Opinion
02-CV-2074 (JBW), 03-MISC-0066
October 9, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
This petition was filed on March 27, 2002. Petitioner (sometimes referred to as defendant) claims:
GROUND ONE
NEWLY DISCOVERED EVIDENCE ENTITLES PETITIONER TO A NEW TRIAL.GROUND TWO
THE PROSECUTION FAILED TO DISCLOSE FAVORABLE EVIDENCE TO PETITIONER IN VIOLATION OF HTS DUE PROCESS RIGHTS.GROUND THREE
PETITIONER WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND EFFECTIVE ASSISTANCE OF COUNSEL.GROUND FOUR
PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.GROUND FIVE
PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ON HIS DIRECT APPEAL.
The evidence supports the following statement:
On December 19, 1992, in front of 1220 Sutter Avenue in Brooklyn, defendant shot Luis Santiago once in the chest and five times in the back, thereby causing Santiago's death.
For this crime, defendant was charged, by Kings County Indictment Number 2721/95, with murder in the second degree (N.Y, Penal Law § 125.25 [1]), criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03), and criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02 [4]).
Following a jury trial, defendant was convicted of murder in the second degree (N.Y. Penal Law § 125.25 [1]), and criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03). On April 25, 1996, defendant was sentenced, as a second violent felony offender, to concurrent terms of imprisonment of twenty-five years to life and seven and one-half to fifteen years, respectively.
Defendant appealed from his judgment of conviction to the Appellate Division. He claimed; 1) that the trial court erred in denying defendant's motion for a new trial on the basis of newly discovered evidence, pursuant to N.Y. Crim. Proc. Law § 330.30(3); 2) that defendant was deprived of a fair trial in that the People withheld Rosario and Brady material; 3) that defendant received ineffective assistance of trial counsel; and 4) mat his sentence was excessive. In his supplemental pro se brief, defendant advanced an additional claim with respect to ineffective assistance of trial counsel.
By decision and order dated October 3, 2000, the Appellate Division unanimously affirmed defendant's judgment of conviction, People v. Williams, 276 A.D.2d 506, 714 N.Y.S.2d 240 (2d Dep't 2000). The court held that defendant had failed to satisfy his burden under N.Y. Grim. Proc. Law § 330.30(3) of demonstrating newly discovered evidence sufficient to warrant setting aside the verdict. In addition, they found that the sentence was not excessive, and that defendant's remaining contentions, including those raised in his pro se brief, were without merit.
Defendant sought permission to appeal to the New York Court of Appeals, asserting the same claims as those raised in the Appellate Division. On December 20, 2000, defendant's application for leave to appeal to the New York Court of Appeals was denied. People v. Williams, 95 N.Y.2d 971, 722 N.Y.S.2d 489 (2000).
By application dated December 6, 2001, defendant moved in the Appellate Division for a writ of error coram nobis. In his application, defendant alleged that his appellate attorney was ineffective because he failed to raise on appeal the claim that defendant was deprived of his right to be present at a critical stage of the trial, specifically during jury deliberations, pursuant to N.Y. Crim. Proc. Law § 310.30, By decision and order dated March 4, 2002, defendant's application was denied. People v. Kevin Williams, No, 1996-04342 (2d Dep't March 4, 2002).
II. 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, rattier 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 this Court has 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 this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id, at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "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," Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed., as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence, Berbary v. Torres, No. 02-2463, 2003 U.S. App, LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
III. Limitations Period
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment, See 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review," Id. § 2244(d)(1)(A), A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R. 13, Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application, See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion." Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground." Id.
In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted, . . ." 28 U.S.C. § 2244(d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations, Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is ` properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures.11 Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review), A motion for extension of time to file an appeal docs not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Civ. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements, Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998). But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law," Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y, 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition," 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000), Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably, Smirk v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000), "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, No. 02-2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back11 doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the court of appeals has explained,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations.Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 168 F.3d 762, 780 (5th Cir. 1999)).
IV. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust 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).
