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FRANZA v. STINSON

July 1, 1999

DOMINIC M. FRANZA, PETITIONER,
v.
JAMES STINSON, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: Kaplan, District Judge.

    ORDER

Petitioner was convicted in 1992 in the Supreme Court of the State of New York of three counts of attempted murder in the second degree and one count of criminal possession of a dangerous weapon in the first degree and sentenced to consecutive terms of 8-1/3 to 25 years for each attempted murder count and 3 to 9 years for the weapons count. He has unsuccessfully exhausted his appellate remedies in the state system and been unsuccessful as well with state post-conviction applications and now seeks habeas in this Court. His petition, exclusive of voluminous exhibits, is 74 pages in length. He asserts two grounds for relief: (1) the state court deprived petitioner of due process and equal protection by denying his post-conviction application under Crim. Proc. L. § 440.10, and (2) he allegedly received the ineffective assistance of appellate counsel in the state system. The latter argument, however, effectively incorporates virtually all of the many contentions petitioner and his counsel made in all of the prior state proceedings on the theory that those which appellate counsel raised were not raised adequately and that the failure to raise the others was deficient performance.

In a thorough 59-page report, Magistrate Judge Peck has recommended the denial of the petition. Franza has filed lengthy objections, largely reiterating his previous arguments. Only two points warrant any comment by the undersigned.

First, it appears that one of petitioner's many ineffective assistance arguments is that his appellate counsel did not argue adequately the alleged insufficiency of the evidence to support the conviction. Magistrate Judge Peck disagreed with the contention, but then went on to say, in the alternative, that "[e]ven if Franza's appellate counsel should have made a `better' sufficiency of the evidence argument . . ., Franza can show no prejudice because the evidence was constitutionally sufficient." (R & R at 18) With respect, it is at least arguable that the proper measure of prejudice for purposes of an ineffective assistance of appellate counsel contention is not whether the evidence was sufficient to sustain a conviction, but whether a constitutionally sufficient performance probably would have led to a different result. See Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Whatever the precise standard, however, petitioner has failed to satisfy either prong of the Strickland test.

Second, petitioner argues that his confrontation rights were violated because a pretrial suppression hearing was reopened on February 13, 1992 and concluded in his absence. Magistrate Judge Peck concluded that the record shows that petitioner in fact was present, largely on the basis of the presumption of regularity that attaches to New York criminal proceedings. (R & R at 37-39) It seems to the undersigned, however, that the record is not quite so clear.

On January 21, 1992, the trial court conducted a hearing on petitioner's motions to suppress his statements to the police, papers seized from his person incident to arrest, and items seized pursuant to federal search warrants. (Pet. Ex. 33, at 4) It subsequently issued an opinion denying the motions. (Id.) Jury selection began on February 10, 1992. (Id. Ex. 38)

On February 13, 1992, during the voir dire, petitioner's counsel moved to reopen the hearing to resume cross-examination of one of the detectives after being supplied with new Rosario material. (Id. Ex. 37, at 111) The transcript of the reopened hearing appears as Exhibit 37 to the petition and consists of pages 110 through 133 of the minutes for that date. The balance of the transcript for that day has not been supplied to the Court.

The respondent's memorandum in this Court states that petitioner was present, but cites only to Exhibit 37 in support of that assertion. (Resp.Mem.24) Exhibit 37, the excerpt from the February 13, 1992 minutes before the Court, in fact does not reflect, one way or the other, whether petitioner was present, although of course his counsel was present and concluded the cross-examination of the detective. The Court therefore has reviewed the People's brief to the Appellate Division in hope of greater enlightenment. But the People there first stated that "pages 110-111 plainly note show [sic] that defendant was present for the reopened hearing," which is manifestly incorrect. They went on to buttress that assertion by stating that "when the jury panel entered [presumably after the conclusion of the reopened hearing], the court introduced defendant," thereby demonstrating that he was present. For the latter point they cite pages 137 and 138 of the minutes for February 13. Unfortunately, neither party has made those pages of the transcript part of the record. Accordingly, the Court assumes, without deciding, that petitioner was not present during the reopened cross-examination of Detective Georgio by petitioner's counsel, which covered 23 pages of transcript on February 13, 1992. This assumption is far from sufficient to justify disturbing petitioner's convictions, however.

