Opinion
03 Civ. 3857 (PKC).
July 19, 2005
MEMORANDUM AND ORDER
This is a petition for a writ of habeas corpus from a state court conviction after trial for Criminal Sale of a Controlled Substance in the Third Degree. New York Penal Law § 220.39(1). Prior to this conviction, petitioner had 14 prior convictions in the courts of the State of New York. As a second felony offender, petitioner was sentenced to an indeterminate prison term of from seven to fourteen years. An appeal was taken from the conviction at issue to the Appellate Division, First Department, and was affirmed. People v. Wilkerson, 294 A.D.2d 298, 742 N.Y.S.2d 537 (1st Dept. 2002). Leave to appeal was denied by the New York Court of Appeals. People v. Wilkerson, 98 N.Y.2d 772, 752 N.Y.S.2d 13 (2002). The instant petition was filed on May 29, 2003. Respondent acknowledges that the petition is timely, 28 U.S.C. § 2244(d)(1), and that petitioner has exhausted his available state law remedies, 28 U.S.C. § 2254(b)(1)(A).
The Grounds Asserted in the Petition
Petitioner asserts that he was denied the right to counsel in his state court hearing and trial. He further asserts that he was denied the right to call Andre Pace as a witness both at the hearing and at trial. By denying him the right to counsel and the right to call witnesses of his own choosing, he claims that his right to due process of law was violated. I will construe this pro se petition as raising claims under both the Sixth (right to counsel and compulsory process) and Fourteenth Amendments (due process).
Petitioner faced substantial jail time in a buy-bust case with overwhelming evidence against him. He was fully competent to stand trial and assist in his defense. He was capable of controlling his actions. On the eve of a hearing that immediately preceded the commencement of trial, petitioner physically assaulted his fifth attorney — he spit in his face — and threatened to have a contract placed on his life. (4/21/99, Tr. 20, 27) Viewing this conduct in the context of previous actions by petitioner, the state court concluded that he had forfeited his right to counsel. Separately, the state court decided not to adjourn the hearing and trial for two weeks to permit petitioner to call a witness, who his prior counsel had interviewed and determined would testify falsely and would undercut petitioner's version of events. Those rulings by the state court were neither contrary to nor involved an unreasonable application of Supreme Court precedent. They did not result in a decision that was based upon an unreasonable determination of the facts. For reasons further explained below, I deny the petition.
I. FORFEITURE OF COUNSEL
In order to understand the events that immediately preceded the trial court's conclusion that petitioner had forfeited his constitutionally-based right to counsel, it is necessary to begin with a history of petitioner's representation by other lawyers in this case and the initial concerns about his competency and how they were addressed by the state court. I begin with the initial order in the case for a psychiatric evaluation, describe the facts on which the court concluded that defendant was competent and recite the facts surrounding petitioner's role in the discharge of his third, fourth and, ultimately, his fifth counsel. I then analyze the legal claim that he was denied the right to counsel.
The Pretrial Evaluation of Petitioner's Competence and Ability to Meaningfully Participate in the Proceedings.
By Order dated October 30, 1997, Honorable Laura Drager ordered a psychiatric examination of petitioner pursuant to Article 730 of the Criminal Procedure Law to determine whether petitioner "lacks the capacity to understand the proceedings against him . . . or to assist in his . . . defense. . . ." (Opp. Dec., Ex. A, A7) A four-page clinical examination report was submitted by Murray A. Gordon, M.D., who examined the petitioner on two occasions: with and without the presence of defense counsel. (Id., A9-13) Dr. Gordon found that petitioner did not display "evidence of any disorganization or decompensation or significant thought disorder which would reflect the presence of a major mental disorder." (Id., A13) Dr. Gordon confirmed that the petitioner understood details of the offense with which he was charged including the location of the alleged sale and the nature of the controlled substance alleged. (Id., A13) Petitioner accurately described the functions of a judge, jury, prosecutor and defense counsel. (Id., A10) Dr. Gordon found petitioner had "a mistrustful and suspicious perception of his attorney and her efforts on his behalf." (Id., A11) He also noted that the petitioner expressed the view that his attorney had improperly shared information with the prosecution. (Id., A11)
Myles Schneider, M.D. also examined the petitioner. (Id., A15) He noted that petitioner had reported no history of psychiatric treatment, and found him to be alert and oriented. (Opp. Dec., Ex. A, A15) Dr. Schneider reported that although petitioner exhibited frustration and resentment towards his attorney, he trusted the attorney enough to work with her. (Id., A15)
A second order was signed by Judge Drager on August 6, 1998, noting that "[t]he issue to be determined is not if [petitioner] understands court proceedings, but if he can assist in his own defense." (Id., A7) This time Beverly E. Martin, Ph.D., examined petitioner, diagnosing him with "bipolar disorder [with] hypomanic episodes," and recommending a period of "psychiatric hospitalization and further evaluation." (Id., A17) During examination of petitioner in the presence of counsel, petitioner claimed "prosecutory misconduct" and sought to reargue issues that twice had been presented unsuccessfully to the Court. (Id., A19) Dr. Martin concluded as follows:
Although Mr. Wilkerson comprehends the charges against him and demonstrates that he has a working knowledge of the various functions of the court personnel and court procedures, his paranoid stance and fixation on being conspired against by the legal system impedes his capacity to work in a rational, goal-directed manner with his legal counsel at this time. He is Not Fit to proceed.
