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March 26, 2003


The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

REPORT AND RECOMMENDATION To the Honorable Harold Baer United States District Judge
Charles Jones, proceeding pro se, has filed this petition under 28 U.S.C. § 2254 for a writ of habeas corpus seeking to overturn a judgment of conviction imposed in a New York State court. For the reasons stated below, the petition should be denied.


A. Jones' First Trial

In 1993, Jones was indicted and charged with Burglary in the Second Degree, Criminal Possession of Stolen Property in the Fourth Degree, and Criminal Possession of a Weapon in the Fourth Degree. See Jones v. Vacco, 126 F.3d 408, 410-11 (2d Cir. 1997). After a jury trial before Justice Richard Andrias of Supreme Court, New York County, Jones was convicted of all charges. Id. at 411. On April 6, 1994, Jones was sentenced to a term of 1-1/2 to 4-1/2 years imprisonment.

Jones appealed his sentence to the Appellate Division, First Department on numerous grounds. On May 9, 1996, the Appellate Division affirmed the conviction. See People v. Jones, 227 A.D.2d 195 (1st Dep't 1996). On June 11, 1996, the New York Court of Appeals denied Jones leave to appeal. See People v. Jones, 88 N.Y.2d 937 (1996). Jones was represented by retained counsel throughout the trial and appeal.

B. Jones' First Habeas Petition

On June 27, 1996, Jones filed a federal petition for a writ of habeas corpus arguing, inter alia, that he had been denied his Sixth Amendment right to counsel. See Jones v. Vacco, 944 F. Supp. 229, 230 (S.D.N.Y. 1996). Specifically, Jones alleged that Justice Andrias had prevented him from consulting with counsel for four days while on recess from his cross-examination. See id. at 230-31. The prosecution conceded that a ban had been put into effect for one day; but argued that it had been lifted the next day by Justice Andrias. Id. at 234. United States District Judge Shira A. Scheindlin ordered an evidentiary hearing to determine whether Justice Andrias had in fact lifted the ban. See id. at 235. On September 19, 1996, Judge Scheindlin issued a decision granting the writ on the ground that the State had not proven that the ban had been lifted. See Jones v. Vacco, 1996 WL 535544, at *3 (S.D.N.Y. Sept. 19, 1996). The court ordered that Jones "must either be released or given a new trial within 30 days." Id.

The State appealed Judge Scheindlin's ruling to the United States Court of Appeals for the Second Circuit. On October 2, 1997, the Second Circuit affirmed. See Jones v. Vacco, 126 F.3d 408 (2d Cir. 1997).

C. Proceedings before Justice Berkman

Shortly after Judge Scheindlin issued the writ of habeas corpus (but before the Second Circuit affirmed her decision), proceedings for Jones' retrial began in Supreme Court, New York County before Justice Carol Berkman.

On October 3, 1996, Jonathan Oberman — one of the attorneys representing Jones in his original habeas action — appeared before Justice Berkman to make an application to release Jones on bail. See Transcript, dated October 3, 1996, at 2-24. The application was denied. See id. at 38-39.

On October 16, 1996, Oberman sought to enter a "limited" or "partial" appearance, which Justice Berkman refused to allow. See Transcript, dated October 16, 1996, at 2-3. Oberman then indicated that Jones intended to proceed pro se, but asked that Justice Berkman assign Jones counsel to function as a "legal adviser." Id. at 3. Justice Berkman, however, postponed any ruling on whether she would appoint Jones a legal adviser. Id. at 6.

At an October 18, 1996 conference, the State indicated that it would appeal Judge Scheindlin's ruling but recognized that Judge Scheindlin's order required that Jones be released that day — 30 days after her ruling. See Transcript, dated October 18, 1996, at 2. At this conference, Jones appeared without counsel. When he began to address the issue of his representation, Justice Berkman stated that Jones had not yet proven that he was unable to afford counsel and thus declined to assign counsel to represent him. Id. at 3-5. The record reflects subsequent court appearances on November 15, 1996 and December 18, 1996. Jones represented himself at these conferences, which did not deal with Jones' pro se status but instead focused on issues regarding a protective order that had been issued against Jones.

Jones moved for modification of the protective order against him, for the issuance of a protective order in his favor, for Justice Berkman to recuse herself, and for counsel to be appointed. Justice Berkman denied these applications. See Order, dated January 21, 1997 ("Berkman Order") (reproduced in Index of Exhibits submitted by Respondent (undated) ("Exhibit Index"), Vol. V, Ex. E), at 1-3. As to Jones' motion for appointment of counsel, Justice Berkman wrote Defendant has made conclusory claims of indigence, claims which are clearly

contradicted by the value of the real estate he owns in this city and in Connecticut. Accordingly this court has denied the requests for assignment of counsel for this defendant, who has been represented by retained counsel throughout his trial and the subsequent appeals as well as the habeas corpus petition.
Id. at 3 (emphasis in original).

The next day, on January 22, 1997, the State informed Justice Berkman that the Second Circuit had appointed Barry Scheck as Jones' counsel for the habeas appeal. See Transcript, dated January 22, 1997, at 1. Justice Berkman ordered the State to provide her with whatever papers were provided to the Second Circuit when they appointed Scheck as Jones' appellate counsel. Id. at 1-2. The court adjourned the proceedings until a later hearing date scheduled to be held April 9, 1997. See id. at 3. The record contains no transcript of any hearing held in April 1997.

