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FRASE v. MCCRAY

United States District Court, Northern District of New York


January 8, 2003

JOHN R. FRASE, PETITIONER,
v.
FRANK MCCRAY, JR., SUPERINTENDENT, RESPONDENT.

The opinion of the court was delivered by: Gary L. Sharpe, United States Magistrate Judge

REPORT-RECOMMENDATION

Petitioner John R. Frase ("Frase") has filed a writ of habeas corpus asserting four separate grounds in support of his claim that he is entitled to habeas corpus relief (Dkt. No. 2) ("Pet."). Respondent has answered Frase's petition, arguing both that as a procedural matter the petition is untimely, and additionally, that the grounds advanced in the petition do not entitle Frase to the relief he seeks. The court finds that the petition was timely filed and therefore, does not recommend dismissal on that basis. However, the court concludes that the petition lacks merit and therefore, recommends that it be denied and dismissed.

I. Background

A. State Court Proceedings

1. Proceedings Involving Frase

On November 14, 1995, Frase was arrested in the Village of North Syracuse for the crime of driving while intoxicated ("DWI"). See Record on Appeal ("R. App.") at P. 10. Frase was convicted of this charge on June 18, 1996, and was sentenced on August 19, 1996, by County Court Judge J. Kevin Mulroy to a period of probation for five years, including a requirement that Frase remain on Electronic Home Confinement ("EHC"). See Decision/Order of Judge Joseph E. Fahey (4/17/2000) (Dkt. No. 2, Ex. E), ("April Order") at P. 2,*fn1 (R. App. at P. 57). In October of 1996, Frase was apparently injured while at work, and his attorney successfully had him released from the EHC portion of the sentence. Id. at PP. 2-3.

On July 24, 1997, Frase was arrested for DWI in Oswego County. Id. at P. 3. As a result of that arrest, a violation of probation ("VOP") was filed in Onondaga County, and on August 6, 1997, Frase appeared before Judge Mulroy for a hearing on that charge. Id. At that hearing, Judge Mulroy stated:

[Y]our attorney came back to me during the course of your supervision and asked me to discharge you from the [EHC] program [due to Frase's injury], and it's alleged the short time after that, you went out and found yourself well enough to get, it's alleged, drunk and drive some car. So you see, sir, the next time your lawyer comes to me and tells me how badly injured you are and how disabled you are, I want you to know that I won't give a damn. If I have to strap you to a gurney and send you to Attica, I will. All right? So I don't care about your injuries anymore. I did before, I don't anymore because you demonstrated to me anyway by this allegation, that you're well enough to get around and have some fun. So are you aware sir that [if] you violate the terms and conditions of your probation you can expect no consideration from me in the future. Are you aware of that?
April Order at PP. 3-4.

On March 5, 1999, Brian Mayock, Frase's Probation Officer, appeared before Judge Mulroy and declared that Frase had violated the terms of his probation on February 23, 1999, because Frase had, inter alia, (i) failed to abstain from alcoholic beverages; (ii) operated a motor vehicle; and, (iii) driven an automobile while intoxicated and had unlawfully possessed marijuana (R. App. at P. 57).

Frase appeared before Judge Mulroy on March 8, 1999, for a hearing to determine whether his conduct in July of 1997 in Oswego County, and in February of 1999, in Onondaga County, constituted a violation of the terms of his probation (R. App. at P. 12). At that time, Frase formally denied the charges against him, and was held without bail until his next court appearance on March 12, 1999. Id. at 14. At the pre-trial hearing on that date, Frase, his attorney, David Savlov, Esq. and Assistant DA Kurt Sherman, Esq. were present and Judge Mulroy placed on the record the sentence that he intended to impose if Frase accepted a proposed plea bargain arising out of the charges against Frase:

The Court: Here's what the offer is: If you admit the declaration of delinquency for violation of probation I will sentence you to one to three years in state prison.
There's also a new allegation of DWI. If you admit that, I intend to sentence you to one-and-a-third to four years consecutive on top of the one to three on the violation.
These pleas will obviously satisfy all probationary sentences and commitments and I assume it will satisfy all charges arising out of the latest allegation of DWI. Do you understand what I've said to you?
Frase: Yes, sir.

The Court: It is my understanding that you're prepared to accept this disposition?
Frase: Yes, sir.

R. App. at P. 18. Judge Mulroy then accepted Frase's admission that he had violated the terms of his probation on February 23, 1999, by operating a vehicle while under the influence of alcohol, Id. at P. 21, and released Frase on his own recognizance pending sentencing. Id. at P. 22.