(Id., A20)
After reviewing the reports of Dr. Martin, Judge Drager concluded, in an Order dated September 8, 1998, that the petitioner was incapacitated and that he should be confined until the person in charge of the institution concluded that he was no longer incapacitated. (Id., A8)
Petitioner was confined at the Kirby Forensic Psychiatric Center where he was examined by James Hicks, M.D., Associate Director of Clinical Services. (Id., A21-25) Dr. Hicks is board certified in psychiatry and neurology, and had the benefit of interviewing petitioner as well as observing him in both group and individual therapy sessions. (Id., A21-25) Dr. Hicks reviewed the evaluations by Drs. Gordon, Schneider, and Martin. (Id., A21) Dr. Hicks also conferred with a Dr. Novick who was retained by the Mental Hygiene Legal Service. (Opp. Dec., Ex. A, A21) Petitioner explained to Dr. Hicks that he was facing a sentence of 12½ to 25 years, or a minimum of 4½ to 9 years, and that he hoped to negotiate a plea bargain for time served by offering to drop a lawsuit he had filed against the state. (Id., A24) Dr. Hicks did observe symptoms of mental illness, but noted that "even when his symptoms are most severe, he responds to clear limit-setting by staff, demonstrating an ability to choose appropriate behavior." (Id., A24) He also noted that petitioner's choices regarding legal strategy "appear to be based on his personal weighing of alternatives and likely outcomes, rather than on delusional beliefs. . . . He has chosen not to cooperate with his attorneys at times, because he believes that his legal strategy is more likely to be effective." (Id., A24) At the end of his comprehensive five-page report, Dr. Hicks summed up his view of petitioner in words that shed significant light on his future course of conduct:
In summary, Mr. Wilkerson has a personality style which poses a challenge for an attorney who represents him. He insists on playing an active role in defending himself. His legal strategies appear to be based on his rational, though idiosyncratic, perception of available options. He is capable of assisting his attorney in his defense if he chooses to do so.
(Id., A25)
Based upon Dr. Hicks report, the Director of the Kirby facility, Veena Garyali, M.D., determined that petitioner was no longer an incapacitated person. (Id., A26)
Petitioner's First Four Lawyers
Petitioner does not dispute that at the time of the physical assault and threat to his then attorney, Donald duBoulay, he had four prior appointed counsel in this case. According to petitioner, his first attorney, a staff attorney with the Legal Aid Society ("LAS"), did not honor his request to file certain motions to dismiss the indictment. (Trav. to Return, p. 3) In November 1997, a supervising attorney with LAS informed petitioner that LAS would no longer represent him. (Id., 4) A second attorney did not last long. He was appointed, pursuant to section 18B of the New York Judiciary Law. (Id., 4, 5) According to petitioner, shortly after they met, an argument ensued and the attorney asked to be relieved and the request was granted. (Id., 5)
According to petitioner, the third attorney urged him to entertain a plea bargain for a sentence of two to four years, which petitioner viewed as evidencing professional incompetence on the part of the attorney. (Id.) Petitioner filed a complaint against the attorney with the Departmental Disciplinary Committee, First Department. (Id.) The attorney asked to be relieved and the request was granted. (Id.) The fourth attorney met with a similar fate. (Id.) Petitioner viewed him as "ineffective" and filed a complaint with the Grievance Committee for the Second and Eleventh Judicial Districts. (Id.)