On October 8, 1997, the State informed Justice Berkman that the Second Circuit had affirmed Judge Scheindlin's decision and that the State intended to re-try Jones. See Transcript, dated October 8, 1997, at 2. Jones then informed Justice Berkman of an Article 78 proceeding he had brought to the Appellate Division seeking the appointment of counsel. Id. at 3-4. Justice Berkman continued to refuse to appoint counsel, stating that the uncontradicted information before her showed that Jones was able to afford a lawyer. Id. at 4-7. The Appellate Division denied Jones' Article 78 petition to appoint counsel. See Order (undated) (reproduced in Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed November 29, 2001 ("Amended Petition"), Ex. K), at 1.

D. Pre-trial Proceedings before Justice Obus

Jones' case was thereafter re-assigned to Justice Michael J. Obus. At an initial conference before him on November 5, 1997, Justice Obus signed a continued order of protection and set a follow-up conference for November 14. See Transcript, dated November 5, 1997, at 9-10. Justice Obus refused to rule on the issue of whether Jones should be assigned counsel as Jones' motion for counsel to be assigned was still pending before the Appellate Division at that time. See id. at 5. There is no record of a conference on November 14.

On January 21, 1998 and February 2, 1998, Jones moved to dismiss the indictment for a violation of his Sixth Amendment right to counsel; to dismiss for failure to hold a speedy trial; to dismiss in the interests of justice; or for a new suppression hearing due to prosecutorial misconduct and perjury. See Notice of Motion, dated January 21, 1998 (reproduced in Amended Petition Ex. J); Notice of Motion, dated February 2, 1998 (reproduced in Amended Petition Ex.I); Decision, dated April 29, 1998 ("April 29 Dec.") (reproduced in Exhibit Index, Vol. V, Ex.G), at 1-2. With respect to the appointment of counsel claim, the State argued, inter alia, that Jones had significant assets at his disposal. Specifically, the State noted that Jones lived in an expensive home held in his wife's name in Greenwich, Connecticut that was worth at least $500,000. See Affirmation in Response to the Defendant's Notice of Motions, dated March 19, 1998 (reproduced in Exhibit Index, Vol. V, Ex. F), ¶¶ 16-17, 19, 21. The State also noted that Jones had been able to retain counsel throughout his first trial and appeal, see id., ¶ 14, and had been able to post $5,000 bail following his arraignment prior to the second trial. See id., ¶ 20.

During a conference on March 4, 1997, Justice Obus extended the order of protection but refused to rule on Jones' other pending motions. See Transcript, dated March 4, 1998, at 7. On April 29, 1998, Justice Obus issued a written order responding to Jones' motions. Justice Obus denied Jones' motions to dismiss in their entirety. See April 29 Dec. at 2-5. The court rejected Jones' speedy trial claim, on the ground that, at most, only four months of time chargeable to the State had accrued. Id. at 2-3; see also New York Criminal Procedure Law ("CPL") § 30.30(1)(a) (State must be trial-ready within six months after commencement of felony action). Justice Obus also denied Jones' request to dismiss the indictment in the interest of justice or for a new suppression hearing as Jones failed to present the court with "additional pertinent facts" that warranted dismissal or a de novo hearing. April 29 Dec. at 3-4. As for Jones' motion for appointment of counsel, the court noted the State had produced evidence that Jones owned valuable properties and had concealed assets. See id. at 4. Accordingly, Justice Obus ordered that a hearing be held on the issue of Jones' eligibility for appointed counsel. Id. at 5.

The hearing was held in May 1998. See Reply Brief for Petitioner, filed July 18, 2002 ("Reply Brief"), at 44; Memorandum of Law in Support of Answer Opposing Petition for a Writ of Habeas Corpus, filed June 7, 2002 ("Resp. Mem."), at 13. Following the hearing, Justice Obus ordered that Jones be assigned counsel and Harold Ramsey was appointed Jones' attorney. (See Tr. 11). Almost a year passed before the beginning of Jones' second trial. While the record presented on this petition does not contain transcripts of any proceedings that occurred during this period, the respondent states that he has produced all transcripts of proceedings in his possession. See Letter to the Court from Amyjane Rettew, dated July 2, 2002 (Docket #24), at 2.

On March 26, 1999, the week before his second trial was scheduled to begin, Jones asked to proceed pro se. Transcript, dated March 26, 1999 (reproduced in Exhibit Index, Vol. I, Ex. B), at 4-7. Justice Obus granted the request on April 1, 1999, and appointed Ramsey to remain as an attorney-advisor. Trial Transcript ("Tr.") (reproduced in Exhibit Index, Vols. I-IV, Ex. C), at 270-75. The trial proceeded as scheduled.

E. Jones' Second Trial

During his second trial, Jones was charged with the same crimes as in the first trial: Burglary in the Second Degree, N.Y. Penal L. § 140.25; Criminal Possession of Stolen Property in the Fourth Degree, N.Y. Penal L. § 165.45; and Criminal Possession of a Weapon in the Fourth Degree, N.Y. Penal L. § 265.01.

1. Summary of the Prosecution's Evidence.

a. The elements of the charges.

The prosecution's case centered on: (1) Jones' entry into the apartment of Marla Maples on July 13, 1992, which was captured on videotape; (2) the presence in Jones' office of a large number of items belonging to Maples (including shoes) found during the execution of a search warrant on July 15, 1992; and (3) the presence in Jones' office of unlicensed firearms, also found during the search.

