consider the exhausted claims to have been stayed nunc pro tunc. Id. at 832 (petitioner "entitled to have his petition treated as if it had been stayed") (emphasis added). Third, a court may, under some circumstances, issue such a retroactive stay even if the petitioner refiled his petition more than a year after it was initially dismissed and so would be time-barred from moving to vacate the dismissal under Rule 60(b)(1). See id. at 377 (petition dismissed August 21, 1997, refiled October 7, 1998); cf. Warren v. Garvin, 219 F.3d 111, 114 (2d Cir.), cert. denied, 531 U.S. 968 (2000) (Rule 60(b) motion untimely where petition refiled more than one year after dismissal).
These considerations militate in favor of treating Mr. Vega's petition as if it had been stayed rather than dismissed. When I originally recommended granting the respondents' motion to vacate Judge Mukasey's order reopening the case, I did so in reliance on Warren, where the Second Circuit held that a motion to vacate dismissal of a petition under Rule 60(b) was untimely. Id. In that case the petitioner had withdrawn his petition in order to exhaust state remedies and then refiled it more than a year later without having commenced any state court proceedings. Id. at 112-13. The court found that the only ground for moving to vacate the dismissal would be excusable neglect under Rule 60(b)(1), and that any such motion would be time-barred since there is a one-year limitations period for motions brought under that subsection. Id. at 114. Warren, however, no longer governs the analysis in this case. Because it is now conceded that Mr. Vega's second petition would have been timely but for the Supreme Court's reversal of Walker, the basis for vacating the original dismissal is not excusable neglect. Rather, it is an intervening change in the law, which falls under the catch-all provision of Rule 60(b)(6), see Thompson v. County of Franklin, 127 F. Supp.2d 145, 150-51 (N.D.N.Y. 2000); Cespedes v. Coughlin, 969 F. Supp. 254, 255 (S.D.N.Y. 1997), and any application under Rule 60(b)(6) need only be made within a reasonable time." Fed.R.Civ.P. 60(b). Accordingly, Mr. Vega's petition is timely because he filed his second petition within a reasonable time.
Furthermore, the equities favor deeming the first petition to have been stayed. Mr. Vega acted with sufficient diligence that his second petition would have been timely had Walker not been reversed. Moreover, he could not have been expected to anticipate the Supreme Court's decision and its impact on his petition. Finally, the first petition was only dismissed rather than stayed at the outset because of what, in light of Zarvela, was my erroneous view that the Court had no power to hold the proceeding "in abeyance" as Mr. Vega had requested.
Greater diligence might be demanded if the petitioner had already exceeded the limitations period as calculated under the law in effect at that time. See Zarvela, 254 F.3d at 383.
For these reasons, the petition should be treated as if it had been stayed rather than dismissed and is therefore timely, and the analysis can now proceed to the merits.
Factual Background
Around Thanksgiving 1990, William Vega and his wife Leslie brought their fifteen-month-old nephew, Antoine Grady, to live with them and with Mr. Vega's mother Sandra Vega in an apartment at 70 West 115th Street in Manhattan. On the night of December 18, 1990, Mr. Vega called 911 and reported that the child had stopped breathing. (Tr. 4, 8). An ambulance arrived and took the baby to St. Luke's Hospital where he was dead on arrival. (Tr. 5).
Unless otherwise indicated, the facts outlined here are taken from the decision denying Mr. Vega's CPL § 440.10 motion, which appears as Appendix, Exh. S.
Mr. Vega, his wife, his mother, and his brother Alphonso were all brought to the police precinct for questioning. (Tr. 6-7). In response to inquiries from Detective Albert Mitchiner, Mr. Vega stated that when the child had appeared to have trouble breathing the petitioner first tried to stand him up by a refrigerator in the apartment and then placed him on a couch. (Tr. 8). When he checked later, Mr. Vega saw that the child had stopped breathing altogether. (Tr. 8-9). The petitioner stated that when he gave the baby artificial respiration, he revived temporarily. (Tr. 9). However, the child stopped breathing again, and that was when Mr. Vega called 911. (Tr. 9).
Detective Mitchiner also asked about injuries that had been observed on the baby's body. Mr. Vega stated that the child had received a gash to the cheek from bumping against a lock in a car and that his lips were raw because he had a nervous habit of biting them. (Tr. 10-11). The petitioner explained scars on the baby's body by saying that the child had eczema and scratched himself. (Tr. 11). After Mr. Vega signed a written version of his statement, he and the other family members went home. (Tr. 13-14).