Petitioner's Fifth and Final Lawyer
Mr. duBoulay became petitioner's fifth attorney in January 1999. (4/21/99, Tr. 22) On April 21, 1999, petitioner appeared in the courtroom of the Honorable Martin Rettinger, J.S.C. (Id.) Both the court and Mr. duBoulay permitted the petitioner, a represented person, to address legal issues in the case, including the status of a motion pursuant to section 190.50 of the Criminal Procedure Law, and a challenge to the timeliness of a lab report. (Id., 11-13) When the judge informed the petitioner that he was proceeding with a suppression hearing that would continue the next day and would require the petitioner's presence, the petitioner objected and asserted that he wanted instead to go to the Law Library to prepare certain motion papers that he intended to file with the court the following Monday. (4/21/99, Tr. 16, 17) Justice Rettinger declined petitioner's request to postpone the hearing, whereupon petitioner asked for the opportunity to consult with his attorney in private. (Id., 18) He was granted a recess to permit him to "[g]o downstairs with [his] attorney for a few minutes." (Id.)
When court reconvened, duBoulay reported as follows: "Your Honor, I went downstairs to talk to Mr. Wilkerson. When we went into the attorney/client booth we weren't there ten seconds when he accused me of, to use his words, turning on him and then spit in my face. . . . [H]e made threats that he was going to put a contract on me if I did not do what he [said]. . . ." (Id., 18, 19) duBoulay asked to be relieved as counsel. (Id., 20) Upon inquiry by the court, petitioner readily admitted what he had done: "Yeah. I spit on him and I threatened him and everything." (Id., 27)
Petitioner cited the incident as the ground for his argument that duBoulay could no longer represent him: "I spit in the man's face. I threatened him, right, and that is a conflict of interest, you know. You don't spit in nobody's face and then you represent somebody. I spit right in his face." (Id., 35) When faced with the prospect of either continuing with duBoulay or representing himself, he responded that he would represent himself, though he pressed for the appointment of yet another lawyer. (Id.) He also stated to the court that he had "six-thousand [dollars] stashed" and that he would "bring [his] own lawyer in next week." (Id., 39) The court invited him to do so. (Id.)
Ultimately, the court concluded that petitioner was "trying to avoid proceeding with this case. . . ." (Id., 35) Over the objections of both duBoulay and petitioner, the judge appointed duBoulay as a legal advisor to petitioner. (Id., 34-36) The court explained its reluctance to bring in a sixth attorney to act either as counsel or advisor because "he is going to have to put them through the very same thing and that wouldn't be fair." (4/21/99, Tr. 38) He noted that petitioner was found competent and repeated his conclusion that petitioner's conduct was motivated by a desire to avoid the proceedings. (Id., 39) Petitioner's attitude was exemplified by his statement, "[p]ersonally, I don't care about the system y'all got." (4/26/99, Tr. 20)
Standards Governing Forfeiture of Counsel
The right of a defendant facing a state criminal charge to counsel exists under the Sixth Amendment, as made applicable to the states via the Fourteenth Amendment. See Gideon v. Wainwright, 372 U.S. 335, 343 (1963). If the defendant is unable to afford counsel, the state is required to provide counsel at its expense, "unless the right is competently and intelligently waived." Id. at 340.
Here, the state does not argue that Wilkerson waived his right to counsel. Rather it asserts that, by reason of his conduct, he forfeited his right to counsel. Applying the underpinnings ofIllinois v. Allen, 397 U.S. 337 (1970), that "a defendant who misbehaves in the courtroom may forfeit his constitutional right to be present at trial," the Eleventh Circuit held that "a defendant who is abusive toward his attorney may forfeit his right to counsel." United States v. McLeod, 53 F.3d 322, 325 (11th Cir. 1995) (upholding a finding of forfeiture of counsel based upon the defendant's verbal abuse, repeated threats of lawsuits, and requests that his counsel engage in unethical conduct.)
