United States District Court, Southern District of New York
January 16, 2003
ADAM SANCHEZ, PETITIONER,
GARY GREEN, RESPONDENT.
The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge
REPORT AND RECOMMENDATION
Pro se petitioner Adam Sanchez seeks a writ of habeas corpus from his 1999 conviction in Supreme Court, New York County, for three counts of third degree criminal sale of a controlled substance and sentence to concurrent terms of five to ten years imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-4; Dkt. No. 4: State Br. at 1.) Sanchez's habeas petition claims that the trial court gave an erroneous presumption of innocence jury charge and a prejudicial illustration of his right to remain silent, depriving Sanchez of a fair trial. (Pet. ¶ 12(A).) Sanchez's reply to the State's opposition to his petition further claims that he was denied effective assistance because his trial counsel failed to preserve the jury charge claim for appeal and because his appellate counsel failed to argue that Sanchez's trial counsel was ineffective on those grounds. (Dkt. No. 11: Sanchez Reply Br. at 1-3.)
For the reasons set forth below, Sanchez's petition should be dismissed without prejudice for failure to exhaust state remedies with respect to his ineffective assistance claims.
Trial, Verdict, and Sentence
On August 20, 1999, Adam Sanchez was arrested after detectives observed him transacting three heroin sales. (E.g., Dkt. No. 6: Trial Transcript ["Tr."] 151-65; see generally Dkt. No. 3: Bernstein Aff. Ex. A: Sanchez 1st Dep't Br. at 3-6.) At trial, Sanchez's counsel did not object to the trial judge's preliminary instructions to the jury during voir dire and at the start of trial, nor to the final jury charge at the conclusion of trial. (See Tr. 18-20, 68-69, 127-30, 358-79.) Indeed, after the final jury charge, the judge asked the prosecutor and defense counsel if either had any "[r]equests, [or] exceptions," and both responded "[n]o." (Tr. 379.)
The jury found Sanchez guilty of all three counts of third degree criminal sale of a controlled substance. (Tr. 392-95.) At sentencing on December 20, 1999, Sanchez was adjudicated a predicate felon, based on a May 27, 1999 conviction of third degree criminal sale of a controlled substance (Sentencing Transcript ["S."] 2-4), and sentenced to concurrent terms of five to ten years imprisonment (S. 8).
Sanchez's Direct State Appeal
Represented by new counsel, Sanchez argued on appeal to the First Department that: "The cumulative effect of the court's erroneous presumption of innocence charge and prejudicial illustration of appellant's right to remain silent deprived appellant of a fair trial." (Dkt. No. 3: Bernstein Aff. Ex. A: Sanchez 1st Dep't Br. at 10; see also id. at 10-16.)*fn1 Sanchez's brief conceded that the jury instruction issue was unpreserved: "Even though trial counsel was remiss in not objecting to and thereby preserving the erroneous instructions and comments, the magnitude of the errors collectively, warrants reversal pursuant to this court's interest of justice jurisdiction." (Id. at 15-16.)
On November 1, 2001, the First Department affirmed Sanchez's conviction:
Defendant's challenges to the court's preliminary and
final instructions as to the presumption of innocence
and defendant's right to refrain from testifying are
unpreserved and we decline to review them in the
interest of justice. Were we to review these claims,
we would find that the court's instructions clearly
conveyed the appropriate legal principles. We note
specifically that language to the effect that
defendant was presumed innocent "until," or "unless
and until" the People had proved his guilt beyond a
reasonable doubt could not, in context, have been
interpreted by the jury as expressing the court's
expectation of a guilty verdict.
We perceive no basis for reduction of sentence.
People v. Sanchez, 288 A.D.2d 16, 16, 732 N.Y.S.2d 163, 163 (1st Dep't 2001) (citations omitted). On February 1, 2002, the Court of Appeals denied leave to appeal. People v. Sanchez, 97 N.Y.2d 733, 740 N.Y.S.2d 706 (2002).
