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LOVING v. O'KEEFE

March 21, 1997

SHAHEEB LOVING, Petitioner, against JOHN O'KEEFE, Superintendent of Gouverneur Correctional Facility, Respondent.


The opinion of the court was delivered by: CEDARBAUM

 CEDARBAUM, J.

 Shaheeb Loving, a state prisoner, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition raises five separate grounds for relief. Petitioner claims that: (1) he was denied effective assistance of trial counsel; (2) the verdict was against the weight of evidence; (3) the prosecutor engaged in improper conduct; (4) the trial judge made incorrect and prejudicial rulings; and (5) he was denied effective assistance of appellate counsel. Of these, only the issue of ineffective assistance of trial counsel was raised in state court. For the reasons that follow, the petition for a writ of habeas corpus is denied.

 Background

 On March 27, 1991, following a jury trial, Shaheeb Loving was convicted of Manslaughter in the First Degree, Manslaughter in the Second Degree, and Criminal Possession of a Weapon in the Second Degree, in connection with the fatal shootings of Ralph Smalls and Michael Brandy during a street fight. He was acquitted of the charge of Murder in the Second Degree. On appeal, Loving argued as his sole basis for reversal of the conviction that he had been deprived of the effective assistance of trial counsel, in violation of the federal and state constitutions. On May 27, 1993, Loving's judgment of conviction was affirmed. People v. Loving, 193 A.D.2d 561, 598 N.Y.S.2d 221 (1st Dep't 1993). In his application for leave to appeal to the New York Court of Appeals, Loving again argued only that he was deprived of the effective assistance of trial counsel. (Ex. 2 to Aff. in Opp'n.) The application was denied on August 20, 1993. People v. Loving, 82 N.Y.2d 722, 602 N.Y.S.2d 819, 622 N.E.2d 320 (1993).

 Petitioner lists five grounds for relief in his petition. First, he states that he was denied effective assistance of trial counsel and incorporates all arguments made on direct appeal regarding this issue. (Pet. at 5.) Second, he claims that the verdict was against the weight of the evidence because "this is a very complex case" and "anything that happened only happened in self defense and nothing more." (Id.) Third, he states that there was "prosecutorial misconduct" in that the prosecutor "made many inflammatory remarks which were never objected to" and made statements designed to "appeal to the jurors' emotions." (Id. at 6.) Fourth, petitioner claims that many of the trial judge's rulings were "incorrect and prejudicial," such as "the ruling on the identification issue" and "other hearings that should have been requested." (Id.) Fifth, he claims that he had ineffective assistance of appellate counsel. *fn1" (Id.)

 Discussion

 1. Exhaustion of Claims

 A state prisoner seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 generally must first have exhausted his state court remedies. 28 U.S.C. § 2254(b)(1). "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). Of the five claims for relief listed in the petition, only the claim of ineffective assistance of trial counsel was raised in state court and therefore only that claim is exhausted. The three claims concerning weight of the evidence, prosecutorial misconduct and incorrect rulings of the court can no longer be raised in state court. N.Y. Ct. Rules § 500.10(a) (only one application for leave to appeal to New York Court of Appeals is permitted); N.Y. Crim. Proc. § 440.10(2)(c) (collateral review barred if claim could have been raised on direct review). Accordingly, they are "deemed exhausted," Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 131 L. Ed. 2d 316, 115 S. Ct. 1436 (1995), and can be considered in a federal habeas corpus proceeding if the petitioner can show "cause" and "prejudice" for the failure to raise the issues in the state courts, Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991). The only "cause" suggested by petitioner for his failure to raise these claims is that his attorney was ineffective. Since ineffective assistance of counsel can constitute "cause," the three claims merge with the claim of ineffective assistance of counsel. *fn2"

 However, the claim of ineffective assistance of appellate counsel has never been presented to a state court. Such a claim could still be raised in state court by writ of coram nobis. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994); People v. Bachert, 69 N.Y.2d 593, 516 N.Y.S.2d 623, 509 N.E.2d 318 (1987). Therefore, this claim has not been exhausted and cannot be "deemed exhausted." Accordingly, the issue arises of whether a district court may, in its discretion, consider a petition which contains both exhausted and unexhausted claims. To answer this question requires an analysis of both the case law and the recent amendments to the habeas corpus statute.

 In Rose v. Lundy, 455 U.S. 509, 522, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982), the Supreme Court held that a district court must dismiss a habeas petition that contains unexhausted as well as exhausted claims. Five years later, in Granberry v. Greer, 481 U.S. 129, 95 L. Ed. 2d 119, 107 S. Ct. 1671 (1987), the Supreme Court held that where a state had inadvertently failed to raise the nonexhaustion defense at the district court level, an appellate court was not required to dismiss for failure to exhaust. Granberry was extended by the Second Circuit in Plunkett v. Johnson, 828 F.2d 954 (2d Cir. 1987), to apply to district courts. That is, the Second Circuit held that "district courts also must exercise their discretion to determine what effect to give to a state's waiver of the exhaustion defense [by not raising the issue], and must not adopt a per se rule that in the case of nonexhaustion the petition must be dismissed." Id. at 956. But Plunkett applies only to cases where a state has waived its exhaustion defense. See Solomon v. Senkowski, 778 F. Supp. 197, 198-99 (S.D.N.Y. 1991). The state in this case has not waived its exhaustion defense, but has argued that Loving's petition should be dismissed since many of his claims were not raised in state court. Accordingly, the case law prior to the recent amendments to the habeas corpus statute does not permit me to reach the merits of the petition. See Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991).

 The Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA" or the "Act"), however, amended 28 U.S.C. § 2254(b) to permit courts to deny applications for a writ of habeas corpus on the merits, notwithstanding a petitioner's failure to exhaust state remedies. Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1218 (1996) (codified at 28 U.S.C. § 2254(b)(2)). The AEDPA was signed into law on April 24, 1996, after petitioner had filed this petition. While the portion of the AEDPA that creates new procedures for death penalty litigation explicitly states that the procedures are not to apply retroactively, see AEDPA § 107(c), 110 Stat. 1226, the AEDPA is silent with respect to the retroactivity of provisions relating to non-capital habeas petitions. The Second Circuit has not yet ruled on whether this particular provision of the habeas corpus amendments should apply to cases pending before the enactment of the statute. See Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996) (one-year statute of limitations does not apply retroactively but requirement of certificate of appealability does apply retroactively); Boria v. Keane, 90 F.3d 36 (2d Cir. 1996) (provision setting forth new substantive standard for granting habeas petitions does not apply retroactively). However, the Second Circuit has held that the language of § 107(c), which provides that the new procedures for capital cases shall apply only to cases pending on or after the date of enactment of the Act, does not carry any negative implication for other habeas cases. Reyes v. Keane, 90 F.3d 676, 679 (2d Cir. 1996).

 In Landgraf v. USI Film Products, 511 U.S. 244, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994), the Supreme Court set out the standard for determining whether to apply a new statute to cases pending before the statute's effective date. When Congress has not expressly prescribed the statute's proper reach, a court "must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Id. at 280. If, under this standard, application of the statute would have "retroactive effect," then the statute must not be applied to cases involving events which occurred before the statute was enacted. Id. In this case, applying the new § 2254(b)(2), which allows a district court to deny a habeas petition on the merits despite nonexhaustion, will not impair petitioner's rights, increase his liability or impose new duties. On the contrary, application of the provision to this already pending case will enable petitioner to achieve his goal of having the merits of his constitutional claims considered by a federal court. This result "effectuates congressional intent, conserves ...


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