On May 5, 1999, Frase appeared before Judge Mulroy for further proceedings relating to the charges against him. At that time, Judge Mulroy reiterated his intention of imposing consecutive sentences relating to the parole violation and DWI charges. Id. at 33.*fn2 Savlov then indicated to Judge Mulroy that Frase was under the impression that the sentences imposed on him concerning the VOP and DWI charges would be concurrent, and that if the sentences were to run consecutively, he wished to reconsider his VOP admission and might obtain new counsel. Id. at 33-35. As a result, Judge Mulroy adjourned the proceeding for one week. Id. at 35.

On May 12, 1999, Frase appeared before Judge Mulroy and indicated his willingness to accept the terms of the plea proposal.*fn3 He then pled guilty to Information No. I-99-0267-1 which charged Frase with the felony operation of a motor vehicle while in an intoxicated condition on February 23, 1999 (R. App. at PP. 40-45). Judge Mulroy scheduled sentencing for May 26, 1999, and remanded Frase to jail after the prosecution declined to consent to Frase's release pending sentencing. Id. at 39-40, 44-45.

On May 26, 1999, Frase appeared with counsel before Judge Mulroy and was sentenced to the agreed upon sentences, i.e., one to three years imprisonment arising out of his June of 1996 DWI conviction, in light of his having violated the terms of the probationary sentence previously imposed on him, and one and one-third to four years imprisonment for his DWI conviction regarding the February of 1999 incident, with the sentences to be served consecutively (R. App. at P. 52).

2. Proceedings Involving Judge Mulroy and Attorney Savlov

In February of 1997, Judge Mulroy testified as a character witness in a criminal trial against a local defense attorney (April Order at P. 8). At that time, Judge Mulroy testified that the defense attorney had a good reputation for honesty in the community, and indicated that he had spoken to Savlov about that attorney. Id.

On July 30, 1998, a complaint was filed against Judge Mulroy by the New York State Commission on Judicial Conduct. Id. at P. 9. One of the charges in that complaint alleged that Judge Mulroy had testified falsely or with reckless disregard for the truth in his February of 1997 testimony. Id. Savlov, who was called as a witness for the Commission in November of 1998, testified that he did not believe that the attorney had a good reputation in the community for truth and honesty, and that he could not recall talking with Judge Mulroy about the attorney. Id. at P. 9.

On April 21, 1999, the referee who presided over the hearing relating to the charges brought against Judge Mulroy, issued a report in which he, inter alia, sustained the charge arising out of Judge Mulroy's testimony as a character witness. Id. at P. 9. No further action was taken on the Commission's complaint until several months after Frase was sentenced by Judge Mulroy. Id.

3. State Court Proceedings

On December 7, 1999, Frase filed a motion to vacate the conviction pursuant to New York's Criminal Procedure Law ("CPL") § 440.10 ("Article 440 motion") (reproduced at Dkt. No. 2, Ex. J). In that motion, Frase alleged that he received ineffective assistance of counsel due to the fact that he "was not aware until after his proceedings that his defense attorney, David B. Savlov, had testified against Judge Mulroy prior to defendants [sic] case in a separate matter." Aff. in Support of Article 440 motion (12/7/99) (reproduced at Dkt. No. 2, Ex. J) at ¶ 3.*fn4 Frase also argued that there was "a conflict of interest and prejudice" between Judge Mulroy and Savlov, and that his testimony against Judge Mulroy precluded Savlov from providing Frase with effective representation. Id. at ¶ 4. Judge Fahey denied the Article 440 motion, see April Order, and the Appellate Division, Fourth Dep't denied Frase leave to appeal that decision on November 1, 2000 (Dkt. No. 2, Ex. F).

On September 26, 2001, Frase appealed the judgment of conviction to the Appellate Division, alleging that: i) the County Court abused its discretion in imposing consecutive sentences; ii) he was improperly sentenced based upon insufficient information contained in the Pre-Sentence Report; and, iii) trial counsel rendered ineffective assistance at the sentencing phase of the criminal proceedings below (see App. Br.). Frase's conviction, however, was affirmed by the Appellate Division, People v. Frase, 292 A.D.2d 822 (4th Dep't 2002), and the Court of Appeals denied Frase permission to appeal. People v. Frase, 98 N.Y.2d 675 (2002).

II. Procedural History

Frase commenced this proceeding in the Western District of New York on October 31, 2001 (Pet. at P. 1). U.S. District Judge John T. Elfvin (WDNY) transferred the petition to this District because the pleading related to matters that occurred in Onondaga County (Dkt. No. 1). This court then issued an order pursuant to the rules governing § 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, directing, inter alia, the Office of the Attorney General for the State of New York ("Attorney General") to file a response (Dkt. No. 5). The Attorney General filed an answer and memorandum of law requesting dismissal of the petition (Dkt. Nos. 8-9), to which Frase filed a reply (Dkt. No. 13). Frase's petition has been referred to this court for a Report-Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).