To prove the burglary charge, the prosecution had to show that Jones knowingly entered Maples' residence with the intent to commit a crime (in this case, larceny) without a license or privilege to enter. See N.Y. Penal L. §§ 140.25, 140.00(5). The State's evidence consisted largely of the videotape showing Jones' entry into Maples' apartment, testimony showing that Maples' property was recovered from Jones' office and the testimony of witnesses who stated that Jones — who had had a business relationship with Maples — did not have permission to enter Maples' apartment To prove criminal possession of stolen property, the prosecution was required to prove Jones knowingly possessed stolen property with the intent to benefit himself or another where the value of the property exceeded $1,000. See N.Y. Penal L. § 165.45(1). The State introduced evidence showing that Jones had knowingly possessed items of Maples, primarily shoes. The proof of the value of the property was tied to the issue of whether there existed a market for used shoes. This is because the parties stipulated that if no market for used shoes existed, the replacement value of the shoes was over $1,000. (Tr. 2330). If, however, the jury found a market for used shoes did exist, the parties agreed the value of the shoes would be under $1,000 and thus Jones could not be convicted of the criminal possession of stolen property charge.

Finally, to prove criminal possession of a weapon, the State needed to show Jones unlawfully possessed an operable dangerous weapon. See N.Y. Penal L. §§ 265.01(1), (4); People v. Longshore, 86 N.Y.2d 851, 852 (1995). The State called witnesses to testify about certain antique guns found in Jones' office and an expert witness who testified about the operability of these firearms.

b. The prosecution witnesses.

The Prosecution called the following witnesses: Marla Maples, who testified about Jones' lack of permission to be in her apartment, her relationship with Jones, the items missing from her home, the videotape showing Jones in her apartment, and the discovery of her missing property in Jones' office (Maples: Tr. 296-1113, 1992-2039); Ann Ogletree (also referred to as "Ann Maples"), Maples' mother, who testified about many of the same matters (Ogletree: Tr. 1137-1304); Kevin Hynes, a former district attorney from the first trial, who testified about documents introduced by Jones in the first trial that were purportedly forged and thus showed a consciousness of guilt (Hynes: Tr. 1319-57); Steven Adamo, a security officer for the Trump Organization, who testified about the security in Maples' building and the videotape (Adamo: Tr. 1363-88); Police Officer Brian Higgins, who testified about Jones' arrest and the items found in Jones' apartment on July 15, 1992 (Higgins: Tr. 1389-1414, 1578-1627); Janie Elder, a friend of Maples, who testified about Jones' relationship with Maples, the videotape, Jones' stealing of her keys to Maples' apartment and their subsequent discovery in Jones' office, as well as the discovery of other items in Jones' office (Elder: Tr. 1421-1565); Matt Calamari, the director of security for the Trump Organization, who testified about the burglary, the videotape, and the discovery of the items in Jones' office (Calamari: Tr. 1627-1803); Gus Lesnevich, a handwriting expert, who testified about the documents introduced during the first trial that the State alleged were forgeries (Lesnevich: Tr. 1849-1920); Police Officer Robert Gianetta, who testified about the discovery of the items in Jones' office (Gianetta: Tr. 1921-56, 2041-53, 2090-2135, 2174-2220, 2224-49); Assistant District Attorney Doreen Klein, a prosecutor in the first trial, who, outside the presence of the jury, established the unavailability of Richard Jacobson, a witness from the first trial (Klein: Tr. 2058-69); Vincenza Garcia, a real estate broker, who testified that she helped Maples find an apartment, that the lease for that apartment was missing from her files, that the same lease had been introduced by Jones during his cross-examination of Maples and that the version Jones introduced had been altered (Garcia: Tr. 2139-74); and Detective Peter Liota, an expert witness on firearms, who testified about the condition of the guns found in Jones' office (Liota: Tr. 2666-2706). The State also read into evidence the prior testimony of Richard Jacobson, who testified as an expert witness at the first trial regarding the lack of a market for used shoes. (Jacobson: Tr. 2285-2329).

2. Summary of Jones' Evidence.

During his case, Jones offered evidence that he had permission to enter the apartment and possess Maples' belongings, that there was a market for used shoes, that the alleged forgeries were authentic, and that the firearms were not operable and were not his.