Similarly, the Third Circuit has upheld a finding of forfeiture of counsel premised upon an "unprovoked physical battery" in the presence of the court. United States v. Leggett, 162 F.3d 237, 250 (3d Cir. 1998). The Court noted that the defendant inLeggett was permitted to personally contest the forfeiture. Here, the same may be said of Wilkerson. Although the assault did not occur in the presence of the trial judge, Wilkerson readily and unapologetically admitted it. (4/21/99, Tr. 34) Still, Wilkerson was permitted to argue to the trial judge that it did not warrant a finding of forfeiture. (Id., 33-35) Petitioner conceded that his existing counsel could not properly proceed in view of his own actions: "I threatened him, right, and that is a conflict of interest, you know. You don't spit in nobody's face and then you represent somebody." (Id., 34)
In the context of an appeal from the denial of state habeas relief, the Second Circuit has concluded that a petitioner was not unconstitutionally deprived of counsel during a sentencing proceeding, based upon a single incident, giving rise to a state court finding of forfeiture. See Gilchrist v. O'Keefe, 260 F.3d 87 (2d Cir. 2001). The trial court had failed to explore lesser alternatives and there had been no warning that the single incident — a punch to the head of counsel — would lead to such forfeiture. Nevertheless, the Gilchrist Court concluded that the state court's determination did not amount to an unreasonable application of clearly established federal law. Id. at 90;See also United States v. Thompson, 335 F.3d 782, 785 (8th Cir. 2003) (failure to refute that defendant had threatened to kill counsel warranted a finding, without the need for further proceedings, of his forfeiture of the right to appellate counsel).
Here, the conduct — both the threat to put a contract on counsel's life and the physical assault — was admitted by Wilkerson. (4/21/99, Tr. 34) By reason of the nature of the assault, the state trial court judge knew that Wilkerson had the ability to use potentially disease-carrying saliva as a projectile over a distance of several feet. Wilkerson was permitted to argue before the court why his conduct did not warrant forfeiture but instead took the opportunity to explain why his own conduct precluded counsel from proceeding further. (4/21/99, Tr. 34) I cannot say that the state court's determination that petitioner forfeited his constitutional right to counsel was contrary to precedent, involved an unreasonable application of clearly established federal law, or resulted in a decision that was based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d).
II. DENIAL OF A POSTPONEMENT OF HEARING AND TRIAL IN ORDER TO PERMIT PETITIONER TO CALL PACE
In order to understand petitioner's claim that the trial court deprived him of his right to compulsory process to call a witness of his own choosing, and the state's response thereto, it is useful to begin with the evidence as it unfolded at trial. Thereafter, I will recount the asserted basis of defense counsel's decision not to call Andre Pace, petitioner's application to have Pace appear at trial, and the trial court's decision not to delay the trial to secure Pace's testimony.
The Hearing and Trial
Mr. duBoulay remained in the spectator section throughout the suppression hearing and trial. (4/21/99, Tr. 34) While the record does not reflect the full extent of the petitioner's consultation with his legal advisor, it appears to have occurred on numerous occasions. (Id., 79, 81; 4/26/99 Tr. 152, 160, 165; 4/27/99 Tr. 174; 4/28/99 Tr. 372, 389, 393, 446)
Because of the nature of the prior assault, it was not sufficient to have the petitioner handcuffed for such consultations. The courtroom was cleared, and the advisor and petitioner spoke in the presence of Court Officers, presumably at a distance apart. (4/26/99, Tr. 152) It is not clear that this protocol was uniformly followed and may have been relaxed as the trial progressed. (Id.)
