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DICKENS v. FILION

United States District Court, Southern District of New York


March 28, 2003

DARRYL DICKENS, PETITIONER,
v.
GARY H. FILION, RESPONDENT.

The opinion of the court was delivered by: Denise Cote, United States District Judge

OPINION AND ORDER

On December 18, 1996, Dickens was sentenced to twenty years' to life imprisonment as a persistent violent felony offender following his conviction at trial for second degree robbery. Dickens brings this timely pro se petition for a writ of habeas corpus pursuant to Title 28, United States Code, Section 2244. In his careful and thorough Report of November 6, 2002, Magistrate Judge Peck recommends that the petition be denied ("Report"). Dickens has filed objections to the Report. For the following reasons, the Report is adopted and the petition is denied.

BACKGROUND

The evidence at trial showed that Dickens approached a newspaper delivery person on October 18, 1995, pressed an object that felt like a gun into the person's back, and took between $700 and $800 from the victim's pocket. Soon thereafter, Dickens was taken into custody when he was found lying under a nearby car. The stolen money was recovered from underneath the same car. The victim identified Dickens then and at trial. The jury found Dickens guilty of second degree robbery.

At sentence, after determining that this was Dickens' fourth conviction and third violent felony conviction, the judge sentenced him to twenty years' to life imprisonment. The First Department affirmed the conviction and the New York Court of Appeals denied leave to appeal on July 6, 1999.

On March 16, 2000, Dickens filed a pro se motion pursuant to C.P.L. § 440.10, which was denied on November 22, 2000. The First Department denied leave to appeal on March 13, 2001. On May 15, 2001, Dickens applied to the First Department for a writ of error coram nobis. It was denied on February 21, 2002.

This petition is dated February 27, 2002, and was received by this Court's Pro See Office on March 8, 2002. In general, Dickens does not deny that he participated in the crime for which he was convicted. He does assert, however, that he had no weapon. The petition asserts several grounds for relief, principally related to Dickens' absence from a sidebar conference with a prospective juror during the voir dire, his failure to testify before the grand jury, and his enhanced sentence as a persistent violent offender. His claims will be considered in turn.

DISCUSSION

1. Voir Dire Dickens alleges that a sidebar with a prospective juror during the voir dire was conducted in his absence in violation of his Sixth Amendment right to be present at all critical stages of the trial. This prospective juror was chosen as a juror and served as foreperson.

The Report concluded that there is no federal Constitutional right to be present at such a side bar conference. Assuming the existence of such a right, however, the Report also outlined the law establishing the right of a defendant to waive his presence so long as the waiver is given knowingly and voluntarily. The record indicates that Dickens did waive his presence at the sidebar, as the trial court found when denying Dickens' 440.10 motion. As described in the Report, prior to the sidebar, the trial court had notified Dickens of his right pursuant to People v. Antommarchi, 80 N.Y.2d 247 (1992), to be present at sidebar conferences held during the voir dire. At the sidebar held with the prospective juror, defense counsel notified the court that Dickens had waived his right to be present. At no point during the voir dire process did Dickens, who remained in the courtroom during the sidebar, indicate a desire to attend the sidebar.

Applying the deferential standard of review that applies under AEDPA to facts found by a state court, the Report concluded that Dickens had not shown by clear and convincing evidence that he had not waived his right to participate in the side bar conference.

In the course of making his objections, Dickens confirms that he knew of his right to be present at the sidebar, but protests that he did not know of the "nature of the proceeding." Dickens contends that his counsel did not describe to him what had occurred at the side bar. Relying on Cohen v. Senkowski, 290 F.3d 485 (2d Cir. 2002), Dickens contends that the Report erred in stating that "[w]hile counsel should have conferred with Dickens about what the potential juror said at sidebar, the standard is whether the defendant knew of the right to be present at sidebar, not whether he knew what the juror said at sidebar." (Emphasis in original.) Dickens also objects that he is entitled to de novo review of the question of whether he waived his right to be present at the sidebar since the AEDPA standard does not apply to waivers of constitutional rights.