III. Discussion

A. Timeliness of Petition

The rules governing habeas petitions were significantly modified by enactment of the AEDPA. One such change was the institution of a one-year statute of limitations applicable to habeas corpus petitions. See 28 U.S.C. § 2244(d). In his answer, respondent argues that the petition was untimely filed and should be dismissed on that basis (Dkt. No. 8, P. 1). In reply, Frase argues that the petition was timely filed (Dkt. No. 13, P. 1).

The Appellate Division denied Frase leave to appeal the order denying his Article 440 motion on November 1, 2000 (Dkt. No. 2, Ex. F). Fed.R.Civ.Proc. 6(a) provides:

In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included.
Thus, the statute of limitations began to run on Frase's petition on November 2, 2000.

On September 27, 2001, while Frase's Article 440 motion was pending, he filed an appeal with the Appellate Division relating to the sentences. See e.g., Resp. Br. on App. at P. 2 (noting date respondent received appeal). At that time, 329 days of the AEDPA's statute of limitations had already run. That filing, however, tolled the statute of limitations applicable to this petition, see 28 U.S.C. § 2244(d), and while that appeal was pending, Frase commenced this action (see Pet. at P. 1). Since more than one month remained when this action was commenced, it was timely filed and therefore, the court cannot recommend that the petition be dismissed as time-barred. Moreover, since none of the claims asserted in the appellate brief are raised in Frase's habeas petition, the respondent's argument that Frase had not exhausted his state remedies when he commenced this action (Dkt. No. 9, P. 14) is without merit. E.g. Vazquez v. Bennett, 2002 WL 619282, at *5 (S.D.N.Y. Apr. 17, 2002) ("[s]ubstantive exhaustion requires that petitioner fairly present his federal constitutional claims to the state courts") (emphasis added); Harris v. Hollins, 1997 WL 5909, at *2 (S.D.N.Y. Jan. 7, 1997) ("exhaustion rule requires complete exhaustion of all claims raised in a habeas petition") (emphasis added).

B. Standards of Review

Prior to addressing the merits, the court addresses the standards of review now employed when considering federal habeas petitions.

Enactment of the AEDPA brought about significant new limitations on federal power to grant habeas relief to a state court prisoner under 28 U.S.C. § 2254.

Under the AEDPA, a federal court may not grant habeas relief to a state prisoner on a claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim —

1) resulted in a decision that was contrary to, or involved an unreasonable application, of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2) resulted in a decision that was based on a unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
28 U.S.C. § 2254(d); see also, Noble v. Kelly, 246 F.3d 93, 98 (2d Cir. 2001), cert. denied, ___ US. ___, 122 S.Ct. 197 (2001); Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001). The AEDPA also requires that, in federal habeas proceedings, "a determination of a factual issue made by a state court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also, Boyette, 246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted). The Second Circuit has provided additional guidance concerning application of this test, noting:

[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: 1) Was the principle of Supreme Court case law relied upon in the habeas petition "clearly established" when the state court ruled?; 2) If so, was the state court's decision "contrary to" that established Supreme Court precedent?; and, 3) If not, did the state court's decision constitute an "unreasonable application" of that principle?
Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)).

The AEDPA's standards of review only apply to federal claims which have been adjudicated on the merits in the state court. Washington v. Shriver, 255 F.3d 45, 52-55 (2d Cir. 2001). In these circumstances, deference is required even though the state court's decision lacks explicit deference to the federal claim or to federal case law. Sellan v. Kuhlman, 261 F.3d 303, 311-12 (2d Cir. 2001). As that court explained:

the plain meaning of § 2254(d)(1) dictates our holding: For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
Sellan, 261 F.3d at 312 (emphasis added).

Once the federal court has determined that the state court's decision has been decided "on the merits", the federal court may find that the state court's decision is "contrary to" established Supreme Court precedent only if the state court applied a rule that contradicts Supreme Court precedent, or decided a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Finally, in determining whether the decision was an "unreasonable determination" in light of the evidence presented, the federal court is not to determine whether the state court's finding was merely incorrect or erroneous, but instead whether it was "objectively unreasonable". Id. at 409; see also, Sellan, 261 F.3d at 315. This inquiry admits of "[s]ome increment of incorrectness beyond error", though "the increment need not be great[.]" Francis S., 221 F.3d at 111.

