the transcript of the August 5, 1985 sentencing shows that Judge DiFlorio originally intended to impose the minimum allowable sentence which, had the judge properly followed the statute, would have been 4 1/2-9 years. However, upon review of the sentencing transcript, I find it equally plausible to conclude that Judge DiFlorio considered a 9-18 year sentence appropriate whether or not it was the minimum sentence allowable by statute.
Accordingly, petitioner has not demonstrated that the Pearce presumption of vindictiveness applies to the facts of this case. In addition, petitioner has failed to demonstrate actual vindictiveness. This court's review of the transcript of the resentencing proceedings indicates that most of the colloquy between the court and petitioner or his counsel involved the question as to whether petitioner's February, 1979 robbery conviction could be used as a predicate felony. While the record reflects some degree of frustration or agitation on the part of the judge with petitioner's refusal to admit to the fact that he was convicted of second degree robbery in 1979 (R. 2-7),
the record also reflects that the judge gave petitioner the opportunity to discuss the matter with counsel (R. 9, 13) and gave counsel the opportunity to address the predicate felon issue (R. 10-13). The judge's remarks primarily reflect his view that the predicate felon issue was raised at the original sentencing and was preserved for appellate review (R. 14). His remarks also reflect his interest in clarifying the record regarding whether he originally sentenced petitioner as a second felony offender or as a second violent felony offender (id.).
This evidence is insufficient to prove actual vindictiveness on the part of Judge DiFlorio in resentencing petitioner to the same term of imprisonment as imposed under the original sentence. Petitioner has therefore failed to meet his burden of establishing that the judge abused his discretion or committed an error of law resulting in an unconstitutional deprivation of petitioner's liberty. Accordingly, petitioner's claim for habeas corpus relief based on vindictive resentencing is denied.
B. Adjudication as Second Felony Offender.
Petitioner claims that the trial court erred by using his 1979 robbery conviction as a basis for sentencing him as a second felony offender. He claims that but for an unconstitutional age-based distinction in New York's youthful offender statue as it stood in March, 1979, he would have been entitled to the protections of youthful offender status. See N.Y.C.P.L. Article 720.
He also claims that, even if the statute was not unconstitutional, he was denied due process because the transcript of his 1979 sentencing proceeding has been lost.
According to petitioner, New York's statutory scheme for adjudication of youthful offender status as it stood on March 2, 1979 was unconstitutional because it allowed 16 through 19 year-olds the benefits of youthful offender status but denied the same benefits to 13 through 15 year-olds. Petitioner was fifteen years old when he was sentenced in March, 1979.
This claim was presented to the state appellate courts on petitioner's appeal from resentencing, and was rejected. See People v. Jones, supra, 152 A.D.2d 917 (4th Dept.), appeal denied, 74 N.Y.2d 848, 546 N.Y.S.2d 1013, 546 N.E.2d 196 (1989); see also Appellant's Brief dated February 27, 1989, pp. 13-31, State Court Records. The Fourth Department found "no merit to [petitioner's] argument that he should have been sentenced as a youthful offender . . . ." 152 A.D.2d at 917.
This same claim has also been litigated in the New York State courts by other defendants claiming eligibility for youthful offender status. See People v. Mason, 99 Misc. 2d 583, 416 N.Y.S.2d 981 (Sup.Ct. Richmond Co. 1979)(applying "rational basis" test on pretrial motion to reject equal protection challenge to state's juvenile offender statutes affording differing treatment to young persons based on age); People v. Mason, 85 A.D.2d 673, 445 N.Y.S.2d 197 (2nd Dept. 1981)(even if constitutional argument on pretrial motion was valid, facts developed at trial showed that defendant would not have been eligible for youthful offender status based on nature of crime and lack of mitigating factors); People v. Ryals, 100 Misc. 2d 551, 420 N.Y.S.2d 257 (Sup.Ct. Kings Co. 1979)(applying "rational basis" test to reject equal protection challenge to state's juvenile offender statutes affording distinguishing treatment to young persons based on the gravity of the crime charged; equal protection challenge based on age alone rejected as premature); People v. Williams, 100 Misc. 2d 183, 418 N.Y.S.2d 737 (Dutchess Co.)(rejecting constitutional challenge to denial of youthful offender status to 14 year-old who pleaded guilty to violent felony (second degree burglary)); but see People v. Michael D., 99 Misc. 2d 816, 417 N.Y.S.2d 604 (Sup.Ct. Queens Co. 1979)(applying "strict scrutiny" standard to find statutory scheme denying youthful offender status to juvenile offenders unconstitutional because of different treatment based on age).