Pursuant to AEDPA, a district court may now, 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); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
V. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedure) rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review," Fama v. Comm'r of Corr. Svcs., 235 F, 3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)), This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required," Id
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo., 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence, Id. at 321, "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial, Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding,"). A habeas court is, in short, concerned "`not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved,'" Id., (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances).
VII. Ineffective Assistance of 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 defense." 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 lo 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 Wiggins v. Smith, 539 U.S. ___, No. 02-311, slip op, at S-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability11 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). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickand, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable/' though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691, Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel' s significant trial decisions must be justified by a sound strategy-a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel, See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
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). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV, 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), hut a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994), Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance," Id. (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991), Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial, United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant," Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982), This test applies post-AEDPA. See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).
X. Verdict Against the Weight of the Evidence
To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution., any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction, Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
XI. Legal Claims Frequently Raised in Habeas Corpus Applications
For an explication of the law concerning other claims that are frequently raised before this court in applications for a writ of habeas corpus, see Waters v. McGuiness, 99-CV-0615, 03-MISC-0066 (JEW), 2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y. June 16, 2003) (grand jury claims); Custodio v. Duacans, Nos. 99-CV-2561, 03-MISC-0066 (JEW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y, June 11, 2003) ( Batson challenges); Reyes v. Irwin, 99-CV-3758, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y, June 20, 2003) ( Wade claims); Brathwaite v. Duncan, 00-CV-0860, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXTS 11056, at *4-*5 (E.D.N.Y. June 10, 2003) ( Sandoval claims); Thomas v. Kuhlman, 255 F. Supp.2d 99, 108-09 (E.D.N.Y, 2003) (perjured testimony); Martinez v. Greiner, 99-CV-4663, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11046, at *7 (E.D.N.Y. June 20, 2003) ( Fourth Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003) ( Rasario claims); Beniquez v. Bennett, 00-CV-0985, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11032, at *15-* 16 (E.D.N.Y. June 16, 2003) (prosecutorial misconduct); Sevencan v. Herbert, No. 01-2491, slip op, at 6-13 (2d Cir. Aug. 7, 2003) (public trial); Cox v. Donnelly, 99-CV-8216, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 9886, at *12-*14 (E.D.N.Y, June 12 2003) (shifting burden of proof); Jelinek v. Costello, 247 F. Supp.2d 212, 266-67 (E.D.N.Y. 2003) (right to self-representation); Stewart v. Senkowski, 00-CV-0806, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11028, at *6 (E.D.N.Y. June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz, 98-CV-7837, 00-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11049, at *7-*8 (E.D.N.Y. June 13, 2003) (abuse of discretion in sentencing);
XII. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No, 01-2694, 2003 U.S. App. LEXIS 8326, at *92 (2d Cir. May 1, 2003).
XIII. Analysis of Claims
A.
Petitioner claims that he should have been granted a new trial on the basis of newly discovered evidence.
Any claim that the state court erred as a matter of law does not present a federal question reviewable in a habeas corpus proceeding. See, e.g., Pulley v. Harris, 465 U.S. 37, 41 (1984) (a federal court may not issue a writ of habeas corpus on the basis of a perceived error of state law). "A federal court may not re-examine a state court's interpretation and application of state law." Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir. 1994); see also Harmon v. McVicar, 95 F.3d 620, 623 (7th Cir. 1996) ("Errors of state law do not, in and of themselves, violate the Constitution.") (citation omitted).
In this case, defendant's claim, that the trial court orred in denying defendant's motion for a new trial based on newly discovered evidence, pursuant to N.Y. Criminal Law 330.30(3). In support of his argument on this issue, defendant made no reference to the Constitution or to federal law, nor did he cite to any federal cases. This claim may not satisfy the exhaustion requirement. See Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir. 1984) (references to due process of law were not sufficient to inform state courts of defendant's federal constitutional claim); Kirksey v. Jones, 673 F.2d 58, 60 (2d Cir. 1982), It may be procedurally barred. Nevertheless, because it has no merit, the disposition of this petition should not be delayed. No evidence of any significance was developed after trial.
This claim lacks merit.
B.
