United States District Court, Eastern District of New York
May 8, 1990
DEREK CHISHOLM, PETITIONER,
ROBERT HENDERSON, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY; ROBERT ABRAMS, ATTORNEY GENERAL, STATE OF NEW YORK; JOHN SANTUCCI, DISTRICT ATTORNEY, COUNTY OF QUEENS, RESPONDENTS.
The opinion of the court was delivered by: McLAUGHLIN, District Judge.
MEMORANDUM AND ORDER
Petitioner, pro se, seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2254. For the reasons discussed below, the petition
Petitioner was convicted on May 13, 1986 of robbery in the
first degree and robbery in the second degree in the New York
Supreme Court, Queens County. Following the jury's verdict of
guilty on both charges, petitioner was sentenced to serve a
term of 8 1/3 years to 25 years on the first charge, and 5 to
15 years on the second. Both sentences were to run
On February 11, 1987, petitioner was found guilty of robbery
in the first degree in a wholly independent proceeding
involving a separate crime. Following that jury's verdict,
petitioner was sentenced to serve 8 1/3 to 25 years. This
sentence was to run consecutively to his first sentence.
Petitioner, however, has appealed the second conviction, and
that appeal is still pending in the Appellate Division.*fn1
Petitioner now seeks a writ of habeas corpus on his first
conviction, alleging: (1) ineffective assistance of counsel;
(2) prosecutorial misconduct; (3) wrongful denial of
an application for the assignment of substitute counsel; and
(4) an excessive sentence. Respondents oppose the writ, arguing
that petitioner has failed to exhaust state remedies on one of
A state prisoner's application for a writ of habeas corpus
may not be granted by a district court until "it appears that
the applicant has exhausted the remedies available in the
courts of the state." 28 U.S.C. § 2254(b).
An applicant shall not be deemed to have exhausted
the remedies available in the courts of the State,
within the meaning of this section, if he has the
right under the law of the State to raise, by any
available procedure, the question presented.
Id. at § 2254(c); see Picard v. Connor, 404 U.S. 270, 275, 92
S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Boothe v.
Superintendent, 656 F.2d 27, 31 (2d Cir. 1981). Respondents
argue that the federal claim of prosecutorial misconduct has
never been presented to the state courts.
The issue of whether a federal claim was "fairly presented"
to the state courts arose in Daye v. Attorney General of New
York, 696 F.2d 186 (2d Cir. 1982), cert. denied, 464 U.S. 1048,
104 S.Ct. 723, 79 L.Ed.2d 184 (1984). Daye enumerated four
alternative ways by which a defendant may properly alert a
state court to his federal claim:
(A) reliance on pertinent federal cases employing
(B) reliance on state cases employing
constitutional analysis in like fact situations,
(C) assertion of the claim in terms so particular
as to call to mind a specific right protected by
the constitution, and
(D) allegation of a pattern of facts that is well
within the mainstream of constitutional
Id. at 194.
Petitioner's appellate brief, bristling with New York State
cases, does not cite any federal decisions in his argument for
prosecutorial misconduct. The state law supporting petitioner's
prosecutorial misconduct claim does not, at least by way of
case law, alert the state court to the federal constitutional
nature of the claim. This type of allegation, however, clearly
falls within the mainstream of constitutional litigation,
thereby satisfying the exhaustion requirement.
I. PROSECUTORIAL MISCONDUCT
The prosecutorial misconduct alleged does not approach the
standard of Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct.
1868, 40 L.Ed.2d 431 (1974), namely, that a prosecutor's
remarks "so infected the trial with unfairness as to make the
resulting conviction a denial of due process." Id. at 643, 94
S.Ct. at 1871. As stated by the Second Circuit,
"[C]onstitutional error occurs only when the prosecutorial
remarks were so prejudicial that they rendered the trial in
question fundamentally unfair." Garofolo v. Coomb,
804 F.2d 201, 206 (2d Cir. 1986) (quoting Cobb v. Wainwright,
609 F.2d 754, 756 (5th Cir.)). Petitioner challenges five remarks in the
1. That sometimes you have to go with what you
got. And in that respect, it is a good
summation by [defense counsel]. But it's
another thing to try and blow smoke past
people and to distort facts. Tr. at 328.
2. Wasn't it ironic that it turns out that when
he spent his time in Rikers, it was because of
a conviction of criminal possession of stolen
property? Stolen property. This case is about
theft. Tr. at 338.
3. But did you notice when he was on the stand,
ladies and gentlemen, conspicuously absent
from his testimony was a clear statement to
you . . . that ["]I never did this robbery.["]
Tr. at 340.
4. Do you think he has a reason to remember being
robbed by this man?
I don't know. Have any of you ever had a gun
stuck in your face like this? You might remember
it very well, too,
and you might find it hard to forget. T. 346.