The following day, Detective Mitchiner learned the results of the autopsy of Antoine Grady. (Tr. 15). The child's liver had been lacerated, possibly as the result of a kick. His intestines were also lacerated, his bladder had hemorrhaged, and one testicle was damaged. Four ribs on the right side of his body and two on the left were broken. There was blood in the chest cavity and in the cranium, and the brain was swollen. Finally, there was hemorrhaging in both buttocks and the right thigh. (Tr. 17).
Based on these findings, Mr. Vega and his family members were again brought in for questioning. (Tr. 18). Although the petitioner was picked up at his apartment, he was not arrested. (Tr. 42, 44).
This time, Detective Mitchiner and his partner told Mr. Vega that he and his wife were suspects because it had been determined that the baby had been badly injured. (Tr. 19). The petitioner then said he was going to tell the truth. (Tr. 19). Before proceeding further, Detective Mitchiner read Mr. Vega his Miranda rights. (Tr. 20-21). The petitioner then explained what had happened to Antoine Grady on December 18, 1990. He said that he told the baby to sit down and watch television, and when the baby failed to comply, he hit him several times in the arm. (Tr. 21-22). Mr. Vega then changed the child's diaper because he had a bowel movement. (Tr. 22). Shortly thereafter the child had another bowel movement and appeared unresponsive. (Tr. 22-23).
The petitioner gave Antoine a bottle but the baby did not drink, and when Mr. Vega put his finger in the child's mouth to check for an obstruction, the baby bit him. (Tr. 23). The petitioner then kicked Antoine, who was wedged between the couch and the floor, three to five times. (Tr. 23).
After Mr. Vega had given this statement to the detectives, they asked if he would repeat it for an assistant district attorney on videotape, and he agreed. (Tr. 25). When the prosecutor and a video crew arrived, the petition reiterated his admission. (Tr. 25-26). He also added that he had kicked and punched the baby a week earlier as well.
Thereafter, Detective Joseph Hayes asked if he could retrieve from the petitioner's apartment the clothing that Mr. Vega had been wearing the previous night, and the petitioner consented. (Tr. 66-67, 75). The petitioner's mother, Sandra Vega, was then brought into the interview room, and Mr. Vega told her where to find the items that the police sought. (Tr. 67-68). Thereafter, Sandra Vega accompanied Detective Hayes to the apartment, let him in, and provided him with the requested clothing. (Tr. 68-69). The detective also received Ms. Vega' permission to remove a baby blanket. (Tr. 69). Upon returned to the precinct, Detective Hayes asked Mr. Vega for his sneakers and tee shirt as well, and the petitioner provided them. (Tr. 69-70).
After Mr. Vega was indicted, his attorney moved to suppress both his confession and the personal property that was seized. A suppression hearing was held at which evidence was presented of the facts set forth above. Justice Lowe denied the motion, finding that Mr. Vega had not been in custody prior to being given Miranda warnings and had given his statement voluntarily. (Tr. 114-17). As to the property, Justice Lowe determined that Mr. Vega had consented to the seizure of his own clothing and that he had no standing to object to the seizure of the other items, which in any event, his mother had authorized. (Tr. 117-18). Following the denial of the suppression motion the petitioner pled guilty but subsequently began the series of challenges to his conviction described earlier.
Discussion
A. Denial of the Suppression Motion
Mr. Vega first argues that his suppression motion was wrongly denied. The analyses are somewhat different with respect to his confession on one hand and the physical evidence on the other.
1. Confession
Beginning with his direct appeal, Mr. Vega has contended that his confession was constitutionally invalid because it was the product of custodial interrogation during which Miranda warnings were given too late to be effective. (Appendix, Exh. F at 11-15). Because in-custody interrogation places "inherently compelling pressures" on an individual, it must be preceded by advice to the subject of his legal rights, including the right to remain silent and the right to counsel. Miranda v. Arizona, 384 U.S. 436, 444, 467 (1966). Conversely, the provision of Miranda rights is not required unless the person being questioned is in custody. See Stansbury v. California, 511 U.S. 318, 322 (1994); Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam). The determination of whether the subject was in custody "depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." Stansbury, 511 U.S. at 323.