Petitioner claims that the prosecutor failed to disclose statements of witnesses who testified for the prosecution at trial. See Palermo v. Rosario, 9 N.Y.2d 286, cert. denied, 368 U.S. 866 (1961) (reversible error as a matter of New York State law for prosecution to fail to give defendant copies of statements of witnesses who will testify for the prosecution). Defendant's claim of a Rosario violation does not present a federal question and is not reviewable in a habeas corpus petition.
Defendant also makes a Brady claim. It is based on defendant's allegation that he was deprived of a fair trial because the People failed to reveal that their witness, Isaac Kin loch, had cooperated with the government against his brother, Stephen Kinloch, and Shawn Powell, in 1989, in a Queens County indictment (Defendant's Brief [Exhibit A] at 23-24), Defendant also accused the People of allowing this same witness, Isaac Kinloch, to testify falsely in response to one question asked of him on cross-examination. According to defendant, the People knew, or should have known, that the response was false (Defendant's Brief [Exhibit A] at 25), Defendant premised his Brady claim on these allegations.
Brady v. Maryland, 373 U.S. 83 (1963), and its progeny require that the prosecution disclose evidence, including impeachment evidence, that is both favorable to the accused and that is material to either guilt or punishment. In Brady, the Supreme Court established, as a matter of federal constitutional law, that the prosecution's failure to disclose such evidence to the defense entitles the defendant to a new trial. This holding is logically limited to evidence actually known to the prosecution or those associated with the State. See United States v. Agurs, 427 U.S. 97, 112 (1976), As the Court of Appeals for the Second Circuit has stated:
A prosecutor is not constitutionally obligated to obtain information dehors his files for the purpose of discovering information which defense counsel can use in impeaching the credibility of a prosecution witness . . . the touchstone of the inquiry under Agurs is principally whether the prosecutor's office "possessed" the information in question at the time of the trial.Morgan v. Salamack, 735 F.2d 354, 358 (2d Cir. 1984).
In the instant case, defendant's allegation of a Brady violation is based on his claim that the prosecution "failed to reveal that Isaac Kinloch had cooperated with the government against Shawn Powell and Stephen Kinloch, his brother, in 1989 in Queens County." This alleged cooperation in 1989, concerning a Queens County indictment, is information dehors the files of the Kings County District Attorney, It is information which the prosecution in this case was not constitutionally obligated to obtain for the purpose of impeaching Isaac Kinloch's credibility. There is no showing that the information was not equally available to defendant and prosecution.
This was not the type of "agreement" to which the Court referred in Giglio v. United States, 405 U.S. 150, 154 (1972), upon which defendant relies when he remarks, "Any agreement between the prosecution and a witness which leads to the testimony of that witness is evidence which must be disclosed under Brady principles". In this case, there was no agreement between the People and Kinloch, nor does defendant now claim that there was any such agreement. He simply relics upon the alleged cooperation of Kinloch and the Queens County prosecutor, five years before this trial, in an unrelated case. Brady was not implicated, even in that case, because Isaac Kinloch did not testify at a trial; he and his codefendants all pleaded guilty before trial commenced.
Whatever may have transpired five years earlier, in a Queens County case in which Kinloch and his codefendants all pleaded guilty, is irrelevant to defendant's case, As the People demonstrated through the affirmation of Queens County District Attorney Paul Schracter, there was no agreement.
This claim is meritless.
C.
C. Defendant claims that "defendant's trial attorney rendered ineffective assistance of counsel because the court deprived the defendant's attorney of a reasonable amount of time to prepare for trial,"
The Abuse of Discretion Claim
On March 4, 1995, defendant was arrested for the murder of Luis Santiago, and he was subsequently indicted for that crime, Philip Smallman, a court-appointed attorney, represented defendant from indictment through motion practice and hearings, until October 16, 1995, the day that that trial was scheduled to begin. On that date, attorney Arthur Lewis submitted a notice of appearance and informed the court that he had been retained by defendant on the previous Friday, and that he would be replacing Mr. Smallman.
The court agreed to give Mr. Lewis a two-day adjournment before beginning jury selection (although there was a jury panel waiting), Mr. Lewis stated that he needed a full two weeks to prepare. Following this statement, there were lengthy discussions between the court and Mr. Lewis, during which Mr. Smallman, the court-appointed attorney, was present and ready for trial.
