Arguably, Petitioner's ineffective assistance of appellate
counsel claims, which were brought on two motions/applications
in the Appellate Division, First Department for a writ of error
coram nobis and summarily denied,*fn20 were not
"adjudicated on the merits." Schriver, 240 F.3d at 110. The
Appellate Division's opinion in both cases, consisting of one
sentence: "Application for writ of coram nobis denied," did not
"make any reference to a federal constitutional claim by, for
example, citing Supreme Court case law or state court precedents
which themselves apply federal law." Id. at 108. Therefore,
this Court has applied "the pre-AEDPA standard of review [to
this claim]. Pure questions of law and mixed questions of law
and fact [have been] reviewed de novo." Id. at 110. The result
of said review is that Petitioner was not denied effective
assistance of appellate counsel. Strickland, 466 U.S. at 687,
104 S.Ct. 2052.
Had the AEDPA (deference) standard of review been applied, the
result would have been the same. The Appellate Division's
decision to deny Petitioner's ineffective assistance of
appellate counsel claims was not "contrary to or an unreasonable
application of, clearly established federal law."
28 U.S.C. § 2254(d)(4). The Report correctly found that appellate counsel's
decision to forgo certain claims on appeal was not "so
unreasonable as to amount to professional incompetence." Report
at 37; see so Avincola, 60 F. Supp.2d at 165 ("there is no
indication that [prosecutor's alleged misconduct] affected
Avincola's trial or appeal."). Nor was Petitioner able to
demonstrate a substantial probability that "if these arguments
were aired on appeal the result of the appeal would have
differed." Id.; see also Todd v. Senkowski, No. 98 Civ. 7025,
1999 WL 335813, at *7 (S.D.N.Y. May 24, 1999) (where petitioner
made no showing of a reasonable probability of success on
appeal, "state court's decision denying the [prosecutorial
misconduct claim] was [not] an unreasonable application of
clearly established federal law.").
Petitioner raises what appear to be twelve objections to the
Report, none of which is persuasive nor, in any way, alters the
conclusion that the Petition should be dismissed. Although the
substantive basis for denial of a writ is outlined above and in
the Report and Supplemental Report, the Court here comments
briefly on each objection.
(i) Petitioner argues that the Magistrate should have applied
"the proper standard for reviewing summation issues from the
State Court in Floyd v. Meachum." (Pet.'s Obj. at 3).
Magistrate Dolinger did, in fact, apply the Floyd test for
determining "substantial prejudice." Report at 12 ("Even if the
challenged statements were improper, the court must determine
whether they denied defendant a fair trial. In making this
assessment, we look at `the seriousness of the misconduct, the
measures adopted by the trial court to cure the misconduct, and
the certainty of conviction absent the improper statements.'").
Other cases cited by Petitioner are distinguishable from the
instant matter because they involved severe prosecutorial
misconduct. See Washington v. Hofbauer, 228 F.3d 689, 699 (6th
Cir. 2000) (prosecutor "went far beyond the bounds of permitted
conduct" by introducing evidence of defendant's "bad character"
during summation); United States v. Friedman, 909 F.2d 705,
709 (2d Cir. 1990) ("[T]he prosecutor
managed in one breath to undermine the presumption of innocence,
the Government's obligation to prove guilt beyond a reasonable
doubt, and the standards of propriety applicable to public
prosecutors."); Boyle v. Million, 201 F.3d 711, 718 (6th Cir.
2000) ("[T]he prosecutor's efforts to equate the jurors with the
defendant's victim . . . and to play upon the defendant's
relative advantages in power, wealth, and prestige could not
help but prejudice the jury against defendant.").*fn21
(ii) To support his objection that "the Appellate Court's
determination [regarding the prosecutor's `octopus' comment] was
contrary to clearly established Federal Law," Petitioner cites
three cases. None of these cases involves the kinds of claims
raised by Petitioner in the instant case. See Francis v.
Stone, 221 F.3d 100, 113 (2d Cir. 2000) (state court's decision
to recommit plaintiff for mental health treatment nine years
after he entered a plea of "not responsible by reason of mental
disease or defect" was not objectively unreasonable); Torres v.
Prunty, 223 F.3d 1103, 1105 (9th Cir. 2000) (decision by a
state trial judge that defendant was not entitled to competency
hearing was unreasonable); Herrera v. Lemaster, 225 F.3d 1176,
1179 (10th Cir. 2000) (state court's determination that
admission of evidence seized in violation of the Fourth
Amendment was harmless error was contrary to clearly established
United States Supreme Court precedent).
