each of the claims in his brief before the Appellate Division, but his letter application to the New York Court of Appeals requested that that court review only one of the claims. The Court of Appeals for the Second Circuit held that attaching the appellate brief did not fairly present the other two claims to the New York Court of Appeals. Id. at 120. See also Thebner v. Miller, 788 F. Supp. 714, 717 (E.D.N.Y. 1992) (inclusion of single sentence that referred in general way to various claims raised in appellate brief insufficient to apprise Court of Appeals of those claims); Matias v. Hoke, 703 F. Supp. 324, 325 (S.D.N.Y. 1989).
This court has found no authority as to the adequacy of a letter application failing to raise any specific claim but attaching an appellate brief addressing a number of claims. No doubt, as the Court of Appeals for the Second Circuit has presumed, the New York Court of Appeals does not have "'a duty to look for a needle in a paper haystack.'" Grey, 933 F.2d at 120 (citations omitted). Under New York Rules of Court § 500.10(a) an application for leave to appeal to the New York Court of Appeals may be made in letter form and "should identify the issues on which the application is based" with "particular written attention" to "identifying problems of reviewability and preservation of error."
But the rule also requires the applicant to submit the briefs filed by both sides in the court below, and the Court of Appeals' "standard practice" is to review "not just the letter but the briefs appended thereto." Coleman v. Warden, Taconic Correctional Facility, 1990 U.S. Dist. LEXIS 11646, No. 87 CIV 8762, 1990 WL 130735 (S.D.N.Y. Sept. 5, 1990) at *1. The rule says nothing about the consequences if the letter application makes no mention of the issues on which the application is based.
The headings for points I, II and III in Meatley's brief in the Appellate Division on direct appeal from the conviction stated in bold capital letters that his "rights were violated" when the police delayed his arraignment (Point I), the trial court refused to suppress all statements attributed to him (Point II), and the trial court refused to suppress all identification testimony (Point III), and cited the United States Constitution Amendments V, VI and XIV as well as the New York State Constitution.
The order of the Appellate Division deals explicitly with points II and III.
The certificate denying leave to appeal in this case and signed by a judge of the Court of Appeals verifies that "upon application timely made" by Meatley and "upon the record and proceedings herein [citing the order of the Appellate Division], there is no question of law which [sic] ought to be reviewed by the Court of Appeals."
This court concludes that the papers submitted on the application for leave to appeal did not require the New York Court of Appeals to look for a needle in a haystack. If the Court considered the Appellate Division briefs at all, it was fairly alerted at the outset of the legal arguments to Meatley's contentions that he was denied his federal constitutional rights because of the delay in his arraignment and the failure of the trial court to suppress the identifications and the statements. The respondent does not argue otherwise. Furthermore, presumably the Court of Appeals read the Appellate Division order discussing points II and III.
The court considers on the merits the claims that the trial court should have suppressed certain inculpatory statements and identifications and that Meatley received ineffective assistance of appellate counsel.
Meatley says that his inculpatory statements should have been suppressed because, although he declined to answer questions after receiving Miranda warnings, McGovern told him, solely for the purpose of eliciting a statement from him, that he had been identified.
On habeas review this court may independently consider whether Meatley's inculpatory statements were coerced. See Miller v. Fenton, 474 U.S. 104, 112, 106 S. Ct. 445, 450-51, 88 L. Ed. 2d 405 (1985). But in so doing, the court defers to findings of fact by the state court, except where those findings have no fair support in the record or where a petitioner can establish "by convincing evidence that the factual determination by the State court was erroneous." Sumner v. Mata, 449 U.S. 539, 550, 101 S. Ct. 764, 771, 66 L. Ed. 2d 722 (1981) (emphasis in the original); see also 28 U.S.C. § 2254(d).
If after receiving Miranda warnings an accused invokes his right to remain silent, any interrogation "must cease." Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880, 1883, 68 L. Ed. 2d 378 (1981). For Miranda purposes, "interrogation" includes not only "express questioning" but also its "functional equivalent," that is, "any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 301-02, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297 (1980).
The trial court concluded, after an evidentiary hearing, that Meatley's statements were not coerced, finding that "although he was in custody for more than thirteen (13) hours, he was given his Miranda warnings on three separate occasions, and no statement was taken a significant time after the administration of such warnings." (citations omitted). The trial court made no explicit finding regarding the allegedly inquisitory nature of McGovern's comments.
The record demonstrates that the trial court erred in finding that Meatley received Miranda warnings on three occasions. It appears instead that Meatley was read these rights only twice, once immediately following his arrest and then again approximately thirty to forty minutes before he made the statements at issue.
But the record also shows that after Meatley twice declined to answer questions, McGovern did not subject him to "questioning or its functional equivalent." Innis, 446 at 301, 100 S. Ct. at 1689. McGovern merely informed Meatley that he had been identified by three witnesses. Nothing in the record indicates that McGovern "should have known" that his statement was "reasonably likely to elicit an incriminating response." Id. at 303, 1691. Thus the trial court did not err in concluding that the prosecution had established beyond a reasonable doubt the "voluntariness" of Meatley's statements, that is, that the police had not elicited the statements.
