Opinion
00 Civ. 5510 (LAP)(HBP)
September 26, 2001
OPINION AND ORDER
I. Introduction
By notice of motion dated January 29, 2001, petitioner seeks to be released on bail pending resolution of her petition. Respondents have failed to submit any response to the motion. Nevertheless, for the reasons set forth below, petitioner's motion is denied in all respects.
It should come as no surprise to the District Attorney's Office that I rely upon the arguments of both sides to decide any motion and that, with respect to pro se habeas corpus petitions, submissions by respondents are particularly important to inform me of the relevant facts and legal principles. Where, as here, counsel for respondents defaults in responding to a petitioner's motion, my job in reaching the correct result is made substantially more difficult. In addition, since I have no way of investigating the facts independently, the District Attorney's default leaves me with no factual information other than that which is set forth in petitioner's papers. Hopefully, the District Attorney's default here is an isolated event.
II. Facts
Petitioner seeks to challenge a 1996 conviction for one count of manslaughter in the second degree and a 1999 conviction for one count of murder in the second degree, in violation of new York Penal law §§ 125.15 and 125.25, respectively. Petitioner is currently incarcerated pursuant to the latter judgment and is serving an indeterminate sentence of fifteen (15) years to life.
Petitioner asserts only one claim in support of her petition, namely, that she was denied the effective assistance of appellate counsel. Petitioner claims that appellate counsel was ineffective because he failed to prevail on petitioner's claim that an autopsy report should have been suppressed.
III. Analysis
Although no rule or statute expressly empowers a federal habeas court to grant bail pending the resolution of a habeas corpus petition, "`[a] district court has inherent power to enter an order affecting the custody of a habeas petitioner who is properly before it contesting the legality of his custody.'" Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001), quoting Ostrer v. United States, 584 F.2d 594, 596 n.l (2d Cir. 1978) See also Shepard v. Taylor, 433 F. Supp. 984, 987 (S.D.N.Y.), aff'd without opinion, 573 F.2d 1295 (2d Cir. 1977); Ketchum v. Ward, 391 F. Supp. 332, 334 (W.D.N.Y. 1975)
In order to prevail on an application for bail, a habeas petitioner must meet a "difficult" standard. Grune v. Coughlin, 913 F.2d 41, 44 (2d Cir. 1990). "[A] habeas petitioner should be granted bail only in `unusual cases,' . . . or when "extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective,' . . . ." Ostrer v. United States, supra, 584 F.2d at 596 n.l (citations omitted). Accord Mapp v. Reno, supra, 241 F.3d at 226; Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981); McGann v. Kelly, 891 F. Supp. 128, 132 (S.D.N.Y. 1995). Some courts have applied this test through the following three-factor test:
1. Are substantial claims set forth in the petition?
2. Is there a demonstrated likelihood the petition will prevail?
3. Are there extraordinary circumstances attending the petitioner's situation which would require the grant [of bail] in order to make the writ of habeas corpus effective, presumably if granted? In short, is this case distinguishable from other habeas corpus cases?Richard v. Abrams, 732 F. Supp. 24, 25 (S.D.N.Y. 1990), quoting Rado v. Meachum, 699 F. Supp. 25, 26-27 (D. Conn. 1988). See also Ketchum v. Ward, supra. 391 F. Supp. at 335 ("[I]n the absence of exceptional circumstances — whatever that may include — the court will not grant bail prior to the ultimate final decision unless petitioner presents not merely a clear case on the law, . . . but a clear, and readily evident, case on the facts. Merely to find that there is a substantial question is far from enough.") See generally 1 James S. Liebman, Randy Hertz, Federal Habeas Corpus Practice Procedure § 14.2 at 621 (3d ed. 1998).
Petitioner's sole claim is that she was denied the effective assistance of appellate counsel. Such claims are analyzed under the now familiar test of Strickland v. Washington, 466 U.S. 668 (1984). Smith v. Robbins, 528 U.S. 259, 285 (2000) Petitioner must meet a heavy burden to prevail on this claim.
Pursuant to Strickland, the standard for demonstrating ineffective assistance of counsel is a difficult one, as "[j]udicial scrutiny of counsel's performance must be highly deferential," and the court will grant counsel great latitude in the reasonableness of his conduct of the case. [ 466 U.S. at 689] To prevail on such a claim, [petitioner] must: (1) overcome a strong presumption that counsel's conduct was reasonable and show that counsel's performance "fell below an objective standard of reasonableness" under "prevailing professional norms" and (2) "affirmatively prove prejudice" by demonstrating "but for counsel's unprofessional errors, the result of the proceeding would have been different." [ 466 U.S. at 688, 693-94] Further, a court "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." [ 466 U.S. at 690] . Accordingly, the court may not look upon counsel's performance with the assistance of hindsight.United States v. Shaoul, 95 Civ. 5268 (DLD), 1996 WL 120713 at *5 (S.D.N.Y. Mar. 18, 1996), aff'd without opinion, 104 F.3d 351 (2d Cir. 1996). See also Rivera v. Scully, 92 Civ. 6659 (MBM), 1993 WL 454209 at *5 (S.D.N.Y. Nov. 2, 1993), aff'd without opinion, 40 F.3d 1237 (2d Cir. 1994) ("The standard for [succeeding on claims of ineffective assistance of counsel] is extremely difficult to meet."); Rios v. United States, CV-91-4384 (CPS), 1992 WL 328931 at *5 (E.D.N.Y. Oct. 13, 1992) ("To sustain an ineffective counsel argument, the defendant must meet a rigorous standard.").
Although the ultimate outcome of petitioner's claim cannot be determined at this time, petitioner has not shown a likelihood that she will prevail. Petitioner was convicted for causing the death of her minor child. Her claim here appears to be based on the fact that she refused to consent to the performance of an autopsy of the child's body for religious reasons but that an autopsy was performed over her objection, and the resulting report offered in evidence against her. However, New York law permits autopsies to be conducted over the religious objections of the deceased's next of kin in connection with the investigation of a possible homicide. N.Y. Pub. Health L. § 4210-c. Those courts which have considered similar statutes enacted in other states have found such statutes to be constitutional. Yang v. Sturner, 750 F. Supp. 558, 560 (D.R.I. 1990); Montgomery v. County of Clinton, 743 F. Supp. 1253, 1259 (W.D. Mich. 1990), aff'd without opinion, 940 F.2d 661 (6th Cir. 1991) Given the fact that New York State law authorizes autopsies in connection with homicide investigations, notwithstanding religious objections and given the fact that such statutes appear to be constitutional, it appears that petitioner will have an uphill fight to establish that her appellate counsel was ineffective for failing to argue successfully that the autopsy report should have been suppressed. Certainly, she has not shown that she will probably succeed on this claim.
Second, petitioner has not shown that her release on bail is necessary to preserve the effectiveness of a grant of habeas corpus. According to the New York State Department of Correctional Services web site, petitioner is not eligible for parole until October 2007, New York State Dep't of Corr. Servs. Inmate Information, available at http://www.nysdocs.docs.state. ny.us (last visited Sept. 24, 2001); in all likelihood, her petition will be resolved substantially before that date. Thus, a grant of bail is not essential to preserve the effectiveness of the relief sought by petitioner.
IV. Conclusion
Accordingly, for all the foregoing reasons, petitioner's application for bail pending the disposition of her petition for a writ of habeas corpus is denied in all respects. The pending motion was inadvertently docketed twice by the Clerk's Office as Docket Items 18 and 19. This Opinion and Order disposes of both Docket Items.