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United States District Court, Northern District of New York

June 3, 2003


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


I. Introduction

Petitioner, pro se David McCullough filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 in this District on July 12, 1999 (Dkt. No. 1) ("Pet."). In his petition, McCullough alleges two grounds for relief: i) ineffective assistance of trial counsel; and, ii) ineffective assistance of appellate counsel. Pet. at PP. 5-6. United States District Judge Lawrence E. Kahn issued an order pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, that, inter alia, directed the Office of the Attorney General for the State of New York to file a response (Dkt. No. 5). The Attorney General filed an answer and memorandum of law requesting dismissal of the petition (Dkt. Nos. 10-11), and McCullough then filed a "traverse" in further support of his petition (Dkt. No. 12). Hon. David N. Hurd was elevated to the position of United States District Judge, and this matter was re-assigned to this court for the issuance of a Report and Recommendation pursuant to N.D.N.Y. Local Rule 72.3(c) (Dkt. No. 8).

II. Background

The testimony adduced at trial revealed that on June 16, 1995, the victim,*fn1 who lived in Syracuse, New York, had arranged for a babysitter to watch her two sons so that she could go out for the evening with her sister, who was visiting from Louisiana. See Tr. of Trial of David McCullough (11/27/95) ("Trial Tr.") at PP. 184-85. While the victim and her sister were at a local bar, an individual subsequently identified as McCullough approached the victim and stated that he could "show [her] a good time." Trial Tr. at PP. 190-91. Although she declined McCullough's invitation because she had a boyfriend at the time, later on that same night she agreed to allow him to drive her, along with her sister and her sister's companion, Mark Green, to the victim's home. Trial Tr. at PP. 191-93. Green decided that he wanted to return to his home, so McCullough stopped the car and dropped off Green and the victim's sister. See Trial Tr. at PP. 292-93. McCullough then drove for approximately ten minutes, stopped the car and informed the victim that he intended to sodomize her. Trial Tr. at PP. 197-98. The victim stated that she just wanted to go home, prompting McCullough to state that he would take her home "when he was done with [her]." Trial Tr. at P. 198. For the next two hours, McCullough subjected the victim to numerous oral, anal and vaginal sexual acts.*fn2 Trial Tr. at PP. 199-207. McCullough eventually agreed to drive the victim to her house, however, on the way there, his car stalled and he directed her to push the vehicle. Trial Tr. at PP. 208-09. When she indicated she was too tired to push the car, McCullough permitted the victim to walk home. Trial Tr. at P. 209. Upon arriving at her house, the victim immediately called 911. Trial Tr. at PP. 209-10. She was then taken by ambulance to a nearby hospital where she was treated for, inter alia, bruises to her face (including two black eyes), an injury to her knee that required five stitches, and rectal bleeding. Trial Tr. at PP. 210-12.

An Onondaga County grand jury indicted McCullough and charged him with first degree rape, first degree sodomy, second degree unlawful imprisonment and third degree assault. See Indictment No. 95-734-1. McCullough was tried by a jury regarding those charges with County Court Judge William J. Burke, presiding. The jury found McCullough guilty on all counts. Trial Tr. at PP. 419-20. Judge Burke sentenced McCullough to concurrent, indeterminate terms of ten to twenty years imprisonment for the rape and sodomy convictions, with a lesser, concurrent sentence for the assault conviction. See Sentencing Tr. (12/13/95) at PP. 9-10.

McCullough appealed his conviction to the New York State Supreme Court Appellate Division, Fourth Department. However, before that appeal was perfected, McCullough filed a motion to vacate his conviction pursuant to New York's Criminal Procedure Law § 440.10. In that (amended) pro se motion, McCullough argued: i) he was wrongfully excluded from sidebar conferences held by Judge Burke during the jury selection process; ii) the jury instructions regarding reasonable doubt were defective; iii) the manner in which the jury pool for McCullough's trial was chosen deprived him of his right to a fair trial; and, iv) the trial court improperly failed to instruct the jury concerning the defense of intoxication. See § 440.10 motion (6/11/96). Judge Burke denied that motion without a hearing in a Decision/Order dated July 23, 1996. See People v. McCullough, Index No. 95/1901, slip op. at P. 2. The Appellate Division denied McCullough's application for leave to appeal on May 30, 1997. See People v. McCullough, No. 95-734, slip op. at P. 1 (5/30/97).