In order to prevail on his contention that petitioner's appellate counsel performed in a constitutionally deficient manner, petitioner has the burden of rebutting the "strong presumption that counsel's conduct came within the wide range of reasonable professional assistance . . ." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. If, as the People's Appellate Division brief stated, pages 137-38 of the transcript show that petitioner in fact was present, appellate counsel obviously is not to be faulted for not advancing the argument because the argument would have been doomed to failure. But the same is true even if the record simply was inconclusive. There would have been no evidentiary basis for asserting that petitioner's confrontation rights had been violated because the record failed to support the claim. Moreover, even if the record conclusively had established petitioner's absence during the brief reopened portion of the hearing, counsel would have been justified in declining to assert the claim because the argument for reversal based on this absence would have been weak.

While an accused has a constitutional right to be present "at every stage of his trial,"*fn1 and while courts typically have taken a broad view in determining whether particular aspects of a criminal prosecution are parts of the "trial" for this purpose,*fn2 violations of that right will not lead to reversal if the error was harmless beyond a reasonable doubt. E.g., United States v. Toliver, 541 F.2d 958 (2d Cir. 1976); Ware v. United States, 376 F.2d 717 (7th Cir. 1967). Here, the portion of the proceeding from which the petitioner claims to have been absent was very brief. His attorney was present. Review of the record reveals the commission of no legal error during petitioner's absence and no reason to suppose that petitioner's presence would have altered the result of the suppression hearing, much less the case. Accordingly, this Court is satisfied that any error in proceeding in petitioner's absence, if that actually occurred, was harmless beyond a reasonable doubt. His appellate counsel therefore would have been entirely justified in not raising the issue. In any case, there was no prejudice. In these circumstances, there is no need to consider whether the failure of petitioner's counsel to object to proceeding with the reopened hearing in petitioner's absence, if absent he was, could waive petitioner's right to be present.

With the foregoing qualifications, the petition is denied substantially for the reasons set forth in Magistrate Judge Peck's report and recommendation. As petitioner has presented no substantial constitutional question, a certificate of appealability is denied, and the Court certifies that any appeal from this order would not be taken in good faith for purposes of 28 U.S.C. § 1915.

SO ORDERED.

REPORT AND RECOMMENDATION

Petitioner Dominic Franza was convicted of three counts of second degree attempted murder and one count of weapon's possession in connection with the attempted murders of Franza's estranged wife, Myra Franza, and her family. Franza's present habeas petition alleges that he was denied effective assistance of appellate counsel, and that the state courts' denial of his CPL § 440.10 post-conviction motion violated his rights to due process and equal protection.

For the reasons set forth below, I recommend that Franza's petition be denied on the merits.

FACTS

The Trial Evidence

At 7:15 P.M. on July 17, 1990, an unidentified man pretended to deliver roses to Myra Franza, Franza's estranged wife, at her mother, Josephine Mendez's apartment. (Trial Transcript ["Tr."] 224, 265-70, 272, 281-82, 284-85, 313.) When Mendez opened the apartment door, the man followed Mendez into the apartment, stabbed her and shot her five times (once in the face), and shot Myra Franza once in the face. (Tr. 224-29, 248, 313, 315, 323-24.) The man fled, leaving behind the roses and the note attached to the flower box, which handwriting analysis showed had been written by Franza. (Tr. 159, 228, 282, 668, 1200-11, 1442-43.) Myra Franza told the police that Franza sent the man to kill her because she left him. (Tr. 147-48, 150, 158, 314-15.)

On August 11, 1990, a pipe bomb was left outside the apartment of Myra Franza's brother, Nelson DaCosta, at 644 West 185th Street. (Tr. 666-68, 731, 773-74, 785, 788-89.)

On February 6, 1991, two letters arrived at Mendez's apartment, one addressed to Myra Franza c/o Mendez and one to her brother DaCosta c/o Mendez, threatening to kill Myra Franza, her parents, her brother, and her grandmother in Puerto Rico. (Tr. 237-43, 274-77; Franza Pet. Exs. 5(40)-(41): Letters to Myra Franza and DaCosta.) Each envelope bore a twenty-five cent stamp and two three-cent stamps (postage rates having just gone up from 29¢ to 31¢). (Tr. 819-20, 1266; Franza Pet. Ex. 5(42): Envelope addressed to DaCosta.) The typed letters were purportedly from a "Julio Ortiz," but the handwritten envelopes bore "strong similarities" to Franza's handwriting. (Tr. 239, 243, 1304-06, 1427-29, 1446, 1450-53.)