Since Mr. Vega's claim turns on the failure to give Miranda warnings until he offered to "tell the truth," it must be rejected unless he was in custody prior to that time. Moreover, habeas corpus relief is only available if the state court's adjudication of the issue "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." 28 U.S.C. § 2254(d)(1); see Williams v. Taylor, 529 U.S. 362, 399 (2000); Cruz v. Miller, 255 F.3d 77, 80 (2d Cir. 2001). Certainly Justice Lowe's decision was not "contrary to" federal law; he did not reach a conclusion opposite to any legal principle enunciated by the Supreme Court, nor has that Court decided any factually indistinguishable case. See Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001).
A decision may nevertheless be an "unreasonable application" of federal law "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413.
"[A]n unreasonable application of federal law is different from an incorrect or erroneous application of federal law." Id. at 412 (emphasis in original). Thus, a federal habeas court is not empowered to grant the writ when, in its independent judgment, it determines that the state court incorrectly applied the relevant federal law.
The state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable. Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000). However, "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. (quoting Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 889 (3d Cir. 1999 (en banc)). Lainfiesta, 253 F.3d at 155.
By these standards, Justice Lowe's determination was by no means an unreasonable application of federal law. In determining whether a suspect is in custody such that the Miranda warnings are required, courts look to various factors including "whether a suspect is or is not told that [he] is free to leave, the location and atmosphere of the interrogation, the language and tone used by the police, whether the suspect is searched, frisked, or patted down, and the length of the interrogation." Tankleff v. Senkowski, 135 F.3d 235, 244 (2d Cir. 1998) (citations omitted).
Although the first interview in this case was held in the police precinct, that factor alone is not dispositive. See Mathiason, 429 U.S. at 493-95 (questioning of suspect at precinct not sufficient to establish custodial interrogation); see also California v. Beheler, 463 U.S. 1121, 1125 (1983). Mr. Vega had not been arrested and was not handcuffed. (Tr. 7, 38, 59). There is no indication that he was searched or frisked. He was interviewed by two detectives for 25-30 minutes. (Tr. 8, 32). The tone of the questioning was hardly coercive: the petitioner gave a narrative account and asked questions of the detectives. (Tr. 32, 36). He was not told that he was under suspicion. (Tr. 39). Although he was apparently not explicitly informed that he was free to leave, he did in fact leave at the conclusion of the interview. (Tr. 34-35, 38, 40). He arrived with other family members who were also questioned, and he left with them. (Tr. 12-14, 41).
When Mr. Vega was brought back to the precinct the next day, the conditions of the questioning were similar. Again, other family members were also questioned, and again two detectives spoke with the petitioner. (Tr. 19, 42, 44). This time, however, the detectives confronted Mr. Vega with information about the baby's injuries, expressed skepticism about his story, and told him to tell the truth. (Tr. 45-47). But telling a suspect not to lie is not so coercive that it amounts to custodial interrogation. See United States v. Mitchell, 966 F.2d 92, 99 (2d Cir. 1992); see also United States v. Ruggles, 70 F.3d 262, 265 (2d Cir. 1995) (offer of leniency in return for cooperation not psychological coercion). The detectives also pointed out that if Mr. Vega's wife and mother had had nothing to do with the child's death they should be spared further grief. (Tr. 19, 47-49). This questioning continued only 20-25 minutes before Mr. Vega said he wanted to tell the truth and was given Miranda warnings. (Tr. 49). In light of these facts, Justice Lowe's determination that the petitioner was not in custody when he gave his incriminating statement was not an unreasonable application of federal law.
Even if Justice Lowe were incorrect in that holding, the petitioner's claim still fails. It is undisputed that the only arguably incriminating statement Mr. Vega had made up to that point was his statement that he would tell the truth. But "[a]greeing to tell the truth, without more, is not an inculpatory or self-incriminating statement." Nova v. Bartlett, 211 F.3d 705, 708 (2d Cir. 2000). His subsequent oral and videotaped statements were made only after he had been fully informed of his rights and were therefore admissible.
