The opinion of the court was delivered by: Lewis A. Kaplan, District Judge
On May 10, 1994, petitioner was adjudged guilty of three counts of robbery in the first degree in the New York State Supreme Court, New York County. Petitioner filed his first motion to vacate the judgment on September 1, 1994, which the New York Supreme Court denied on October 14, 1994. The Appellate Division, First Judicial Department, denied petitioner leave to appeal the motion to vacate on October 14, 1994, and it unanimously affirmed the conviction on April 3, 1997. People v. Cates, 238 A.D.2d 140, 655 N.Y.S.2d 511 (1st Dept. 1997). On May 29, 1997, the New York Court of Appeals denied leave to appeal. People v. Cates, 89 N.Y.2d 1090, 682 N.E.2d 984 (1997). Petitioner filed a second motion to vacate the New York Supreme Court's judgment on or about February 1, 1998, which was denied on February 9, 1998. Leave to appeal was denied on November 13, 2001.
After exhausting his state remedies, Andre Cates petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 8, 2002, this Court found that the petition was timely. Cates v. Sendowski, 02 Civ. 5957 (LAK), 2002 WL 31507526, at *2 (S.D.N.Y. Nov. 8, 2002). The Attorney General filed an answer, which is dated January 31, 2003.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), habeas relief may not be granted when a claim in State court was adjudicated on the merits, unless the adjudication: (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," 28 U.S.C. § 2254(d)(1); or (2) "resulted in a decision that was based on an unreasonable determination of facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). The Supreme Court has interpreted Section 2254(d)(1) of AEDPA to give independent meaning to the "contrary to" and "unreasonable application" clauses. Williams v. Taylor, 529 U.S. 362, 404 (2000). A state court decision is "contrary to" Supreme Court precedent if it "arrives at a conclusion opposite to that reached by [the] Court on a question of law" or if it "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite" to that of the Court. Id. at 405. A state court decision is an "unreasonable application" of Supreme Court precedent if it "identifies the correct governing legal rule . . . but unreasonably applies it to the facts" of a particular case or if it "either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407. The Supreme Court has interpreted Section 2254(d)(2) of AEDPA to mean that "a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, No. 01-7662, 2003 WL 431659, at *12 (U.S. Feb. 25, 2003).
Petitioner raises two grounds for federal relief. He claims that (1) his right to appear and testify before the grand jury was violated, and (2) he received ineffective assistance of counsel in that his counsel failed to ensure that petitioner could testify before the grand jury. Each claim was adjudicated on the merits, meaning its disposition met the low threshold of being based on the merits and reduced to a judgment. See Sellan v. Kuhlman, 261 F.3d 303, 311-14 (2d Cir. 2001). But neither claim ultimately supports the petition for a writ of habeas corpus.
Petitioner raised his first claim for relief, that he was denied his alleged right to appear before the grand jury, on direct appeal with bare reference in his brief to the Fifth and Fourteenth Amendments, Resp. Decl., Ex. G, at 15, and in his motions to vacate, id., Exs. A, L. The First Department denied petitioner's claim on direct review, although it did so without direct reference to the federal Constitution. Cates, 238 A.D.2d 140, 655 N.Y.S.2d 511. Then, in denying the motion to vacate his sentence, the New York Supreme Court referenced the denial of petitioner's claim both at trial and on direct appeal. Resp. Decl., Ex. M. Petitioner was denied leave to appeal. Id., Ex. O.
Petitioner's first claim is not cognizable under federal habeas law. The right to appear before the grand jury is secured by New York State criminal law, N.Y. CRIM. PROC. LAW § 190.50(5)(a), and not by the federal Constitution. "Federal habeas corpus is not, of course, available simply by virtue of a violation of state criminal law." Hameed v. Jones, 750 F.2d 154, 160 (2d Cir. 1984); cf. Mirrer v. Smyley, 703 F. Supp. 10, 11-12 (S.D.N.Y. 1989) ("The right to a grand jury is a matter of New York State law and as such is not reviewable on a petition for habeas corpus.").
Even if petitioner's claim were part of a broader assertion that denial of his right to appear before the grand jury was arbitrary and hence violated his right to due process under the Fifth and Fourteenth Amendments of the Constitution, which is not apparent from the short-form pro se petition but was alluded to in prior submissions, it would fail. The New York statute requires only that the State "accord the defendant a reasonable time to exercise his right to appear as a witness." N.Y. CRIM. PROC. LAW § 190. 50(5)(a). On direct appeal, the Appellate Division held that "the People provided defendant with a `reasonable opportunity' to appear. . . ." Cates, 238 A.D.2d at 140, 655 N.Y.S.2d at 512. The evidence fully supports this conclusion, one which deserves considerable deference.
Lastly, even if the conclusion were not supported by the record, petitioner's claim would fail because any denial of the right to appear before the grand jury would have been harmless beyond a reasonable doubt after petitioner's conviction by the petit jury. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) (applying the Supreme Court's reasoning from United States v. Mechanik, 475 U.S. 66, 70 (1986)); see, e.g., Lemons v. Parrott, No. 01 Civ. 9366 (LBS), 2002 WL 850028, at *6 (S.D.N.Y. May 2, 2002) (holding harmless "any error that prevented [defendant] from testifying in front of the grand jury" because defendant "was found guilty by the petit jury"). Petitioner therefore is foreclosed from collaterally attacking his sentence based upon the alleged denial of his right to appear before the grand jury.
Petitioner's second claim, one of ineffective assistance of counsel, also fails. Petitioner raised this claim in his motion to vacate, Resp. Decl., Ex. L, and the New York Supreme Court denied it as being "in conflict with recent, determinative case law," id., Ex. M. The First Department denied petitioner leave to appeal. Id., Ex. O.
Under Strickland v. Washington, 466 U.S. 668 (1984), petitioner must establish both that his counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687-89, 693-94. Counsel's performance did not fall below such an objective standard. In similar circumstances, the New York Court of Appeals held that a "[d]efense counsel's failure to timely facilitate defendant's intention to testify before the Grand Jury does not, per se, amount to a denial of effective assistance of counsel. . . ." People v. Wiggins, 89 N.Y.2d 872, 873, 653 N.Y.S.2d 91, 873 (1996) (citing cases); accord People v. Williams, 293 A.D.2d 394, 740 N.Y.S.o.2d 625 (Mem) (1st Dept.), lv denied, 98 N.Y.2d 773, 752 N.Y.S.2d 13 (2002).
The Court need not address any further the issue of counsel's performance, though, as it is convinced quite firmly that petitioner has not established "a reasonable probability that, but for counsel's [alleged] unprofessional errors, the result of the proceeding would have been different." Even if petitioner could establish that his counsel's assistance fell below an objective standard, he definitely has not satisfied Strickland's requirement of prejudice. As discussed in reference to the first claim, conviction by the petit jury cures any prejudice from such an error during the grand jury proceedings. Lopez, 865 F.2d at 32; see, e.g., Lemons, 2002 WL 850028, at *6 (denying defendant's "ineffective assistance claim . . . because his failure to testify in front of the grand jury did not prejudice his defense" where defendant "was convicted by the petit jury, did not testify at trial, and does not indicate what he would have told the grand jury in order to prevent his indictment"). The New York Supreme Court, the highest state court to adjudicate this claim on the merits, concluded similarly in its denial of petitioner's motion to vacate. Resp. Decl., Ex. O (citing cases).
Neither of the challenged state court determinations "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," 28 U.S.C. § 2254(d)(1), or "that was based on an unreasonable determination of facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). The petition is denied in all respects. The clerk shall close the case. As no substantial question is presented, the Court denies a ...