Opinion
01-CV-1660 (JBW), 03-MISC-0066 (JBW)
July 10, 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
Petitioner was arrested after selling two small bags of crack cocaine to an undercover police officer, who had been directed to petitioner by petitioner's cousin. Upon his arrest, twenty dollars in pre-recorded "buy money" was found in petitioner's pocket.
Petitioner was charged with third degree criminal sale of a controlled substance and criminal facilitation. After a jury trial he was convicted of the sale charge and acquitted of the facilitation charge. He was sentenced as a predicate felon to 10 to 20 years in prison.
Petitioner's conviction and sentence were affirmed by the Appellate Division on direct appeal. Leave to appeal to the New York Court of Appeals was denied. A motion for a writ of error coram nobis, urging that petitioner's appellate counsel was ineffective, was denied by the Appellate Division. No other collateral proceedings relevant to the instant petition were initiated.
In the present application for a writ of habeas corpus, petitioner claims (1) that his appellate counsel was ineffective for failing to raise a claim under Batson v. Kentucky that a prospective juror was peremptorily challenged by the prosecutor based on her race; and (2) that he was denied a fair trial by the court's reading of an Allen charge to the jury and by its failure to inquire whether there was any likelihood that the jurors could break their deadlock.
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, 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 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. "[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). 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. 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).
IV. 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.
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 procedural rule as a separate basis for its decision).
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). When a state court "says that a claim is `not preserved for appellate review' and then ruled `in any event' on the merits, such a claim is not preserved." Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996).
V. 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 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). 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." Strickland, 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, No. 99-2261, 2003 U.S. App. LEXIS 2511, at *3 (2d Cir. Feb. 12, 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. 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 also 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), but 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).
VI. Batson Challenges
"More than a century ago, the [Supreme] Court decided that the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully excluded." Batson v. Kentucky, 476 U.S. 79, 85 (1986) (citing Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880)). In Batson, the Court resolved certain evidentiary problems faced by defendants trying to establish racial discrimination in peremptory strikes. It established a three-step burden-shifting framework for the evidentiary inquiry into whether a peremptory challenge is race-based. First, the party challenging the other party's attempted peremptory strike must make a prima facie case that the nonmoving party's peremptory is based on race. Batson, 476 U.S. at 96-97. Second, the nonmoving party must assert a race-neutral reason for the peremptory challenge. Id. at 97-98. The nonmoving party's burden at step two is very low. Under Purkett v. Elem, 514 U.S. 765 (1995) (per curiam), although a race-neutral reason must be given, it need not be persuasive or even plausible. Id. at 768. Finally, the court must determine whether the moving party carried the burden of showing by a preponderance of the evidence that the peremptory challenge at issue was based on race. Batson, 476 U.S. at 96, 98.
Throughout the three Batson steps, the burden remains with the moving party. "It is not until the third step that the persuasiveness of the justification becomes relevant — the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination." Purkett, 514 U.S. at 768. Typically, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. Because the evidence on this issue is often vague or ambiguous, the best evidence often will be the demeanor of the attorney who exercises the challenge. Evaluation of the attorney's credibility lies "peculiarly within a trial judge's province." Wainwright v. Witt, 469 U.S. 412.428 (1985).
VII. Certificate of Appealability
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).
VIII. Analysis of Claims
Petitioner first claims that his appellate counsel was ineffective for failing to raise a claim under Batson v. Kentucky that a prospective juror was peremptorily challenged by the prosecutor because she was African-American. She was the first venire-person of African-American descent presented to the parties out of 22 other prospective jurors. The trial court saw no "pattern of either race or gender discrimination" and therefore initially concluded that the defense had not made out a prima facie case of discrimination. Trial Tr. at 4-5. After reading case law provided by the defense, however, the trial court reversed itself the next day and required the prosecutor to articulate its race neutral reason for challenging the juror.
The prosecutor explained that she challenged the juror because her godson's father was accused of selling narcotics. In response to defense counsel reminder that the prosecutor had not challenged a similarly situated white juror — whose boyfriend's son had been arrested numerous times on drug charges. The prosecutor's rejoinder was that while the white juror had stated that she felt her boyfriend's son was guilty of the narcotics charges, the African-American juror refused to answer specific questions about the narcotics charges relating to her godson's father. She therefore felt that the African-American juror would be biased against the prosecution. The court concluded that the state had provided a race-neutral reason for challenging the juror and that the reason was not pretextual.
The trial court's factual determination that the prosecutor's reason for challenging the juror was reasonable. The trial judge was in the best position to assess the credibility of the prosecutor, and from the cold record there seems to have been no impropriety. The trial court was reasonable in concluding that there was no Batson violation. Petitioner's appellate counsel was not ineffective for choosing to pursue another, stronger issue an appeal. Habeas relief is not warranted on this ground.
Petitioner also claims that he was denied a fair trial by the court's reading of an Allen charge to the jury and by its failure to inquire whether there was any likelihood that the jurors could break their deadlock. "In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985). In determining whether a trial court's instruction to the have improperly coerced a jury, the Supreme Court has held that a reviewing court must look at the supplemental charge given by the judge "in its context and under all the circumstances." Lowenfeld v. Phelps, 484 U.S. 231, 237 (1988). When weighing the prejudice from an allegedly improper charge, a reviewing court must view the instruction in its total context. Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). The question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147.