Upon review of the principles discussed in these cases in light of the record presented on this petition, and upon review of New York's statutory scheme for determining youthful offender status eligibility, I find that petitioner has failed to meet his burden of showing that Judge DiFlorio violated his constitutional rights by using the 1979 conviction for second degree robbery as a predicate felony for enhancement purposes. Under Article 720 of the N.Y.C.P.L as it stood in March, 1979, a person charged with second degree robbery would not have been eligible for youthful offender treatment unless the court found "mitigating circumstances" bearing directly on the manner in which the crime was committed, N.Y.C.P.L. § 720.10(3)(i), or relatively minor participation in the crime charged (N.Y.C.P.L. § 720.10(3)(ii). This requirement was not altered by the amendment to Article 720 effective August 5, 1979, which "ameliorated an anomaly where certain juvenile offenders aged 13, 14 or 15 . . . could be treated more harshly than 16, 17 and 18 year old [youthful offenders]." N.Y.C.P.L. § 720.10, Practice Commentary; see also id., Historical Note.
As the record shows, petitioner's 1979 conviction for second degree robbery was entered on a plea in satisfaction of two separate charges of first degree robbery, allegedly committed with a dangerous instrument against two different women on two occasions in September 1978. Petitioner has not demonstrated, and indeed has not argued here or at any other time, that any mitigating factors bearing directly on the commission of these two crimes were presented or could have been presented to the sentencing or appellate courts. Thus, even if this court should agree with his argument about the constitutionality of the statutory distinction based on age, an unlikely result in light of the weight of state court precedent cited above, petitioner has failed to show that he would otherwise have been entitled to the protections of youthful offender status "as a matter of law . . . ." People v. Mason, supra, 85 A.D.2d at 674, 445 N.Y.S.2d at 198.
In addition, petitioner has failed to show that the contents of the transcript of the March 2, 1979 proceedings would have had any bearing on Judge DiFlorio's sentencing decision. Indeed, given the severity of the crimes involved, and given the complete absence of evidence in the extensive state court record that any mitigating circumstances bearing on those crimes were ever presented to or discussed by the state courts during the entire history of sentencing and appellate review, it is difficult to conceive how petitioner could make such a showing.
Accordingly, I find that petitioner has failed to meet his burden on this petition of demonstrating that the trial judge abused his discretion or committed a legal error when he sentenced petitioner as a predicate felon based on the 1979 robbery conviction. Petitioner is therefore not entitled to habeas corpus relief on this ground.
II. Ineffective Assistance of Trial Counsel.
In order to obtain habeas relief on this ground, petitioner must show both (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment . . . [and] that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
The habeas court reviewing an ineffective assistance claim must apply a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and that counsel has "made all significant decisions in the exercise of reasonable professional judgment," under prevailing professional norms. Id. at 690; Minor v. Henderson, 754 F. Supp. 1010, 1016 (S.D.N.Y. 1991). The 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, 100 L. Ed. 83, 76 S. Ct. 158 (1955)); see also Minor v. Henderson, supra.
Even if a petitioner can overcome the strong presumption that his or her counsel's performance fell within the range of reasonable professional assistance and judgment under prevailing norms, he or she must also establish that counsel's performance prejudiced the defense--i.e., that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," considering the totality of the evidence. Strickland v. Washington, supra at 694; Minor v. Henderson, supra; see also United States ex rel. Roche v. Scully, 739 F.2d 739, 742-44 (2d Cir. 1984).
