The Appellate Division denied Simmons' request to file a supplemental brief. (Denial of Motion, attached at Exhibit C to Reuter Aff.). On May 24, 1994, the Appellate Division affirmed Simmons' conviction in its entirety. People v. Simmons, 204 A.D.2d 214, 612 N.Y.S.2d 136 (1st Dep't 1994). Finding that the evidence presented at trial clearly demonstrated that Simmons had displayed a firearm, which justified Simmons' conviction on the more serious offense, the Appellate Division rejected Simmons' argument that the judge should have charged the jury with the lesser included offense. 612 N.Y.S.2d at 136. The Appellate Division also found that Simmons had not preserved his objection to the trial court's Sandoval ruling and therefore could not raise that issue on appeal. Id. The court further stated that if it were to review the trial court's Sandoval ruling, it would find that that ruling was not an abuse of discretion. Id. The Appellate Division also found that Simmons had not been denied a fair trial because of the reference to his probation status. Id.
Simmons was denied leave to appeal to the New York Court of Appeals. People v. Simmons, 84 N.Y.2d 872, 618 N.Y.S.2d 18, 642 N.E.2d 337 (1994). Simmons then filed a writ of error coram nobis, claiming ineffective assistance of appellate counsel. (Notice of Motion, attached as Exhibit E to Reuter Aff.). He based this claim on Scott's decision not to raise a sufficiency of the evidence claim in her appellate brief. (Affidavit in Support of Motion for a Writ of Error Coram Nobis at P13, attached as Exhibit E to Reuter Aff.). The Appellate Division, First Department, denied this petition on March 14, 1995. People v. Simmons, No. 14347/91, (1st Dep't March 14, 1995).
Simmons has raised four issues in his habeas petition. First, Simmons claims that his conviction was based on evidence legally insufficient to prove his guilt beyond a reasonable doubt. Second, Simmons alleges that he was denied effective assistance of appellate counsel. Third, Simmons alleges that the outcome of the Sandoval hearing conducted at his trial deprived him of his right to due process. Finally, Simmons argues that the testimony given by Anavitate about his probation status deprived him of a fair trial.
In opposition to the petition, the respondent first argues that the entire petition must be dismissed because Simmons has failed to exhaust all currently available state court remedies. The respondent argues that Simmons failed to exhaust the available state court avenues for bringing his claim that the evidence presented at trial was insufficient to support his conviction. The existence of this unexhausted claim, argues the respondent, means that this is a "mixed petition," containing both exhausted and un-exhausted claims, which should be dismissed in its entirety. Rose v. Lundy, 455 U.S. 509, 510, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982); Levine v. Commissioner of Correctional Services, 44 F.3d 121, 124 (2d Cir. 1995); Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994); Garcia v. Scully, 907 F. Supp. 700, 705 (S.D.N.Y. 1995).
The respondent argues that Simmons has not exhausted all available state proceedings because he can still file a motion, pursuant to New York Criminal Procedure Law ("CPL") § 440.10, challenging the sufficiency of the evidence. This assertion is incorrect.
In Bossett v. Walker, 41 F.3d 825 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 131 L. Ed. 2d 316, 115 S. Ct. 1436 (1995), the Court of Appeals for the Second Circuit considered whether the petitioner had exhausted all avenues through which to bring his claim challenging the sufficiency of the evidence. The appellant in Bossett had previously sought review by the New York Court of Appeals, but had not presented to that court his claim challenging the sufficiency of the evidence. Bossett, 41 F.3d at 829. The court found that "the failure to raise [the sufficiency of the evidence claim] before the [New York] Court of Appeals precludes further consideration in the New York courts because [the appellant] has already made the one request for leave to appeal to which he is entitled." Id. (citing N.Y. Court Rules § 500.10(a)).
Moreover, the Court of Appeals found that collateral review, pursuant to CPL § 440.10, was barred because the sufficiency of the evidence claim could have been raised on direct review, but had not been. Id. (citing CPL § 440.10(2)(c)). CPL § 440.10(2)(c) bars collateral attack when
Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him . . .."
Thus, the Court of Appeals found that the petitioner's claim challenging the sufficiency of the evidence had been exhausted, because there was no currently available means of raising that claim in state court.
Simmons sought review by the New York Court of Appeals on other issues, but failed to challenge the sufficiency of the evidence in that appeal. Thus, for the reasons set forth in Bossett, Simmons cannot use CPL § 440.10 to bring his sufficiency of the evidence claim, and therefore there are no state court avenues currently available for Simmons to bring this claim. This claim is deemed exhausted. Therefore exhaustion is not a bar to considering Simmons' petition.
While exhaustion is not a bar to considering Simmons' claim of insufficiency of the evidence, this Court still may not consider this claim if Simmons has procedurally defaulted on this claim. The failure to present a claim to a state court for adjudication of the merits normally bars consideration of that issue on a petition for a writ of habeas corpus, see Lebron v. Mann, 40 F.3d 561, 564 (2d Cir. 1994), unless the petitioner can "demonstrate cause for the procedural default and prejudice flowing therefrom . . .." Vargas v. Keane, 86 F.3d 1273, 1280 (2d Cir.), cert. denied, 136 L. Ed. 2d 169, 117 S. Ct. 240 (1996); see also Wainwright v. Sykes, 433 U.S. 72, 87-91, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977); Lebron, 40 F.3d at 564 (2d Cir. 1994). Review is also possible to prevent "a fundamental miscarriage of justice." Vargas, 86 F.3d at 1280.
Simmons alleges that the ineffective assistance of his appellate counsel caused his failure to contest the sufficiency of the evidence in state court. Simmons argues that he wanted Scott to raise this claim before the Appellate Division, but Scott would not. According to Simmons, the failure of Scott to raise this issue before the Appellate Division should excuse his procedural default.
Ineffective assistance of counsel can provide cause to excuse a procedural default. See Murray v. Carrier, 477 U.S. 478, 488-89, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986); McGrath v. United States, 60 F.3d 1005, 1006 (2d Cir. 1995), cert. denied, 133 L. Ed. 2d 857, 116 S. Ct. 929 (1996); Bossett, 41 F.3d at 829. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); see also Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). As the Supreme Court has stated:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.