On February 8, 1991, Federal Express delivered a pipe bomb to Mendez's sister in Puerto Rico, intended for Myra Franza's grandmother, from "Julio Ortiz" of "U.S.A. Electronics." (Tr. 763-70, 890-91.)

On February 11, 1991, the police arrested Franza for the attempted murders of Myra Franza and Mendez. (Tr. 730, 788, 814-15.) When Franza was arrested he had on him Myra Franza's grandmother's address in Puerto Rico. (Tr. 622-24, 732-33, 842.) Franza furnished handwriting exemplars which, according to the police handwriting expert, established that Franza wrote the note accompanying the flowers delivered to Myra Franza when she and Mendez were shot, as well as the Federal Express airbill listing the sender of the Puerto Rico pipe bomb as "Julio Ortiz" of "U.S.A. Electronics," and the money order used to pay for shipping the pipe bomb to Puerto Rico. (Tr. 890-93, 1199-236, 1346-48, 1376-77, 1421-24, 1441-47.)

On February 12 and 14, 1991, the authorities obtained search warrants for Franza's apartment. (Tr. 777-79, 810, 812-13, 821, 847-48, 868-69, 873-77.) The police recovered: a green marker (Tr. 812, 813, 815, 827-28, 858, 867, 927-28) and black electrical tape (Tr. 811, 813, 816, 828, 858, 866-67, 880, 927, 993, 1000), consistent with the ink and tape used on the Puerto Rico pipe bomb (Tr. 927, 975-78, 1000-06, 1011-21); smokeless gunpowder (Tr. 811-13, 815, 834-35, 858, 865, 927); a sheet of three-cent stamps (Tr. 778, 810, 813, 822-23, 828-29, 855-56, 858, 927) which matched the stamps on the threatening letters (Tr. 819-20, 822-23, 837, 1264-302, 1429-40); a list of books on explosive devices (Tr. 852-55); handwritten and typewritten papers (Tr. 812, 816, 850-51, 858, 862, 864, 881-83, 927), including a piece of paper with the name "Julio Ortiz" written on it along with the town in which Myra Franza's grandmother lived and her telephone number (Tr. 858-60, 937-38); indented writing on a piece of paper with DaCosta's name, address, height, weight, wife's name, cross streets and the words "shoot" and "Julio Ortiz" on it (Tr. 1237-53, 1257-63); a business card from U.S.A. Electronics (Tr. 862-63); and firecrackers that were similar to firecrackers used as a fuse in the DaCosta pipe bomb (Tr. 875-81, 941, 982-85, 995-1000).

The jury convicted Franza of attempted murder of Myra Franza, Mendez and DaCosta, and of criminal possession of a weapon. (Tr. 1994-98.) See People v. Franza, 239 A.D.2d 201, 201, 658 N.Y.S.2d 4, 5 (1st Dep't 1997). On April 8, 1992, the trial judge sentenced Franza to consecutive terms of 8-1/3 to 25 years for each attempted murder count, and 3 to 9 years for the weapons count. (Pet. ¶¶ 3-4.) See People v. Franza, 239 A.D.2d at 201, 658 N.Y.S.2d at 5.

Franza's CPL § 440.10 Motion to Set Aside the Verdict

On June 17, 1993, Franza filed a pro se motion with the trial judge to vacate the judgment pursuant to CPL § 440.10. (Franza Pet. Ex. 6: Franza 6/17/93 Pro Se 440.10 Mot.) Franza argued that: (1) the court did not have jurisdiction; (2) "[t]he judgment was procured by Fraud on the part of the Prosecutor"; (3) fabricated evidence was introduced at trial; (4) the evidence was procured "in violation of the Defendant's rights under the [New York and federal] Constitution[s];" (5) "[i]mproper and prejudicial conduct not appearing in the record occurred during trial [which] . . . required a reversal of the judgment;" (6) "[n]ew [e]vidence has been discovered;" and (7) "[t]he judgment was obtained in violation of a right of the Defendant under the [state and federal] Constitution[s]." (Franza Pet. Ex. 6: Franza 6/17/93 Pro Se 440.10 Mot. at 1-2.)

