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MARSH v. DUNCAN

United States District Court, E.D. New York


January 7, 2004.

TYRONE MARSH, Petitioner -against- GEORGE DUNCAN, Superintendent, Great Meadow Correctional Facility, Respondent

The opinion of the court was delivered by: JOHN GLEESON, District Judge

MEMORANDUM AND ORDER

Petitioner Tyrone Marsh, an inmate at the Green Haven Correctional Facility,*fn1 seeks habeas corpus relief from a judgment of conviction entered after a jury trial in state court. I Page 2 held oral argument by telephone conference on December 12, 2003. For the reasons set forth below, the petition is denied.

  BACKGROUND

  During the early morning hours of June 20, 1994, Marsh broke into the Brooklyn home of police officer Cyril Parris. Once inside, he removed a black Fisher VCR. Paged by other family members who lived in the same building, Parris arrived home minutes after the burglary. While driving to the local precinct to report the crime, Parris stopped a patrol car and informed the officers that he was looking for someone with a black Fisher VCR. Parris then spotted Marsh on the street — only three blocks from Parris's home — holding Parris's VCR and talking to people in a car. Parris approached Marsh on foot with his identification displayed and ordered Parris to put down the VCR. Marsh quickly said, "It wasn't me. It wasn't me." Marsh then placed the VCR on the sidewalk, put his hands up, and ran. After running several blocks despite Parris's order to stop, Marsh again said, "It wasn't me," adding, "The VCR is mine. I'm just trying to sell it to make some money." Marsh was then arrested. Parris later confirmed that the VCR was his — a gift from his then-fiancee — by comparing the serial number on his receipts with the serial number on the VCR.

  Marsh was charged with one count of burglary in the second degree and one count of criminal possession of stolen property in the fifth degree. On March 29, 1995, Marsh was convicted by a jury of burglary in the second degree.*fn2 The sentencing court noted that Marsh, then 27 years old, had a 13-year history of criminal activity, from early misdemeanors to four Page 3 felony convictions, three for previous burglaries. Marsh did not contest the constitutionality of his prior convictions. The court further noted that Marsh had been on probation when he had committed some of his previous crimes, as well as the instant crime. The court also took into account the fact that the Department of Probation believed that Marsh was unreliable and had demonstrated an unwillingness to rehabilitate despite prior incarceration. Marsh was therefore sentenced as a persistent violent felony offender to an indeterminate term of 20 years to life.

  Marsh appealed his conviction. In his appellate brief, filed January 10, 1996, he claimed that (1) he was arrested without probable cause; (2) therefore, the court should have excluded from evidence the VCR and Marsh's statements before and during the chase; (3) in the alternative, all of his statements (including certain exculpatory ones) should have been admitted; (4) he received ineffective assistance of counsel; (5) his guilt was not proved beyond a reasonable doubt; and (6) his sentence was excessive. On March 6, 1996, Marsh moved in the Appellate Division, Second Department, to amend his brief based on allegedly newly discovered evidence that he had received under the Freedom of Information Law, N.Y. Pub. Off. Law § 84 et seq. The Appellate Division denied the request, and the Court of Appeals dismissed Marsh's appeal from that order, People v. Marsh, 88 N.Y.2d 850 (1996) (Simons, J.). On June 17, 1996, Marsh moved in the Appellate Division to hold his appeal in abeyance while he pursued a motion pursuant to New York Criminal Procedure Law section 440.10. The Appellate Division denied this motion on July 25, 1996.

  On August 5, 1996, Marsh's conviction was affirmed. People v. Marsh, 646 N.Y.S.2d 451, 452 (2d Dep't 1996). The Appellate Division wrote: Page 4

 

The hearing court properly determined that the complainant police officer had a reasonable suspicion justifying the pursuit and stop of the defendant, and that there was probable cause to arrest the defendant. Moreover, the hearing court properly determined that certain statements made by the defendant were spontaneous and were not the result of custodial interrogation.
The defendant's contentions regarding ineffective assistance of counsel based on a failure to conduct a proper investigation may not be determined on this appeal since they are based on alleged facts dehors the record.
The defendant's remaining contentions are either unpreserved for appellate review or without merit.
Id. (citations omitted). Marsh's application for leave to appeal to the New York Court of Appeals was denied. People v. Marsh, 89 N.Y.2d 866 (1996) (Simon, J.).