The pre-screening of jurors is a "material stage of trial at which the defendant has a constitutional right to be present." Cohen, 290 F.3d at 489.*fn1 See also Gomez v. United States, 490 U.S. 858, 873 (1989). The right, however, can be waived. The Cohen court described the circumstances under which a knowing waiver occurs: "when a defendant is fully apprised of the nature of the pre-screening procedure, makes no objection to the procedure, and has counsel present for the duration of the pre-screening." Cohen, 290 F.3d at 492. Dickens does not dispute that each of these conditions was met. Dickens' claimed lack of knowledge of the details of the sidebar discussion does not vitiate his waiver when analyzed under the factors discussed in Cohen.*fn2 Dickens has failed to show by clear and convincing evidence that he did not waive his attendance at the sidebar discussion.*fn3

2 Right to Testify before the Grand Jury

Several of Dickens' claims concern his failure to testify before the grand jury. Dickens filed a pro se motion before trial, claiming that he had been denied the right to testify before the grand jury. After a hearing at which Dickens testified, the trial judge credited the testimony of Dickens' former counsel and found that Dickens had waived his right to testify. According to that attorney, the prosecutor offered to charge Dickens with second degree rather than first degree robbery if Dickens did not request to testify before the grand jury and, after the attorney explained the sentencing ramifications to Dickens, Dickens agreed to waive his right to testify. The judge noted also that the prosecutor had kept his part of the bargain by seeking an indictment only for second degree robbery.

In ruling on his direct appeal, the First Department found that the hearing record supported the court's credibility determination that the defendant had consented to a sound strategic decision not to testify before the grand jury. It added that even if there were no consent, there would be no basis to dismiss the indictment. In regard to a claimed conflict from his former counsel testifying at the hearing, it ruled that such a claim was moot because Dickens had new counsel for the hearing.

a. Petition Claims

Dickens' petition claims that the trial court unreasonably determined that he had waived his right to testify before the grand jury, that the prosecutor violated the unsworn witness rule in questioning Dickens' former counsel at the hearing, that his former attorney had provided ineffective assistance of counsel when he prevented Dickens from testifying before the grand jury and when he gave testimony at the hearing about Dickens' waiver, and that his counsel at the hearing provided ineffective assistance of counsel by not moving to disqualify the prosecutor because of the unsworn witness rule and by failing to prepare adequately for the hearing.

b. Claims Related to the Waiver

The Report concluded that Dickens' claimed right to testify before the grand jury is not cognizable in a federal habeas petition because his conviction at trial demonstrates a fortiori that there was probable cause for the conviction, and in any event, Dickens has not presented clear and convincing evidence to rebut the presumption of correctness that applies under AEDPA to the state court's fact finding at the hearing. As a factual matter, the Report noted that the prosecutor did not in any event violate the unsworn witness rule, a rule that is generally invoked in connection with an advocate's insertion of references to himself when trying a case before a jury. The prosecutor, who did not testify at the hearing, only incorporated references to himself in questioning Dickens' former counsel after that witness had made an unmistakable reference to the prosecutor. The prosecutor thereafter asked non-leading questions.

Dickens objects to this portion of the Report on the grounds that the Report did not sufficiently analyze Dickens' description of the contradictions in the hearing testimony, erred in finding that the unsworn witness rule does not apply to hearings, and erred in not recognizing that the prosecutor had injected himself improperly into the proceeding in the questions he posed for Dickens' former counsel. Dickens asserts that he could have impeached his former counsel if he had been given an opportunity to cross examine the prosecutor during the hearing.

The Report was correct in its conclusion that Dickens' right to testify before a grand jury, and therefore any violation of that right, is not cognizable on this collateral attack on his conviction. It was also correct that Dickens has, in any event, not presented evidence sufficient to rebut the state court finding that he did in fact waive his right to testify before the grand jury.

c. Claims related to Ineffective Assistance of Counsel

The Report concluded that there is no cognizable claim for ineffective assistance of counsel by Dickens' former counsel for several reasons. Among those grounds are the presumption of correctness that applies to the state court's determination that Dickens did in fact waive his right to testify before the grand jury, and the fact that the attorney's advice to Dickens to accept the prosecutor's bargain was not objectively unreasonable. Since the former counsel no longer represented Dickens at the time of the hearing, there can be no claim that he provided ineffective assistance in testifying during a hearing held to address a motion made by Dickens himself. The Report recommends denying the ineffectiveness claims brought against the attorney who represented Dickens at the time of the hearing on the ground that such a claim requires a showing of prejudice. Again, since the right to testify before the grand jury is not cognizable in a federal habeas petition, there can be no prejudice from any failings in his counsel's performance at the hearing held to enforce the right to testify.