(iii) Petitioner claims he was denied "the effective
assistance of counsel at the trial level." (Pet.'s Obj. at 4).
As noted at 439 supra, the Magistrate correctly applied the
Strickland standard and properly determined that Petitioner
"fails to demonstrate any violation of his Sixth Amendment
rights."*fn22 Report at 31-36; see also Strickland, 466
U.S. at 694, 104 S.Ct. 2052.
(iv) Petitioner's fourth objection is that appellate counsel
was ineffective because he did not argue that the trial court
improperly denied his for cause challenge of a prospective
juror. (Pet.'s Obj. at 4-5). As noted at 439 supra, the
Magistrate correctly concluded that "it can scarcely be said
that an appellate challenge to the court's ruling had any
prospect of success" because "Flores exercised a peremptory
challenge to excuse the juror and he never exhausted his pool of
challenges." Report at 29-30. Moreover, the instant case is
clearly distinguishable from those cases cited by Petitioner.
See, e.g., United States v. Polichemi, 201 F.3d 858, 865 (7th
Cir. 2000) (excuse of juror for cause warranted where defendants
exhausted their pool of peremptory challenges and attorneys were
forced to seat jurors "to whom they would have objected");
United States v. Gonzalez, 214 F.3d 1109, 1114 (9th Cir. 2000)
(potential juror's "equivocal" responses about her ability to be
impartial, among other things, required an excuse for cause);
Dyer v. Calderon, 151 F.3d 970, 976 (9th Cir. 1998) (potential
during voir dire when she answered "no" to the question "Have
you or any of your relatives . . . ever been the victim of any
type of crime?" and was subsequently placed on the jury);
Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) (where
double jeopardy claim that appellate counsel failed to raise on
appeal was "well-established, straightforward, and obvious,"
counsel's failure to raise the issue "could not reflect a
plausible strategy to pursue more promising ground.").
(v) Petitioner also objects that "questioning [a prospective
juror] in open court amounted to a denial of an impartial jury"
because this juror's comments "prejudiced the panel." (Pet.'s
Obj. at 5). This objection is untimely. Petitioner did not raise
this claim before the Magistrate; nor was the claim presented in
the Petition or in any previous filing by Petitioner in state or
Federal court. See Abu-Nassar v. Elders Futures, Inc., No. 88
Civ. 7906, 1994 WL 445638, at *5 n. 2 (S.D.N.Y. Aug. 17, 1994)
("These arguments were not raised before [the Magistrate judge],
and are not submitted as objections but as new arguments.
Accordingly, plaintiffs' arguments and evidence are untimely.").
Even if Petitioner's claim were properly raised, it would be
unpersuasive. See discussion at 439 supra. A trial court's
finding of juror impartiality may "be overturned only for
manifest error." Mu'Min v. Virginia, 500 U.S. 415, 428, 111
S.Ct. 1899, 114 L.Ed.2d 493 (1991); see also United States v.
Wey, 895 F.2d 429, 431 (7th Cir. 1990) (jury panel not
contaminated by remarks of prospective juror that he had
"purchased merchandise from a firm that the FBI helped to put
out of business" and that "there is a parallelism" with the
charges against defendant); Henry v. Beyer, Civ. A. No.
90-4199, 1991 WL 87582, at *6 (N.J. 1991) (defendant not
prejudiced by potential juror's (mistaken) comment during voir
dire that he had been involved in an altercation with
defendant). Mach v. Stewart, 137 F.3d 630, 633 (9th Cir.
1997), cited by Petitioner, is clearly distinguishable., Id.
at 633 ("Given the nature of [the potential juror's] statements,
the certainty with which they were delivered, the years of
experience that led to them, and the number of times that they
were repeated, we presume that at least one juror was
(vi) Petitioner objects to his "trial counsel['s] failure to
object to the summation, of the State Prosecutor [and, in
particular, the prosecutor's] improper vouching for witness
testimony." (Pet.'s Obj. at 5-6). As noted at 435 supra, the
Magistrate correctly concluded that the prosecutor's comments on
summation did not "substantially prejudice" Petitioner's case.