In this case, petitioner claims that his assigned trial counsel's performance was deficient in the following respects: (a) he failed to produce medical reports, witnesses or other corroborative evidence in support of petitioner's self-defense claim, (b) he failed to object to the harsh and erroneous sentence of 9-18 years, (c) his severely impaired hearing hindered his ability to effectively represent petitioner, (d) he made no objection to the admissibility of testimony about statements that had been suppressed at a pretrial Huntley8 hearing, (e) he failed to request limiting jury instructions on the consideration to be given those statements, and (f) he failed to object to the court's instruction on interested witnesses. Each of these claims will be discussed in turn.
A. Failure to Present Corroborative Self-Defense Evidence.
Generally, the decision whether to pursue a particular defense is a tactical choice which does not rise to level of a constitutional violation. Sanchez v. Scully, 613 F. Supp. 1065, 1068 & n. 5 (S.D.N.Y. 1985). The same is true with respect to counsel's decision whether to call any witnesses on behalf of the defendant, and if so, which witnesses to call. United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.), cert. denied, 484 U.S. 958, 108 S. Ct. 357, 98 L. Ed. 2d 382 (1987). As repeatedly stated by the Second Circuit, the habeas court "will not second-guess trial strategy simply because the chosen strategy has failed . . . ," United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987), especially where the petitioner has failed to identify any specific evidence or testimony that would have helped his case if presented at trial. See United States v. Nersesian, supra, 824 F.2d at 1321; see also Minor v. Henderson, supra, 745 F. Supp. at 1018.
In this case, petitioner contends that counsel was constitutionally ineffective because he failed to investigate petitioner's claim that he received medical treatment for a cut on his hand that was inflicted during his attempt to defend himself from the victim's knife attack. However, petitioner has not presented any medical reports or other evidence to suggest that he even received such treatment. In addition, considering as a whole the evidence that was presented to the jury, petitioner has failed to show that further pursuit of his self-defense claim would have altered the result. The jury was given the opportunity at trial to observe petitioner's hand that he claimed was slashed by the victim, and the record reflects that there was no permanent scar (T. 592-94).
The jury also heard from several witnesses who testified that they saw petitioner use some kind of a knife or razor to cut the victim (T. 317, 319, 325, 387-88, 403), and the doctor who treated the victim at the hospital testified that he had several lacerations on his face (T. 470, 472).
In light of this evidence, and in the absence of any evidence other than petitioner's own testimony to support his claim of self-defense, petitioner has failed to meet his burden of showing that his counsel's decision not to further investigate the self-defense claim fell outside the range of reasonable professional assistance and judgment under prevailing norms. "On the record that has been presented . . . , not only was such a decision reasonable, but it appears to have beer the only rational choice. Petitioner has presented no evidence to the contrary." Minor v. Henderson, supra at 1018. In addition, considering the totality of the evidence, petitioner has failed to demonstrate a reasonable probability that, but for counsel's failure to further develop the self-defense theory, the result of the trial would have been different.
B. Failure to Challenge the Sentence.
Inasmuch as this court has already found that the sentence imposed by Judge DiFlorio was within statutory limits, and that the sentencing decision was not based on an abuse of discretion or an error of law, there is no merit to petitioner's claim that his counsel's failure to challenge the sentence was constitutionally deficient. See, e.g., United States v. Brown, 879 F. Supp. 610, 1995 WL 102773 (S.D.Miss. 1995).
C. Counsel's Impaired Hearing.
Without providing specific citations to the record, petitioner claims that the trial transcript is "replete" with examples of counsel's inability to hear well enough to provide effective representation. This conclusory allegation, made without any factual or caselaw support, is insufficient to overcome the "strong presumption" of reasonable assistance. It is also insufficient to show how the result of the trial would have been different if counsel had better hearing.