  Around September 15, 1997, Marsh filed his first federal petition for a writ of habeas corpus in this district. In that petition, Marsh raised the same claims he had presented on direct appeal to the Appellate Division. By order dated February 13, 1998, I dismissed Marsh's petition without prejudice to allow him to exhaust his ineffective assistance of counsel and excessive sentence claims. See Marsh v. Greiner, No. 97-CV-5473, slip op. at 1-2 (E.D.N.Y. Feb. 13, 1998). Around July 6, 1998, Marsh filed a pro se motion pursuant to New York Criminal Procedure Law section 440.20(1) in New York Supreme Court, Kings County, to set aside his sentence as unauthorized and illegally imposed. Marsh sought resentencing as a second felony offender rather than as a persistent violent felony offender. By order dated October 26, 1998, the New York Supreme Court denied Marsh's motion. The court found that Marsh had an extensive criminal history, had been properly given a statement pursuant to New York Criminal Procedure Law section 400.20, and had not challenged the constitutionality of his three prior violent felonies at his original sentencing for the March 29, 1995, conviction. People v. Marsh, Ind. No. 7446/94, slip op. at 4-6 (N.Y. Sup. Ct, Kings County Oct. 26, 1998). The court further Page 5 found that Marsh had misread the penal statutes mandating enhanced punishment for Marsh's series of violent felony offenses. Id. at 5. Marsh's November 15, 1998, motion in the same court to reargue his motion, or, alternatively, for reconsideration, was denied. (Resp. Ex. L1 at [1-2].) The Appellate Division denied Marsh leave to appeal from the denial of his motion to set aside his sentence. People v. Marsh, No. 98-11231, slip op. at 1 (App. Div.) 2d Dep't Jan. 29, 1999) (Santucci, J.).

  On August 23, 1999, Marsh filed a section 440.10 motion in New York Supreme Court, Kings County, seeking an order vacating his judgment of conviction. He claimed that he had received ineffective assistance of trial counsel because counsel had failed to (1) object to the admission of the VCR into evidence, (2) conduct a proper investigation into the true owner of the VCR, and (3) move to dismiss the indictment based on a violation of New York Penal Law section 450.10, since the police had returned the VCR to Parris before notifying the defense. Marsh also claimed that he had been denied a fair trial because he had not received an opportunity to inspect the VCR, and that the government had knowingly used perjured testimony at trial as to the date on which the stolen VCR was returned to Parris.

  By order dated November 12, 1999, the court denied Marsh's motion, holding that some of Marsh's claims were procedurally barred under section 440.10(2)(a) because they could have been raised on direct appeal. People v. Marsh, Ind. No. 7446/94, slip op. at 1-2 (N.Y. Sup. Ct, Kings County Nov. 12, 1999). As for the remainder of Marsh's claims, the court held that Marsh's bare allegations of ineffective assistance of trial counsel were insufficient to entitle him to a hearing or relief. Id. at 2-3. The court did, however, grant Marsh leave to renew his motion Page 6 if he could "allege specific leads or other information the attorney failed to investigate and how such investigation might have materially affected the outcome of the case." Id. at 3.