C. Substance of petition

1. Claimed Conflict of Interest

Frase initially argues:

a conflict of interest existed by virtue of [Savlov's] representation of Petitioner before a judge who he had testified against in a pending judicial misconduct investigation and that, as a result of this adverse testimony, defense counsel could not, and did not, zealously and effectively represent Petitioner's interests before Judge Mulroy.
Pet. at Ground One.*fn5

"A defendant's Sixth Amendment right to counsel includes a right to conflict-free representation." United States v. Rogers, 209 F.3d 139, 143 (2d Cir. 2000); see also, Wood v. Georgia, 450 U.S. 261, 271 (1981) ("Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest"). Since the right to conflict-free representation of counsel is clearly established federal law as determined by the Supreme Court, see Snead v. Artuz, 2001 WL 199409, at *7 (S.D.N.Y. Feb. 28, 2001) (citing Wood, 450 U.S. at 271; Cuyler v. Sullivan, 446 U.S. 335, 346 (1980) (other citation omitted)), this court must determine whether Judge Fahey's denial of this aspect of Frase's Article 440 motion was either contrary to, or amounted to unreasonable application of, this clearly established federal law.

In order to prove that his attorney was under an actual conflict of interest during the course of his representation,*fn6 Frase must satisfy each of three criteria required for such a claim. United States v. Berger, 188 F. Supp.2d 307, 333 (S.D.N.Y. 2002) (citing United States v. Moree, 220 F.3d 65, 69 (2d Cir. 2000)). First, Frase must establish that an "actual conflict of interest" existed, i.e., that "the attorney's and defendant's interests diverge[d] with respect to a material factual or legal issue or to a course of action." Berger, 188 F. Supp.2d at 333 (citing Winkler v. Keane, 7 F.3d 304, 307 (2d Cir. 1993)). The party must then establish that an "actual lapse in representation" resulted from the conflict which is demonstrated by the existence of some "plausible alternative defense strategy" not pursued by counsel. Berger, 188 F. Supp.2d at 333 (citing Winkler, 7 F.3d at 309). Finally, Frase must show causation — that the alternative defense strategy was "inherently in conflict with or not undertaken due to the attorney's other loyalties or interests." Armienti v. United States, 234 F.3d 820, 824 (2d Cir. 2000); Berger, 188 F. Supp.2d at 333 (citing Winkler, 7 F.3d at 309) (other citation omitted).

Frase appears to argue that the "material factual issue" on which his interests and those of his attorney diverged related to Savlov's failure to disclose facts relating to his testimony against Judge Mulroy. See Pet. at Ground One. However, he failed to articulate, in either his petition or reply, any plausible alternative defense strategy that his counsel should have pursued, but did not, as a result of this claimed conflict. Nor has he shown that any alternative defense to the charges existed that was "inherently in conflict with or not undertaken due to the attorney's other loyalties or interests." Armienti, 234 F.3d at 824; Berger, 188 F. Supp. at 333 (citations omitted).

Since Frase has not established the existence of a conflict of interest between Frase and his counsel, he has, a fortiori, failed to demonstrate that Judge Fahey's decision rejecting this claim in the context of Frase's Article 440 motion was either contrary to, or amounted to unreasonable application of, Wood or Cuyler. Therefore, the court recommends that Ground One of the petition be denied.

2. Failure to Disclose Information Regarding Testimony Against Judge Mulroy
Frase argues that he was deprived of effective assistance of counsel because Savlov failed to advise him that he had testified against Judge Mulroy in a pending judicial misconduct proceeding. Frase claims that his attorney's failure to disclose this fact prevented him from entering a knowing, voluntary and intelligent plea. He also asserts that, had he been aware that Savlov provided that testimony, there was a reasonable probability that Frase would have moved for recusal of Judge Mulroy (Pet. at Ground Two).

a. Voluntary Nature of Plea

It is well settled that state court remedies must be exhausted before a federal court may consider the claims raised in a federal petition for a writ of habeas corpus. See 28 U.S.C. § 2254(b)(1)(A); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997); Daye v. Attorney General of New York, 696 F.2d 186, 190 (2d Cir. 1982) (en banc); Glover v. Bennett, 1998 WL 278272, at *1 (N.D.N.Y. May 21, 1998) (Pooler, J.). The exhaustion doctrine recognizes "respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions." Daye, 696 F.2d at 191. Though both federal and state courts are charged with securing a state criminal defendant's federal rights, the state courts must initially be given the opportunity to consider and correct any violations of federal law. Id. "The chief purposes of the exhaustion doctrine would be frustrated if the federal habeas court were to rule on a claim whose fundamental legal basis was substantially different from that asserted in state court." Glover, 1998 WL 278272, at *1 (quoting Daye, 696 F.2d at 192) (footnote omitted). This exhaustion doctrine is satisfied if the claim has been "fairly presented" to the state courts. See Dorsey, 112 F.3d at 52 (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). A claim has been "fairly presented" if the state courts are apprised of "both the factual and the legal premises of the claim [the petitioner] asserts in federal court." Daye, 696 F.2d at 191; Morales v. Miller, 41 F. Supp.2d 364, 374 (E.D.N.Y. 1999). Thus, "the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Daye, 696 F.2d at 192; Morales, 41 F. Supp.2d at 374. "Citing a specific constitutional provision or relying on federal constitutional precedents alerts state courts of the nature of the claim." Jones v. Vacco, 126 F.3d 408, 413-14 (2d Cir. 1997).

