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FERRARA v. KEANE

November 16, 1992

ROBERT FERRARA Petitioner,
v.
JOHN KEANE, SUPERINTENDENT, SING SING CORRECTIONAL FACILITY Respondent.



The opinion of the court was delivered by: CHARLES H. TENNEY

 TENNEY, District Judge:

 Robert Ferrara ("Ferrara") brings this habeas corpus petition pursuant to 28 U.S.C. § 2254 (1988). Ferrara was convicted in 1982 of murder in the second degree, N.Y. Penal Law § 125.25 (McKinney 1974), by a jury in the New York State Supreme Court, New York County. He was sentenced to a term of imprisonment of twenty-five years to life (Rothwax, J.). Ferrara's petition alleges that the conviction was obtained in violation of his Sixth and Fourteenth Amendment rights to the effective assistance of counsel. For the reasons set out below, the petition is denied.

 BACKGROUND

 In September 1982, Ferrara and Robyn Arnold were tried in New York State Supreme Court on charges of murdering Diane Delia on October 7, 1981. Delia was Ferrara's wife and Arnold's former boyfriend before Delia's sex-change. At trial, letters were introduced that Ferrara wrote from jail to prosecution witness Dominick Giorgio which implicated both Ferrara and Arnold in the murder. On October 19, 1982, Arnold was acquitted of all charges while petitioner was found guilty of murder in the second degree.

 On November 16, 1982, Ferrara discharged his attorney, Robert Dilts. Under present counsel, petitioner filed a motion to set aside the verdict pursuant to New York Criminal Procedure Law § 330.30, alleging Dilts had provided ineffective representation at trial. On February 16, 1983, Judge Rothwax denied petitioner's motion before imposing a sentence of twenty-five years to life.

 On appeal, petitioner challenged the proof of his guilt based on both the sufficiency of the evidence that Delia was dead when Ferrara shot her and the adequacy of his representation by Dilts. On September 30, 1986, the Appellate Division, First Department, unanimously affirmed petitioner's conviction without opinion. People v. Ferrara, 123 A.D.2d 527, 506 N.Y.S.2d 501 (1986). On January 6, 1987, the New York Court of Appeals denied petitioner leave to appeal. People v. Ferrara, 50 N.E.2d 247 (1987).

 Petitioner then brought a motion to vacate the judgment pursuant to New York Criminal Procedure Law § 440.10 on the grounds that Dilts was not licensed to practice law in New York State. Judge Rothwax denied the motion on April 29, 1987, and permission to appeal the order was denied later that year. On August 26, 1991, Ferrara filed his present petition for habeas corpus relief.

 In his petition to this court, Ferrara seeks relief based on two grounds. Petitioner pleads that he was deprived of his constitutional right to effective assistance of counsel. In particular, petitioner alleges that the deprivation occurred (1) because his trial attorney was not licensed to practice law in this state, (2) because counsel misrepresented that he was so licensed, (3) because counsel's ignorance of New York procedure severely prejudiced petitioner's defense when he failed to move for a Massiah hearing, (4) because of counsel's deviation from agreed upon strategy, and (5) because counsel suffered "brown-outs" during trial. Petitioner also pleads that his conviction was obtained in violation of due process because the people failed to prove that Delia was alive when petitioner fired the final two shots intending to kill her. We address each point in turn, below.

 DISCUSSION

 I. Assistance of Counsel

 The applicable standard in determining whether a defendant has been afforded effective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In order for counsel's assistance to be found so defective as to require reversal, a defendant must show that counsel's performance was deficient and that the deficiency prejudiced the defense. Id. at 687.

 Attorney Not Licensed In New York

 In some Sixth Amendment contexts involving actual or constructive denials of counsel, prejudice is presumed. Id. at 692. Petitioner alleges that he was a victim of such a per se denial because his attorney was unlicensed to practice law in New York State. In support of his position, petitioner looks to the holding of United States v. Solina, 709 F.2d 160 (2d Cir. 1983), where the court found that a per se violation of the right to counsel had occurred where the defendant's counsel had repeatedly failed the New York bar examination and was not a member of any bar. Here, however, Dilts had been a member of the New Jersey bar for more than 30 years and was well familiarized with general criminal procedure because of his years spent as a county prosecutor. Additionally, according to an affidavit of the prosecutor and the affirmation of the trial judge, Dilts was admitted pro hac vice.

 Even if this court were inclined to believe that Dilts' petition was flawed, this court will not extend the per se rule of Solina to find such a violation in a case where an attorney is admitted to a bar other than the forum where he conducted a defense. The language of Solina explicitly states that such a holding was not intended. See 709 F.2d at 167 & n.9 (disavowing that any technical defect in licensing would give rise to a per se violation and specifically exempting "cases as where the representative was a member of the bar of another state but had failed to seek admission pro hac vice."). Furthermore, the Second Circuit, sitting en banc, has recently noted the narrowness of Solina and other holdings providing for per se violations. See Bellamy v. Cogdell, 974 F.2d 302, 303, 306-08 (2d Cir. 1992). The court in Bellamy stated that such violations were limited only to those cases where counsel, at the time of trial, was not licensed to practice law "because of a failure ever to meet the substantive requirements for the practice of law" or where counsel was implicated in defendant's crimes. Id. at 306. Given Dilts' admission to the New Jersey bar, which goes unchallenged here, and the number of years he spent in practice of criminal law, Dilts cannot be said to have failed to have met the "substantive requirements" for the practice of law. As a result, no per se violation can be found even if Dilts had not been admitted pro hac vice.

 Counsel's Alleged Misrepresentation

 Petitioner also alleges that Mr. Dilts "deliberately deceived" petitioner as to his qualifications by representing that he was indeed a member of the New York bar. In particular, Ferrara alleges that shortly after his arrest, Mr. Dilts was retained by an "unknown benefactor" on his behalf and that Mr. Dilts deliberately deceived his client that he was a member of the New York State bar. Other than his own affidavit, petitioner provides no evidence of the misrepresentation. Nor does petitioner point to any authority which would make such misrepresentation, standing alone, grounds for habeas corpus relief even if the allegation could be proven to be true. This court therefore cannot grant relief on the allegation.

 Counsel's Failure To Move For A Cardona Hearing

 We begin by noting that the alleged ignorance of state procedures rings hollow with regard to a Cardona hearing. The rule of Cardona comes from application of Massiah to a New York State court proceeding. Indeed, at least one New York court has referred to the procedure as a "Massiah-Cardona hearing." People v. Branshaw, 177 A.D.2d 1028, 578 N.Y.S.2d 45 (4th Dept., 1991). No matter what the hearing is called in New York or any other state, the underlying purpose of the inquiry is the same: to discover whether agents of the state acquired post-indictment information from a defendant in violation of that defendant's Sixth Amendment rights. And no court is free to disregard the impact of Massiah and its procedural dictates.

 It thus strains credulity to suggest that a lawyer who has served as District Attorney for Bergen County, New Jersey in the 1970's would be ignorant of Massiah. See New Jersey v. Green, 46 N.J. 192, 215 A.2d 546 (S. Ct. 1965), cert. denied, 384 U.S. 946, 16 L. Ed. 2d 544, 86 S. Ct. 1475 (1966) (applying Massiah to a state prosecution). Even if he were unaware of ...


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