Appeal from an order of the Southern District of New York, John M. Cannella, Judge, denying appellant's petition for a writ of habeas corpus sought on the grounds that the state trial court lacked jurisdiction over the offense and appellant received ineffective assistance of appellate counsel in violation of the Sixth and Fourteenth Amendments.
Lumbard, Mansfield and Winter, Circuit Judges.
MANSFIELD, Circuit Judge:
Antonio Roche appeals from an order of the Southern District of New York, John M. Cannella, Judge, denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Roche was convicted in the Supreme Court of the State of New York, Bronx County, of two counts stemming from his possession and sale of heroin. On appeal his counsel successfully argued that his conviction on one count charging sale of heroin must be reversed and remanded for a new trial because of the trial court's failure to charge the jury on the defense's theory that Roche was acting as the agent of an undercover officer and that he was purchasing heroin on the officer's behalf rather than selling it to the officer. His conviction on the count charging possession of heroin, however, was affirmed. In this collteral proceeding Roche argues that his detention is unlawful because Bronx County had no jurisdiction over the possession count and because his appellate counsel's failure to raise the jurisdictional argument in the court constituted ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments. The district court rejected both of Roche's contentions. We affirm.
Roche was indicted on January 29, 1974, by a Bronx County grand jury on charges of Criminal Sale of a Controlled Substance in the First Degree, N.Y. Penal Law, § 220.43 (McKinney 1980), and Criminal Possession of a Controlled Substance in the First and Third Degrees, N.Y. Penal Law §§ 220.21 and 220.16. The evidence at the state court jury trial, which began on November 4, 1974, showed that on November 1, 1973, Roche met undercover police officer Sylvio Lugo at 170th Street and Morris Avenue in the Bronx; the meeting was pursuant to an earlier agreement that Roche would obtain heroin for Officer Lugo. The men proceeded to the "Les Nanettes Bar," in Manhattan, New York County, where Officer Lugo gave Roche $4,000 cash. The men then proceeded to the "Cheetah Discotheque," also in Manhattan, where Roche surreptitiously received a package of heroin from a shabbily dressed individual, and passed it on to Lugo. On the merits the evidence of guilt of unlawful possession introduced by the state was overwhelming.
Roche did not call any witnesses in his defense. After closing arguments by both sides, however, his trial counsel moved to dismiss the entire indictment for want of jurisdiction in Bronx County, arguing that the crime, if any, had been committed in New York County. Under New York Criminal Procedure Law § 20.40, jurisdiction is proper in the county where an element of the crime occurs. Counsel did not distinguish between the sale and possession counts. The trial judge denied the motion because one element of the sale -- the agreement to sell -- took place in Bronx County.
On November 13, 1974, the jury returned guilty verdicts on all three counts. The trial court dismissed the third county (third degree possession) as a lesser included offense, and sentenced Roche to two concurrent terms of imprisonment of from 15 years to life. Roche appealed to the Appellate Division, First Department, on January 3, 1975, where he was represented by New York Legal Aid Society appointed counsel who, in a brief dated April 1977, urged several grounds for reversal, including that the trial court had erred in refusing to charge the jury on the "agency defense." However, he did not raise the jurisdictional issue alluded to by trial counsel at the close of the trial.
On July 12, 1977, the Appellate Division reversed Roche's conviction for sale of heroin on the ground that the trial court erred in refusing to charge the jury on the "agency" defense. The Appellate Division ruled that "one who acts solely as the agent of the buyer cannot be convicted of the crime of selling narcotics," and that the evidence in Roche's case was sufficient to raise a factual issue of agency that should have been submitted to the jury. People v. Roche, 58 A.D.2d 783, 784, 396 N.Y.S.2d 367, 368 (1st Dept. 1977). However, the court affirmed Roche's conviction for possession of heroin.
Both the state and Roche appealed from the Appellate Division's decision. In a brief served on the District Attorney's office on March 10, 1978, Roche's counsel pursued only the agency argument, which was also the sole issue raised by the state with respect to the sale count. Oral argument was held on March 29, 1978, and on June 15, 1978, the Court of Appeals affirmed the Appellate Division in all respects. People v. Roche, 45 N.Y.2d 78, 407 N.Y.S.2d 682, 379 N.E.2d 208 (1978). The United States Supreme Court denied Roche's petition for a writ of certiorari on November 6, 1978. Roche v. New York, 439 U.S. 958, 58 L. Ed. 2d 350, 99 S. Ct. 359 (1978).
Since Roche had been convicted on the possession count, the District Attorney decided not to bring the sale count on for retrial. On remand from the Court of Appeals, the Supreme Court, Bronx County, on July 14, 1978, accordingly granted the state's motion to dismiss the sales count.
By motion dated February 4, 1980, Roche commenced the first of four collateral attacks upon his conviction. He first sought to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10 on the ground that Bronx County lacked jurisdiction over the possession count. The state responded that Roche had waived the jurisdictional argument by failing to pursue it on his direct appeal and, in the alternative, that jurisdiction was proper in Bronx County. The motion was denied without opinion on March 6, 1980. On May 1, 1980, Roche was denied leave to appeal to the Appellate Division, a decision that was not appealable to the Court of Appeals.
Roche then filed his first petition for a writ of habeas corpus in the Southern District of New York, arguing that Bronx County lacked jurisdiction to try him for criminal possession of the heroin. By order dated September 8, 1981, Judge Cannella found that Roche was barred by Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977), from raising the jurisdictional claim in a federal proceeding because he had failed to pursue it in accordance with state procedural rules and had not shown good cause for that failure.
Roche did not appeal from Judge Cannella's order.Instead, he filed a second state court motion on December 10, 1981, this time claiming that his Sixth Amendment right to counsel had been violated by his appointed appellate counsel's failure to raise the jurisdictional argument in the Appellate Division. On December 21, 1981, the Supreme Court, Bronx County, denied Roche's motion "with leave to renew in the proper forum." On July 9,1982, appellant sought permission to file an untimely application for leave to appeal to the Appellate Division. Appearing prose, Roche stated that the retained attorney representing him in the second coram nobis petition -- the third attorney to appear on his behalf since his indictment -- had not notified him of the denial of the motion, or of his right to seek appeal. In the motion for permission to file an untimely application for leave to appeal, Roche again presented his claim that he had not received effective assistance of counsel. Leave to appeal was denied on August 5, 1982.
On November 8, 1982, Roche returned to the Southern District of New York, filing his second petition in that court for a writ of habeas corpus. He asked the district court to reconsider its prior ruling on the jurisdictional claim in view of Washington v. Harris, 650 F.2d 447, 451-52 (2d Cir. 1981), cert. denied, 455 U.S. 951, 71 L. Ed. 2d 666, 102 S. Ct. 1455 (1982), and also argued that he had received ineffective assistance of counsel on appeal of his conviction in the state court. In an order dated April 25, 1983, Judge Cannella denied the petition on the grounds that Roche had not exhausted his ineffective assistance of counsel claim in the state courts. After a motion for reconsideration, however, Judge Cannella reversed himself on September 15, 1983, finding that the Appellate Division had addressed the merits of Roche's pro se Sixth Amendment claim when it denied Roche leave to appeal on the ground that "no question of law or fact" had been presented that deserved review. Judge Cannella then denied the petition on the merits, finding that the jurisdictional claim was still barred for failure to comply with state procedure ...