Neither the Article 440 motion filed by Frase nor the appellate brief filed by counsel claimed that Frase's guilty plea was invalid because it was not entered into knowingly, voluntarily or intelligently due to ineffective assistance of counsel. Thus, this claim is unexhausted.

Prior to the AEDPA, a court faced with a habeas petition containing both exhausted and unexhausted claims was required to dismiss the entire petition for failure to exhaust. See Turner v. Artuz, 262 F.3d 118, 122 (2d Cir.) (citing Rose v. Lundy, 455 U.S. 509, 510 (1982)), cert. denied, ___ U.S. ___, 122 S.Ct. 569 (2001). After enactment of the AEDPA, however, a federal district court has the authority to deny (but not grant) an unexhausted claim on the merits and consider the exhausted claims on the merits.*fn7

"When a claim has never been presented to a state court, a federal court may find that there is an absence of available state corrective process under § 2254(b) `if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile.'" Aparicio, 269 F.3d at 90 (citing Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997)); Lurie v. Wittner, 228 F.3d 113, 124 (2d Cir. 2000) (federal court consider habeas petition containing unexhausted claims where there is no further state proceeding for petitioner to pursue or where further pursuit would be futile), cert. denied, 532 U.S. 943 (2001). Thus, this court must determine whether it would be futile for Frase to present this newly-asserted theory to the state courts.

A defendant is "entitled to one (and only one) appeal to the Appellate Division". Aparicio, 269 F.3d at 91. Since Frase cannot file another appeal with the Appellate Division concerning his claim that his plea was not knowingly and voluntarily made due to ineffective assistance, this claim is "deemed exhausted" for purposes of his habeas application. Spence v. Superintendent Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000); Senor v. Greiner, 2002 WL 31102612, at *10 (E.D.N.Y. Sept. 18, 2002). Accordingly, this court's review of the substance of this claim is conditioned upon Frase demonstrating cause for his default and resulting prejudice, or presenting evidence to show that he is "actually innocent" of the crime of which he was convicted. Ramirez v. Attorney General of State of New York, 280 F.3d 87, 94 (2d Cir. 2001) (citations omitted); King v. Greiner, 210 F. Supp.2d 177, 182 (E.D.N.Y. 2002) (court is precluded from considering unexhausted claims "unless petitioner can establish cause to excuse the default and prejudice, or actual innocence").

To establish "cause," Frase must show that some objective external factor impeded his ability to comply with New York's procedural rule. Coleman v. Thompson, 501 U.S. 722, 753 (1991); Restrepo v. Kelly, 178 F.3d 634, 638 (2d Cir. 1999). Examples of external factors include "interference by officials," ineffective assistance of counsel, or that "the factual or legal basis for a claim was not reasonably available" at trial or on direct appeal. Murray v. Carrier, 477 U.S. 478, 488 (1986); United States v. Helmsley, 985 F.2d 1202, 1206 (2d Cir. 1993); Key v. Artuz, 2002 WL 31102627, at *9 (E.D.N.Y. Sept. 16, 2002).

Frase has failed to establish cause for his procedural default. He was aware of Savlov's testimony when he filed his Article 440 motion with the County Court. However, he failed to claim at that time, or in his appellate brief, that his plea was invalid due to ineffective assistance. Since Frase has not established cause for his failure to raise this issue with the state courts, this court need not decide whether Frase suffered actual prejudice, because federal habeas relief is generally unavailable regarding procedurally defaulted claims unless both cause and prejudice is demonstrated. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); Pou v. Keane, 977 F. Supp. 577, 581 (N.D.N.Y. 1997) (Kahn, J.). Moreover, Frase has never contended that he is actually innocent of violating the terms of his probation or the DWI conviction. Therefore, the court recommends the denial of this aspect of the petition on this basis.

b. Recusal Motion

Frase also argues in his second ground that if Savlov had disclosed the facts relating to his testimony against Judge Mulroy, there is a reasonable probability that Frase would have moved for the recusal of Judge Mulroy rather than plead guilty before him to charges that resulted in the imposition of consecutive sentences (Pet. at Ground Two).

Frase's Article 440 motion construed liberally could be viewed as alleging that Savlov's failure to disclose the fact that he had testified against Judge Mulroy prevented Frase from filing a motion in County Court seeking the recusal of Judge Mulroy. See Article 440 Motion at ¶ 4 ("the options of Judge Mulroy recusing himself, attorney Savlov removing himself, or both, should have been addressed [by Savlov]"). Since Judge Fahey found Frase's Article 440 motion to be without merit, see April 2000 Order at P. 15, that finding must be afforded deference under the AEDPA.