Report at 17. Petitioner has failed to demonstrate that trial
counsel's failure to object to the prosecutor's comments "fell
below an objective standard of reasonableness," or that there
was a "reasonable probability" that the outcome of the trial
would have been different. See Report at 31; see also
Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Perez v. United
States, 96 Civ. 7702, 1997 WL 661426, at *4 (S.D.N.Y. Oct. 23,
1997) ("Defense counsel's failure to object [to the prosecutor's
summation] cannot have resulted in actual prejudice to
petitioner, as the objection would have been meritless.").
(vii) Petitioner objects that his exclusion from sidebar
conferences during voir dire "was contrary to clearly
established Federal Law" and cites Snyder v. Massachusetts,
291 U.S. 97, 108, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled
on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489,
12 L.Ed.2d 653 (1964) (trial judge's denial of permission to
defendant to accompany jury on a view of crime scene was not a
"denial of due process"). Petitioner also argues that it was
"unprofessional error for his trial attorney not to insist on
his client's presence." (Pet.'s Obj. at 6-7). Petitioner's
objection is unavailing. The Supreme Court in Snyder held that
the defendant's presence at trial is required "to the extent
that a fair and just hearing would be thwarted by his absence."
Snyder, 291 U.S. at 108, 54 S.Ct. 330. As the U.S. Court of
Appeals for the Second Circuit observed in Clark v. Stinson,
214 F.3d 315, 322 (2d Cir. 2000), "[w]hile the scope of the
right [to be present at all material stages of trial] is broad,
its application is not absolute." Id. at 322. Petitioner's
exclusion from sidebar, not at the time contrary to New York
law, was not "contrary to" the Supreme Court's holding in
Snyder. See Mitchell, 80 N.Y.2d at 524, 591 N.Y.S.2d 990,
606 N.E.2d 1381 ("We conclude People v. Antommarchi [holding that
defendants were entitled to be present at sidebar conferences
during jury voir dire] should be applied prospectively only.").
Petitioner cites several distinguishable cases involving a
criminal defendant's right to be present at his trial. See,
e.g., Clark, 214 F.3d at 324 (petitioner voluntarily and
knowingly waived his right to be present at pre-trial hearing by
failing to attend); see also Smith v. Mann, 173 F.3d 73, 76
(2d Cir. 1999). Two other cases cited by Petitioner involve
claims different than those raised here. See Gardner v.
Barnett, 199 F.3d 915, 921 (7th Cir. 1999) (trial court's
refusal to voir dire potential jurors on four out of five of the
questions he submitted did not violate defendant's Sixth
Amendment right to be tried by an impartial jury); United
States v. Maragh, 174 F.3d 1202, 1206 (11th Cir. 1999) (court
must obtain explicit consent from all parties before referring
voir dire to a magistrate). Cardinal v. Gorczyk, 81 F.3d 18
(2d Cir. 1996) does not support Petitioner's claim. Id. at 19
(defendant waived his right to observe individual voir dire by
not asserting that right at trial).
(viii) Petitioner objects to the Magistrate's determination
that "Petitioner's complaint about the trial attorney's failure
to object to some leading questions is equally meritless."
(Pet.'s Obj. at 7). See Report at 33. This Court has examined
Petitioner's claim at 441 supra and determined that Petitioner
failed to show "a reasonable probability that the trial lawyer's
failure to object altered the outcome of the trial." See
Report at 34. Leslie v. Artuz, cited by Petitioner, is
supportive of the Report. Leslie, 72 F. Supp.2d at 278 (where
prosecutor was accused of mischaracterization of evidence, "[i]n
each instance, the [prosecutor's] remarks represented either
fair comment on the evidence, acceptable summation rhetoric, or
[at worst] a minor misstatement of testimony not reasonably
likely to create undue prejudice to [the] defendant.").
(ix) Petitioner objects that "the Magistrate Judge did not
allow appellate counsel to provide and [sic] affidavit outlining
his reasoning for not objecting." (Pet.'s Obj. at 7). In
Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir. 1998), the Second
Circuit held that "a district court facing the question of
constitutional ineffectiveness of counsel should, except in
highly unusual circumstances, offer the assertedly ineffective
attorney an opportunity to be heard and to present evidence in
the form of live testimony, affidavits, or briefs."*fn23
Id. This objection has been resolved by the Court's March 29,
2001 Order and subsequent filings of the Supplemental Report,
from appellate counsel Steven C. Losch and Philip L. Weinstein,
and Petitioner's Objections to the Supplemental Report.
