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United States District Court, Eastern District of New York

July 29, 2003


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

A hearing was held in this matter. Petitioner was present by telephone. The petition for a writ of habeas corpus is denied for the reasons stated orally on the record. This memorandum briefly addresses petitioner's claims.

Petitioner was indicted for murder in the second degree, two counts of attempted murder in the second degree, and criminal possession of a weapon in the second and third degrees. Evidence of petitioner's guilt was overwhelming, including testimony from two eyewitnesses to the shooting and from petitioner himself that he shot the victim.

Testimony indicated that petitioner was in an argument with the victim at a shelter for the homeless. He pulled a handgun from his pocket and fired at the victim, hitting him in the chest and killing him. There was testimony that he then attempted to fire the gun at another visitor to the shelter, Charles Brown, Sr., but the gun jammed. There was also testimony that petitioner then pointed the gun at Brown's one year old son and motioned as if he would shoot him. Petitioner fled from the scene but was arrested four days later at an apartment. When detectives entered the building, petitioner jumped out of the third floor apartment, seriously injuring himself. He was brought to a hospital where he was treated for several weeks, under police custody, handcuffed at all times. He was not arraigned at the time.

About three weeks later he was indicted on the charges noted above. Several days later a warrant was issued for his arrest. He was arraigned about three weeks after that.

After a trial at which he testified in his own defense, petitioner was convicted of second degree murder and the weapons charges. The trial court dismissed one attempted murder charge and petitioner was acquitted of the other. He was sentenced to 25 years to life in prison.

In the present petition he claims (1) that the state's failure to arraign him before the grand jury indicted him violated his constitutional right to due process; (2) that the trial court's failure to provide the jury with a "missing witness" charge denied him due process and a fair trial; and (3) that his trial counsel was ineffective for failing to move to dismiss the indictment on the ground that petitioner was not arraigned before the grand jury indicted him. All claims have been exhausted.


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).

II. Procedural Default

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).

Ineffective assistance of trial counsel may be cause for a procedural default, but this claim must be presented to a state court before it can be heard on habeas.

III. 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 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, No. 99-2261, 2003 U.S. App. LEXIS 2511, at *3 (2d Cir. Feb. 12, 2003).

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

IV. Claims

Petitioner first claims that the state's failure to arraign him before the grand jury indicted him violated his constitutional right to due process. In particular, he suggests that if he had had the chance to testify before the grand jury then no indictment would have been forthcoming because he would have testified that he shot the victim in self-defense. Claims of deficiencies in state grand jury proceedings are generally not cognizable in a habeas corpus proceeding in federal court. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989). The Fifth Amendment right to a grand jury presentation in felony cases is not applicable to the states. Alexander v. Louisiana, 405 U.S. 625, 633 (1972). "Once a state itself creates such a right, however, due process may prevent it from causing the right to be forfeited in an arbitrary or fundamentally unfair manner." Michael v. Dalsheim, No. 90 CV 2959, 1991 U.S. Dist. LEXIS 7273, at *30 (E.D.N.Y. May 22, 1991).

The Appellate Division found this claim to be procedurally defaulted because petitioner did not move to dismiss the indictment on this ground within five days after he was indicted, as required by statute. Petitioner argued before the Appellate Division that he had not waived his claim because he was alleging a due process violation as a result of the manner in which the state was applying its indictment rules, rather than alleging that the rules had themselves been violated. See Br. for Defendant-Appellant at 31. It is arguable, therefore, that the procedural bar invoked by the Appellate Division was not "adequate" and that review on the merits of petitioner's claim is therefore proper in this court.

Even assuming review on the merits is proper, this court finds — as did the Appellate Division found in its alternative holding — that petitioner's claim is meritless. Under state law, the prosecutor has no duty to inform the defendant of his right to testify before the grand jury if he was not arraigned in a local criminal court upon a felony complaint. See People v. Munoz, 207 A.D.2d 418, 419 (N.Y. App. Div. 1994) (construing section 190.50(5)(a) of New York Criminal Procedure Law). The Appellate Division in the present case found that the state did not intentionally delay petitioner's arraignment — a factual conclusion that is eminently reasonable, given that any delay was caused by petitioner's defenestration using himself as a missile.

Petitioner was denied no due process rights. Granting of the writ is not warranted in these circumstances.

Petitioner next claims that the trial court's failure to provide the jury with a "missing witness" charge denied him due process and a fair trial. In its opening statement, the prosecution implied that Charles Brown would testify at trial. He did not, apparently because he feared execution of a warrant for his arrest. Defense counsel, in asking for a missing witness charge to the jury, suggested that he would not testify because he did not want to commit perjury. The trial court refused to give an instruction, concluding that the prosecution had "tried to get him in all good faith." Trial Tr. at 337. No deal had been made for Brown's testimony. The court did give defense counsel permission to refer to Brown's absence during summation.

"In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985). In weighing the prejudice from an allegedly improper charge, a reviewing court must view the instruction in its total context. Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). The question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147. The decision whether to give a missing witness charge rests within the sound discretion of the trial court. See United States v. Torres, 845 F.2d 1165, 1170-71 (2d Cir. 1988). "Its decisions in this area will rarely support reversal or habeas relief since reviewing courts recognize the aura of gamesmanship that frequently accompanies requests for a missing witness charge as to which the trial judge will have a surer sense than any reviewing court." Malik v. Kelly, No. 97 CV 4543, 1999 U.S. Dist. LEXIS 7942, at *21-*22 (E.D.N.Y. Apr. 6, 1999) (quotations omitted).

The Appellate Division found that the witness was in fact unavailable to testify and that the trial court therefore properly denied the defense application for a missing witness charge. Those factual and legal conclusions were reasonable under New York law. See People v. Bostick, 150 A.D.2d 707, 708 (N.Y. App. Div. 1989) ("It is well settled that the mere failure of a party to produce a witness at trial, standing alone, is insufficient to justify a missing witness charge. Rather, it must be shown that the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him, and the witness is available to [and in the control of] such party." (quotation omitted)). In addition, petitioner cannot show as a prima facie matter that Brown would be "expected to testify favorably to the opposing party." People v. Gonzalez, 502 N.E.2d 583, 586 (NY 1986).

The trial court's refusal to grant the charge was within its discretion. No due process or fair trial rights possessed by defendant were violated.

Petitioner finally claims that his trial counsel was ineffective for failing to move to dismiss the indictment on the ground that petitioner was not arraigned before the grand jury indicted him. This claim was rejected by the trial court on a motion to vacate the judgment of conviction. That decision was proper. Petitioner testified before the petit jury, which convicted him under a higher standard of proof than the grand jury required. Given the circumstances it was not conceivable that the grand jury would not have indicted. Even if counsel's performance was deficient, therefore, petitioner cannot demonstrate any prejudice because the ultimate outcome of the trial process would have been the same. See Michael v. Dalsheim, No. 90 CV 2959, 1991 U.S. Dist. LEXIS 7273, at *30 (E.D.N.Y. May 22, 1991) ("Given the lesser standard applicable to grand jury decisions to indict, it is obvious that petitioner's failure to testify could not have made any constitutional difference in his case." (quotation omitted)).

V. Conclusion

The petition for a writ of habeas corpus is denied. A certificate of appealability is denied since there is no reasonable basis for an appeal.

Petitioner may seek a certificate of appealability from the Court of Appeals for the Second Circuit.



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