In front of the jury, petitioner took full advantage of the absence of professional restraints that might otherwise hamper a lawyer's presentation of the evidence. He vouched for his own innocence and presented an alibi without subjecting himself to cross-examination. (4/26/99, Tr. 91, 92; 4/27/99, Tr. 191) He informed the jury of the possible sentence he would receive if he were convicted. (4/27/99, Tr. 198; 4/28/99, Tr. 488) He argued that he was selected as a target for prosecution because of his race and argued that he was a good provider to his family. (4/28/99, Tr. 503, 512)
The trial evidence against petitioner was overwhelming. Shortly before 11:00 p.m. on October 12, 1997, an undercover officer approached a man he later learned was Andre Pace at Eighth Avenue and 38th Street in Manhattan. (4/27/99, Tr. 247-50) The undercover agent asked Pace if he was working; he confirmed that he was. (Id., 250) Pace asked what he was looking for and the undercover officer told him "dimes" of crack. (Id., 251) Pace told him to follow him down the block. (Id.) The undercover officer met a person who he identified as petitioner. (Id., 253) Pace told petitioner that they needed three bags. (Id., 254) Petitioner told Pace and the undercover officer to keep walking and to meet him at the pool hall. (Id.) Petitioner followed the two into the pool hall and asked Pace whether he knew the undercover officer; Pace confirmed that he did. (Id., 256) Petitioner handed Pace three bags, later determined to contain crack cocaine, and Pace handed them to the undercover officer. (Id., 257) The undercover officer handed Pace $30 in currency with pre-recorded serial numbers. (Id.) The undercover officer left, and when at a safe distance, communicated-via-radio descriptions of Pace and petitioner to the field team confirming that he had made a buy. (Id., 258) Sergeant Gibbons observed Pace and petitioner a few car lengths from each other. (Id., 312) Gibbons stopped petitioner, while other members of the team stopped Pace. (Id., 312) The undercover officer confirmed that these were the individuals who sold him the drugs. (Id., 312-14) Gibbons discovered the cash with the pre-recorded serial numbers in petitioner's pocket, along with a beeper and an additional $146 in cash. (Id., 315-16) A field test was conducted on the substance and it tested positive for crack cocaine. (Id., 261-62) A chemist from the New York Police Department Laboratory conducted a full test on the purchased substance and confirmed it was crack cocaine. (4/27/99, Tr. 205-07) The undercover officer, Sergeant Gibbons, and the laboratory chemist testified to the cocaine's positive identification. (Id., 199-208, 304-321)
Petitioner called his sister to testify at trial. She testified that sometime on the day of the alleged buy, petitioner telephoned and informed her that his wife had a baby. (4/28/99, Tr. 397) The sister, her husband, their two daughters, and a third person, identified as "Tee," saw petitioner at the hospital. (Id., 398) They left together at 8:00 p.m. and went to the Post Office at Eighth Avenue and 33rd Street so that his sister could purchase stamps. (Id., 397-401) They then went to a restaurant on Eighth Avenue and 37th Street. (Id., 401)
According to the sister, after leaving the restaurant and while the group was walking on the nearby street, a jeep or van pulled up somewhere between 9:00 p.m. and 11:00 p.m., and two men jumped out with firearms. (Id., 401-02, 405, 413) Pointing weapons and shouting obscenities, they told the group, including petitioner and his sister, to get on the floor. (Id., 401-02) The two daughters began screaming. (Id., 407, 411) The intruders told the sister to get to the side before they arrested her. (Id., 412) Tee and petitioner were on the ground. (Id.) A van with additional police officers pulled up and they had with them a man who the sister later identified from a photograph as Andre Pace. (Id., 417-20) The officers who had emerged from the van reported that these were not the right men and that the right person had run away. (Id., 421-22) According to the sister, the officer holding the gun said: "Well we'll call it a night." (Id., 422) At that point, one of the officers placed the cash (with the pre-recorded serial numbers) in petitioner's pocket. (Id., 438) Tee was released, but petitioner was held. (Id., 437) Petitioner never called Tee, passers-by or any of the restaurant personnel as witnesses. As will be discussed, he did request the right to call Pace.
The Trial Court's Decision Not to Adjourn Proceedings In Order to Secure the Testimony of Pace
Prior to trial, duBoulay successfully petitioned the Court to order Pace produced from the Oneida Correctional Facility, some 260 miles away in Rome, New York, so that he could testify at trial on March 25, 1999. (Order of March 12, 1999). duBoulay met with Pace at 100 Centre Street, and duBoulay later recounted what transpired in a letter to petitioner, which was submitted to the Court for in camera review. (4/21/99, Tr. 19) As recounted in duBoulay's letter of April 21, 1999, one version of events told by Pace was that petitioner gave the drugs to another individual who handed them to the undercover officer. (Opp. Dec., Ex. A, A30-31) In the second version, Pace told how the undercover officer had first approached Pace, and then approached petitioner and another individual. (Id.) Pace told duBoulay that he, the petitioner, the undercover officer, and the other individual went into a building for the purpose of obtaining drugs. (Id.) When the four went to the second floor of the building, the other individual handed Pace the drugs, and Pace, in turn, handed them to the undercover officer. (Id.) This second version had petitioner present during the transaction, but not handling either the drugs or money. (Id.)
The letter was submitted to the court by duBoulay who asked that it be sealed until after trial; the court did not respond to that request. (4/22/99, Tr. 43-44) Much of the substance of the letter had been previously stated in open court by duBoulay. (4/21/99, Tr. 19-26).
