The opinion of the court was delivered by: Berman, District Judge.
On September 13, 1995, Neal Giraldi ("Petitioner" or "Giraldi"),
proceeding pro se,*fn1
filed a petition for a writ of habeas corpus in the United States
District Court for the Southern District of New York, pursuant to
28 U.S.C. § 2254, challenging his 1975 conviction in New York Supreme
Court, Westchester County, for murder in the second degree, assault in
the second degree, and possession of a weapon as a misdemeanor.
Petitioner alleges three grounds for habeas relief:, (i) deprivation of
his due process rights by virtue of the trial court's jury instructions
concerning his insanity defense; (ii) deprivation of his due process
rights by virtue of the District Attorney's refusal to disclose certain
alleged Rosario material; and (iii) deprivation of his Sixth Amendment
rights by virtue of alleged ineffective assistance of his appellate
counsel.*fn2 Petitioner's ineffective assistance of appellate counsel
claim is a derivative of his first two claims: it is the alleged failure
of his appellate counsel to raise on direct appeal the trial court's jury
instructions on the insanity defense and the State's failure to disclose
certain alleged Rosario material.*fn3
For the reasons set forth below, the Magistrate's Report is adopted in
part and rejected in part. Specifically, the Court accepts so much of the
Report as recommends denial of Petitioner's two due process claims (with
respect to the trial court's jury instructions and failure to provide
Rosario material). The Court respectfully rejects so much of the Report
as finds that there was ineffective assistance of appellate counsel. The
writ is, therefore, denied in its entirety.
Following a jury trial in New York Supreme Court, Westchester County,
on June 4, 1975 Petitioner was convicted of murder in the second degree,
assault in the second degree, and possession of a weapon as a
misdemeanor. The jury convicted Petitioner of stabbing to death Mrs.
Elfredie Bernhardt ("Mrs. Bernhardt") at her home on January 17, 1974,
and also of stabbing her five year old son, a cerebral spastic, in his
legs.*fn5 Following the crimes, Petitioner turned himself into the
police.*fn6 At police headquarters on January 29, 1974, after being
informed of his rights, Petitioner confessed to killing Mrs. Bernhardt.*fn7
Petitioner told the police that he had had two drinks of scotch and
water before driving to the Bernhardt residence prior to the murder. He
denied that he had used drugs prior to the crime.*fn8 At trial,
Petitioner again admitted that he had stabbed Mrs. Bernhardt, but claimed
(for the first time) that he had taken two LSD tablets before driving to
the Bernhardt residence. Indeed, a central issue at trial was whether
Petitioner had taken LSD on the day of the murder and, if so, what effect
(legally and psychologically) the LSD had on Petitioner's mental state.*fn9
On July 7, 1975, Petitioner was sentenced to a term of imprisonment
of twenty-five years to life, with concurrent lesser terms imposed for
the assault and weapons charges.
Petitioner's conviction was (unanimously) affirmed, without opinion, by
the Appellate Division, Second Department on December 6, 1976. See People
v. Giraldi, 55 A.D.2d 858, 390 N.Y.S.2d 768 (N.Y.App. Div. 1976). Leave
to appeal was denied by the New York State Court of Appeals on January
24, 1977. See People v. Giraldi, 41 N.Y.2d 866, 393 N.Y.S.2d 1033,
362 N.E.2d 631 (1977).
In 1991, almost fifteen years after his conviction was affirmed by the
Appellate Division, Petitioner moved in the Appellate Division for a writ
of error coram nobis asserting, as he does here, ineffectiveness of
appellate counsel (based on the same alleged omissions of counsel that are
raised in the instant petition).*fn10 The Appellate Division denied the
coram nobis motion, ruling that Petitioner "had not established that
retained counsel rendered ineffective assistance in connection with his
1976 appeal." (Decision & Order on Motion dated November 21, 1991)
(emphasis added).
In 1993, Petitioner, proceeding pro se, moved in the Appellate Division
to recall and vacate the 1976 decision affirming his conviction. The
grounds Petitioner asserted before the Appellate Division in 1993 were
the same as those asserted here (i.e., the trial court's allegedly
erroneous jury instructions concerning his insanity defense and the
District Attorney's refusal to produce certain alleged Rosario
material). Petitioner did not assert a claim for ineffective assistance
of counsel. On August 4, 1993, the Appellate Division denied Petitioner's
motion. (Decision & Order on Motion dated August 4, 1993).
The instant petition followed two years later.*fn11
By Order dated April 20, 2000, the Court directed that a hearing be
held for the purpose of receiving "evidence on the following issues,
among others: (i) Appellate Counsel's reasoning for not raising on appeal
the trial court's allegedly erroneous jury instruction on insanity, and
(ii) Appellate Counsel's reasoning for not raising on appeal the trial
court's failure to direct the District Attorney to turn over to the
defense certain alleged Rosario material, i.e., summaries of the
statements of certain witnesses." (Order dated April 20, 2000 at 1-2).
See, e.g., McKee v. United States, 167 F.3d 103, 108-09 (2d Cir. 1999)
(remanding to District Court because there was "no indication that
[petitioner's] first appellate counsel was afforded an opportunity to be
heard and to present evidence regarding his reason for not challenging
the district court's reasonable-doubt
instructions on the direct appeal"). The hearing was conducted on May
16, 2000.*fn12 The parties filed post-hearing briefs which were received
in Chambers on June 28, 2000.