Finally, even if Mr. Vega's initial agreement to tell the truth was inculpatory and taken in violation of Miranda, it did not taint his later statements. "In Oregon v. Elstad, 470 U.S. 298, 311-14 (1985), the Supreme Court expressly rejected the `cat out of the bag' theory under which, once an incriminating statement has been made, no subsequent confession can be truly voluntary. . . ." Nova, 211 F.3d at 708. As long as the confession given after warnings was voluntary, it is admissible. Id. The only suggestion of coercion that Mr. Vega makes here is that his family had been threatened with arrest. But the evidence at the suppression hearing revealed that the detectives merely told Mr. Vega in substance that his wife and mother were suspects because they were also in the household with the victim and that if the petitioner had done it, he should save his family further trouble. That statement was not so coercive as to overbear Mr. Vega's will. See Johnson v. Trigg, 28 F.3d 639, 644 (7th Cir. 1994) (confession by fourteen-year-old in response to bona fide arrest of mother not involuntary); United States v. Jackson, 918 F.2d 236, 242 (1st Cir. 1990) (confession prompted by arrest of sister not involuntary); United States v. Mullens, 536 F.2d 997, 1000 (2d Cir. 1976) (confession to counterfeiting prompted by desire to exculpate parents arrested in apartment where counterfeit money found was not coercive). The denial of Mr. Vega's motion to suppress his confession was therefore not a violation of his constitutional rights.
2. Physical Evidence
Mr. Vega next argues that his Fourth Amendment rights were violated because his clothing and other physical evidence was seized without probable cause. However, "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494 (1976) (footnotes omitted); see also Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992); Davila v. Duncan, No. 00 Civ. 4916, 2001 WL 1029416, at *2 (S.D.N.Y. Sept. 6, 2001). The Second Circuit has noted that Stone requires only that "the state have provided the opportunity to the state prisoner for full and fair litigation of the Fourth Amendment claim." Gates v. Henderson, 568 F.2d 830, 839 (2d Cir. 1977) (emphasis added). Under this standard, there are only two instances in which review of a Fourth Amendment claim will be granted: (1) where the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations; or (2) where the state has provided a corrective mechanism, but the defendant was unable to use it because of an "unconscionable breakdown in the underlying process." Capellan, 975 F.2d at 70 (citing Gates, 568 F.2d at 840). A federal court may not judge the merits of a state court decision, even if the federal court might have decided the issue differently. See Capellan, 975 F.2d at 71; Stanley v. Kuhlman, 10 F. Supp.2d 250, 253 (E.D.N.Y. 1998)
It is clear that New York has provided the requisite corrective procedures. See CPL § 710; Capellan, 975 F.2d at 70 n. 1 (the "federal courts have approved New York's procedure for litigating Fourth Amendment claims, embodied in N.Y. Crim. Proc. Law § 710.10 et seq. (McKinney 1984 Supp. 1988), as being facially adequate"); Stanley, 10 F. Supp.2d at 253. Therefore, for the petitioner's Fourth Amendment claim to be cognizable in this habeas corpus proceeding, it must be based on a claim that there was a breakdown in the state process. See Capellan, 975 F.2d at 70. Although the Second Circuit has not defined exactly what constitutes an "unconscionable breakdown," it has said that some sort of "disruption or obstruction of a state proceeding" is typical of such a failure. Capellan, 975 F.2d at 70 (quoting Shaw v. Scully, 654 F. Supp. 859, 864 (S.D.N.Y. 1987)); see Stanley, 10 F. Supp.2d at 253 (unconscionable breakdown occurs when state fails to conduct reasoned inquiry into petitioner's claim).
Mr. Vega does not claim that he was precluded from raising his Fourth Amendment claim. Indeed, he availed himself of the available procedures by litigating his suppression motion. Rather, the petitioner argues that the court improperly placed upon him the burden of demonstrating that he did not consent to seizure of the physical evidence.
This assertion is simply unsupported by the record. At the suppression hearing, the prosecutor elicited testimony that both Mr. Vega and his mother consented to removal of the physical evidence from the apartment and that he voluntarily removed his sneakers and tee-shirt when asked to do so by one of the detectives. (Tr. 66-70). In his argument, the assistant district attorney relied on this evidence (Tr. 109-10), and Justice Lowe credited it. (Tr. 110, 117-18). There is no hint that the trial court expected Mr. Vega to come forward with evidence negating consent nor that his failure to do so influenced Justice Lowe's decision. Thus, the burden was not improperly shifted to the petitioner, and there is no basis for reviewing the merits of Mr. Vega's Fourth Amendment claims. See Jennings v. Rees, 800 F.2d 72, 76 (6th Cir. 1986) (Stone v. Powell fully applicable where record did not support claim that burden of proof was improperly shifted).