As duBoulay informed petitioner in the April 21 letter, "[Pace's] testimony regarding either version would ensure [his] conviction at trial." (Id., A31) duBoulay's letter indicated his belief that Pace was "lying and not a very good liar." (Id.) duBoulay also expressed the view that his own client had pressured Pace in testifying favorably to petitioner: "I am bound [sic] by the Code [of Professional Responsibility] from calling Mr. Pace as a witness since I believe that he is going [to] testify about what you told him to say." (Id.) Following duBoulay's interview with Pace, he was returned to the correctional facility where he had been incarcerated.
After petitioner's physical assault upon duBoulay, duBoulay informed the court of petitioner's desire to call Pace as a witness. (4/21/99, Tr. 19-26) duBoulay told the court of his own view that Pace ought not be called because "Pace's version of events was inconsistent with my client's version." (Id., 19) According to duBoulay, Pace "put [petitioner] at the scene." (Id.) As duBoulay advised the Court, "I made a decision that I didn't think it was a good idea to call Mr. Pace and I explained the reasons to [petitioner]." (4/22/99, Tr. 19)
Upon forfeiting his right to be represented by counsel, petitioner again expressed his desire to call Pace as a witness at the hearing and at trial. (4/21/99, Tr. 33, 80; 4/22/99, Tr. 3, 7, 21, 74, 83) The prosecutor argued that the proceedings ought not be delayed in order to permit petitioner to revisit a decision that had already been made: "Counsel made a decision not to call that witness after speaking to Mr. Pace, from what I understand. To ask for Mr. Pace at this point is simply a delay tactic on the part of the defendant." (4/22/99, Tr. 4)
Petitioner expressed a desire to call several other witnesses other than Pace, including his sister, his sister's husband, two nieces and "somebody from the construction company". The court ruled that petitioner had a right to call them and directed petitioner to supply the identifying information to the prosecution (Id., 15) Petitioner advised the Court that "[w]hen the trial comes they will be out in the hallway. They will come for sure and testify." (Id., 18) Petitioner indicted that his witnesses would be visiting him on the Saturday before the Tuesday start of the trial. (Id., 73) As noted previously, petitioner's sister appeared and testified as petitioner's sole witness. Petitioner does not press any issue as to these other witnesses.
The trial judge summoned Pace's lawyer and queried him on the record. (Id., 45-52) The lawyer had no information on Pace's willingness to testify, the likely content of his testimony, or his ability or desire to invoke Fifth Amendment protections; the attorney did not have a recollection of the content of his plea allocution. (Id., 45-52) The trial judge had the Clerk make inquiry of the time it would take to bring Pace to his courtroom from the upstate facility and the Clerk informed the judge that it would take two weeks. (4/22/99, Tr. 74-75) Based upon all of the foregoing, the trial judge concluded that he would not adjourn the pretrial hearing, or the trial to secure the testimony of Pace. (Id.)
A fundamental element of due process of law in a criminal proceeding is the petitioner's right of compulsory process to call witnesses of his own choosing. See Chambers v. Mississippi, 410 U.S. 284, 294 (1973). Because this right is part of the adversary process, it may be limited by state rules requiring timely disclosure of witnesses. Wade v. Herbert, 391 F.3d 135, 140-41 (2d Cir. 2004).
Wade was a late alibi notice case. Because Pace would have placed petitioner at the scene of the drug transaction, the alibi rules were not implicated.