Jones called the following witnesses: Jesus Velasquez, a doorman in the building where Jones' office was located, who testified about how Jones and others entered Jones' building on July 15, 1992, shortly after Jones had been confronted with the videotape (Velasquez: Tr. 2375-88); Mr. Wasinski, a photographer, who testified he had obtained clothing used in photo shoots from Jones' office (Wasinski: Tr. 2398-2405); Klein, who testified about the alleged forgeries and the condition of a pair of panty hose allegedly owned by Maples that was found in Jones' office (Klein: Tr. 2404-37); Sergeant John Magee, who testified about Jones' arrest (Magee: Tr. 2438-54); Andrea Eastman, a talent agent, who testified about a lunch meeting among her, Maples, Jones and Donald Trump (Eastman: Tr. 2469-79); Domenic Pezzo, a security officer for the Trump Organization, who testified about the burglary, the confrontation of Jones, and the discovery of the items in Jones' office (Pezzo: Tr. 2480-2553); David Wexler, a concierge from Jones' building, who testified that Maples had visited Jones' building on a number of occasions (Wexler: Tr. 2556-60); John Kelligrew, one of Jones' lawyers in the first trial, who testified about the panty hose and its condition (Kelligrew: Tr. 2561-73); Gloria de Prado, who testified about the market for used shoes and the condition of panty hose found in Jones' office (de Prado: Tr. 2573-98); Christopher Williams, the owner of a Goodwill store, who testified about the market for used shoes (Williams: Tr. 2627-34); Yometie Semaroo, a worker at a Salvation Army store, who testified about the market for used shoes (Semaroo: Tr. 2635-41); R. Emmet Heaphy, a retired attorney and friend of Jones, who testified about Jones' arrest (Heaphy: Tr. 2643-55); Marion Cochran, a vice president for Goodwill Industries in New York, who testified about the market for used shoes (Cochran: Tr. 2663-65); Lynn Catherine Jones, Jones' wife, who testified about Jones' arrest and a subsequent search of Jones' home (Jones: Tr. 2729-63); Steven Fredericksen, a private investigator, who testified about his investigation of the case, items recovered from Jones' office, and ownership of the firearms (Fredericksen: Tr. 2794-2841); Thomas Fitzsimmons, who testified about Jones' relationship with Maples (Fitzsimmons: Tr. 2841-75); and Andrew Sulner, a handwriting expert, who offered his opinion that the alleged forgeries were authentic. (Sulner: Tr. 2906-88).

F. The Verdict and Sentencing

Justice Obus charged the jury on May 4, 1999. After deliberating until the afternoon of May 5, 1999, the jury found Jones guilty of the burglary and criminal possession of a weapon charges but acquitted him of criminal possession of stolen property. (Tr. 3268).

The parties appeared before Justice Obus on June 11, 1999 for sentencing. At this proceeding, Jones made a motion to set aside the verdict and to stay the sentence pending an application to the Appellate Division for bail pending appeal. Transcript, dated June 11, 1999 (reproduced in Exhibit Index, Vol. IV, Ex. D), at 3-7. The State asked for a sentence beyond the mandatory minimum sentence of 1-1/2 to 4-1/2 years. Id. at 7-11. Ramsey asked that the court impose the same sentence as was imposed following the first trial, or 1-1/2 to 4-1/2 years. Id. at 11. Jones continued to assert his innocence. Id. at 12-14. Ramsey also requested that Jones remain free on bail pending his appeal, id. at 15-16; the State opposed the request. Id. at 16-20. After a break, Justice Obus denied Jones' motion to set aside the verdict. Id. at 25. The judge proceeded to impose the minimum mandatory sentence of 1-1/2 to 4-1/2 years on the burglary count and time served on the possession of a weapon count. Id. at 26-30. Justice Obus granted Jones' request to stay the execution of the sentence so that he could make a bail application to the Appellate Division. Id. at 30. The judge directed Jones to report for execution of his sentence on June 15, 1999. Id. at 30-31. The sentence was executed on that date. See Transcript, dated June 15, 1999 (reproduced in Exhibit Index, Vol. IV, Ex. D), at 14.

Jones' application to the Appellate Division was denied without opinion. The Appellate Division later denied Jones' motion for reconsideration and the New York Court of Appeals denied Jones' motion for a direct appeal. On December 9, 1999, Jones filed a habeas petition in this Court challenging the Appellate Division's denial of bail. See Jones v. O'Keefe, 2000 WL 1290595, at *2 (S.D. N.Y. Sept. 12, 2000). The petition was denied on September 12, 2000, see id., and reconsideration was denied on December 7, 2000. See Jones v. O'Keefe, 2000 WL 1804153, at *4 (S.D.N.Y. Dec. 7, 2000). While his district court habeas petition was pending, Jones filed a petition for a writ of mandamus in the United States Court of Appeals for the Second Circuit, which was denied on May 4, 2000. See id. at *1.

G. Jones' Direct Appeal

The Appellate Division, First Department assigned Steven Feldman, Esq., to represent Jones in the direct appeal of his conviction. See Amended Petition Ex. 2. On April 26, 2000, Feldman filed an appellate brief on Jones' behalf only raising one point: a challenge to Justice Obus' decision to allow a juror to continue to serve after questions were raised about the juror's partiality (discussed in Section III.C below). See Brief for Defendant-Appellant, (undated) (reproduced in Amended Petition Ex. F), at 10-18. On April 28, 2000, Jones moved pro se for an order striking his lawyer's brief and directing his lawyer to file a new brief, or, in the alternative, for permission to file a pro se supplemental brief. See Motion to Strike Appellate Brief, or in Alternative to Compel Appellate Counsel to file Supplemental Brief; or to allow Pro Se Supplemental Brief; for an Expedited Hearing on Appeal as to Oral Argument, etal. [sic], (reproduced in Reply Declaration of Petitioner Charles Jones in 1) Opposition to Stay and 2) For Sanctions Precluding Respondent from Interposing any Further Answer, filed April 2, 2002, (Docket #13), Ex. M). The Appellate Division denied Jones' motion. See Order of the Appellate Division, First Department (undated) (reproduced in Amended Petition Ex. 2). Subsequently, Jones submitted a pro se supplemental brief and moved for reconsideration of his earlier motion. See Pro Se Supplemental Brief, dated June 16, 2000 ("Jones Pro Se App. Br."), (reproduced in Amended Petition Ex. D). Jones' pro se brief raised 14 additional points for consideration. See id. The First Department accepted Jones' pro se brief on July 27, 2000. See Order of the Appellate Division, First Department (undated) (reproduced in Amended Petition Ex. 2). After the State filed its appellate brief in January 2001, Jones filed a reply brief addressing arguments made both in the counseled and pro se briefs. See Reply Brief for Appellant (undated) (reproduced in Amended Petition Ex. E).