In any event, upon review of the transcript, I find no evidence of a hearing impairment severe enough to render counsel's performance constitutionally deficient.
D. Failure to Object to Admissibility of Detective Clute's Statements.
Petitioner claims that his counsel's performance was deficient because he failed to object to the rebuttal testimony of Detective Richard Clute regarding an oral statement made by petitioner on October 2, 1983, the day of his arrest. That statement had been ruled inadmissible at a pretrial Huntley hearing because it was obtained in violation of petitioner's sixth amendment right to counsel.
On direct appeal, the state courts specifically rejected petitioner's claim that the trial court erred in admitting the statement for impeachment purposes. See People v. Jones, supra, 134 A.D.2d at 915, 522 N.Y.S.2d at 71. As stated by the Fourth Department, "[a] statement obtained in violation of a defendant's right to counsel may be used for impeachment on rebuttal, provided the defendant is informed of the circumstances surrounding the making of the statement and is asked whether in fact he made it." Id. (citing cases). Accordingly, even if petitioner's counsel had objected to Detective Clute's rebuttal testimony, it is highly unlikely that the state courts would have precluded the prosecution's impeachment efforts. Petitioner has therefore failed to meet his burden on this petition of showing that the result would have been different but for counsel's errors.
E. Failure to Request Limiting Jury Instructions.
Petitioner claims that his counsel's performance was constitutionally deficient because he failed to request that judge instruct the jury about the proper consideration to be given to Detective Clute's rebuttal testimony. My review of the transcript of the jury charge indicates that the judge properly instructed the jury about the order of proof, including the opportunity for rebuttal (T. 10-14), and gave proper general instructions about witness credibility (T. 710-14). In addition, my review of the trial transcript indicates that the only logical reason for Detective Clute's rebuttal testimony was for the purposes of impeachment--i.e., to cast doubt on the petitioner's credibility by pointing out inconsistencies between his testimony and his statement at the time of the incident. Indeed, the content of the statement was entirely exculpatory. Thus, even if the jury were to have considered the matters asserted in the statement as evidence-in-chief, there is no showing of prejudice.
Accordingly, petitioner has failed to meet his burden of demonstrating how the result of the trial would have been different but for his counsel's failure to request limiting jury instructions about the consideration to be given Detective Clute's rebuttal testimony.
F. Failure to Object to the Court's "Interested Witness" Charge.
Finally, petitioner claims that counsel's performance was deficient because he failed to object to the trial judge's instruction to the jury regarding the assessment of the credibility of witnesses interested in the outcome of the case. Upon review of the "interested witness" section of Judge DiFlorio's jury charge (T. 711-13), I find that the charge contained "balancing language" sufficient to cure any prejudice. See United States v. Matias, 836 F.2d 744, 749-50 (2d Cir. 1988); United States v. Gleason, 616 F.2d 2, 15 (2d Cir. 1979), cert. denied, 445 U.S. 931, 100 S. Ct. 1320, 63 L. Ed. 2d 764 (1980).
Accordingly, petitioner has failed to demonstrate that his trial counsel's performance was deficient or that counsel's performance prejudiced his defense. In fact, counsel's performance resulted in verdicts of not guilty on the murder and assault charges. Considering the totality of the evidence in light of the legal requirements discussed above, counsel's performance in this case certainly fell within the range of reasonable professional assistance and judgment under prevailing norms. Strickland v. Washington, supra, 466 U.S. at 694.
For the reasons set forth herein, this petition for habeas corpus is denied, and the case is dismissed.
Pursuant to 28 U.S.C. § 2253, a certificate of probable cause is granted. Lozada v. Deeds, 498 U.S. 430, 112 L. Ed. 2d 956, 111 S. Ct. 860 (1991); Grune v. Coughlin, 913 F.2d 41 (2d Cir. 1990).
DATED: Buffalo, New York
April 11, 1995
Carol E. Heckman
United States Magistrate Judge