criminal and personal history is gathered. It is then analyzed by
the investigative agency, which prepares a report that provides
the judge with information relevant to sentencing.
Ideally, presentence reports contain noting but accurate
information. In some situations, however, there can be an error
in one or more aspects of the report and due process
considerations require re-sentencing or reversal. For such
drastic relief to be ordered, however, the error in the report
must amount to "misinformation of a constitutional magnitude."
United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 30
L.Ed.2d 592 (1972). In other words, the error must be so
egregious, that if accurately presented to the sentencing judge a
different result would have been reached.
Here, the trial court noted immediately the inaccuracy of the
report with respect to the statement regarding the guilty plea.
The information that petitioner claims is wrong (his family and
work history) does not, in fact, appear to be inaccurate. Even
assuming, however, the inaccuracy of this information, it is not,
in light of the many undisputed criminal activities detailed in
the report, of the constitutional magnitude required to result in
reversal due to its consideration. Simply put, this information
was not so important that the result would have been different
had it been presented as Petitioner wished. Accordingly, the
court rejects any due process claim based upon the alleged
inaccuracy of the report.
The court similarly rejects any claim based upon any alleged
denial of an opportunity to contest the facts set forth in the
Presentence Report. It is well settled that a defendant must be
given an opportunity to contest facts contained in a report which
he alleges are false and sentence may not be imposed based on a
material misapprehension of fact. Townsend v. Burke,
334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); Torres v. United
States, 140 F.3d 392, 404 (2d Cir.), cert. denied, ___ U.S.
___, 119 S.Ct. 595, 142 L.Ed.2d 537 (1998). However, even where
there is an alleged factual inaccuracy contained in the report,
the court need not resolve the dispute when the information is
not relied on in arriving at a sentence. United States v.
Alvarado, 891 F.2d 439, 445-46 (2d. Cir. 1989), vacated on
other grounds, 497 U.S. 543, 110 S.Ct. 2995, 111 L.Ed.2d 439
Petitioner was given the opportunity to review the Presentence
Report and refute it as well. Through counsel, Petitioner offered
information he felt contrasted with what was alleged in the
Presentence Report. Further, he sought to establish his good
character based on two letters of reference and his work history.
It is clear to this court that Petitioner was afforded due
process with regard to the proceedings surrounding the
Presentence Report. Even if the procedure had been deficient in
affording Petitioner due process it would not require reversal.
Importantly, the record indicates that the sentencing judge did
not specifically consider these factors in his decision.
Therefore, the court was not obligated to resolve the factual
disputes raised by the Petitioner.
For all of the reasons referred to above, the court holds that
the trial court's handling of the presentence phase of
Petitioner's state court trial in no way deprived Petitioner of
his right to due process of law.
2. Constitutionality of Persistent Felony Offender Statute
Petitioner's final habeas claim concerning his sentencing is
that application of New York's Persistent Felony Offender statute
violated his right to be free from cruel and unusual punishment
as well as his right to due process of law. With respect to his
due process challenge, Petitioner argues that the state law
requirement that proof of a defendant's background be proven by
only a preponderance
of the evidence, and the discretion granted the sentencing court,
violate due process.
Enhanced sentencing for persistent offenders has long been held
to be constitutional. E.g., Graham v. West Virginia,
224 U.S. 616, 623, 32 S.Ct. 583, 56 L.Ed. 917 (1912); Moore v. Missouri,
159 U.S. 673, 678-79, 16 S.Ct. 179, 40 L.Ed. 301 (1895); see
People v. Oliver, 96 A.D.2d 1104, 1105, 467 N.Y.S.2d 76 (2d
Dept. 1983). Petitioner here takes issue with the statute's
requirement that the prosecutor's burden of proof, with respect
to the defendant's character and history, and the nature of his
criminal conduct, is only a preponderance of the evidence. See
Penal Law § 70.10 and Criminal Procedure Law § 400.20.
As noted by the Supreme Court in McMillan v. Pennsylvania,
477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), it is
completely consistent with the requirements of due process to
consider facts presented during the sentencing phase of a
criminal trial pursuant to a preponderance of the evidence
standard. McMillan, 477 U.S. at 90, 106 S.Ct. 2411. Thus, the
use of this standard of proof, standing alone, does not violate
the Constitution. See also United States v. Underwood,
932 F.2d 1049, 1052 (2d Cir. 1991) (determination of sentencing factors
under Federal Sentencing Guidelines may be proven by
preponderance of the evidence standard).