On March 21, 2001, the First Department affirmed Jones' conviction. People v. Jones, 281 A.D.2d 283 (1st Dep't 2001). As to the argument about the jury raised by Feldman, the court found Justice Obus "properly declined to discharge" the juror "[s]ince the court's searching inquiry . . . ultimately confirmed that the juror could remain impartial." Id. (citation omitted). The court further noted that Justice Obus' "inquiry also established that the jurors had not engaged in premature deliberations." Id. As for the additional arguments Jones raised in his pro se briefs, the court stated, "[w]e have considered and rejected defendant's pro se arguments." Id.

Jones then sought leave to appeal to the New York Court of Appeals raising all of the issues contained in his briefs to the Appellate Division. See Letter from Jones to Chief Judge Judith Kaye, dated April 9, 2001 (reproduced in Amended Petition Ex. C). On May 23, 2001, the Court of Appeals denied leave to appeal. People v. Jones, 96 N.Y.2d 831 (2001). Jones' application for reconsideration was also denied. People v. Jones, 96 N.Y.2d 903 (2001).

H. Jones' Section 440.10 Motions

On December 10, 1999 — while his direct appeal was pending — Jones moved pro se before Justice Obus to vacate his conviction pursuant to CPL § 440.10 or, in the alternative, for an evidentiary hearing. Jones advanced three arguments in support of the motion: i) newly discovered evidence created a probability that the verdict would have been favorable to him had it been received at trial; ii) "material evidence" presented at trial was false and known by the prosecution and Maples to be false; and iii) "improper and prejudicial" conduct not appearing on the record occurred during trial that, if it had appeared on the record, would have required reversal on direct appeal. See Declaration of Charles Jones in Support of Motion to Vacate Conviction and Order a New Trial Pursuant to CPL 440. 10(1)(c)(f)(g); An Order Vacating Conviction and Granting New Trial for Failure of People to Provide Brady Material: Injunctive Relief, dated December 10, 1999 ("First 440.10 Motion") (reproduced in Amended Petition Ex.G).

Justice Obus denied this motion in full on March 29, 2000. See Decision, dated March 29, 2000 ("First 440.10 Decision") (reproduced in Exhibit Index, Vol. V, Ex. J). As for both the newly discovered evidence and improper and prejudicial conduct grounds, Justice Obus found these claims to be procedurally barred and, in any event, without merit. Id. at 2-5. As for the false evidence claim, the court found that Jones "failed to establish with evidentiary facts that the People's witnesses testified falsely on material matters or that the People were aware of any alleged falsities." Id. at 5. On June 22, 2000, the Appellate Division denied Jones' request for leave to appeal, see Certificate Denying Leave, dated June 22, 2000 (reproduced in Amended Petition Ex. G), and on October 3, 2000, denied his request for re-argument and related relief. See People v. Jones, 2000 N.Y. App. Div. LEXIS 10294 (1st Dep't Oct. 3, 2000).

During the pendency of the first section 440.10 motion, on March 8, 2000, Jones filed a second pro se 440.10 motion to vacate the conviction, once again alleging that improper and prejudicial conduct occurred at trial and arguing ineffective assistance of counsel. See Affidavit of Charles Jones in Support of Motion to Set Aside and Vacate Conviction Pursuant to CPL 440.10(f) and for Ineffective Assistance of Counsel, dated March 8, 2000 ("Second 440.10 Motion") (reproduced in Amended Petition Ex. G), ¶¶ 1-37. These arguments were likewise rejected by Justice Obus who, on May 22, 2000, held that the claims were procedurally barred and, in any event, without merit. See Decision, dated May 22, 2000 ("Second 440.10 Decision") (reproduced in Exhibit Index, Vol. V, Ex. L), at 1-4. An application for leave to appeal was denied on October 3, 2000. See People v. Jones, 2000 N.Y. App. Div. LEXIS 10293 (1st Dep't Oct. 3, 2000).

I. Proceedings before this Court

On November 6, 2001, Jones filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Jones filed an amended petition on November 29, 2001. In his Amended Petition, Jones raised 16 grounds for relief. See Amended Declaration of Charles Jones in Support of Amended Petition for Writ of Habeas Corpus, dated November 26, 2001 ("Amended Declaration") (annexed to Amended Petition), ¶¶ 37(A)-(P). After a Report and Recommendation issued concluding that one of Jones' grounds for relief — ineffective assistance of appellate counsel — had not been exhausted in state court, see Report and Recommendation, issued April 26, 2002, at 5-7 (Docket #14), Jones withdrew this ground of his petition. See Memorandum Endorsement, filed May 3, 2002 (Docket #15).