To establish ineffective assistance, a habeas petitioner must show both: 1) that counsel's representation fell below an objective standard of reasonableness, measured in the light of the prevailing professional norms; and, 2) resulting prejudice — that is, a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688-90 (1984); see also, Aeid v. Bennett, 296 F.3d 58, 62-63 (2d Cir. 2002). In Taylor, the Supreme Court declared that "the rule set forth in Strickland qualifies as "clearly established Federal law[.]"*fn8 Taylor, 529 U.S. at 391, 120 S.Ct. at 1512.

This court assumes, arguendo, for purposes of this petition that a reasonable attorney would have disclosed to his client the fact that he had testified against the judicial officer before whom his client was to appear regarding charges that his client had violated the terms of his probation and committed the crime of DWI. Nevertheless, Frase must still demonstrate prejudice if he is to prevail on this aspect of his petition.*fn9 professional and judicial conduct that petitioner submits prejudice need not be demonstrated in order to sustain claims of due process and effective assistance of counsel violations"). This court declines Frase's invitation in that it is contrary to Second Circuit authority. See Pavel v. Hollins, 261 F.3d 210, 216 (2d Cir. 2001) (a petitioner "must show both that `counsel's performance was deficient' and `that the deficient performance prejudiced the defense.'" (Emphasis in original).

i. Recusal of Judge Mulroy

In order to demonstrate prejudice, Frase must first establish that had he filed a motion for recusal, Judge Mulroy would have recused himself from further proceedings involving him.

Neither party submitted case law to the court that specifically addressed the issue of whether recusal was required under the circumstances which existed in the state court proceedings below. Additionally, this court could not find either state or federal cases within this state which contained factual allegations analogous to those present in this matter. However, a number of Fifth Circuit cases have been published in which that Circuit reversed the decisions of a U.S. District Judge who had denied recusal motions filed by parties under factually similar circumstances. See United States v. Anderson, 160 F.3d 231 (5th Cir. 1998); United States v. Avilez-Reyes, 160 F.3d 258 (5th Cir. 1998); United States v. Bremers, 195 F.3d 221 (5th Cir. 1999); and United States v. Waskom, 179 F.3d 303 (5th Cir.), cert. denied, 528 U.S. 1028 (1999). However, those cases are readily distinguishable from the case at bar in that they all involve the federal recusal statute, 21 U.S.C. § 455, which requires a judicial officer to recuse himself "in any proceeding in which his impartiality might reasonably be questioned." 21 U.S.C. § 455(a). The legal standard for recusal applicable to County Court judges in New York State differs significantly from the federal statute. Specifically, under New York's Judiciary Law § 14:

A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy.
N.Y. Jud. L. § 14. Absent a legal requirement that he recuse himself, a County Court Judge in New York is deemed to be "`the sole arbiter' of whether any bias or appearance of bias requires recusal." Hernandez v. Senkowski, 1999 WL 1495443, at *29 (E.D.N.Y. Dec. 29, 1999) (citing People v. Moreno, 70 N.Y.2d 403, 405 (1987); Petkovsek v. Snyder, 251 A.D.2d 1086 (4th Dep't 1998)).*fn10 New York's Court of Appeals has observed that, absent statutory grounds, a trial judge's alleged bias, prejudice, or unworthy motives will not constitute grounds for recusal unless it is shown to have affected the result. Moreno, 70 N.Y.2d at 407 (citation omitted); see also, People v. Brown, 141 A.D.2d 657, 658 (2d Dep't 1988) (citing Moreno).*fn11

Judge Mulroy was not legally required to recuse himself from the criminal proceedings involving Frase. Absent this legal requirement, this court must attempt to ascertain whether Judge Mulroy's "personal conscience" would have caused him to recuse himself from the facts of the case. Such an inquiry, however, necessarily requires speculation on the part of this court, yet courts cannot grant habeas relief based upon speculation. See Wood v. Bartholomew, 516 U.S. 1, 8 (1995).*fn12 Since this court cannot find that Frase has demonstrated that Judge Mulroy would have recused himself from the subject proceedings had a recusal motion been filed by Frase, he has not established that he was prejudiced by his attorney's failure to file such a motion.*fn13

ii. Imposition of Consecutive Sentences

Even if this court were to opine that Judge Mulroy would have recused himself from Frase's criminal matter had a recusal motion been filed to demonstrate prejudice, Frase must also establish that the judge who would have sentenced him after Judge Mulroy's recusal would have imposed concurrent, rather than consecutive sentences.

