The opinion of the court was delivered by: JOHN F. KEENAN
JOHN F. KEENAN, United States District Judge:
On October 24, 1986, petitioner Dale Tippins was convicted in Rockland County Court, after a twelve-day jury trial, of criminal sale of a controlled substance in the first degree (See N.Y. Penal Law § 220.43(1)) and criminal possession of a controlled substance in the first degree (See N.Y. Penal Law § 220.21(1)). Petitioner was sentenced (Nelson, J.) to an indeterminate term of 18 years to life of imprisonment.
Subsequent to petitioner's conviction, trial counsel, Louis Tirelli, was convicted of two counts of falsifying business records in the first degree (See N.Y. Penal Law § 175.10), attempted grand larceny in the third degree (See N.Y. Penal Law § 110/155.35) and misconduct by attorneys (See N.Y. Judiciary Law § 487). These charges arose after the District Attorney learned that Tirelli, who the Court appointed to represent petitioner, illegally solicited and accepted five thousand dollars from petitioner.
Petitioner moved the trial court for a post-trial hearing, pursuant to New York Criminal Procedure Law § 440.10, for an order vacating the jury's guilty verdicts. On February 16, 1989, petitioner was granted that hearing in order to determine whether Tirelli's frequent sleeping during the trial denied petitioner the effective assistance of counsel. County Court Judge William Braatz presided over the hearing.
At the post-trial hearing, eight witnesses testified as to Tirelli's sleeping during the trial. See Record of Post-Trial Hearing at 271-72. These witnesses included both the trial judge and the prosecutor. The trial judge, William K. Nelson, testified that "Tirelli slept every day of the trial" during testimony. Id. at 182. Judge Nelson further testified that Tirelli slept during testimony that was "damaging" and "adverse to [petitioner's] interests." Id. at 186, 220. In response to one instance of Tirelli's sleeping during "testimony that was detrimental to Mr. Tippins' welfare," Judge Nelson brought all the attorneys out into the hall to admonish Tirelli for sleeping during testimony. Id. at 183-84, 201, 220. The Assistant District Attorney, John Edwards, testified that he too witnessed Tirelli "sleeping or [with] his eyes closed" during the testimony prompting Judge Nelson to call the attorneys into the hall. Id. at 231. Assistant District Attorney Edwards further testified that Judge Nelson called the attorneys into the hall on more than one occasion because of Tirelli's sleeping during testimony. Id. The Senior Court Reporter testified that she heard Tirelli snoring several times during trial. Id. at 52, 55. Additionally, juror Jeffrey Halpern testified that Tirelli slept through approximately sixty-five percent of the testimony offered by one of the prosecution's "critical witnesses." Id. at 64-65, 73-74.
on March 15, 1989, Judge Braatz denied petitioner's motion to vacate his conviction on the grounds that he was denied effective assistance of counsel. See Record of Post-Trial Hearing at 275. Judge Braatz found that the petitioner had "failed to show any trial errors which arose because of counsel's conduct." Id. at 273. In addition, Judge Braatz concluded that Judge Nelson "made sure" that Tirelli was awake while witnesses were "testifying as to what Judge Nelson thought was important testimony against Mr. Tippins." Id. at 273.
On July 10, 1989, the Appellate Division of the Supreme Court, Second Department, granted petitioner's application for a certificate granting leave to appeal, and also granted petitioner's motion to consolidate the trial court judgment and the post-trial hearing court order.
On May 6, 1991, the Appellate Division in a memorandum decision affirmed petitioner's conviction. People v. Tippins, 570 N.Y.S.2d 581, 582, 173 A.D.2d 512 (2d Dep't 1991). The Court rejected petitioner's argument that a trial counsel's sleeping during trial constitutes a per se violation of a defendant's constitutional right to effective counsel. Tippins, 570 N.Y.S.2d at 582. Rather than adopt a per se rule, the Court employed what it called "the traditional analysis invoked to resolve claims of ineffective assistance of counsel -- whether, viewed in totality, the defense counsel provided meaningful representation." Tippins, 570 N.Y.S.2d at 582; see People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 (1981). Although the Court found Tirelli's sleeping during trial "reprehensible," it concluded that petitioner was provided meaningful representation:
The effect of Tirelli's failure to participate in portions of the trial, during which he was perceived to be sleeping, was minimal. Careful scrutiny of the record of the trial, as well as the CPL 440.10 hearing, reveals that Tirelli effectively cross-examined the prosecution's witnesses, made appropriate objections and trial motions and delivered opening and closing statements which were entirely consistent with the defendant's entrapment defense . . . Stated succinctly, the record in the instant case does not sustain a finding that Tirelli failed to afford the defendant meaningful representation.
Tippins, 570 N.Y.S.2d at 582-83.
The Appellate Division also rejected petitioner's assertion that Tirelli's criminal conduct constituted a per se violation of his Sixth Amendment right to effective counsel. Tippins, 570 N.Y.S.2d at 583. Noting that the five thousand dollars illegally solicited and accepted by Tirelli was intended as trial counsel fees, not payment for an anticipated appeal, People v. Tirelli, 156 A.D.2d 738, 739, 549 N.Y.S.2d 489, 490, the Court held that petitioner failed to ...