5. Play it right down the middle. Let the chips
fall where they may. If he did it, he did it,
and therefore, I ask you to convict him as
charged. Tr. 356-57.
(1). Petitioner argues that the first remark accused defense
counsel of lying. When the prosecutor made this comment,
defense counsel objected. The trial court, properly
characterizing the comment as a personal attack, instructed the
assistant District Attorney to "move on." Tr. at 329. The
remark was erroneous, but it must be recognized that personal
attacks even more explicit and inflammatory have been held not
to deprive a defendant of a fair trial. For example, in
Jones v. Estelle, 622 F.2d 124
, 127 (5th Cir.), cert. denied,
449 U.S. 996
, 101 S.Ct. 537
, 66 L.Ed.2d 295 (1980), the
prosecution referred to the defendant as a "convincing liar"
and a "bamboozler of juries," but that court found no denial of
due process. Id.
(2). The second remark to which petitioner objects is more
troublesome. In Oliver v. Wainwright, 795 F.2d 1524 (11th Cir.
1986), a defendant objected to the same type of prosecutorial
argument, alleging that the state's reference to his past
criminal record improperly invited to the jury to consider past
criminal conduct as evidence of a propensity to commit the
The Oliver court, however, found that, for purposes of
collateral attack, there was no constitutional prejudice in the
prosecutor's "cryptic attempt" to link a prior criminal record
to a criminal propensity. The court decided that the defendant
"made no argument that he suffered additional prejudice from
the reference to motive that could not be attributed to the
initial introduction of the evidence of his past illegal
conduct." Id. at 1532 (emphasis added).
Petitioner, like the Oliver defendant, was the one who
introduced his prior record to the jury. Tr. at 278.
Petitioner, like the Oliver defendant, cannot now "complain
that his trial was rendered fundamentally unfair by the
prosecutor's peculiar reference to it." Oliver, 795 F.2d at
In considering a prosecutorial misconduct claim, the Court
must consider "the severity of the misconduct; the measures
adopted to cure the misconduct; and the certainty of conviction
absent the improper statements." United States v. Modica,
663 F.2d 1173, 1181 (2d Cir. 1981) cert. denied, 456 U.S. 989, 102
S.Ct. 2269, 73 L.Ed.2d 1284 (1982). In this case there was an
immediate objection to the prosecutor's comment. The trial
court sustained the objection, stating to the jury, "You may
not utilize [a prior criminal record] to infer because of a
prior crime, that he committed this crime. Only on credibility
only. And I will charge you more fully on that." Tr. at 339.
The trial court did later instruct the jury on that specific
issue. Tr. at 368-69. Considering, again, the context
surrounding the remark, the curative instruction offered by the
trial court immediately after it and later in the jury charge,
I conclude that it was not fatal to petitioner's constitutional
right to a fair trial.
(3)(4)(5). The last three comments by the prosecutor are
considered together because petitioner regards them
collectively as a none-too-subtle attempt by the prosecution to
shift the burden of proof to the defendant. After a careful
review of the record, the Court concludes otherwise.
Of course, it "`is not enough that the prosecutor['s] remarks
were undesirable or even universally condemned.'" Darden v.
Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d
144 (1986) (quoting Darden v. Wainwright, 699 F.2d 1031, 1036
(11th Cir. 1983)). The remarks must prejudice the defendant.
Here, the trial judge dissipated the potential taint by
advising the jury, "Further, I remind you that arguments,
remarks and summation of the opposing attorneys are not
evidence." Tr. at 380. Dispelling all doubt as to where the
burden of proof lay, he then charged: "This defendant does not
have to prove anything; in other words, he does not have to
prove he is innocent. The burden of proof never shifts; it is
always on the People." Tr. at 381 (emphasis added).
The undeniable reality is that "[s]ummations cannot be
considered in a vacuum; they must be evaluated against the
actualities of the living trial." St. Lawrence v. Scully,
523 F. Supp. 1290, 1302 (S.D.N.Y. 1981). A trial judge's carefully
crafted instructions on the law may effectively dissipate trial
errors occurring during summations. Id. See also Valdez v.
Scully, 627 F. Supp. 714, 718 (S.D.N.Y. 1986).
Considered in context, none of the prosecution's closing
arguments, considered separately or collectively, rendered the
trial fundamentally unfair.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
To establish ineffective assistance of counsel, petitioner
must satisfy both prongs of Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner must
show that (1) his counsel's errors fall below an objective
standard of reasonableness, and (2) "but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Id. at 694, 104 S.Ct. at 2068.
1. Counsel's Assistance At Trial
Petitioner contends that his decision to take the stand and
testify was ill-advised and was the direct result of
ineffective assistance of trial counsel. Petitioner also argues
that his testifying at trial displayed a "total lack of
preparation, a serious lapse in counsel's judgment and a lack
of cooperation between counsel and client." Petition at 10.