Dickens objects to the Report's analysis of his ineffectiveness claims. He asserts that the Report erred in concluding that the Strickland v. Washington, 466 U.S. 668 (1984), standard would not apply to a claim addressed to Dickens' right to testify before the grand jury. He asserts that any waiver he gave is invalid since he was not sufficiently informed of the consequences of the waiver. Dickens also questions the Report's conclusion that the advice to accept the prosecutor's bargain was objectively reasonable; Dickens notes that he had a different attorney at trial and it is unfair to infer from that counsel's trial strategy what strategy his former counsel would have employed. Finally, Dickens argues that he was prejudiced at the hearing by not being able to contradict the unsworn testimony given by the prosecutor at the hearing.

For the reasons already stated in connection with Dickens' claims regarding his underlying right to testify before the grand jury, his claims of ineffective assistance of counsel must be denied. Since Dickens has no cognizable federal right to testify before the grand jury, he will be unable to show prejudice from any attorney's failings in preserving or asserting that right for Dickens. Moreover, the state court findings that Dickens did waive the right to testify before the grand jury present a barrier that Dickens has been unable to surmount.

3. Sentence

Dickens attacks his sentence as a persistent violent offender. At sentence, the prosecutor provided Dickens and his attorney with Dickens' sentencing minutes from a 1993 conviction for attempted robbery. In those minutes, Dickens was advised that a statement had been filed alleging that Dickens had been previously convicted on July 5, 1988 of two felonies, both for attempted robbery in the second degree. As reflected in those minutes, he had been advised in 1993 that he could "controvert" any allegation in the statement and could challenge a prior conviction as unconstitutionally obtained. After consulting with counsel, Dickens stated "I don't have no real challenges," but added that the crimes were not Class A felonies. The court agreed that they were Class C violent felony offenses. Dickens then admitted that he was the person named in the statement. The 1993 minutes also reflect, in connection with the crime to which he was pleading in 1993, that Dickens admitted that he had shoved the victim to commit the robbery.

At his 1996 sentencing proceeding, Dickens' counsel argued that Dickens' counsel in 1993 had been ineffective and requested an opportunity to review the minutes from the 1988 sentencing proceeding, which the prosecutor did not then have. The judge denied the request. The judge also rejected Dickens' argument that the 1993 conviction did not satisfy the elements of second degree robbery. Dickens was sentenced to twenty years' to life imprisonment as a persistent violent felon based on the 1988 and 1993 convictions.

On direct appeal, the First Department concluded that, since Dickens was adjudicated a second violent felony offender in 1993 without raising any constitutional objections to his 1988 conviction, the sentencing judge had a sufficient basis to find him a persistent violent felony offender without reviewing the 1988 plea minutes. It also held that defense counsel had sufficient time to review the minutes from the 1993 proceeding and to confer with Dickens.

Dickens claims in this petition that he should not have been adjudicated a persistent violent felony offender. He argues that his 1988 conviction was unconstitutional and that his attorney should have been allowed to review the minutes from the 1988 conviction. He contends that he told his attorney and the court in 1988 that he was innocent, but that he was convinced to plead guilty. Furthermore, Dickens argues that he did not admit in 1993 either to the allegations in the predicate statement or to a use of sufficient force to constitute second degree robbery.

The Report concludes that Dickens' sentencing claim is barred by Lackawanna Co. District Attorney v. Coss, 532 U.S. 394, 403-04 (2001), which held with exceptions that do not apply here that a federal habeas petitioner may not challenge a state conviction used to enhance a sentence on the ground that the prior conviction was unconstitutionally obtained "once a state conviction is no longer open to direct or collateral attack in its own right." Since neither the 1988 or 1993 convictions are now open to either direct or collateral attack, Dickens cannot now challenge their use by the state court in 1996 to enhance his sentence.