  On January 24, 2000, Marsh again moved pursuant to section 440.10 for an order vacating his judgment on the ground of ineffective assistance of trial counsel. Marsh also moved to reduce or set aside his sentence as harsh and excessive and unconstitutionally imposed for exercising his right to go to trial. Marsh's claim of ineffective assistance was based on allegations that his trial counsel did not (1) adequately consult with him about the facts of the case, (2) adequately investigate the receipts offered by Parris as proof of ownership or object to allegedly late disclosure of the receipt to the defense, (3) find and interview the employees of the store where, according to Marsh, he had himself bought the VCR, (4) make effective arguments at trial on Marsh's behalf, and (5) properly assert a New York Penal Law section 450.10 violation. By order dated June 15, 2000, the New York Supreme Court denied the motion, stating that it had come "to the inescapable conclusion that defendant's motion is without merit and must be denied." People v. Marsh, Ind. No. 7446/94, slip op. at 2 (N.Y. Sup. Ct, King's County June 15, 2000). The court found that trial counsel had provided meaningful representation and that Marsh had not been deprived of a fair trial. Id. The court further held that Marsh's excessive sentence claim was barred under section 440.10(2)(c). Id. at 3. The Appellate Division denied Marsh leave to appeal from the June 15, 2000, order on November 6, 2000. People v. Marsh, No. 2000-07047, slip op. at 1 (N.Y. App. Div., 2d Dep't Nov. 6, 2000) (Luciano, J.).

  In his petition for a writ of habeas corpus dated February 22, 2001, Marsh raises the following claims: (1) he was arrested without probable cause; (2) he was denied due process Page 7 when the hearing court failed to suppress the physical evidence and Marsh's statements as fruits of an illegal arrest; (3) he received ineffective assistance of counsel; (4) his guilt was not proved beyond a reasonable doubt; (5) his sentence constitutes cruel and unusual punishment, and is also unconstitutional punishment for exercising his right to trial by jury. As to his ineffective assistance claim, Marsh claims his counsel was ineffective for (1) not investigating and challenging the alleged inconsistencies with respect to the VCR receipt that Parris provided as proof of ownership, and not requesting to see the original, (2) not attempting to locate the people in the car from whom Marsh allegedly bought the VCR and to whom he was talking when Parris accosted him, (3) failing to request that fingerprints be lifted from the VCR, (4) failing to request dust samples from the basement of Parris's home to compare with dust taken off the clothes Marsh was wearing at the time of his arrest, (5) failing to effectively argue that Marsh was entitled to notice under New York Penal Law section 450.10 before the VCR was returned to Parris, (6) failing to properly argue for exclusion of the VCR, and (7) failing to present witnesses or evidence at trial.

  DISCUSSION

 A. The Standard of Review

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Page 8 Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).

  A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, 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 [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175(2003)).

  Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S.Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but Page 9 objectively unreasonable."); Wiggins, 123 S.Ct. at 2535 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

  This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
261 F.3d 303, 312 (2d Cir. 2001).

  In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

 

However, "even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence."
Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1041 (2003)). Page 10

 B. Marsh's Claims

  1. Exhaustion

  The government argues that Marsh has failed to exhaust his claim that his sentence constitutes cruel and unusual punishment and three of the bases for his ineffective assistance of counsel claim: (1) failure to request dust samples from the basement of the burglarized apartment, (2) failure to present defense witnesses and evidence at trial, and (3) failure to locate the people in the car with whom Marsh was speaking when he was confronted by Parris.

  Before a federal court may consider a state prisoner's petition for a writ of habeas corpus, the petitioner must have exhausted all available state judicial remedies. 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 275 (1971). In order to exhaust his state remedies, Marsh must have fairly presented his federal constitutional claims to the highest state court. Dave v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982) (in bane). A petitioner has fairly presented a claim if he or she apprised the state courts of "both the factual and the legal premises of the claim [the petitioner] asserts in federal court." Id. Even if Marsh raised precisely the same legal claims in state and federal proceedings, reliance in the two proceedings upon different factual grounds that fundamentally alter the legal claim will foreclose a conclusion that the claim is exhausted. Vasquez v. Hillery, 474 U.S. 254, 260 (1986). "However, the basic requirement remains that `the nature or presentation of the claim must have been likely to alert the court to the Page 11 claim's federal nature.'" Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (quoting Daye, 696 F.2d at 192).*fn3

