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United States District Court, Eastern District of New York

July 28, 2003


The opinion of the court was delivered by: Jack B. Weinstein, Senior District Judge.


Petitioner is a state prisoner, convicted in New York and seeking habeas corpus relief from this federal court.

The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.

I. Facts and Procedural History

Petitioner was tried in a single trial for two separate burglaries. Evidence was presented at trial that an intruder entered the living room of Khadija White's Brooklyn apartment through a window. White was sitting alone in the room watching television at the time. When she saw the intruder she screamed. The intruder fled and White called 911. She described the intruder as slim, wearing black shorts and black vest over bare skin, with a hat on backwards.

About ten minutes later police officers arrived at her apartment and then drove her around the neighborhood looking for the intruder. The police officers received a call over their radio and proceeded to a location where an individual, who appeared to be under arrest, was being held by police. The individual was wearing the same clothes that he had been wearing in White's apartment. White identified the man-who was petitioner-as the intruder.

Petitioner had in his possession a bag of jewelry, none of which belonged to White. Also in the bag was a personalized telephone book and a jewelry box. Later in the day a woman, Muriel Silver, came to the precinct house because there had been a burglary at her home. She was shown the items confiscated from petitioner and identified them as her own. Silver stated that she had seen two men acting suspiciously that morning, but when she viewed a lineup that included petitioner she could not identify him as one of the men she had seen. Her property was returned to her without being vouchered by police.

The defense called no witnesses. Petitioner's counsel argued that White's identification was problematic because she was surprised and had seen petitioner for only a few moments. Counsel also argued that he had never been identified by Silver, that he had none of White's property in his possession, and that no fingerprint evidence was entered into evidence against him

Petitioner was found guilty of second degree burglary relating to the White incident and fifth degree criminal possession of stolen property with respect to the Silver incident. He was acquitted of second degree burglary and petit larceny with respect to the Silver incident.

The conviction was affirmed on direct appeal by the Appellate Division. Leave to appeal to the New York Court of Appeals was denied.

Petitioner filed an application for a writ of error coram nobis, arguing to the Appellate Division that his appellate counsel was ineffective for failing to raise a suggestive-identification claim. The application was denied. No further state collateral proceedings were initiated.

In the instant application for a writ of habeas corpus, petitioner claims (1) that the trial court abused its discretion by failing to grant his motion for severance and allow separate trials for the White and Silver incident; (2) that his conviction was based on an identification that was unduly suggestive and unreliable; and (3) that appellate counsel was ineffective for failing to raised the suggestiveness claim.


Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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 an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002). Determination of factual issues made by a state court "shall be presumed to be correct, " and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

III. Exhaustion

In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is... grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).

Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims-so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).

IV. Procedural Bar

A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.

If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).

When a state court "says that a claim is "not preserved for appellate review' and then ruled "in any event' on the merits, such a claim is not preserved." Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as "the defendant's remaining contentions are either unpreserved for appellate review or without merit, ' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 E.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.

V. Ineffective Assistance of Counsel

The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right.., to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose-"to ensure a fair trial"-and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, " id. at 694. See also Wiggins v. Smith, 539 U.S. __, No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice... that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).

As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable, " though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy-a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for... counsel's decisions").

There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.

Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).

Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state... claim fell outside the wide range of professionally competent assistance." Id. (quotations omitted).

VI. Certificate of Appealability

This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").

A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional fight. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)." See also Shabazz v. Artuz, __ F.3d __, No. 02-2320, slip op. at 10 (2d Cir. July 18, 2003).

VII. Analysis of Claims

Petitioner first claims that the trial court abused its discretion by failing to grant his motion for severance and allow separate trials for the White and Silver incident. Joinder rules are a matter of state law and federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire. 502 U.S. 62, 68 (1991). Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with "that fundamental fairness' which is "essential to the very concept of justice."' Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a ""substantial and injurious effect or influence in determining the jury's verdict."' Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).