A complete account of the timing of the jury's deliberations, of their notes to the court, and of the trial court's responses is set forth in respondent's corrected memorandum of law in opposition to the petition for a writ of habeas corpus, at pages four through nine. It is unnecessary to go into great detail here. After deliberating for some time, the foreperson sent a note to the court stating that the jury had reached a unanimous decision on one count of the indictment, but that "We all cannot come to the same conclusion on the first count. Some of the jurors do not [find] certain witnesses credible. Therefore we cannot have a unanimous vote on the first count. The jury has made an unanimous decision on the second count. Please advise." Trial Tr. at 1112. At this point, defense counsel asked the court to accept a partial verdict pursuant to section 310.70 of the New York Criminal Procedure Law. The court proposed an Allen charge, to which defense counsel objected, urging the court to interview the jurors to see whether more deliberation would likely be fruitful. The trial court determined that interviewing the jurors was unnecessary, and proposed a "compromise" by which he would call the jury into the courtroom, let them know that they had not been deliberating long, and asking them to continue to deliberate. Defense counsel acceded to this proposal.
During further deliberations, two "factions" seemed to develop in the jury, leading one group of three jurors to send out a note to the judge claims harassment and another group of the remaining nine jurors to send out a note claiming that some jurors refused to deliberate. As dictated by the court, the note from the group of nine stated, in part, "Of the nine jurors, who agree, we believe the remaining three jurors who at times have refused or ceased to deliberate and in unison all have . . . problems with all three police officers who presented their testimony as all three not being credible." At this point, defense counsel again requested that the court make a determination whether further deliberations would be of any consequence, arguing that in light of the notes from two factions of the jury, further deliberation would serve no purpose. The court rejected defense counsel's request to accept the partial verdict — concluding that there was a "reasonable possibility of ultimate agreement," Trial Tr. at 1130 — and instead delivered an Allen charge.
The trial court read the jury the following supplemental charge:
Ladies and gentlemen, 1 have your two notes, most recent notes, which we have marked Court Exhibit 8 and 9. And those notes have been discussed and read to counsel and the DA. Now, it is certainly important and desirable that if you can reasonably bring, agree upon a verdict as to each of the counts in the indictment, it would be extremely, I repeat, helpful to the parties for the parties involved with DA, the defendant and defense counsel, Mr. Zissou, the case will have to be tried if you cannot reach a verdict before another jury selected in the same manner in front from the same source as you were chosen.
There is no reason be believe that the case will ever be submitted to a jury more competent then yourselves to decide, and I say that very sincerely, and willful knowledge of the magnitude or words I am speaking. I don't think there are any people who could be any better suited to listen to this evidence and make a decision on this case.
Of course, by pointing out to you, the desire, reliability of reaching a verdict, the Court is not suggesting to any of you that you surrender your convictions of what the truth is and of the weight and the affect of all of the evidence.
It does however, wish to call to your attention that while each of you must decide the case for yourself and not merely acquiesce the conclusion of your fellow jurors, you should examine the questions submitted to you with candor and frankness and with proper difference to and regard for the opinions of each other and not to be arbitrary.
You should listen to each others arguments with a disposition to be convinced. If I should say it is your duty, of course, after full deliberation and consideration of all of the evidence to agree upon a verdict as to each of the counts in the indictment, if this can be done without violence to your individual judgments and your conscious [sic]. With this view, I direct you return to your deliberations.
I want to remind you before I ask you to leave that not withstanding my earlier comments that you were deliberating perhaps four or five hours. It really has not been all that long a period of deliberations.
Now, I know you're having difficulties, but you're all intelligent people and all we ask is that you communicate with each other with a view towards trying to agree upon a verdict as to each count of the indictment. If you can do that. I will ask you, at this point, to please return to your deliberations if you find that you need to write back or you need to write a note very soon we are here to entertain your note and to listen to anything you may wish to say or add to what you have said. All right. With that, I will ask you to return, please.
Trial Tr. at 1137-40. Upon completion of the charge, defense counsel immediately moved for a mistrial, claiming that the instruction was coercive. The jury shortly thereafter came back with verdicts on both counts of the indictment.
The Appellate Division found no significant error in the trial court's handling of the juror's notes or in its supplemental charge:
During its deliberation, the jury sent a note to the trial court stating that it had reached a verdict with respect to one of the offenses submitted to it but could not reach a verdict on the other offense. The trial court properly found that there was a reasonable possibility of ultimate agreement on the unresolved offense and did not err in failing to poll the jury as to the seriousness of their alleged deadlock prior to instructing the jury to continue its deliberations (see, CPL 310.70 [1] [b]). Further, the Allen charge ( Allen v. United States, 164 U.S. 492), subsequently given by the court, viewed as a whole, was not unbalanced or coercive ( see, People v. Cowen, 249 A.D.2d 560).People v. Woods, 693 N.Y.S.2d 163. 164 (App.Div. 1999).
The Appellate Division's conclusions were reasonable. The trial court both complied with the procedural statute and gave the jury a supplemental charge that was not unduly coercive. Although the trial court should have refrained from stating to the jury that a retrial would be burdensome to the parties, on balance the charge was unremarkable and did not result in the denial of a fair trial to petitioner. It is also unfortunate that the jury stated its numerical division and indicated the nature of their division. Providing an Allen charge in such circumstances may suggest to minority jurors that the court expects them to acquiesce to the will of the majority. Nonetheless, the court emphasized that the jurors should not abandon their strongly held convictions. The charge was not unduly coercive.
In addition, the court reasonably concluded that the jury had not reached an impassable deadlock. The jury had not been deliberating long before stating to the court that "factions" had developed. The procedural statute, section 310.70, does not require that the trial court make direct inquires of the jury. At any rate, the jury's ultimate success in reaching a verdict demonstrates the harmlessness of any technical error that might arguably have been committed by the court on this score.
Petitioner was not denied a fair trial by this charge or by the court's handling in general of the jury during deliberations. Habeas relief is not warranted.
I. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).
SO ORDERED.