"[B]ased on [the submissions of Mr. Weinstein and Mr. Losch]
we have no reason to alter in any respect the original Report
and Recommendation." Supp. Report at 2 ("We refer the Court to
[the original Report and Recommendation], and reiterate our
recommendation that the writ be denied and the petition
dismissed with prejudice."). As noted at 430 supra, Mr. Losch
responded by affidavit dated April 26, 2001. Losch Aff. at 1.
Mr. Losch reports that he "did not order a transcript of the
voir dire from the petitioner's trial, apparently because, upon
being quizzed by [Mr. Losch] neither the trial attorney nor the
petitioner indicated that there had been any voir dire error."
Supp. Report at 2. "If I had reviewed the record, there is no
chance that I would have raised such a patently frivolous
claim." Losch Aff. at 1.
The Report is correct that "it is patently apparent that
Flores was represented at all pertinent stages. As Losch makes
clear, the decision not to acquire the voir dire transcript
reflected a judgment call by the Legal Aid Society, and is
obviously not tantamount to the denial of any counsel to the
client." Supp. Report at 3.
(x) Petitioner objects that "Magistrate [j]udge's decision to
address the issue in the absence of trial counsel affidavit was
improper and not entitled to the presumption of correctness
since it raised a mix question of law and facts." (Pet.'s Obj.
at 7). This objection is unpersuasive because, among other
reasons, trial counsel, Alvin Morris, is deceased, and the Court
must "examine the available evidence," United States v.
Childress, 58 F.3d 693, 736 (D.C.Cir. 1995) ("We recognize that
the district court's inquiry will be complicated immeasurably by
[requested trial counsel's] death. We ask only that the district
court examine the available evidence [to determine whether
defendant was denied the right to counsel of choice]."). Such
examination occurred in the instant case.
(xi) Petitioner's eleventh objection reiterates his claim that
appellate counsel was ineffective because he failed to raise
"that the State Prosecutor had spoken with his witness after the
proceeding were adjourned." (Pet.'s Obj. at 8). This Court has
examined and rejected this claim at 442 supra. See also Report
at 36-37 ("[T]he prosecutor insisted that he had not coached the
witness as to what to say during cross examination;" the trial
judge "fully explored the extent and the implications of the
prosecutor's conduct;" and "there was no indication that the
witness's testimony on cross had been influenced, or that the
prosecutor had obtained an unfair advantage in preparing his
redirect examination."). Petitioner's reference to United
States v. Bautista, is unavailing. Bautista, 23 F.3d at 731
(contact of the prosecutor with a witness during adjournment of
testimony at pretrial evidentiary hearing did not "rise to the
level of a constitutional violation."); see also Report at 36.
(xii) Petitioner also requests a Certificate of
Appealability.*fn24 (Pet.'s Obj. at 8-9) ("[I]f this Court
determines that petitioner's three claims, the Prosecutor
Summation, and the Ineffective Assistance of Appellate Counsel,
and trial counsel should be dismissed, [sic] a Certificate of
Appealability should, be issued herein.").
28 U.S.C. § 2253(c)(2) provides that a Certificate of Appealability may
issue "only if the applicant has made a substantial showing of
the denial of a constitutional right."
Petitioner must demonstrate "`that the issues [on the appeal]
are debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to proceed
further.'" Nelson v. Walker, 121 F.3d 828, 832 (2d Cir. 1997);
see also Slack v. McDaniel, 529 U.S. 473, 475, 120 S.Ct. 1595,
146 L.Ed.2d 542 (2000) (certificate of appealability should
issue where "reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.") Petitioner has
clearly failed to make a substantial showing of violation of a
constitutional right. Nor has he demonstrated that a reasonable
jurist would find that Magistrate Dolinger's (or this Court's)
assessment of his constitutional claims here are debatable. This
Court, therefore, declines to issue a Certificate of
Appealability. See Stokes v. United States, No. 00 Civ. 1867,
2001 WL 29997, at *9 (S.D.N.Y. Jan. 9, 2001) (where petitioner
"failed to make a substantial showing that he was denied a
constitutional right, [and, therefore,] this Court will not
issue a certificate of appealability.").
For the reasons stated herein, the Court adopts the
Magistrate's Report and Supplemental Report in all material
respects and for the reasons stated therein and herein: (i)
Petitioner's request for a writ of habeas corpus is denied and
(ii) the Court declines to issue a Certificate of Appealability.
The Clerk is respectfully requested to dismiss the case.