Jones thus has 15 remaining claims, which he identifies as follows:

(1) the denial of counsel in the trial court violated his Sixth Amendment rights;
(2) the denial of a continuance to his assigned counsel resulted in a constructive denial of counsel, thereby violating his due process and Sixth Amendment rights;
(3) his trial was held before a partial jury causing a deprivation of his due process rights;
(4) the evidence presented was insufficient to prove a required element of the charges;
(5) he was denied his Sixth Amendment right under the Confrontation Clause due to the curtailment of his cross-examination of Maples;
(6) the prosecutor engaged in various forms of misconduct;
(7) the admission of evidence without establishing chain of custody violated his due process rights;
(8) the failure of the trial judge to give a missing witness instruction to the jury violated his due process rights;
(9) the trial court's interference with Jones' self-representation violated his Sixth Amendment rights under the Confrontation Clause and his due process rights;
(10) the trial court's improper instruction on the burglary charge deprived him of his right to a fair trial;
(11) he was deprived of his right to a speedy trial under the Sixth and Fourteenth Amendments;
(12) the prosecution violated his rights by failing to disclose exculpatory evidence;
(13) the trial court barred Jones from contact with a subpoenaed witness thereby violating his fair trial and due process rights;
(14) the denial of a post-conviction hearing on his claim of ineffective assistance of counsel violated his due process rights;
(15) any "other claims" that are presented by the record.

See Amended Declaration, ¶¶ 37(A)-(N), (P). Each claim is discussed in Section III below in the order presented, with the exception of his claims regarding the jury instructions (claims (8) and (10)), which are considered together. See Section III.H.


A. Review of Federal Claims

Only A federal court may issue a writ of habeas corpus to persons who are in state custody in violation of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). Errors of state law are not subject to habeas review in federal court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"). Rather, a petitioner for habeas corpus must demonstrate that the conviction resulted from a state court misapplying federal law. See id. at 68.

B. Exhaustion

A party seeking relief from a state court conviction must have exhausted all available state court remedies before petitioning for federal habeas relief. See 28 U.S.C. § 2254(b); see also Ramirez v. Attorney Gen. of New York, 280 F.3d 87, 94 (2d Cir. 2001) ("Under 28 U.S.C. § 2254(b), applicants for habeas relief serving state sentences must first exhaust all state remedies.") (citing Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991)). To exhaust state remedies properly a petitioner must (1) preserve the claim for appeal as required by the applicable state law (2) present the federal claim to all appellate state courts where the right to appeal lies, and (3) inform the state courts of the factual and legal basis of the federal claim. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-47 (1999); Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Ramirez, 280 F.3d at 94 (citing Picard v. Connor, 404 U.S. 270, 276-77 (1971)); Daye v. Attorney Gen. of New York, 696 F.2d 186, 190-92 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984). Federal claims are fairly presented by even a "minimal reference" to the provision of federal law that petitioner relies upon. See, e.g., Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001); see also Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (per curiam) (reference to the Fourteenth Amendment in a caption heading of an appellate brief is sufficient for exhaustion purposes).

Except as noted below, the remaining claims in Jones' amended petition were raised in the Appellate Division and in Jones' application for leave to appeal to the Court of Appeals. In addition, each was raised in federal constitutional terms.

C. Standard of Review

Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, a federal habeas court must defer to the state court determination of a petitioner's federal claims on the merits. A state court ruling is "on the merits" even where the ruling does not discuss the federal claim or any federal law in its opinion adjudicating the state law conviction. See Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) ("Nothing in the phrase `adjudicated on the merits' requires the state court to have explained its reasoning process."). All that is required to trigger the statutory standard of review is the issuance of "a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Id. In this case, the Appellate Division gave a detailed discussion of Jones' claim regarding juror bias, see Jones, 281 A.D.2d at 283 — an adjudication plainly "on the merits."

With respect to Jones' remaining arguments, the Appellate Division stated only that they had been "considered and rejected." Id. This phrase, however, is sufficient to trigger the deferential AEDPA standard of review. See Burgess v. Bintz, 2002 WL 727011, at *2, *4 (S.D.N.Y. Apr. 24, 2002) (claims adjudicated on the merits where "considered and rejected" by the Appellate Division); see also Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) (statement that claim is "without merit" is sufficient to trigger AEDPA); Sellan, 261 F.3d at 312-14 (the word "denied" is sufficient). Where a state court "summarily reject[s]" a claim, the court's analysis focuses "on the ultimate decision[] . . . rather than on the court['s] reasoning." Aeid v. Bennett, 296 F.3d 58, 62 (2d Cir.), cert. denied, 123 S.Ct. 694 (2002).

When a state court has issued a ruling on the merits, habeas relief may not be granted unless the state court decision (1) 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) was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). A state court decision is contrary to clearly established federal law "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision involves an "unreasonable application" of Supreme Court precedent if it identifies the correct governing legal principle "but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. As the Supreme Court recently stated, "[i]t is not enough that a federal habeas court, in its `independent review of the legal question' is left with a firm conviction that the state court was erroneous." Lockyer v. Andrade, 123 S.Ct. 1166, 1175 (2003) (citations and some quotation marks omitted). Rather, the federal court must decide "whether the state court's application of clearly established federal law was objectively unreasonable." Williams, 529 U.S. at 409.

With respect to factual issues, a State court's factual determination of an issue is "presumed to be correct." 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting that presumption by "clear and convincing evidence." Id.

With these principles in mind, each of Jones' grounds for relief is discussed in turn. In some instances, the Court has noted that a claim fails even under de novo review, thus making it unnecessary to apply the AEDPA deferential standard of review. See, e.g., Cohen v. Senkowski, 290 F.3d 485, 488 (2d Cir. 2002) (denying habeas claim under de novo review rather than under AEDPA standard), cert. denied, 123 S.Ct. 879 (2003); see also Kruelski v. Connecticut Superior Court for Judicial Dist. of Danbury, 316 F.3d 103, 105-07 (2d Cir. 2003) (same).