In New York, consecutive sentences may be imposed by a court "when the offenses are committed through separate and distinct acts, though they are part of a single transaction." See People v. Ramirez, 89 N.Y.2d 444, 451 (1996).*fn14 Although the prosecution ultimately did not object to the imposition of concurrent sentences on Frase, see Pet. at Ground One; April Order at P. 6, the initial plea agreement recommended by the prosecution required Frase's sentences for VOP and DWI to run consecutively (see R. App. at PP. 2-3; April Order at P. 13).*fn15 Moreover, a trial judge is not bound by the recommendation of parties in determining the sentence to impose on a defendant. E.g. People v. Ramirez, 284 A.D.2d 729, 729-30 (3d Dep't 2001) (affirming sentence of one to four years imprisonment despite recommendation of prosecution and defense counsel that defendant receive sentence of six months; "[g]iven defendant's criminal history and inability to abide by the conditions of probation, we find no reason to disturb the sentence imposed . . .").

The record reflects that prior to the five year probationary term imposed on Frase by Judge Mulroy in August of 1996 for a felony DWI conviction, he had two felony convictions for DWI (April Order at P. 2). After that sentence was imposed on Frase: (i) he was arrested for DWI on July 24, 1997, in Oswego County; (ii) he tested positive for marijuana use in May of 1998; (iii) he was arrested for unlawfully dealing with a child and possession of marijuana in July of 1998; and, (iv) he was arrested and plead guilty to DWI in Onondaga County in February of 1999*fn16 (April Order at PP. 4-5; R. App. at PP. 57, 59). In light of Frase's appalling record while on probation, and the fact that he had four previous DWI convictions at the time he was sentenced by Judge Mulroy for his February of 1999 DWI conviction, see R. App. at P. 7, it appears to be mere surmise on the part of Frase that he would necessarily have received concurrent sentences for his VOP and DWI convictions had he appeared before another judge for sentencing.*fn17 Thus, Frase has again failed to establish prejudice concerning this aspect of his claim.

In light of the foregoing, the court finds that although it may have been objectively unreasonable for Savlov to have failed to disclose facts relating to his testimony against Judge Mulroy, Savlov's failure to make such a disclosure did not prejudice Frase in any way. Therefore, the court recommends that Ground Two of the petition be denied.

3. Denial of Right to a Fair Tribunal

Frase argues that he was denied his Fifth and Fourteenth rights to due process because of the claimed conflict of interest between Savlov and Judge Mulroy. Frase claims that the above-referenced conflict also "created an appearance of unfairness during the State Court proceedings" which violated Frase's due process rights (see Pet. at Ground Three). Frase argued in his Article 440 motion that Judge Mulroy was biased and prejudiced against him due to Savlov's testimony (Article 440 motion at ¶ 4). In considering this aspect of Frase's claim, Judge Fahey found that "the documented facts in this case reflect absolutely no bias [on the part of Judge Mulroy] resulting from [Savlov's] testimony" (April Order at P. 14). That finding is therefore entitled to deferential review under the AEDPA.

"All criminal trials must be conducted within the bounds of fundamental fairness." Gayle v. Scully, 779 F.2d 802, 805 (2d Cir. 1985) (citing Taylor v. Hayes, 418 U.S. 488, 501-02 (1974) (other citations omitted), cert. denied, 479 U.S. 838 (1986)). To prevail on a claim based on judicial misconduct, a habeas petitioner must demonstrate that the trial judge engaged in conduct so "fundamentally unfair" that it violated the due process requirements of the United States Constitution. See Daye v. Attorney Gen. of N.Y., 712 F.2d 1566, 1570-71 (2d Cir. 1983); Salahuddin v. Strack, 1998 WL 812648, at *8 (E.D.N.Y. Aug. 12, 1998). A showing that the conduct was merely "undesirable" is not sufficient. See Daye, 712 F.2d at 1572.

Moreover, recusal based on alleged hostility or bias between an attorney and judge is not warranted except in extreme or rare instances. United States v. Helmsley, 760 F. Supp. 338, 342 (S.D.N.Y. 1991), aff'd, 963 F.2d 1522 (2d Cir. 1992). To prevail on such a claim, the accusing party must generally show "virulent personal bias or prejudice against the attorney as to amount to a bias against the party." United States v. Wilson, 2001 WL 121943, at *1 n. 1 (S.D.N.Y. Feb. 13, 2001) (citing United States v. Jacobs, 855 F.2d 652, 656 n. 2 (9th Cir. 1988) (other citations omitted)); United States v. Ahmed, 788 F. Supp. 196, 203 (S.D.N.Y.) ("[t]he hostility or bias must be so virulent and of such magnitude that it prejudices the judge against the attorney's client"), aff'd, 980 F.2d 161 (2d Cir. 1992).