B. Videotaped Confession
Mr. Vega challenges the refusal to suppress his videotaped confession not only on the Miranda grounds discussed above, but also on evidentiary grounds. He argues that no proper foundation was laid for its admission, apparently because there was a discrepancy between the date that appears on the tape and the date the interview actually occurred. However, "`federal habeas corpus relief does not lie for errors of state law.'" Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000), and erroneous evidentiary rulings rarely rise to the level of a constitutional violation. See Washington v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001); Morales v. Portuondo, 154 F. Supp.2d 706, 722 (S.D.N.Y. 2001). Accordingly, habeas relief will only be available if a petitioner can show that the evidentiary error deprived him of a fundamentally fair trial. Washington, 255 F.3d at 56; Hincapie v. Greiner, 155 F. Supp.2d 66, 69 (S.D.N.Y. 2001); Morales, 154 F. Supp.2d at 723.
Here Mr. Vega has not met that standard. At the suppression hearing, Detective Mitchiner testified that he was present when the videotape was made and he authenticated the exhibit. (Tr. 25-27). In addition, the videotape technician testified as to the likely reason that an erroneous date that appears on the tape. (Tr. 85-86). On the basis of the testimony, Justice Lowe did not abuse his discretion in refusing to suppress the videotape, and he clearly did not deprive Mr. Vega of a fundamentally fair trial.
C. Assistance of Trial Counsel
Mr. Vega next claims that his attorney provided ineffective assistance of counsel in that: (1) he failed to object to the admission of evidence concerning the petitioner's consent to the removal of his belongings, (2) he failed to obtain exculpatory Brady and Rosario materials, and (3) he failed to conduct any investigation of the circumstances surrounding the petitioner's consent.
In order to obtain reversal of a conviction due to ineffective assistance of counsel, the petitioner must demonstrate that (1) counsel's performance was deficient, and (2) the deficient performance was prejudicial to the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). In assessing whether the attorney's performance was deficient, a reviewing court must determine whether his conduct "fell below an objective standard of reasonableness" given the facts and circumstances of the particular case. Strickland, 466 U.S. at 688. A habeas corpus court must be "highly deferential" and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. The "prejudice" prong of the Strickland test requires a "showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable," and that "but for" the claimed errors of counsel, the trial result would have been different. Id. at 687, 694.
The Supreme Court has held that this same two-part standard applies to ineffective assistance claims where the defendant pled guilty. Hill v. Lockhart, 474 U.S. 52, 57 (1985). When the defendant has entered a plea, the "prejudice" requirement demands that the defendant "show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59 (footnote omitted).
1. Failure to Object
Mr. Vega's argument that his attorney failed to object to the prosecution's proof of consent is puzzling. Certainly, counsel vigorously cross-examined the prosecution witness who testified about the consent given by the petitioner and his mother. (Tr. 70-75). Although Mr. Vega seems to suggest that his attorney should have objected to the admission of the testimony of the witness in the first place (Petitioner's Memorandum of Law dated May 8, 2001 ("Pet. Memo."), at 26), he offers no legal basis for such an objection, and none is apparent. Therefore, counsel's performance was not deficient.
2. Brady/Rosario Material
Similarly, there is no basis in the record for Mr. Vega's complaint that his attorney failed to obtain material that the prosecutor was obligated to produce pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448 (1961). In fact, the assistant district attorney set forth in detail all of the discovery materials that she had disclosed to defense counsel. (Tr. 119-21). The only "Brady" material that the petitioner specifically identifies is the statement of Detective Hayes that Mr. Vega consented to seizure of the physical evidence. (Pet. Memo. at 30). But Brady requires the disclosure only of exculpatory or impeachment material, see, e.g., United States v. Middlemiss, 217 F.3d 112, 123 (2d Cir. 2000), and affirmative evidence of Mr. Vega's consent is neither. Again, his attorney's conduct was blameless.
3. Failure to Investigate
Mr. Vega also contends that his counsel failed to investigate the issue of consent. In support of his CPL § 440.10 motion, the petitioner had submitted an affidavit from his mother stating in substance that, contrary to the testimony of Detective Hayes, she did not consent to the seizure of Mr. Vega's belongings. (Appendix, Exh. Q at attachment D ¶ 3). Furthermore, Sandra Vega attested that the petitioner's counsel had never asked her about the circumstances of the alleged consent. (Appendix, Exh. Q at attachment D ¶ 6).