A. Denial of Counsel

Jones argues that he is entitled to habeas relief because Justice Berkman, and for a period Justice Obus, did not appoint him counsel during proceedings prior to his second trial. See Reply Brief at 38-51. The respondent states that this claim for relief should be denied because Jones was actually represented by counsel for his appeal to the Second Circuit during this time, see Resp. Mem. at 12; because Jones failed to establish his right to appointed counsel, see id. at 12-13; and because Jones was not prejudiced by the lack of counsel. See id. at 13-14.

As discussed below, Jones' claim fails for two reasons: (1) he has not met his burden of showing that the trial court's determination of Jones' ability to afford counsel was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254(d)(2); and (2) if there was error, it was rendered harmless by the appointment of counsel long before trial.

1. Jones was Properly Denied Counsel

The Sixth Amendment grants the accused in a criminal matter the right to be represented by counsel at trial. However, the right to have counsel appointed applies only to those who are "too poor to hire a lawyer." See Gideon v. Wainwright, 372 U.S. 335, 344 (1963). Here, Justice Berkman took note of evidence suggesting that Jones owned valuable real estate in New York City and Connecticut. See Berkman Order at 3. Apparently, the State's claim that Jones was not indigent was based on the value of the house that Jones and his wife occupied and on the fact that Jones had posted significant amounts of bail. See id.; see also Affirmation in Response to the Defendant's Notice of Motions, dated March 19, 1998 (reproduced in Exhibit Index, Vol. V, Ex.F), ¶¶ 14-17, 19-21 (informing Justice Obus that Justice Berkman knew of Jones' previous retention of paid counsel, ownership of a house in Connecticut worth at least $500,000, and his immediate posting of $5,000 upon his arraignment for the second trial). Jones argues that Justice Berkman's finding that he was not indigent was objectively unreasonable because other courts, including the Second Circuit, had appointed counsel for him. See Reply Brief at 45-46.

This argument, however, is insufficient for Jones to meet his burden by "clear and convincing evidence" that the presumptively correct factual determination made by Justice Berkman, see 28 U.S.C. § 2254(e)(1), was an "unreasonable" one at the time it was made. 28 U.S.C. § 2254(d)(2). Case law has recognized that a reasonable — if incorrect — belief as to the financial status of a defendant will not result in an unconstitutional denial of counsel. See Douglas v. Hendricks, 236 F. Supp.2d 412, 429 (D.N.J. 2002) ("[d]efendant was not unconstitutionally deprived counsel for nine months after his indictment because the [public defender] made a reasonable investigation into his financial condition"); Rodriguez v. Lungren, 1997 WL 273859, at *4 (N.D.Cal. May 14, 1997) (no violation of Sixth Amendment where defendant failed to "provide evidence to convince the [state] court" that the petitioner was indigent).

Once Jones made a showing before Justice Obus that he was unable to afford counsel, counsel was appointed. Had Jones shown that he presented this evidence to Justice Berkman, the State court's determination might be deemed to have been an "unreasonable" one. In the absence of a record indicating that the State court's determination was unreasonable, however, Jones has not met his burden under 28 U.S.C. § 2254(e) and thus the factual determination as to Jones' then-indigence must be accepted by this Court.

2. Any Error in the Appointment of Counsel was Harmless

Even if Justice Berkman had erred in determining that Jones was not indigent, any such error was harmless.

a. Standard of review.

Jones argues that the denial of the right to counsel is not subject to harmless error analysis and is "per se reversible error of constitutional dimension requiring that any subsequent conviction be set aside . . ." Amended Declaration, ¶ 12; see also Reply Brief at 39 ("denial of a defendant's right to counsel at any critical stage of the proceedings is presumed to be prejudicial per se and requires reversal of a conviction.") (citation omitted). The cases Jones cites in support of this proposition, however, refer to the complete deprivation of counsel at trial — not at a preliminary or pre-trial stage of a case. See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993); Arizona v. Fulminante, 499 U.S. 279, 308 n. 8 (1991); Rose v. Clark, 478 U.S. 570, 577 (1986). The Supreme Court has held that for denial of counsel during pretrial or preliminary proceedings, "[t]he test to be applied is whether the denial of counsel . . . was harmless error." Coleman v. Alabama, 399 U.S. 1, 11 (1970) (citations omitted); see also Yarborough v. Keane, 101 F.3d 894, 897 (2d Cir. 1996) ("a less significant denial of the right to counsel (at a preliminary hearing) has been held to be subject to harmless error review") (citations omitted), cert. denied, 520 U.S. 1217 (1997). Circuit courts have thus routinely applied a harmless error analysis on habeas review of a claim regarding the denial of counsel during preliminary hearings of state criminal proceedings. See Hammonds v. Newsome, 816 F.2d 611, 613 (11th Cir. 1987) (per curiam); Takacs v. Engle, 768 F.2d 122, 124 (6th Cir. 1985); McKeldin v. Rose, 631 F.2d 458, 460-61 (6th Cir. 1980) (per curiam), cert. denied, 450 U.S. 969 (1981); Moses v. Helgemoe, 562 F.2d 62, 65 (1st Cir. 1976).

