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GIRALDI v. BARTLETT

August 2, 2000

NEAL GIRALDI, PETITIONER,
V.
GEORGE BARTLETT, SUPERINTENDENT, ELMIRA CORRECTIONAL FACILITY, RESPONDENT.



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

ORDER

In his Report and Recommendation dated December 11, 1996 (the "Report"), United States Magistrate Judge Leonard A. Bernikow recommended denial of Petitioner's first two claims (the due process challenges concerning jury instructions and failure to provide Rosario material). Yet, despite this recommendation as to Petitioner's first two claims, Magistrate Bernikow also determined that there had been ineffective assistance of appellate counsel.*fn4 He concluded "that the writ [should] be granted unless the state affords petitioner an opportunity to present his appeal to the appropriate New York State Court for consideration of the issues concerning the jury instructions and the Rosario claim as if they were properly and timely presented, or, in the alternative, provides petitioner a new trial." (Report at 26-27).

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.

Background

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.

In August 1976, Petitioner filed the first of several state appeals. Petitioner raised five issues on direct appeal. First, he argued that the jury's finding that his sanity had been proven beyond a reasonable doubt was not supported by the evidence. Second, he challenged the trial court's refusal to instruct the jury that LSD "intoxication" was a (complete) defense if it rises to the level of insanity. Third, he claimed that a number of rulings made by the trial court denied him a fair trial, including, in particular, various Rosario rulings. Fourth, he challenged the trial court's jury instruction that he had the burden of proving the affirmative defense of extreme emotional distress. Fifth, he claimed that his sentence was excessive.

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.

Standard of Review

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.

Analysis

The Strickland Test

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.

Undue Delay

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 ...


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