Sanchez's Federal Habeas Petition
Sanchez's timely-filed federal habeas corpus petition raised a single claim, identical to the first argument in his brief to the First Department: that "[t]he cumulative effect of the trial court's erroneous presumption of innocence charge and prejudicial illustration of petitioner's right to remain silent deprived appellant of a fair trial." (Dkt. No. 1: Pet. ¶ 12(A).) In addition, Sanchez's reply to the State's opposition asserted that he was denied the effective assistance of trial counsel because his counsel failed to object to the jury instructions and thereby failed to preserve Sanchez's jury instruction claim for appeal. (Dkt. No. 11: Sanchez Reply Br. at 3.)*fn2 Sanchez's habeas reply brief also alleges that his appellate counsel was ineffective for failing to assert an ineffective assistance of trial counsel claim. (Sanchez Reply Br. at 2.)*fn3
Because there was an adequate and independent finding by the First Department that Sanchez procedurally defaulted on his jury instruction claim, that claim would be barred from federal habeas review. See, e.g., Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *9-11 & n. 14 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.) (& cases cited therein); Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *10 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.) (failure to object to jury charge is an adequate and independent state ground barring federal habeas review). To overcome this default, Sanchez would have to show "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 735, 750, 111 S.Ct.2546, 2558, 2565 (1991); see also, e.g., Figueroa v. Greiner, 2002 WL 31356512 at *9 (& cases cited therein). Ineffective assistance of counsel can represent cause for a procedural default. See, e.g., Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986) ("Ineffective assistance of counsel, then, is cause for a procedural default."); Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *6 & n. 7 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.) (& cases cited therein).
Sanchez's habeas reply brief asserts that (1) his trial counsel was ineffective for failing to object to the trial court's jury instructions and thereby failing to preserve the issue for appellate review, and (2) his appellate counsel was ineffective for raising the jury instruction claim as a violation of Sanchez's right to a fair trial rather than as a violation of his right to effective assistance of trial counsel. (Dkt. No. 11: Sanchez Reply Br. at 2-3.) The Court treats Sanchez's reply brief as a motion to amend his habeas petition. However, because Sanchez has failed to exhaust his ineffective assistance of counsel claims, this Court cannot consider them on their merits or as cause and prejudice to overcome the procedural default on the jury charge claim. See, e. g., Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *13 (S.D.N.Y. May 31, 2002) (Peck, M.J.) ("'[T]he exhaustion doctrine . . . generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.'") (quoting Murray v. Carrier, 477 U.S. at 489, 106 S.Ct. at 2646), report & rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.); Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *9 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.) (same) (& cases cited therein.).
Sanchez still has time to exhaust the ineffective assistance claims in state court. Sanchez's one-year limitations period under the AEDPA began running on May 2, 2002, ninety days after the New York Court of Appeals denied leave to appeal his conviction, when Sanchez's time to file a petition for certiorari expired. See, e.g., Williams v. Artuz, 237 F.3d 147, 150-51 & n. 1 (2d Cir.), cert. denied, 122 S.Ct. 279, 151 (2001). Because Sanchez has more than sixty days remaining in his AEDPA limitations period before it expires on May 2, 2003 — over 100 days as of the time he will receive this Report and Recommendation — his petition should be dismissed without prejudice to allow him to exhaust his two ineffective assistance of counsel claims.*fn4 See, e.g., Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir.), cert. denied, 122 S.Ct. 506 (2001);*fn5 King v. Greiner, 02 Civ. 5810, 2002 WL 31453976 at *2-3 (S.D.N.Y. Nov. 5, 2002) (Peck, M.J.) (& cases cited therein), report and rec. adopted, 2003 WL 57307 (S.D. N.Y. Jan. 7, 2003) (Cote, D.J.).
Where, as here, a district court elects to dismiss rather than stay a mixed petition, the Second Circuit in Zarvela instructed that it would "be useful to alert the petitioner to the one-year limitations period of AEDPA and to the fact that a portion of that period has already elapsed." Zarvela v. Artuz, 254 F.3d at 382. The Court therefore hereby alerts Sanchez that he must file a new federal habeas petition by May 2, 2003 (or such later date as may be timely because of the toll of the AEDPA limitations period during the pendency of any state collateral attack); if Sanchez does not do so, his new federal habeas petition will be time barred.
Finally, the Court notes that normally it would advise a petitioner like Sanchez of the need to exhaust and give the petitioner the choice of withdrawing the petition without prejudice or withdrawing the unexhausted ineffective assistance claims to allow decision on the exhausted (here, jury charge) claim. Here, however, the jury charge claim is barred by an adequate and independent state ground. There is no need to give Sanchez a "choice" here where there is no choice — if he did not return to state court to exhaust the ineffective assistance claims, his jury charge claim would be denied and any federal habeas petition he brought thereafter concerning the ineffective assistance claims would be considered a successive petition.
For the reasons set forth above, the Court promptly should dismiss Sanchez's habeas petition without prejudice to allow him to exhaust his ineffective assistance claims in state court.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Shira A. Scheindlin, 500 Pearl Street, Room 1050, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Scheindlin. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).