With respect to the particular formulation of the harmless error standard, Coleman states that the denial of counsel during preliminary proceedings should be evaluated under the standard of Chapman v. California, 386 U.S. 18 (1967), a case involving direct (not habeas) review of a state criminal conviction. See Coleman, 399 U.S. at 11. Under Chapman, an alleged error can be deemed harmless if it is "harmless beyond a reasonable doubt." 386 U.S. at 24. In Brecht v. Abrahamson, however, the Supreme Court announced that, on habeas review, harmless error analysis was to be guided by a standard more difficult for the habeas petitioner to meet: whether the error "`had [a] substantial and injurious effect or influence in determining the jury's verdict.'" Brecht, 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Under this standard, habeas petitioners may obtain relief only if they can establish that the alleged constitutional violation resulted in "actual prejudice." Id.

After the Supreme Court decided Brecht, Congress amended 28 U.S.C. § 2254 by the passage of the AEDPA. Since then, courts have sometimes struggled to determine what harmless error standard applies to a habeas petition. The Second Circuit has not decided whether Brecht or a mixed AEDPA/Chapman standard applies to harmless error review. See Ryan v. Miller, 303 F.3d 231, 254 (2d Cir. 2002) (citing cases). Under the latter standard, the question is "whether the state court's decision was `contrary to, or involved an unreasonabl[e] application of' Chapman." Id. (quoting Noble v. Kelly, 246 F.3d 93, 101 n. 5 (2d Cir. 2001)).

While neither party has addressed this issue, it is unnecessary to reach it in this case because under either standard, Jones' claim fails.

b. The harmless error analysis.

The Sixth Amendment right to counsel "is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated." United States v. Chronic, 466 U.S. 648, 658 (1984) (citations omitted). In this case, the lack of appointed counsel for Jones during a seven month period had no effect on Jones' ability to receive a fair trial.

Justice Obus approved the appointment of counsel for Jones in May 1998. Jones' trial did not begin until April 1, 1999. Thus Ramsey served as counsel to Jones for almost a year prior to the start of his second trial. After his appointment, Ramsey could have made any pre-trial motions he thought necessary or called for under the circumstances. New York law gives a defendant great leeway to present motions prior to the actual start of trial. For example, CPL § 210.20(2) allows a motion for dismissal for lack of a speedy trial to be entertained at any point prior to trial. In addition, CPL § 255.20(3) allows a trial judge to entertain any pre-trial motion prior to sentence upon good cause being shown. Jones does not even argue that any applications made after he was counseled would have been treated more favorably had the application been made on some earlier date. Nor would the record support such an argument. In addition, to the extent the alleged prejudice arises "from the diminution of tactical alternatives available to subsequently appointed counsel," a court may find harmless error if the "possibility is found beyond a reasonable doubt [to be] merely speculative or hypothetical." Chin Kee v. Commonwealth of Mass., 407 F.2d 10, 14 (1st Cir.), cert. denied, 395 U.S. 982 (1969). Here, the record offers nothing to suggest that the delay caused any diminution in Jones' ability to make or succeed on motions following the date Ramsey was appointed to the case — let alone affected his ability to prevail at the trial itself.

In sum, to the extent Jones was incorrectly denied appointed counsel, the error was corrected by the later appointment of Ramsey and was rendered harmless by the length of time available to Ramsey to prepare a defense for Jones prior to the second trial.

B. Denial of Continuance/Constructive Denial of Counsel

1. Background

Jones' second trial had been scheduled for April 1, 1999 — apparently after efforts to fix a trial date had begun several months earlier. Transcript, dated March 26, 1999 ("March 26 Hearing") (reproduced in Exhibit Index, Vol. I, Ex. B), at 7, 11. On March 25, 1999, Jones wrote to Justice Obus informing him that at a pre-trial hearing the next day, Ramsey would enter a request that Jones be allowed to proceed pro se. See Letter to Justice Obus from Jones, dated March 25, 1999 ("Jones March 25 Letter") (reproduced in Exhibit Index Vol. V, Ex. H), at 1. In the letter, Jones complained that Ramsey was not properly preparing for trial because, among other claims, Ramsey had not obtained a court order to have a private investigator appointed and failed to renew a motion for dismissal under New York's speedy trial statute, CPL § 30.30. See id. at 2-3. Jones requested a continuance of an additional month so he could review transcripts from the first trial. See id. at 3.

On March 26, 1999, at a conference before Justice Obus, Jones orally made his request to proceed pro se. Jones asserted that Ramsey had not been able to put time into gathering information and obtaining an investigator. See March 26 Hearing at 4-5. In addition to seeking to represent himself pro se, Jones requested a continuance stating he believed a firm trial date had not been set and he did not "see any problem with delaying this thing." Id. at 5. Justice Obus denied the motion for a continuance, noting that one month previously he had set a firm trial date of April 1, see id. at 9; Transcript, dated March 1, 1999 (reproduced in Exhibit Index Vol. I, Ex. A), at 5; that "[w]itnesses have arranged to be here from other places"; that Ramsey had been appointed in May 1998 — nearly a year before; and that this was an adequate time to prepare a defense. See March 26 Hearing at 11. Justice Obus indicated that he did not want to relieve Ramsey as the attorney prior to trial, see id. at 12, but Jones responded, "Your Honor, I'm representing myself. If the Court has to instruct me as to pro se, give me a pro se instruction, then I request The Court do it now because I'm acting as my own attorney." Id. at 13. Jones renewed his request for a continuance indicating he needed time to prepare himself. See id. at 13-14. The judge ...

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