Moreover, it is clear that Petitioner was afforded due process
at his particular persistent felon hearing. The opportunity to
present evidence was exercised by defense counsel who presented
two letters from spiritual leaders as well as evidence of
Petitioner's work history. In addition, Petitioner was given the
chance to refute the validity of a 1972 conviction. The
prosecution was required to obtain and introduce plea minutes to
establish the facts surrounding this conviction. From these facts
and a review of the state court proceedings, it is clear to the
court that no aspect of the sentencing hearing violated
Petitioner's right to due process of law.
Finally, the court rejects the claim that sentence imposed
constituted the arbitrary imposition of cruel and unusual
punishment. Under the requirements of Furman v. Georgia,
408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), a state is
required to prevent an arbitrary and capricious imposition of
sentence as this would constitute cruel and unusual punishment.
The sentencing decision in this case was a rational decision in
which both sides submitted evidence to aid the judge in reaching
his conclusion. The record clearly indicates that Petitioner was
convicted of two prior felonies. His long criminal history
certainly allowed the sentencing judge the discretion to impose a
sentence of twenty years to life. The court finds neither that
the provision of discretion nor the exercise thereof constitutes
cruel and unusual punishment and rejects Warren's challenge to
the imposition of sentence based upon this ground.
B. Effective Assistance of Counsel (the fourth, ninth and
tenth claims for relief)
1. Effective Assistance of Trial Counsel
Petitioner claims that he was denied effective assistance of
counsel when the state trial court refused to replace the Legal
Aid attorney upon Petitioner's request. It is also claimed that
appointed counsel failed to represent Petitioner with the
competence required by the Constitution.
i. Failure to Appoint New Counsel
While an indigent defendant is entitled to assigned counsel,
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799
(1963), he does not have the right to have counsel changed at
will. The Sixth Amendment focuses on the protection of the
"adversarial process, not . . . the accused's relationship with
his lawyer as such." Pizarro v. Bartlett, 776 F. Supp.
815, 818 (S.D.N.Y. 1991), quoting, United States v. Cronic,
466 U.S. 648, 657 n. 21, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). There
is a right to an "effective advocate," but not the right to a
"meaningful attorney-client relationship." Id. (citations
To warrant appointment of new counsel during or on the eve of
trial, unusual circumstances must exist, "such as a complete
breakdown of communication or an irreconcilable conflict."
United States v. Schmidt, 105 F.3d 82, 89 (2d Cir.), cert.
denied, 522 U.S. 846, 118 S.Ct. 130, 139 L.Ed.2d 80 (1997). To
warrant the assignment of new counsel during trial, a defendant
must show "good cause, leading to an apparently unjust verdict."
McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981), quoting,
United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972). The
decision of whether to appoint new counsel is properly left to
the trial court and turns upon the facts of each case. McKee,
649 F.2d at 932. Although loss of trust is a factor used in
assessing good cause, a defendant seeking new counsel must,
nonetheless, provide a legitimate reason for the change of
counsel. Id. Therefore, he is required to do more than merely
assert the fact that he has no confidence in his Attorney. Id.
Prior to trial, the state court denied Petitioner's motion for
appointment of new counsel on the ground that Petitioner could
not allege any specific facts in support of his claim that a
conflict had arisen between Petitioner and his Legal Aid
attorney. The state court considered, and found specifically that
Petitioner failed to show any good cause for removal of the Legal
Aid attorney and appointment of new counsel. To the contrary, the
state judge found that the Legal Aid attorney had acted
competently in representing Warren and refused to remove the
attorney from the case.
