Opinion
99-CV-0615 (JBW), 03-MISC-0066 (JBW)
June 16, 2003
JUDGMENT ORDER
Petitioner was granted a hearing by this court. He was present by telephone.
The petition for a writ of habeas corpus is denied for the reasons stated orally on the record. This memorandum briefly addresses each of petitioner's claims.
Petitioner was arrested for selling crack cocaine to an undercover officer. He was convicted and sentenced to 8 to 16 years in prison. He now claims (1) that he was denied the opportunity to testify before the Grand Jury, (2) that his counsel was ineffective for failing to specifically object to the insufficiency of the evidence, and (3) that a prison worker was improperly seated as a juror at his trial and he was in the same institution as petitioner.
I. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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). An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ 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." Id. at 413.
II. Exhaustion
A state prisoner's federal habeas petition must be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court" Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
An exception to the exhaustion requirement set forth in Rose v. Lundy has been provided for by statute. A district court may, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254 (b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3).
III. Grand Jury
Claims of deficiencies in state grand jury proceedings are generally not cognizable in a habeas corpus proceeding in federal court. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989). The Fifth Amendment right to a grand jury presentation in felony cases is not applicable to the states. Alexander v. Louisiana, 405 U.S. 625, 633 (1972). "Once a state itself creates such a right, however, due process may prevent it from causing the right to be forfeited in an arbitrary or fundamentally unfair manner." Michael v. Dalsheim, No. 90 CV 2959, 1991 U.S. Dist. LEXIS 7273, at *30 (E.D.N.Y. May 22, 1991).
IV. Right to Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, No. 99-2261, 2003 U.S. App. LEXIS 2511, at *3 (2d Cir. Feb. 12, 2003).
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994).
V. Claims in Present Petition
Petitioner claims he was denied the "right to appeal" his conviction to the Appellate Division. His lawyer submitted an appeal brief. Petitioner moved to submit a supplemental pro se brief; the Appellate Division denied the motion. Whether to accept a supplemental brief is a state court procedural matter that raises no constitutional issue that would merit granting of the writ in the present case. To the extent petitioner's claim is premised on his unarticulated desire to represent himself as co-counsel, relief is not warranted because a defendant does not have a constitutional right to represent himself as co-counsel with his own attorney. See United States v. Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989). Nothing in his proposed brief seems at all likely to have affected the decision on appeal affirming his conviction.
Petitioner claims that he was denied effective assistance of counsel on three grounds. First, that his lawyer made only a "general" rather than a "specific" motion to dismiss the People's case at the end of trial for failure to make out a prima facie case. The Appellate Division reached the merits of the claim on direct appeal and held that the verdict was legally sufficient to establish guilt beyond a reasonable doubt and that it was not against the weight of the evidence. Even if counsel was ineffective for failing to preserve the claim, therefore, petitioner was not prejudiced because the Appellate Division entertained the claim and rejected it on the merits.
Second, petitioner claims his counsel was ineffective because she failed to "expose the defectiveness" of an affidavit submitted by his former lawyer in which the lawyer stated that he had told petitioner of his right to testify at the Grand Jury but that petitioner had refused. Petitioner premises this claim on the fact that his name was misspelled as "Walters" on the affidavit. This is a trivial matter that did not effect petitioner's constitutional right to notice or due process. Counsel was not ineffective in this regard.
Third, petitioner claims that he was denied his right to testify before the Grand Jury and that his counsel was ineffective for failing to inform him that he had a right to do so. In an affidavit, petitioner's first lawyer states that he informed petitioner of his right to testify before the Grand Jury and that he declined to do so. See Respondent's Ex. at 13-14. At any rate, claims regarding the conduct of the Grand Jury are not cognizable on habeas where a petit jury has heard the evidence and convicted defendant. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989). Counsel was not ineffective in this regard. Petitioner's fair trial and due process rights were not infringed.
Petitioner next claims that exhibits were given to the jury by the court without the consent of defense counsel. Although this claim was not exhausted in state court, this court has the statutory right to reach the merits and deny the claim. A review of the trial court transcript reveals no evidence of petitioner's contention. The claim is completely absent in merit.
Finally, petitioner claims he was denied an impartial jury because one of the jurors was the Superintendent of Security at a prison in which petitioner had been incarcerated. The trial transcript reveals that it was petitioner himself who insisted, against his lawyer's advice, to leave this juror on the panel even after they learned his job title. See Tr. at 112, 119. Petitioner's claim is without merit.
There appears to be no basis to argue actual innocence. See Appellate Division Brief of District Attorney; Appellate Division Brief of Defendant-Appellant.
VI. Conclusion
The petition for a writ of habeas corpus is dismissed. A certificate of appealability is issued with respect to his claim that 1) his right to testify before the Grand Jury was infringed; and 2) a voir dire decision not to challenge a potential juror was improper.
SO ORDERED.