The Report also concluded that there was no ground for overturning the conclusion of the First Department that Dickens' counsel at sentence had been given sufficient time to review the 1993 plea minutes and to confer with Dickens. As described in the Report, the allocution from 1993 included admissions to each of the elements of the crime.

In his objections, Dickens contends that Lackawanna does not contain an exhaustive list of possible exceptions to its general rule. Four of the Justices opined in Lackawanna that an exception to its general rule may exist where a defendant has obtained compelling evidence of actual innocence that could not have been uncovered in a timely manner. He asserts that his affidavit constitutes evidence that he was innocent of the crimes for which he was convicted in 1988. As the Report points out, however, Dickens' claim of innocence is not based on newly discovered evidence, but on what it is that he asserts he told his attorney in 1993.

Dickens also objects that any state law that would limit his right to challenge the constitutionality of a predicate felony at this time would be unconstitutional. There is no suggestion, however, in Dickens' objections that New York does not provide the right to appeal and to collaterally attack a conviction. The issue here is not whether those rights exist, as they certainly do, but that Dickens did not use those avenues to attack his 1993 or 1988 convictions and as a consequence may not use his collateral attack on his 1996 conviction to reach back and also collaterally attack those earlier convictions.

Next, Dickens objects that his attorney should have been given more time to review the minutes from the 1993 proceeding. Dickens contends that with that additional time the attorney could have challenged the constitutionality of the 1988 conviction. Dickens has not presented evidence sufficient to rebut the finding by the First Department that his attorney did have sufficient time to review the minutes.

Finally, Dickens objects that his attorney at sentence was ineffective for not pointing out the unconstitutionality of the 1988 conviction and for not pointing out that Dickens was never advised in 1993 of his right to a trial by a judge or a jury. A review of the transcript demonstrates, however, that before accepting his plea, the presiding judge made clear to Dickens his option to not plead guilty and proceed to trial that very day. Dickens consulted with his attorney during the 1993 hearing and told the judge repeatedly that he understood that he was giving up his right to trial.

4. Ineffective Assistance of Appellate Counsel

The petition asserts that Dickens' counsel on appeal was ineffective for failing to describe with particularity the claims being appealed to the New York Court of Appeals. The Report rejected this claim on the ground, inter alia, that there is no federal Constitutional right to counsel beyond the first criminal appeal as of right. Ross v. Moffitt, 417 U.S. 600, 610 (1974). Dickens objects that the Report failed to consider his state created right to counsel at the "leave to appeal" stage. This objection does not provide a ground for rejecting the recommendation that this claim be denied. To the extent there was any violation of state law, it would not raise a question of a violation of federal law that would support vacating the state conviction. In any event, Dickens has not shown prejudice from any failure in the representation.

5. Request for Counsel for Petition

Dickens also objects to the recommendation that he be denied appointment of counsel. Because Dickens has not shown either that he requires counsel in order to pursue his claims or that his claims have sufficient merit to make the appointment of counsel appropriate, the recommendation against appointment of counsel is adopted.

6. Right to Copies of Decisions Available on Computer Databases

Dickens requested copies of the cases cited in the Report that are not contained in books, that is, cases that are not in the volumes that are customarily available in a prison law library. That request was denied. Dickens asserts that the refusal to provide him with copies of decisions that are only available to those with internet access or access to computer databases interferes with his right of access to the court and his right to challenge his criminal conviction.

The Report contains string citations, some of them lengthy, for many of its descriptions of law. Many of the cases cited in those string citations have Westlaw cites. With few exceptions, the principals of law that are determinative of the issues raised in the petition, however, are taken from decisions with reporter citations. Moreover, Dickens' submission does not reflect that his ability to frame objections was hindered by a lack of access to computerized research. Dickens' objections contain citations to relevant law and an appropriate and knowledgeable discussion of the law. While there may be instances where the failure to provide copies of decisions to a prisoner would interfere with a petitioner's ability to prosecute his petition, Dickens has not shown that his lack of access to computerized sources of law has had any appreciable impact on his ability to address the analysis that controls the decision on his petition.

CONCLUSION

The request for appointment of counsel is denied. The petition for a writ of habeas corpus is denied. The Clerk of Court shall close the case.

I further decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). In addition, I find, pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962).

SO ORDERED:


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