On October 19, 1993, the trial judge denied Franza's CPL § 440.10 motion, holding:

    [Franza] has appealed his conviction to the
  Appellate Division, First Department where it is
  pending. [Franza] now moves pursuant to C.P.L. §
  440.10 to set aside this judgment, making a litany of
  claims which more or less track the statutory
  language. This motion is made

  pro se, yet I have assigned [Franza's] appellate
  counsel to assist him with this [CPL §] 440.10
  motion. The People oppose both a hearing and the
  ultimate relief defendant seeks.
    This Court is wholly familiar with the trial and
  the evidence presented, as well as the comportment of
  counsel on both sides of the aisle.
    [Franza's] claims for a hearing or a new trial are
  based largely on completely unsubstantiated charges
  of fraud and collusion leveled against the D.A. and
  defense counsel, alleging fabricated, altered and
  withheld evidence resulting in his conviction.
  Attendant to this are claims of ineffective
  assistance of counsel. In addition, defendant asserts
  through a byzantine re-analysis of the People's
  evidence at trial that he could not logically be
  guilty.
    [Franza's] motion is denied in all respects.
  Firstly, C.P.L. [§] 440.10(2)(b) mandates denial
  when, "The judgment is, at the time of the motion,
  appealable or pending an appeal, and sufficient facts
  appear on the record . . . to permit adequate review
  thereof upon such appeal . . .[.]"
    As [Franza's] case is on direct appeal and no
  grounds exist to necessitate a hearing to enlarge the
  record, the motion is denied. The Court also notes
  that a review of the record at trial indicates that
  all of [Franza's] specified claims are without merit.
  [Franza's] claims of a conspiracy between counsel to
  convict him are nothing but self-serving, wishful
  thinking. In fact, both the Prosecutor and defense
  counsel did exemplary work at trial. Finally, the
  evidence of defendant's guilt was overwhelming.
  Motion is denied in all respects.

(Franza Pet. Ex. 18: Justice Paul Bookson 10/19/93 Decision.)

On December 16, 1993, the First Department granted Franza leave to appeal from the trial court's denial of his CPL § 440.10 motion, and consolidated Franza's CPL § 440.10 appeal with his direct appeal. (State App. Ex. B: 12/16/93 1st Dep't Certificate Granting Leave to Appeal.)

Franza's Direct Appeal

On June 10, 1996, Franza appealed to the First Department, represented by new counsel, Perry Reich.*fn1 (Franza Pet. Ex. 3: Franza 1st Dep't Br.) Reich argued on Franza's behalf that: (1) the circumstantial evidence was insufficient to support the verdict (id. at 20-23); (2) there was no probable cause to issue the search warrants for Franza's apartment and so Franza's suppression motion should have been granted (id. at 24-26); (3) erroneous evidentiary rulings deprived Franza of a fair trial (id. at 27-37); (4) the trial court incorrectly charged the jury on the circumstantial evidence standard (id. at 38-40); and (5) consecutive sentences were inappropriate (id. at 41-42). Franza submitted a pro se supplemental brief to the First Department, arguing that the trial court erred by denying his CPL § 440.10 motion. (Franza Pet. Ex. 2: Franza Pro Se 1st Dep't Br. at 37-59.)

On May 13, 1997, the First Department affirmed Franza's conviction, holding:

    The circumstantial evidence of guilt, including
  several highly incriminating items of handwriting
  evidence, was legally sufficient, and the verdict was
  not against the weight of the evidence. Defendant's
  contention that there was no probable cause for the
  issuance of a search warrant for his apartment is
  without merit, since, under the circumstances,

  it was reasonable to conclude that the items used to
  make the pipe-bomb would be found in his residence.
  The court's charge on the circumstantial evidence
  conveyed the appropriate standards. We perceive no
  abuse of discretion in sentencing. We have considered
  defendant's remaining contentions, including those
  addressed to the denial of his motion to vacate
  judgment, and find them to be without merit.

People v. Franza, 239 A.D.2d 201, 202, 658 N.Y.S.2d 4, 5 (1st Dep't 1997) (citations omitted).

On June 6, 1997, Franza pro se sought leave to appeal. (Franza Pet. Ex. 26: Franza 6/6/97 Letter-Brief to Chief Judge Kaye.)*fn2 On August 25, 1997, the Court of Appeals denied leave to appeal. (State App. Ex. E: Cert. Denying Leave to Appeal.) See People v. Franza, 90 N.Y.2d 904, 663 N.Y.S.2d 516, 686 N.E.2d 228 (1997).