After hearing that the People might lose a witness who had been threatened, the court refused to grant a two-week adjournment, and it informed Mr. Lewis that he could withdraw his notice of appearance, if he wanted to do so. When Mr. Lewis excepted to the court's ruling, the court stated that Mr. Smallman, a competent attorney, would be defendant's trial counsel.
The Court did not refuse to allow defendant to be represented by Mr. Lewis, and after consulting with defendant, and at defendant's request, Mr. Lewis informed the court that he would "second-scat Mr. Smallman" at the trial As a result, Mr. Smallman continued as court-appointed counsel, along with Mr. Lewis as defendant's retained attorney, thereby ensuring that, at all times throughout the trial, defendant would receive adequate representation, including the counsel of his choice.
Although defendant has not directly placed in issue the court's denial of Mr. Lewis's application for a two-week adjournment, defendant suggests that it was an abuse of discretion, claiming that he received ineffective assistance of counsel because his attorney did not have a reasonable amount of time to prepare for trial Thus, by implication, defendant blames the court, rather than Mr. Lewis, for the alleged ineffective representation.
The decision by the court to deny Mr. Lewis's request for a two-week adjournment, made after lengthy discussion and due consideration of the interests of all parties, was a proper exercise of the court's discretion. The trial had been scheduled to begin on October 16, 1995, and that information had been imparted to defendant in court on September 26. Nevertheless, defendant waited until October 13 to retain Mr. Lewis to replace Mr. Smallman. The court viewed this as a delaying tactic, and, while allowing Mr. Lewis to act as co-counsel, it refused to grant a two-week adjournment.
Absent exigent or compelling circumstances in this case, the court's refusal to grant the requested adjournment constituted an appropriate exercise of its discretion.
The Claim of Ineffective Assistance of Trial Counsel
According to the defendant, "adequate preparation was obviously missing. This inadequate preparation caused the defendant's new attorney to fail to call crucial witnesses for the defense." Mr. Lewis claimed that, because of the severe time constraints under which he was forced to prepare for trial, four witnesses Sandra Santiago, Victoria Robinson, Shaniqua Johnson, and Annie Woody — "could not have been discovered with the exercise of due diligence before trial," The fact that counsel did not "discover" these witnesses and have them testify for the defense is the only alleged ineffectiveness suggested by defendant on appeal. He did not claim that the representation he received was inadequate in any other respect, nor could he make such a claim in light of the record of his trial.
As noted in A, infra, defense counsel did not require any additional time for trial preparation in order to" discover" any of these witnesses, Two of them — Sandra Santiago and Annie Woody — were in court during the trial, and they testified at the post-trial hearing that they had spoken to defense counsel at that time, and had told him that they were present at the scene of the shooting.
In addition, the other two witnesses, Victoria Robinson and Shaniqua Johnson, testified at the healing that they had both been present at the scene with Sandra Santiago. This information was available to counsel, had he asked Ms. Santiago if anyone else was with her at the time of the shooting. Defendant's characterization of them as "crucial witnesses for the defense" is belied by the record of their post-trial hearing testimony. None of them witnessed the shooting, None of them could contradict any part of Isaac Kin loch's eyewitness account of the incident. Even if the jury had beard their testimony; there is not a reasonable probability that the verdict would have been more favorable to defendant.
These claims lack merit.
D.
Defendant bases one of his claims of ineffective assistance of trial counsel on his attorney's failure to object to Detective Deutsch's testimony that defendant became a suspect when the police received an "anonymous tip," providing defendant's address.
At trial, Detective Deutsch testified that he did not go to mat address at the time he received the tip, because defendant had not been identified as the perpetrator of the crime. He did not go to that address until January 4, 1993, and when he did go, defendant was not there. It was not until March 3, 1995 — more than two years later — that the detective finally located defendant in Utica, New York, and brought him back to Brooklyn.
The prosecutor questioned Detective Deutsch about the various steps he had taken to find defendant during that twenty-six months. On this subject, the detective's testimony provided the jury with an explanation of the events preceding defendant's arrest and the long delay in prosecution. Of necessity, it began with the telephone tip which included defendant's address, although, as the detective testified, he did not use the information at that time.
