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PAPA v. KEANE

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


March 15, 1995

ANTHONY PAPA, Petitioner,
v.
JOHN P. KEANE, SUPERINTENDENT OF SING SING CORRECTIONAL FACILITY, Respondent.

The opinion of the court was delivered by: PETER K. LEISURE

MEMORANDUM ORDER

 Leisure, District Judge:

 This is a ยง 2254 petition. Petitioner is Anthony Papa ("Papa"). He contends that he is entitled to habeas corpus relief on the grounds that out-of-court statements of his co-conspirator were admitted against him at trial in violation of his federal constitutional right to confrontation and that he received ineffective assistance of counsel on direct appeal from his conviction. This Court referred the petition to Magistrate Judge Barbara Lee for a Report and Recommendation (the "Recommendation"). Judge Lee recommended that the petition be denied. Papa filed timely objections to the Recommendation (the "Objections"). This Court has conducted a de novo review of the record and, for the reasons stated below, finds that the petition must be denied.

 The first ground that Papa asserts in support of his claim for habeas relief is that his federal constitutional right to confrontation, as elaborated in Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), was violated when out-of-court statements of his co-conspirator, Anthony Kraisky ("Kraisky"), were admitted against him at trial, despite the fact that Kraisky was "available" to testify at trial. Papa argues that, under Roberts, Kraisky's out-of-court statements were inadmissible against him absent a showing by the State that Kraisky was "unavailable" to testify at trial. This argument is without merit. The Supreme Court squarely held in United States v. Inadi, 475 U.S. 387, 89 L. Ed. 2d 390, 106 S. Ct. 1121 (1986), that the Confrontation Clause does not require the state to demonstrate that a coconspirator is unavailable to testify at trial in order to admit against a defendant the co-conspirator's out-of-court statements made during the course, and in furtherance, of the conspiracy. See also Bourjaily v. United States, 483 U.S. 171, 97 L. Ed. 2d 144, 107 S. Ct. 2775 (1987).

 Papa argues that Inadi is not controlling here because it was decided March 10, 1986, after he was convicted on March 22, 1985. This argument is also without merit. Assuming arguendo that Inadi made new law in holding that unavailability was not a constitutional prerequisite to the admission of co-conspirator statements, Papa's conviction did not become "final" for retroactivity purposes until, at the earliest, March 27, 1991, when the Court of Appeals denied him leave to appeal. See Caspari v. Bohlen, 127 L. Ed. 2d 236, 114 S. Ct. 948 (1994) ("A state conviction and sentence become final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied.") (citations omitted). And "'a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.'" Powell v. Nevada, 128 L. Ed. 2d 1, 114 S. Ct. 1280, 1283 (1994) (quoting Griffith v. Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987)). As a result, the Appellate Division's December 31, 1990 affirmance of Papa's conviction on direct appeal, over his federal Confrontation Clause challenge, *fn1" was entirely proper under Inadi and Griffith. Because there is no question that Inadi was the law of the land when Papa's conviction became final and is so today, Papa's present collateral attack on his conviction on federal Confrontation Clause grounds necessarily must fail.

 The second ground that Papa asserts in support of his claim for habeas relief is that he received ineffective assistance of counsel on direct appeal from his conviction. Papa argues that his lawyer on direct appeal unreasonably devoted only a single sentence in his brief to Papa's federal and state confrontation clause arguments, that the lawyer unreasonably failed to submit a reply brief presenting these arguments, and that the lawyer unreasonably waived oral argument on Papa's appeal. But to prevail on his ineffective assistance of counsel claim, Papa must show that: "(1) 'counsel's representation fell below an objective standard of reasonableness,' and (2) 'but for counsel's unprofessional errors, the result of the proceeding would have been different.'" U.S. v. Aiello, 900 F.2d 528, 532 (2d Cir. 1990) (quoting Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)). Papa cannot make the requisite showing.

 Assuming arguendo that his appellate counsel's conduct fell below an objective standard of reasonableness, Papa cannot establish that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Papa, with leave of the Appellate Division, filed a pro se reply brief, see Appellant's Pro-Se Reply Brief (citing People v. Sanders, 56 N.Y.2d 51, 451 N.Y.S.2d 30, 436 N.E.2d 480 (Ct. App. 1982); People v. Persico, 157 A.D.2d 339, 556 N.Y.S.2d 262 (1st Dept. 1990)) (included in Exhibit A to Reply Memorandum of Law and Exhibits in Support of Petition for A Writ of Habeas Corpus), which clearly and effectively presented the state confrontation clause issue. *fn2" The Appellate Division nevertheless rejected Papa's arguments. See People v. Papa, 168 A.D.2d 692, 692-93, 563 N.Y.S.2d 515, 516 (2nd Dept. 1990). This Court therefore cannot conclude that, if Papa's appellate counsel had more expansively pursued the state confrontation clause issue himself, the result of Papa's direct appeal would have been different.

 Conclusion

 Papa's petition is HEREBY DENIED.

 SO ORDERED

 New York, New York

 March 15, 1995

 Peter K. Leisure

 U.S.D.J.


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