Petitioner correctly notes that once he was given control of his own defense, he had the right to call witnesses of his own choosing, and neither the court nor standby counsel could substitute their views as to the strategic benefits or risks of calling a particular witness. See McKaskle v. Wiggin, 465 U.S. 168, 178 (1984). But petitioner's forfeiture of counsel did not give him an absolute right to alter a strategic choice made by his counsel in a circumstance in which the change of position would necessarily delay the commencement of trial. The state of New York had borne the expense and burden of transporting Pace to Manhattan for trial. The Order to Produce signed on March 12 provided that Pace be produced to the Commissioner of the New York City Department of Corrections for production in Court, and that "Andre Pace shall be returned at the conclusion of the proceeding to the Department of Correction for delivery to Oneida Correctional Facility." (Order of March 12, 1999) After Pace was produced in accordance with the Order, duBoulay decided not to call Pace and Pace was returned to the upstate facility where he was incarcerated. (4/21/99, Tr. 19; 4/22/99, Tr. 74-75)
In Taylor v. Illinois, 484 U.S. 400 (1988), the Court addressed the circumstances under which the Sixth Amendment compulsory process clause may be violated by imposition of a state law discovery sanction that entirely excludes the testimony of a material defense witness. In Wade v. Herbert, the Second Circuit recently had occasion to discuss the teachings ofTaylor, and the Court's subsequent holding in Michigan v. Lucas:
[G]enerally . . . courts must weigh "the defendant's right to offer the testimony of witnesses in his favor" against the likelihood that improperly offered testimony will subvert "[t]he integrity of the adversary process.". . . [D]iscovery rules serve the important interest of "minimiz[ing] the risk that a judgment will be predicated on incomplete, misleading, or even deliberately fabricated testimony.". . . It also noted that it was "reasonable to presume that there is something suspect about a defense witness who is not identified until after the 11th hour has passed."Wade v. Herbert, 391 F.3d 135, 141-42 (2d Cir. 2004). State law restrictions on a defendant's right to present evidence "may not be arbitrary or disproportionate to the purposes they are designed to serve." Michigan v. Lucas, 500 U.S. 145, 151 (quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)); See United States v. Almonte, 956 F.2d 27, 30 (2d Cir. 1992).
Although decided prior to Taylor, the Second Circuit's opinion in United States v. King, 762 F.2d 232 (2d Cir. 1985), is instructive. In King, at the outset of a federal court trial, defense counsel moved for a two to three week adjournment of trial, both to pursue certain new leads and to enable defendant's brother to be available to testify at trial. Id. at 234. The defendant had been informed that his brother's grand jury testimony had sought to exonerate him of certain counterfeit money transactions. Id. The U.S. Marshal's Office reported that it "would require approximately two weeks' notice to obtain approval for [the brother] to be brought" to trial. Id. The court denied the requested adjournment and on appeal defendant argued that he was denied his Sixth Amendment right to compulsory process. Id. at 235. The Second Circuit rejected the compulsory process claim noting that the defendant could have obtained the brother's presence had he requested it "in a timely fashion," or perhaps by an eleventh hour request for expedited production. Id. In King, as in the case before me, no specific date was set for disclosure of trial witnesses or making an application for compulsory process. Yet, in King, the denial of the continuance of the trial to allow the witness to be produced was held not to be an abuse of discretion. No less deference should be paid to the state court on habeas review than to a district court on direct appeal.
One district court has observed that "in the context of a denial of a continuance to secure a witness, courts have looked to four factors: (1) whether due diligence was exercised to obtain the witness; (2) whether substantial favorable evidence would be offered by the witness; (3) whether the witness is available and willing to testify; and (4) whether the denial of the continuance would materially prejudice the defendant." Wood v. Artuz, 39 F. Supp. 2d 211, 214 (E.D.N.Y. 1999). I will examine these factors, treating them a non-exhaustive catalogue of relevant considerations.
1. Did the defendant exercise due diligence in obtaining the witness?
Here, it is fair to take the actions of the defense as a whole in assessing whether there was due diligence in seeking Pace's testimony. duBoulay recognized that Pace might possess relevant admissible testimony and obtained an order to have him produced. (Order of March 12, 1999) Facially, the Order required Pace to remain downstate until trial. (Id.) When taken together with duBoulay's April 21 letter to petitioner expressing duBoulay's view of the danger in calling Pace, it is fair to conclude that Pace was returned to the upstate facility with the consent of the defense. Petitioner advances no argument to the contrary. After Pace was interviewed by duBoulay and duBulay decided not to call him as a witness, petitioner elected to knowingly precipitate the events leading to his forfeiture of counsel. Petitioner had sole and exclusive control of the timing of the events — the assault and the threat — resulting in the forfeiture. Petitioner did not have the right to create an incident requiring the withdrawal of counsel, and then have the clock on his diligence in pursuit of Pace reset from that moment. Petitioner had one opportunity to have Pace brought downstate for the purposes of trial; the events leading to forfeiture did not give him the absolute right to a second opportunity to have Pace produced. The state judge was acting within the bounds of legitimate discretion in denying this second attempt to produce Pace. As the trial judge put it, petitioner was "trying to avoid proceeding with this case. . . ." (4/21/99, Tr. 35)
Contemporaneously, petitioner was complaining of delay: "[t]he system held it up for 18 months." (4/22/99, Tr. at 74).