Under AEDPA, where, as here, the state court makes a factual
finding and considers the merits of a claim, the habeas
petitioner faces the high burden of showing that: (1) the state
court decision was "contrary to, or involved an unreasonable
application of, clearly established Federal law . . ." or (2) the
state court decision "was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding." 28 U.S.C. § 2254(d). Moreover, the habeas
petitioner faces the burden of overcoming the presumption of
correctness of state court findings of fact. See
28 U.S.C. § 2254(e)(1). A state court finding is presumptively correct if it
is at least minimally consistent with the facts and circumstances
of the case. Sellan v. Kuhlman, 63 F. Supp.2d 262, 267 (E.D.N Y
1999), quoting, Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir.),
cert. denied, 522 U.S. 819, 118 S.Ct. 72, 139 L.Ed.2d 32
Applying these standards here, the court has no difficulty
rejecting the claim that the failure to appoint new counsel
violated Petitioner's Sixth Amendment right to counsel. The trial
court's denial of Petitioner's request for new counsel was
considered and affirmed as appropriate by the Appellate Division.
This ruling is certainly consistent with the facts and
circumstances of this case and involves no unreasonable
application of Federal law. Accordingly, the court rejects the
claims that the failure to appoint new counsel deprived
Petitioner of his right to counsel.
ii. Competence of Representation
To determine whether counsel has rendered ineffective
assistance, the court looks to the standard set forth in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). First, the petitioner must establish that the
representation fell below an objective standard of
reasonableness. Then petitioner must show a reasonable
probability that the result of the proceeding would have been
different, if not for counsel's errors. Id. at 688-694, 104
S.Ct. 2052. There is a strong presumption that counsel acted
within "the wide range of professional assistance." Id. at 694,
104 S.Ct. 2052. The fact that counsel will not present certain
issues or motions to the court, which defendant wishes to be
raised, does not render his or her representation ineffective.
United States v. Nersesian, 824 F.2d 1294, 1322 (2d Cir. 1987)
("not every possible motion need be filed, but rather, only those
having solid foundation").
As discussed above, the state court rejected Petitioner's
ineffective assistance of counsel claim. This court agrees fully
with the state court determination and applying AEDPA standards,
declines to disturb that finding. A review of the state court
record reveals that the Legal Aid attorney submitted only the
portions of Petitioner's pro se motion deemed to have legal
merit and withheld those aspects of the motion that he found to
be frivolous. There is no obligation to present every motion a
client requests, therefore the attorney was well within his
rights to pursue this course of action. See Nersesian, 824 F.2d
Considering counsel's representation of Petitioner as a whole
and, in particular, during the sentencing hearing, the court
holds that there is nothing in the record that indicates that
counsel acted outside the wide range of acceptable professional
assistance. He conducted cross-examination, requested a chain of
custody hearing, a Sandoval hearing, a Wade hearing, and
contested discrepancies in the the Presentence Report. His
decision not to put witnesses on the stand at the sentencing was
proper in that it would not have altered the result as the judge
was in possession of reference letters from two of the potential
witnesses. It is clear that counsel fulfilled his obligation to
his client and rendered the best assistance possible under the
2. Effective Assistance of Appellate Counsel
Effective assistance of appellate counsel is governed by
standards similar to those employed when assessing the competence
of trial counsel. Appellate counsel has a duty to present the
issues he feels present the strongest possibility of success, and
not merely frivolous issues. Jones v. Barnes, 463 U.S. 745,
754, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). It is counsel's job
to ensure that weak arguments are eliminated, so as not to
conceal the force of stronger arguments. Id. at 751-53, 103
S.Ct. 3308; see also Abdurrahman v. Henderson, 897 F.2d 71, 74
(2d Cir. 1990).
Petitioner's ineffective assistance of appellate counsel
argument was raised and denied in the context of his 1997 coram
nobis application. Applying the AEPDA standards referred to
above, this court agrees with the determination of the Appellate
Division. Petitioner's appellate counsel submitted an extensive
brief addressing twenty one issues under nine point headings in
his efforts to overturn the conviction. Any argument omitted was
clearly rejected due to weakness and in an effort to present the
strongest arguments for review by the Appellate Division. It is
clear to this court, as it was to the Appellate Division, that
Petitioner received effective assistance of appellate counsel.
C. Evidentiary Rulings (the fifth and eighth claims for
Petitioner's claims regarding allegedly improper evidentiary
rulings challenge the propriety of the state court's pretrial
Sandoval ruling as well as the court's trial rulings regarding
the introduction of evidence of the cocaine purchased by the
undercover officers and an inadvertent reference to Petitioner's
warrant history. The court considers each claim below.