In his direct appeal, McCullough reiterated his claim that he was deprived of his right to be present during sidebar conferences concerning prospective jurors. Appellate counsel also argued, inter alia, that McCullough received ineffective assistance of trial counsel during the jury selection process. See App. Br. at PP. 20-25. Since the record was silent as to whether McCullough was present for two sidebar conferences conducted by the County Court, the Appellate Division remitted the matter back to the County Court to conduct a reconstruction hearing. See People v. McCullough, 248 A.D.2d 938 (4th Dept. 1998). County Court Judge John J. Brunetti conducted the reconstruction hearing on April 6, 1998. After that hearing, he placed numerous findings of fact on the record regarding the jury selection process at McCullough's criminal trial, including his determinations that: i) McCullough was not present during the sidebar questioning of two prospective jurors, Mr. Loguidice and Mr. Clark;*fn3 ii) McCullough was not advised of his right to be present at those conferences; iii) Judge Burke learned that Mr. Clark possessed a state of mind that was likely to preclude him from rendering an impartial verdict; iv) Judge Burke indicated to Assistant District Attorney Bonnie Buccina, Esq. that defense counsel would prevail if Mr. Clark was challenged for cause; v) a prospective juror was dismissed on consent of both parties; vi) McCullough's trial attorney, Stephen Lance Cimino, Esq. had a custom and practice of deferring to a client's decision regarding the selection of a juror; vii) Cimino complied with that custom during the jury selection process at McCullough's trial;*fn4 and viii) Cimino indicated to McCullough that he would exercise a peremptory challenge regarding prospective juror Loguidice because a member of his family had been a victim of a crime.*fn5

After its receipt of Judge Brunetti's findings following the reconstruction hearing, the Appellate Division affirmed McCullough's convictions and sentences in all respects. See People v. McCullough, 254 A.D.2d 750 (4th Dept. 1998). The Court of Appeals denied McCullough leave to appeal. People v. McCullough, 92 N.Y.2d 1035 (1998).

On April 12, 1999, McCullough filed an application for a writ of error coram nobis, alleging that appellate counsel's failure to challenge the findings of Judge Brunetti after the reconstruction hearing amounted to ineffective assistance. That application was opposed by the District Attorney's Office, and on May 7, 1999, the Appellate Division denied McCullough's coram nobis application. See People v. McCullough, No. 1075-A/98, slip op. at P. 1 (5/7/99). After reconsideration of that order was denied by the Appellate Division, the Court of Appeals denied McCullough's application for leave to appeal. People v. McCullough, No. 95-734-1, slip op. at P. 1 (7/26/99).

III. Discussion

A. Standards of Review

Prior to addressing the merits, the court addresses the standards of review now employed when considering federal habeas petitions. Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), 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, Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001). The AEDPA also requires that in any federal habeas corpus proceeding, "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). In interpreting the AEDPA, the Second Circuit has noted:

[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? 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)). A state court's decision is "contrary to" established Supreme Court precedent if it applies a rule that contradicts Supreme Court precedent, or decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Moreover, a federal court is not to consider whether the state court's determination was merely incorrect or erroneous, but instead whether it was "objectively unreasonable." Williams, 529 U.S. at 409; see also, Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001); Valtin v. Hollins, 248 F. Supp.2d 311, 314 (S.D.N.Y. 2003). The Second Circuit has noted that 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.

B. Substance of Petition

1. Ground One

In his first ground, McCullough faults his appellate counsel for failing to challenge Judge Brunetti's findings after the reconstruction hearing. Pet. at Ground One. Specifically, he argues that Judge Brunetti's findings were unsupported and contrary to the record. Id., see also, Dkt. No. 2 at P. 1.

i. Clearly Established Supreme Court Precedent

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated a two-pronged test that must be utilized in determining whether a criminal defendant has received ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 688-90, 694 (1984). To establish ineffective assistance, a habeas petitioner must show: (1) that counsel's representation fell below an objective standard of reasonableness measured by the prevailing professional norms; and (2) prejudice, i.e., that there is a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different. See Strickland, 466 U.S. at 688-90, 694; Bell v. Cone, 535 U.S. 685, 695 (2002) (citing Strickland, 466 U.S. at 688, 694). In the context of a claim alleging ineffective assistance of appellate counsel, a petitioner must establish that his appellate attorney's conduct fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of his appeal would have been different. Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000) (citing Strickland, 466 U.S. at 688); see also, Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 197 (2d Cir. 2002) (applying the Strickland standard to claim of ineffective assistance of appellate counsel), cert. denied sub nom., Frederick v. Romine, ___ U.S. ___, 123 S.Ct. 946 (2003).