If no written objections are filed, a District Judge need only satisfy
himself that there is no clear error on the face of the record. See
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Heisler v. Kralik,
981 F. Supp. 830, 840 (S.D.N.Y. 1997), aff'd, 164 F.3d 618, 1998 WL
636985 (2d Cir. 1998). When timely objections are made to a Magistrate's
report, the District Judge must make a de novo determination, but is not
required to conduct a de novo hearing. See, e.g., East River Sav. Bank
v. Secretary of Housing and Urban Development, 702 F. Supp. 448, 453
(S.D.N.Y. 1988). Once objections are received, a District Judge may
accept, reject, or modify, in whole or in part, the findings and
recommendations of the Magistrate. See DeLuca v. Lord, 858 F. Supp. 1330,
1345 (S.D.N.Y. 1994), aff'd; 77 F.3d 578 (2d Cir. 1996); Walker v. Hood,
679 F. Supp. 372, 374 (S.D.N.Y. 1988); East River Sav. Bank, 702 F.
Supp. at 453.
Neither party has objected to Magistrate Bernikow's recommendations of
denial of Petitioner's (two) due process challenges (i.e., relating to
the trial court's jury instructions concerning the insanity defense and
the District Attorney's refusal to disclose certain alleged Rosario
material). Respondent, however, has objected to Magistrate Bernikow's
conclusion, with respect to Petitioner's claim of ineffective assistance
of appellate counsel, that Petitioner should be entitled to present an
appeal to an appropriate New York State court or be granted a new trial.
The Court has undertaken a de novo review of the entire Report and of
the record upon which it is based. See Simpkins v. Bellevue Hospital,
832 F. Supp. 69, 70 (S.D.N.Y. 1993) ("[a]lthough not required under
Fed.R.Civ.P. 72, the court conducted a de novo review of the Report").
Having undertaken a de novo review, the Court adopts the Report in so far
as it recommends denial of Petitioner's due process challenges to the
trial court's jury instructions and the failure to provide alleged
Rosario material.*fn13 This recommendation is consistent with the record
and applicable case law. However, for the reasons discussed below, the
Court respectfully disagrees with Magistrate Bernikow's analysis and
conclusions concerning Petitioner's claim for ineffective assistance of
appellate counsel. The Court finds that Magistrate Bernikow made several
substantial errors of fact and law in assessing
Petitioner's claim for ineffective assistance of appellate counsel.
In order to prevail on a claim for ineffective assistance to counsel
under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), a habeas petitioner must satisfy a two-part test. First,
petitioner must show that his attorney's performance "fell below an
objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052.
Second, petitioner must demonstrate that there is a reasonable
probability that, but for counsel's error, "the result of the proceeding
would have been different." Id. at 694, 104 S.Ct. 2052.*fn14 While the
Strickland test was formulated in the context of evaluating a claim for
ineffective assistance of trial counsel, the same test is used to assess
claims pertaining to appellate counsel.
In his Report, Magistrate Bernikow failed to consider that "the purpose
of the effective assistance guarantee of the Sixth Amendment is not to
improve the quality of legal representation . . . the purpose is simply
to ensure that criminal defendants receive a fair trial." Id. at 689, 104
S.Ct. 2052. A review of the record here demonstrates that Petitioner did
receive a fair trial. Indeed, he received a vigorous and (at least)
objectively reasonable defense, both at trial and on appeal, from
competent counsel. Though Petitioner was unsuccessful at trial and on
appeal, this it seems clear was due to the overwhelming evidence against
Petitioner (including his detailed confession), rather than the alleged
ineffectiveness of (appellate) counsel. After a thorough review of the
record, the Court concludes there can be little doubt that the
"adversarial testing process" worked in this case. Id. at 690, 104 S.Ct.
2052.
Judicial Scrutiny of Counsel's Performance Is Highly Deferential
Magistrate Bernikow's review of appellate counsel's performance was not
"highly deferential," as it should have been. Strickland, 466 U.S. at
689, 104 S.Ct. 2052. The Magistrate conducted no hearing affording
appellate counsel the opportunity to be heard. See McKee, 167 F.3d at
108-09. The Report provides no indication that Magistrate Bernikow
recognized "that counsel is strongly presumed to have rendered adequate
assistance . . ." Strickland, 466 U.S. at 690, 104 S.Ct. 2052. In
Strickland, the Supreme Court explained that:
It is all too tempting for a defendant to second-guess
counsel's assistance after conviction or adverse
sentence, and it is all too easy for a court,
examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable. . . . A fair
assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of
counsel's challenged conduct from counsel's
perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must
indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance . . .
Id. at 689, 104 S.Ct. 2052 (emphasis added). The Supreme Court went on to
warn that:
The availability of intrusive post-trial inquiry into
attorney performance or of detailed guidelines for its
evaluation would encourage the proliferation of
ineffectiveness challenges. Criminal trials resolved
unfavorably to the defendant would increasingly come
to be followed by a second trial, this one of
counsel's unsuccessful defense.
Id. at 690, 104 S.Ct. 2052.
Here, Petitioner was convicted at trial based upon overwhelming
evidence of guilt, including his own detailed confession. (Trial Tr. at
309-51).*fn15 Adoption of Magistrate Bernikow's recommendation would
render the Supreme Court's "highly deferential" standard virtually
meaningless.
Magistrate Bernikow also failed adequately (if at all) to take into
consideration the presumption of prejudice stemming from the substantial
delay in filing the instant petition, i.e., nineteen (19) years after the
Appellate ...