Essentially, petitioner maintains that competent counsel would
have kept him off the stand, recognizing that the prejudice of
a prior criminal conviction would outweigh any intended
The Court is not persuaded that such a decision by defense
counsel, presumably agreed upon by lawyer and client, was
objectively unreasonable. The law requires that "every effort
be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged conduct
and to evaluate the conduct from counsel's perspective at the
time." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
Accordingly, petitioner "must overcome the presumption that,
under the circumstances, the challenged action `might be
considered sound trial strategy.'" Id. (quoting Michel v.
Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83
(1955)); see also Strouse v. Leonardo, 715 F. Supp. 1170
Defense counsel had a sound tactical reason to put his client
on the stand. Through his testimony, the defense offered an
exculpatory explanation of why petitioner's fingerprints were
found on the car involved in the robbery, namely, that
petitioner did "hang out" in the area leaning against, sitting
on and touching cars. Tr. 271-277. After petitioner had
undergone vigorous cross-examination, defense counsel provided
him with an opportunity to clarify the exculpatory explanation
on re-direct. Tr. at 282-83. This was not ineffective
2. Counsel's Assistance At Sentencing
Petitioner also attacks his counsel's assistance at
sentencing, arguing it was "worse than no representation at all
and was a farce and a mockery of justice." Petition at 13. This
claim is wholly without merit.
At sentencing, defense counsel presented cogent arguments,
both orally and in a written memorandum on petitioner's behalf.
Counsel directed the court's attention to the psychiatric
report, highlighting petitioner's need for education rather
than punishment. Counsel also challenged the Probation
Department's recommendation that the court impose the maximum
sentence, providing insights on why he believed petitioner was
capable of rehabilitation.
Defense counsel clearly had an uphill battle at sentencing,
faced with a client whose history included at least one
criminal conviction and several incidents of drug abuse. The
Court is satisfied that the assistance of petitioner's counsel
was more than adequate in all respects.
III. DENIAL OF REQUEST FOR SUBSTITUTE COUNSEL
On the day of trial, petitioner made an application for
substitute counsel. Following
a discussion on the record outside the jury's presence, that
application was denied. Petitioner now claims this denial as a
third basis for a writ of habeas corpus.
"In order to warrant a substitution of counsel during trial,
the defendant must show good cause, such as a conflict of
interest, a complete breakdown in communication or an
irreconcilable conflict which leads to an apparently unjust
verdict." United States v. Calabro, 467 F.2d 973, 986 (2d Cir.
1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1357, 35 L.Ed.2d
587 (1973). See also United States ex rel. Baskerville v.
Deegan, 428 F.2d 714, 716-17 (2d Cir.), cert. denied,
400 U.S. 928, 91 S.Ct. 193, 27 L.Ed.2d 188 (1970).
In the absence of a sixth amendment constitutional conflict,
a decision whether to grant a continuance during trial for the
substitution of counsel falls squarely within the discretion of
the trial court. Calabro, 467 F.2d at 986. That decision will
be reversed only if the court has abused its discretion. Id.
Moreover, when a defendant requests substitution of counsel, a
trial court need only make formal inquiries into requests which
are "seemingly substantial" on their face. Id. at 976.
Petitioner's application came immediately after the
impaneling of the jury. The only reason offered by petitioner
in support of his application was that his attorney was
"incompetent" and "he doesn't know the nature of my case or
anything." Tr. at 15.
The trial judge vouched for defense counsel's professional
competence on his own personal knowledge, and pressed
petitioner unsuccessfully to be more specific. Tr. at 16. More
than a year before trial, defense counsel had represented
petitioner at a pre-trial hearing. That longtime association
with the case, combined with counsel's prepared and competent
performance at trial, demonstrated that he was indeed familiar
with the case. Petitioner made no mention of a breakdown in
communication, irreconcilable differences or conflicts of
interest. Because petitioner did not show good cause to
substitute counsel on the eve of trial, the trial judge
properly denied the application.
IV. EXCESSIVE SENTENCE
Petitioner asserts lastly that his sentence was excessive. He
objects to the sentencing court imposing consecutive rather
than concurrent sentences. Petitioner is simply wrong on his
facts. The sentences imposed are to run concurrently. Sentence
Tr. at 10.
He also objects that he was given the maximum sentence.
"[B]ecause his sentence did not exceed the maximum sentence
permissible . . . there is no ground for habeas relief."
Diaz v. Lefevre, 688 F. Supp. 945, 949 (S.D.N.Y. 1988). See also
Castro v. Sullivan, 662 F. Supp. 745, 753 (S.D.N.Y. 1987).
Because the sentence imposed was permissible and, in light of
petitioner's prior record, in all respects appropriate, this
Court lacks any basis to question its validity.
Accordingly, the motion for a writ of habeas corpus must be,
and hereby is, denied.