As noted above, the Appellate Division considered and rejected McCullough's claim alleging ineffective assistance of appellate counsel. That decision must be afforded deference under the AEDPA.*fn6

ii. Contrary To, or Unreasonable Application of, Supreme Court Precedent
To establish that his appellate counsel's conduct was objectively unreasonable, "`it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made.'" Clark v. Stinson, 214 F.3d 315, 322 (2d Cir.) (citing Jones v. Barnes, 463 U.S. 745, 754 (1983)); see also, Atkins v. Miller, 18 F. Supp.2d 314, 320 (S.D.N.Y. 1998) (citation omitted). Rather, to prevail upon this claim, McCullough must demonstrate that his counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Clark, 214 F.3d at 322. Thus, appellate counsel cannot be considered ineffective for making a strategic decision to abandon weaker arguments and, instead, develop only those arguments more likely to succeed. Gonzalez v. Duncan, No. 00-CV-1857, 2001 WL 726985, at *6 (E.D.N.Y. June 22, 2001) ("[a] brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound of strong and weak contentions") (quoting Jones, 463 U.S. at 753); see also, Parke v. United States, No. 97-CV-526, 1999 WL 242637, at *3 (N.D.N.Y. Apr. 22, 1999) (McCurn, S.J.), aff'd, No. 01-2213, 2002 WL 109475 (2d Cir. 2002), cert. denied, ___ U.S. ___, 123 S.Ct. 224 (2002).

McCullough claims that his appellate counsel wrongfully failed to challenge Judge Brunetti's "credibility finding[s]" after the reconstruction hearing. Pet. at P. 5. Specifically, he argues that those findings were improperly based on the "general practices" of his trial attorney, rather than what actually transpired during the course of jury selection at McCullough's trial. Pet. at P. 5; Dkt. No. 2 at PP. 5-6.

However, this argument appears to overlook the fact that the Appellate Division specifically found that Judge Brunetti's factual findings after the reconstruction hearing were sound. In rejecting that aspect of McCullough's appeal that claimed he was improperly excluded from the sidebars conducted regarding prospective jurors Clark and Loguidice, the Appellate Division found that "the record supports [Judge Brunetti's] determination . . . that [Mr. Clark] was dismissed upon consent of the parties but would have been challenged for cause by [McCullough] if the People had not consented." McCullough, 254 A.D.2d at 228. The Appellate Division then noted:

the record of the reconstruction hearing establishes that [McCullough] was given a full and fair opportunity to give meaningful input regarding the decision to dismiss [Mr. Loguidice] after defense counsel informed [McCullough] of the substance of the sidebar discussion.
McCullough, 254 A.D.2d at 228 (citation omitted). Thus, the Appellate Division reviewed the reconstruction transcript and found Judge Brunetti's factual findings following that hearing — which were based in part on the custom and practice of Cimino (see Reconstruction Tr. at PP. 179-82) — to be correct. Since the Appellate Division was aware of the basis upon which Judge Brunetti made his factual findings, the theory McCullough now claims should have been raised regarding the propriety of those findings was clearly not a "significant and obvious issue" that appellate counsel was required to raise. Moreover, this court has reviewed the appellate briefs filed on McCullough's behalf.*fn7 That review establishes that appellate counsel's strategy was both reasonable and sound. Under such circumstances, an ineffectiveness claim must fail. E.g., Gonzalez v. Duncan, No. 00-CV-1857, 2001 WL 726985, at *6 (E.D.N.Y. June 22, 2001) (denying habeas claim alleging ineffective assistance of appellate counsel where appellate brief reveals sound appellate strategy on part of attorney); Davis v. Keane, No. 99 CV 71, 2001 WL 13288, at *6 (E.D.N.Y. Jan. 4, 2001) (same), aff'd, No. 01-2110, 2002 WL 2009559 (2d Cir. Sept. 3, 2002). Since McCullough has failed to demonstrate that his appellate attorney's conduct was unreasonable, this ground could be denied for this reason alone, because a habeas petitioner "must satisfy both prongs of the two-part test articulated in Strickland." Pavel v. Hollins, 261 F.3d 210, 216 (2d Cir. 2001) (emphasis added); Price v. Senkowski, No. 93-CV-1181, 1996 WL 631731, at *3 (N.D.N.Y. Oct. 21, 1996) (Scullin, J.).