New York state law permits two offenses to be joined for trial when, inter alia, "They are based upon the same act or upon the same criminal transaction [or], ... [e]ven though based upon different criminal transactions... such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law." N.Y. Crim. Pro. Law § 200.20(2). Offenses joined pursuant to this subsection are subject to severance at the request of the parties. The "court, in the interest of justice and for good cause shown, may, upon application of either a defendant or the people, in its discretion, order that any such offenses be tried separately from the other or others thereof." Id. § 200.20(3). "Good cause shall include but not be limited to situations where there is... [s]ubstantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense." Id.

The Appellate Division in the instant case found that

[t]he trial court providently exercised its discretion in denying the defendant's motion for separate trials on the respective incidents charged in the indictment. The charges were joinable because they were defined by the same or similar statutory provisions and, as a consequence, were the same or similar as a matter of law (see, CPL 200.20 [2] [c]; People v. Jenkins, 50 N.Y.2d 981, 982). Further, proof of the crimes was presented separately, was uncomplicated, and was easily segregable in the minds of the jurors (see, People v Berta, 213 A.D.2d 659). Moreover, the court repeatedly instructed the jurors to separately consider the evidence presented as to each incident (see, People v. Hall, 169 A.D.2d 778, 779; People v. Telford, 134 A.D.2d 632).
People v. Brewer, 702 N.Y.S.2d 653, 654 (App. Div. 2000). All of these factual observations and legal conclusions are unobjectionable. The legal issues in this matter were essentially the same, yet the separate crimes presented at trial were discrete, easily discernible and straightforward. The fact that the jury acquitted petitioner of the burglary relating to Silver suggests that the jury had no difficulty distinguishing between the evidence and issues of the two separate crimes. Petitioner was not denied a fair trial. Habeas relief is not warranted on this ground.

Petitioner next claims that his conviction was based on an identification that was unduly suggestive and unreliable. This claim has never been presented to the state courts and is therefore unexhausted. Because it was not raised on direct appeal even though the basis of the claim was available on the record, the claim would appear to be barred from review if now presented to the state courts. See N.Y. Crim. Pro. Law § 440.10(2) ("the court must deny a motion to vacate a judgment when[,]... [a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him"). Under such circumstances, it is appropriate for a federal court to deem the claim exhausted but procedurally barred from further review.

At any rate, the claim is without merit. The Supreme Court has stated that "reliability is the linchpin in determining the admissibility of identification testimony, " and that factors to be considered in determining reliability include "[I] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness' degree of attention, [3] the accuracy of his prior description of the criminal, [4] the level of certainty demonstrated at the confrontation, and [5] the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself." Manson v. Brathwaite, 432 U.S. 98, 114 (1977).

In the instant case, there is of course some degree of suggestion in the circumstance of the identification, since petitioner was viewed by the witness alone while apparently in police custody. Nonetheless, there is little reason to conclude that the identification was unreliable. The witness's initial description to police of petitioner's clothing and body type correlated exactly with the clothing and body type of petitioner, who was apprehended close to the scene and only a few minutes after the incident. There is reason to believe the witness had ample opportunity to observe petitioner and that she focused her attention upon him. See Trial Tr. at 26-27 ("I remembered his face, I looked at it."). The witness was, in addition, certain of her identification. The show-up identification was not unduly suggestive and habeas relief on this ground is not warranted.

Finally, petitioner claims that appellate counsel was ineffective for failing to raised the suggestiveness claim. This claim was exhausted when presented to the Appellate Division, which rejected the claim on the merits. Review is thus proper under the deferential standards of AEDPA. The Appellate Division's conclusion that appellate counsel was not ineffective was neither contrary to nor an unreasonable application of Strickland for at least two reasons. First, the claim was not a viable one because it had not been preserved for appellate review by trial counsel. Second, as discussed above, trial counsel was not ineffective for failing to raise the underlying claim. Appellate counsel cannot be deemed ineffective for failing to raise a meritless claim. Habeas relief on this ground is not warranted.

VIII. Conclusion

The petition for a writ of habeas corpus is denied.

No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right. [ Page 1]


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