Frase has not established that Judge Fahey's rejection of this portion of the Article 440 motion was contrary to, or involved an unreasonable application of, Taylor. As Judge Fahey found, the State Court record does not support a claim that Judge Mulroy was biased against Frase due to Savlov's testimony. Prior to that testimony, Judge Mulroy advised Frase of his displeasure with the fact that Frase had violated the terms of his probation by again driving an automobile while intoxicated, and specifically cautioned him that if he violated the terms of his probation again, he should "expect no consideration from [Judge Mulroy] in the future" (R. App. at P. 4). After the August of 1997 hearing, there were several more claims that Frase had violated the terms of his probation, culminating in the February of 1999 DWI charge (see April Order at PP. 4-5; R. App. at PP. 8, 57, 59). Moreover, the record also reflects that after Savlov had testified against Judge Mulroy, that court nevertheless indicated a willingness to: (i) impose an alternative sentence on Frase if the Assistant DA agreed to reduce the February of 1999 DWI charge down from a felony to a misdemeanor (see R. App. at P. 32); and, (ii) release Frase from custody until sentencing despite his having admitted to violating the terms of his probation and pleading guilty to the February of 1999 DWI charge (Id. at PP. 39-40).

Frase has simply failed to meet his burden of establishing that Judge Mulroy harbored a personal bias or prejudice against Savlov which manifested itself as a bias or prejudice against Frase. Nor has Frase established that Judge Mulroy's conduct during any of the proceedings involving him rendered such proceedings fundamentally unfair. Therefore, the court recommends that the Third Ground in the petition be denied.

4. Denial of Article 440 Motion Without Hearing

In his final ground for relief, Frase argues that Judge Fahey wrongfully denied his Article 440 motion without a hearing (Pet. at Ground Four). Specifically, he contends that "an evidentiary hearing should have been held to explore and memorialize the extent to which attorney Savlov's adverse testimony . . . affected [his] ability to effectively advocate on behalf of petitioner," and that Judge Fahey's failure to conduct an evidentiary hearing relating to the Article 440 application denied him of his due process rights (Pet. at Ground Four). However, this claim is without substance.

Judge Fahey specifically found that no evidentiary hearing was required because "the facts relevant to [Frase's] motion [were] discernable from the official documents in this case" (April Order at P. 2). Frase argues that this conclusion was erroneous, and that it was "unreasonable to expect petitioner to prove prejudice based solely on the official documentation available to the court" (Reply at P. 5). However, Frase has failed to rebut Judge Fahey's finding that the facts salient to his Article 440 motion were discernable from the record, and thereby eliminating the necessity of conducting a hearing.

Frase also contends that this court is required to hold an evidentiary hearing concerning his Article 440 claims in light of Townsend v. Sain, 372 U.S. 293 (1963) and its progeny (Pet. at Ground Four).

In Townsend, the Supreme Court held that:

a federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.
Townsend v. Sain, 372 U.S. at 313. Frase argues that the state court's factual findings were inadequate because he was unable to develop the facts necessary to prevail in his Article 440 motion without an evidentiary hearing (Pet. at Ground Four; see also, Reply at PP. 5-6).

However, it is unclear to this court how an evidentiary hearing would have benefitted Frase in any way. Frase argued forcefully (albeit unsuccessfully) in his Article 440 motion that his conviction should have been vacated due to a conflict of interest between Savlov and Judge Mulroy and because Savlov purportedly rendered ineffective assistance. See Id. at ¶ 4. It is speculative, at best, that Judge Mulroy would have testified at an evidentiary hearing that the sentence he imposed on Frase was impacted by Savlov's testimony, particularly in light of his statement in August of 1997, in which he specifically advised Frase that he could not expect the court to view favorably upon any future requests for leniency if he violated the terms of his probation. Frase has failed to provide the court with evidence which indicates that the fact-finding procedure employed by Judge Fahey deprived him of a full and fair hearing concerning his Article 440 motion.*fn18 To the contrary, it appears that Judge Fahey was not required to conduct an evidentiary hearing as to these claims and therefore, such a hearing is not now required in this federal proceeding under Townsend or its progeny.*fn19

Since Frase has not established that Judge Fahey's denial of his Article 440 motion without a hearing was either contrary to, or constituted an unreasonable application of, Wood, Cuyler, Strickland or Taylor, the court recommends that this final aspect of the petition be denied on the merits.

WHEREFORE, based upon the above, it is hereby

RECOMMENDED, that Frase's petition be DENIED and DISMISSED; and it is further

ORDERED, that the Clerk serve a copy of this Report-Recommendation Order on the parties by regular mail.

NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have ten (10) days within which to file written objections to the foregoing report-recommendation. Any objections shall be filed with the clerk of the court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.

IT IS SO ORDERED.


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