Meatley argues that all identification testimony pertaining to him should have been suppressed because the lineup was impermissibly suggestive. He says that (1) McGovern improperly told Rhodes that one of the suspects would be in the lineup and (2) his distinctive hairstyle was visible despite the cap that he wore.
Due process may be violated when, as judged under the totality of the circumstances, the identification procedure used is so impermissibly suggestive as to give rise to "a very substantial likelihood of irreparable misidentification." Neil v. Biggers, 409 U.S. 188, 198, 93 S. Ct. 375, 381, 34 L. Ed. 2d 401 (1972). If the procedure is found to be suggestive, the habeas corpus court, in order to determine whether or not the evidence must be excluded, should review such factors as "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Id. at 199, 382.
Rhodes testified at trial that McGovern told him that "he had the people who robbed us" and that one of them would be in the lineup. But McGovern testified to the contrary at trial and during the Wade/Huntley hearing, and the trial court found McGovern's testimony to be credible. Because Meatley has not shown by "convincing evidence" that that finding was erroneous, this court defers to the trial court's determination of credibility. See 28 U.S.C. § 2254(d).
As to Meatley's second point, this court has examined a photograph of the lineup and notes that Meatley's hair is slightly more visible than that of the fillers. But that circumstance is not sufficient to render the lineup suggestive. "There is no requirement that a suspect in a lineup be surrounded by people identical in appearance." Id. at 530; see also United States v. Reid, 517 F.2d 953, 965-66 n.15 (2d Cir. 1975). Moreover, the court defers to the conclusion of the Appellate Division that the police took "reasonable steps" to conceal Meatley's dreadlocks by providing the lineup participants with hats. See 28 U.S.C. § 2254(d); People v. Meatley, 162 A.D.2d at 722, 557 N.Y.S.2d at 422.
Furthermore, even if Meatley could show that the lineup was unduly suggestive, the totality of the circumstances demonstrates that the identifications made by Rhodes and Ross were reliable. Those witnesses each testified at trial that (1) during the robbery, he had a clear view of Meatley's face at close range for several minutes, and (2) at the lineup, he recognized Meatley by his face rather than by his hair.
Meatley says he received ineffective assistance of appellate counsel because his counsel failed to argue that the trial court improperly (1) answered a question from the jury and (2) allowed deliberations to resume, both outside of his presence.
To prove ineffective assistance of counsel, Meatley must show, among other things, that "counsel's performance was deficient," that is, that the attorney "made errors so serious" that the representation fell below "an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674 (1984).
Meatley fails to make such a showing. Even if these claims had merit, the court determines that the appellate brief submitted on Meatley's behalf did not fall below an objective standard of reasonableness. Meatley's counsel briefed six separate claims. His decision to forsake others was a reasonable professional judgment. See Jones v. Barnes, 463 U.S. 745, 753, 103 S. Ct. 3308, 3313, 77 L. Ed. 2d 987 (1983) ("A brief that raises every colorable claim runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions."); Gulliver v. Dalsheim, 739 F.2d 104, 107 (2d Cir. 1984) (courts should not second guess appellate counsel's "reasonable professional judgments") (citations omitted).
Meatley says that he was denied due process because his arraignment was delayed in order to procure incriminating statements from him. The Appellate Division said that that issue and others were either meritless or not preserved for appeal, citing People v. Allyn, 92 A.D.2d 692, 460 N.Y.S.2d 379 (3d Dep't 1983), a case in which the court concluded that a defendant's claim regarding his delayed arraignment was not preserved for appeal.
It is reasonable for this court to assume that the Appellate Division found Meatley's arraignment claim to be barred on independent and adequate state procedural grounds. See generally Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993). That claim is procedurally defaulted.
Meatley also says that (1) he received ineffective assistance of trial counsel and (2) he was denied due process because the trial court answered a question from the jury outside his presence. Because Meatley failed to exhaust these claims in state court and no longer may do so, they too are procedurally defaulted. Washington, 996 F.2d at 1447.
This court may not consider on habeas corpus procedurally defaulted claims unless Meatley can demonstrate "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, , 111 S. Ct. 2546, 2565, 115 L. Ed. 2d 640 (1991).
Meatley makes no showing of cause for his failure to raise these claims in state court. Moreover, he has not demonstrated that failure to review the claims will result in a fundamental miscarriage of justice. He has not shown that it is more likely than not that the purported constitutional violations "resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649, 91 L. Ed. 2d 397 (1986); see also Schlup v. Delo, 130 L. Ed. 2d 808, U.S. , , 115 S. Ct. 851, 860-62 (1995). The court will not consider the merits of these claims.
The petition is denied.
Dated: Brooklyn, New York
May 30, 1995
Eugene H. Nickerson, U.S.D.J.
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