2. Would substantial favorable evidence have been offered by the witness?
Petitioner has never produced a statement, sworn or unsworn, from Pace as to what his testimony would have been. This has remained true up through the submissions in support of the petition. The trial court did have duBoulay's recounting of the substance of Pace's expected testimony from his face-to-face interview with him. (Opp. Dec., Ex. A, A30-31) The most favorable version told by Pace would have placed petitioner at the scene of the drug transaction and, if believed, undercut the alibi defense presented by petitioner's sister. (Id.)
3. Was the witness available and willing to testify?
Pace's whereabouts were known to the state. There is no claim that he was not well enough to travel and his presence could have been compelled. In that limited sense, he was available. But to the extent it has relevance on a compulsory process claim, duBoulay reported that Pace did not want to testify. (Id. 19) According to duBoulay, "He begged me not to call him as a witness. He gave me a version, which he thought exculpated with [sic] defendant, put him at the scene, being there when everything happened. I said it's not going to work. The man doesn't want to be called down. He is afraid of you." (Id.) Because compulsory process could have been ordered, I do not place great weight on Pace's willingness or unwillingness to testify.
4. Did the denial of the continuance materially prejudice the defendant?
To a great extent the issue of material prejudice to defendant overlaps in this case with the issue of whether the witness would have offered substantial favorable evidence. Petitioner elected to proceed on the basis of his sister's alibi testimony. She testified that on the evening of the alleged drug transaction, petitioner was with her and others either in a restaurant or on the street in the vicinity of Eighth Avenue and 33rd Street. (4/26/99, Tr. 401) duBoulay's interview of Pace indicates that he would not have supported petitioner's alibi. (Opp. Dec., Ex. A, A30) At trial, petitioner proceeded with the alibi defense presented through his sister. As a result, he was not materially prejudiced by the inability to call Pace whose testimony would have been at odds with the sister's testimony.
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On balance, the four factors cited in Wood v. Artuz, 39 F.Supp.2d 214, do not support petitioner's claim.
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Finally, I exam petitioner's claim through the prism of the case law cited by the state court. Petitioner, who was represented by counsel on his appeal to the Appellate Division, First Department, and later in seeking leave to appeal to the New York Court of Appeals, urged that his "fundamental and constitutional right to present evidence and call witnesses on his behalf" had been violated by the trial court. The Appellate Division rejected petitioner's claim, and leave to appeal to the New York, Court of Appeals was denied. The Appellate Division cited People v. Gilliam, 37 N.Y.2d 722 (1975), a case in which the Court reversed a conviction based upon the denial of a one day request for an adjournment to produce a witness. The Court of Appeals in Gilliam adopted the dissenting opinion in the Appellate Division that held: "unless the offer of evidence is palpably in bad faith, the court should not exclude the witness from testifying." People v. Gilliam, 45 A.D.2d 744 (2d Dept 1974). Here, the Appellate Division implicitly concluded that the trial court did not err or abuse its discretion in finding the petitioner's request to have Pace produced from a location from which it would have taken two weeks to produce him was made in bad faith, i.e. not for the purpose of securing Pace's testimony, but, instead, for the purpose of securing any benefit that delay would bring.
I cannot conclude that the state law rule is contrary to clearly established federal law as determined by the Supreme Court in, for example, Taylor v. Illinois, 484 U.S. 400 (1988). Nor can I say that the state court's determination was an objectively unreasonable application of clearly established federal law, as determined by the Supreme Court. 28 U.S.C. § 2254(d)(1). For the reasons discussed herein at length, I cannot conclude that the state court's ruling resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in state court. 28 U.S.C. § 2254(d)(2). The decision not to delay the proceedings in order to compel Pace to appear at the hearing and trial was neither arbitrary nor disproportionate to an appropriate state interest in proceeding to trial without unnecessary delay. See Michigan v. Lucas, 500 U.S. at 151.
Conclusion
The petition for a writ of habeas corpus is DENIED. Petitioner has not made a substantial showing of the denial of a constitutional right, and accordingly, a certificate of appealability will not issue. 28 U.S.C. § 2253. See Lozada v. United States, 107 F.3d 1011, 1016-17 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997).
SO ORDERED.