Franza's State Petition for a Writ of Error Coram Nobis

On November 10, 1997, Franza petitioned the First Department for a writ of error coram nobis, alleging that he was denied effective assistance of appellate counsel. (Franza Pet. Exs. 27-28: Franza Coram Nobis Aff. & Br.)*fn3

In an affidavit and a brief totaling 224 pages, Franza argued that appellate counsel failed to provide effective assistance on numerous grounds: (1) appellate counsel's argument that the circumstantial evidence was insufficient to support the verdict was "merely 90 typed lines and 3-12; pages long," fails to cite the relevant facts or "a single [f]ederal case", and was ineffective as evidenced by the First Department's opinion affirming Franza's conviction without addressing this issue (Franza Pet. Ex. 27: Coram Nobis Aff. ¶¶ 23-39; Franza Pet. Ex. 28: Coram Nobis Br. at pp. 48-53); (2) appellate counsel's argument that there was no probable cause to issue the search warrant was only "66 typed lines and 2½ pages long" and did not mention key facts (Coram Nobis Aff. ¶¶ 40-47; Coram Nobis Br. at pp. 54-56); (3) appellate counsel's argument that erroneous evidentiary rulings deprived Franza of a fair trial was only "268 lines and 11 pages long," fails to recite the relevant facts, and the First Department found it to be without merit (Coram Nobis Aff. ¶¶ 48-54; Coram Nobis Br. at pp. 56-57); (4) appellate counsel's argument that the circumstantial evidence charge was flawed was only "120 lines and 3 pages," cites only state law, did not adequately cite to the record, and failed to address the issue that "the Court entirely failed in its entire charge to convey . . . that any circumstantial evidence fact not so proved must be disregarded" (Coram Nobis Aff. ¶¶ 56-61; Coram Nobis Br. at pp. 57-59); (5) appellate counsel failed to argue that the trial court erroneously rejected Franza's CPL § 440.10 motion (Coram Nobis Aff. ¶¶ 62-63; Coram Nobis Br. at pp. 59-60, 117-27); (6) appellate counsel failed to argue that the state did not prove intent, motive or guilt beyond a reasonable doubt and omitted certain relevant facts from his analysis (Coram Nobis Aff. ¶¶ 31-33, 66-172, 295-307; Coram Nobis Br. at pp. 61-86, 127-30); (7) appellate counsel failed to argue that the trial court improperly read back portions of the handwriting expert's testimony to the jury and gave the jury an improper exhibit (Coram Nobis Aff. ¶¶ 173-91; Coram Nobis Br. at pp. 86-91); (8) appellate counsel failed to argue that a secret pre-trial hearing was held outside of Franza's presence (Coram Nobis Aff. ¶¶ 192-204; Coram Nobis Br. at pp. 91-94); (9) appellate counsel failed to argue that trial counsel was ineffective for not objecting to the prosecutor's allegedly improper summation (Coram Nobis Aff. ¶¶ 205-51; Coram Nobis Br. at pp. 94-116); and (10) appellate counsel failed to argue that trial counsel was ineffective for not seeking to submit a first degree assault charge to the jury (Coram Nobis Aff. ¶¶ 309-18; Coram Nobis Br. at pp. 130-32).

The First Department summarily denied Franza's coram nobis petition on June 11, 1998. (Franza Pet. Ex. 42: 1st Dep't 6/11/98 Opinion.)

Franza's Federal Habeas Petition

Franza's instant federal habeas petition raises the same claims and rationale that he presented in his CPL § 440.10 appeal and coram nobis petition to the First Department: (1) he was denied effective assistance of appellate counsel (Pet. ¶ 12(B); Franza Br. at 86-95; Franza Traverse Br. at 15-16), and (2) the trial court's denial of his CPL § 440.10 motion violated his due process and equal protection rights (Pet. ¶ 12(A); Franza Br. at 73-86; Franza Traverse Br. at 1-15).*fn4 The underpinning of Franza's claims is that he "was framed," there was a conspiracy between the prosecutor and defense counsel to use false evidence, and the "Trial Court was clearly biased against [Franza], working for the State." (See Franza 2/12/99 Reply Aff. ¶¶ 3, 4, 7, 9, 13, 15.)

ANALYSIS

I. FRANZA'S APPELLATE COUNSEL WAS NOT INEFFECTIVE UNDER
  THE STRICKLAND ...

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