The testimony about the tip was a necessary part of the testimony properly admitted to provide the jury with an understanding of the procedures used by the detective, over the course of two years, in his efforts to locate defendant. Without this explanation, the jury would have been free to speculate about why defendant was not apprehended sooner, particularly in light of the fact that the People presented an eyewitness to the murder, Even assuming that defense counsel should have objected to the testimony, defendant cannot show mat his failure to do so affected the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 669 (1984), A review of the record demonstrates that defendant received effective assistance of trial counsel.
This claim lacks merit.
E.
Defendant asserts that appellate counsel, Robert E. Nicholson, Esq., provided ineffective assistance in that he failed to claim, on appeal, that defendant was deprived of his constitutional right to be present at a material stage of the trial, pursuant to N.Y. Crim. Proc. Law § 310.30, Appellate counsel's conduct was within the wide range of professionally competent assistance, The issue advanced by defendant is based on defendant's misrepresentation of the relevant statute, It is frivolous.
To establish a claim of ineffective assistance of counsel, a habeas petitioner must establish that counsel supplied deficient representation and that petitioner suffered prejudice as a result of that deficient representation, Strickland v. Washington, 466 U.S. 668 (1984); see also Murray v. Carrier, 477 U.S. 478, 488 (1986) ( Strickland standard applied to review of claim of ineffective assistance of appellate counsel). In order to prevail under the Strickland standard, defendant must establish both that the representation furnished by counsel was objectively unreasonable and that, but for the allegedly deficient performance, the result of the appeal would probably be different. See Strouse v. Nersesian, 824 F.2d 1294 (2d Cir.), cert. denied, Abdouch v. United States, 484 U.S. 957 (1987).
In Point I of his 39-page brief, appellate counsel argued that the trial court erred when it denied defendant's motion for a new trial on the basis of newly discovered evidence. Counsel presented cogent arguments in support of trial counsel's position, based on testimony introduced at an evidentiary hearing held after trial. Appellate counsel's arguments were supported by numerous appropriate case law citations, as well as references to relevant sections of the New York's Criminal Procedure Law.
In Point II, appellate counsel claimed that the prosecution had not provided defendant with certain Rosario and Brady material. This claim was based on the alleged failure of the People to disclose alleged prior agreements between its principal witness and the prosecution. In Point III, counsel argued that defendant was deprived of a fair trial by the ineffective assistance of counsel, occasioned by the court's refusal to grant counsel a two-week adjournment to prepare for trial. In Point IV, counsel claimed that defendant's sentence was excessive and harsh.
In all of these points counsel's arguments were well-written and persuasive; demonstrating counsel's firm grasp of the issues. They contained appropriate citations to ease law supporting positions.
During jury deliberations, at 2:48 p.m., the jurors sent a note to the court, requesting further instructions on witness credibility and reasonable doubt, including an example of reasonable doubt. At that time, defendant was not present because of a New York Correction Department lockdown (Trial transcript at 587-88).
The court proposed that the jury be instructed to stop their deliberations and go to dinner, after which the court would reconvene at 7:30. The court hoped that, at that time, defendant would be produced "so we can proceed with the jury's note." The court then stated, "As I indicated at the bench, based upon the note, I am simply going to reread to them my charge on reasonable doubt and my charge on witness credibility and [,] counsel [,] you indicated that although they wanted an example of reasonable doubt, you objected to that, Is that correct?" Counsel responded, "That is correct," whereupon the court agreed that, in terms of case law, there was no basis for giving examples to the jurors (Trial transcript at 588-89).
After defendant was returned to the courtroom at about 7:30 p.m. the court responded to the note, repeating its instructions on reasonable doubt and witness credibility. In compliance with defense counsel's request, the court did not provide any examples of reasonable doubt (Trial transcript as 590, 592-98), Defendant was not deprived of his right to provide "meaningful input" into the court's instructions to the jury because there was no "meaningful input" that he could have provided.
This claim has no merit.
F.
No other possible claim is more than frivolous.
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted. Petitioner made no substantial showing of the possible denial of a constitutional right, He may, as already indicated, seek a certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.