However, the court notes that McCullough has also failed to establish prejudice — i.e., that, but for his counsel's claimed unreasonable conduct, McCullough would have prevailed on his appeal. Smith v. Robbins, 528 U.S. 259, 285-86 (2000) (citing Strickland). There is no evidence before the court that McCullough would have prevailed on his appeal had appellate counsel raised the argument now suggested by McCullough regarding the trial court's findings after the reconstruction hearing.*fn8 Therefore, this court recommends that the First Ground in the petition be denied.

2. Ground Two

In his second ground, McCullough initially claimed that he received ineffective assistance of trial counsel because his attorney allowed jurors O'Neill, Lewis and Rice to remain on the jury. However, following receipt of respondent's opposition to the petition, McCullough abandoned his claims as it related to jurors O'Neill and Rice, and instead, focused on his claim that Cimino wrongfully permitted Mr. Lewis to remain on the jury (Dkt. No. 12 at P. 3).

i. Clearly Established Supreme Court Precedent

A claim alleging ineffective assistance of trial counsel is governed by Strickland which, as discussed above, requires proof that counsel acted objectively unreasonably to the prejudice of the petitioner. See Strickland, 466 U.S. at 694; Bunkley v. Meachum, 68 F.3d 1518 (2d Cir. 1995) (citing Strickland); Rattray v. Brown, ___ F. Supp.2d ___, No. 00-CV-2893, 2003 WL 21057287, at *7 (E.D.N.Y. May 7, 2003). The Appellate Division rejected McCullough's ineffectiveness claim, finding that his trial attorney's conduct in selecting certain members of the jury pool over others was a tactical decision and not ineffective assistance. McCullough, 254 A.D.2d at 750 (citation omitted). Therefore, that finding is entitled to deference under the AEDPA.

ii. Contrary To, or Unreasonable Application of, Supreme Court Precedent
In both the appellate brief filed on his behalf as well as his pro se memorandum in support of his petition, McCullough claims he received ineffective assistance of counsel because Cimino did not attempt to prevent Mr. Lewis from sitting on the jury. Specifically, McCullough argues that because Mr. Lewis indicated during voir dire that he could not be fair and impartial, he should not have been permitted to sit on the jury (Dkt. No. 3 at P. 8; Dkt. No. 12 at P. 2).

However, the decisions of counsel during jury selection are strategic choices that courts are loathe to second guess. Doleo v. Reynolds, No. 00 CIV.7927, 2002 WL 922260, at *5 (S.D.N.Y. May 7, 2002) ("It is not the role of the court to second-guess counsel's reasonable strategic decisions at jury selection, especially considering that `counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment'") (quoting Strickland, 466 U.S. at 688)); see also, Bonneau v. Scully, No. 86-Civ.-0270, 1991 WL 90739, at *1 (S.D.N.Y. 1991) ("strategic choices of trial counsel are virtually unchallengeable in habeas corpus proceedings") (internal quotation and citation omitted), aff'd, 956 F.2d 1160 (2d Cir. 1992). As the Fifth Circuit has aptly noted:

The selection of a jury is inevitably a call upon experience and intuition. The trial lawyer must draw upon his own insights and empathetic abilities. Written records give us only shadows for measuring the quality of such efforts.
Romero v. Lynaugh, 884 F.2d 871, 878 (5th Cir. 1989); see also, Doleo, 2002 WL 922260, at *4 ("Strategies as to the exercise of peremptories are matters of counsel's intuition, and do not rise to the level of constitutional error").

McCullough has simply not demonstrated that it was objectively unreasonable for Cimino to allow Mr. Lewis to remain on the jury. Additionally, there was strong evidence adduced at trial of McCullough's guilt, including the testimony of the victim which established that she was subjected to numerous sexual acts by McCullough for approximately two hours. See Trial Tr. at PP. 197-207. The victim's testimony that the sexual conduct was non-consensual was amply corroborated by the testimony of Dr. Wayne Farnsworth, who testified about the numerous injuries the victim had sustained as a result of the sexual assault.*fn9 Trial Tr. at PP. 349-54. In light of that evidence, the court also finds that McCullough has failed to establish that it is more likely than not that the outcome of his trial would have been different if Cimino had successfully prevented Mr. Lewis from being seated on the jury. E.g., Doleo, 2002 WL 922260, at *4 (denying habeas petition alleging ineffective assistance in selection of petit jury where petitioner failed to, inter alia, demonstrate prejudice as a result of counsel's decisions regarding jury selection).

Therefore, this court recommends that the Second Ground for relief be denied.

WHEREFORE, based upon the above, it is hereby

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

ORDERED, that the Clerk serve a copy of this 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.


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