Ruling on the § 440 motion, Justice Frederic S. Berman rejected this aspect of Mr. Vega's ineffective assistance claim on the grounds that it could have been raised on direct appeal and, in any event, could have reflected a strategic decision by counsel. (Appendix, Exh. S at 8-9). However, neither rationale is persuasive. The facts that the attorney allegedly did not investigate were, by definition, not part of the record prior to the § 440 proceeding and could not have been presented on appeal. See United States v. Leone, 215 F.3d 253, 255-56 (2d Cir. 2000) (claims of ineffective assistance generally appropriate for collateral attack on conviction because factual basis not reflected in trial record); Billy-Eko v. United States, 8 F.3d 111, 115 (2d Cir. 1993) (same). And, of course, counsel's decision not to call Sandra Vega as a witness could not have been "strategic" if he had done no investigation and did not know how she might have testified. Thus, there is at least a colorable claim that Mr. Vega's attorney may have performed inadequately in failing to explore the issue of consent more fully.
Nevertheless, the petitioner is not entitled to habeas relief on this basis because he cannot show prejudice. Even if Mr. Vega's attorney had succeeded in suppressing all of the physical evidence on the ground that it was improperly seized in the absence of consent, there is no reasonable probability that this would have affected the petitioner's decision to plead guilty. Mr. Vega's belongings were retrieved merely because it is standard operating procedure in any homicide case to secure the clothing of the suspected perpetrator. (Tr. 75). There is no indication that any of the property seized had any evidentiary value. This is not an identification case in which the petitioner's clothing would have been relevant to a witness' ability to recognize him. Nor is there any suggestion that the physical evidence had any forensic value that would have inculpated Mr. Vega. This evidence, then, was immaterial, and whether or not it was suppressed was insignificant. The evidence that was material — the autopsy of the child and Mr. Vega's own admissions — was overwhelming. Accordingly, Mr. Vega's claim of ineffective assistance of trial counsel fails. See Banks v. Hanks, 41 F.3d 1187, 1189 (7th Cir. 1994) (counsel's failure to suppress confession not prejudicial where other compelling evidence would have motivated guilty plea); Nicholas v. Whitley, Civ. A. No. 92-0074, 1992 WL 125319, at *4 (E.D.La. May 22, 1992) (alleged failure of counsel to investigate not prejudicial where strength of prosecution's case made it "inconceivable" that accused would not plead guilty).
D. Assistance of Appellate Counsel
Mr. Vega also challenges the performance of the attorney who represented him on appeal, arguing that counsel chose to pursue weak arguments and forego the stronger ones that the petitioner advanced in his CPL § 440.10 motion and has renewed here. To establish that he was deprived of effective appellate counsel in violation of the Sixth Amendment, Mr. Vega must demonstrate (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there existed a reasonable probability of a different result in the proceedings, but for the errors of counsel. Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) (applying the Strickland standard to evaluate appellate counsel's effectiveness). Furthermore, it is well recognized that an appellate attorney "need not advance every argument, regardless of merit, urged by the appellant." Jameson v. Coughlin, 22 F.3d 427, 429 (2d Cir. 1994) (citing Evitts v. Lucey, 469 U.S. 387, 394 (1985)). In fact, winnowing out the weaker claims and focusing on the stronger ones "is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (citing Jones v. Barnes, 463 U.S. 745, 751-52 (1983)).
The arguments that Mr. Vega now claims should have been raised have been reviewed above and are without merit. Therefore, appellate counsel can hardly be faulted for not raising them. Additionally, the appellate attorney prepared a detailed brief that focused on the critical issue: whether the questioning of the petitioner prior to provision of the Miranda warnings tainted his admissions. (Appendix, Exh. F at 11-15). Counsel also challenged the trial court's imposition of the maximum sentence. (Appendix, Exh. F at 15-16). This approach was reasonable, and Mr. Vega's claim of ineffective assistance of appellate counsel must therefore be rejected.
E. Voluntariness of the Plea
Finally, the petitioner contends that his plea was not voluntary because it was "induced by the state court's erroneous decision" denying his suppression motion. (Pet. Memo at 41). The predicate for Mr. Vega's argument is wrong: as discussed above, Justice Lowe's decision was constitutionally sound. Moreover, a plea of guilty is not involuntary merely because it is based on the accused's belief that the trial court wrongly denied a suppression motion and would be reversed on appeal. See Slicker v. Wainwright, 809 F.2d 768, 769 n. 2 (11th Cir. 1987). Therefore, this claim, too, is without merit.
Conclusion
For the reasons set forth above, I recommend that Mr. Vega's petition for a writ of habeas corpus be held to be timely but be denied on the merits. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Laura T. Swain, Room 426, 40 Foley Square, New York, New York 10007 and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.