  a. The Ineffective Assistance of Counsel Bases

  The Appellate Division held that Marsh's claims that his attorney failed to request dust samples from the basement of the burglarized apartment, to present defense witnesses and evidence at trial, and to locate the people in the car with whom Marsh was speaking when he was confronted by Parris, "may not be determined on this appeal since they are based on alleged facts dehors the record." Marsh, 646 N.Y.S.2d at 452. In his January 24, 2000, section 440.10 motion, Marsh stated: "Defense counsel's performance by his decision not to put any witness[es] in support of viable theory that someone else was observed selling the video cassette recorded fell outside wide range [of] proffessionally [sic] competent assistance. . . ." (Resp. Ex. Q at [11-12].) Throughout his ineffective assistance of counsel argument in that section 440.10 motion, Marsh specified various individuals his attorney allegedly ought to have sought out. (See id., (including store employees and the VCR owner named on the receipt).) Later, Marsh wrote, "So defense counsel completely failed in his duty . . . as to why no witness [es] were called to prove the contents of the receipt. . . ." (Id. at [14].) I therefore find that Marsh sufficiently alerted the state courts to this basis for his ineffective assistance of counsel claim, i.e., defense counsel's failure to present witnesses and evidence at trial. However, Marsh failed to raise either of the other bases for his ineffective assistance of counsel claim specified above — that defense counsel failed to request dust samples and failed to locate the people in the car — in either of his section Page 12 440.10 motions. However, for the reasons set forth below, I dismiss these claims — the exhausted as well as the unexhausted — as meritless.

  b. The Sentencing Challenge

  Contrary to respondent's assertions, Marsh's excessive and vindictive sentence claims have been exhausted. In his section 440.10 motion dated January 24, 2000, Marsh stated:

The factors to be considered in determining whether punishment is cruel and unusual as being constitutionally disproportionate to the crime are;
1. The nature and gravity of the offense
2. The legislative purpose behind the punishment
3. A comparison of how the defendant would have been punished in another jurisdiction for the same offense
4. Comparison of punishment in the same jurisdiction for similar types of crimes.
(Resp. Ex. Q at [18].) Marsh cited for this proposition, in that section 440.10 motion, both the Eighth Amendment to the United States Constitution and People v. Venable, 361 N.Y.S.2d 398, 403-04 (3d Dep't 1974). The Second Circuit wrote in Daye that "if the petitioner has cited the state courts to the specific provision of the Constitution relied on in his habeas petition, he will have fairly presented his legal basis to the state courts," 696 F.2d at 192. Further, laying out this test in the context of an Eighth Amendment claim, the Venable court cited Furman v. Georgia, 408 U.S. 238, 300, 325 (1972) (Brennan & Marshall, JJ., concurring), Weems v. United States, 217 U.S. 349, 381 (1910), and Hart v. Coiner, 483 F.2d 136, 141 (4th Cir. 1973). Venable, 361 N.Y.S.2d at 403-04. Moreover, a very similar test is now used by the United States Supreme Court in evaluating sentences for proportionality. See Solem v. Helm, 463 U.S. 277, 292 (1983) ("In sum, a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the Page 13 sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions."). I believe that the nature and presentation of Marsh's challenge to his sentence was "`likely to alert the court to the claim's federal nature,'" Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (quoting Daye, 696 F.2d at 192). As discussed below, however, Marsh's sentence challenge is procedurally barred and, in any event, meritless.

  2. Procedural Default

  Ruling on Marsh's August 23, 1999, section 440.10 motion, the court found that Marsh's allegation that he was denied a fair trial because the VCR was returned to Parris before Marsh had an opportunity to inspect it was procedurally barred: "As demonstrated by the extensive citations to the record" supporting Marsh's allegation, the court found that this issue "could have been raised on appeal." People v. Marsh, Ind. No. 7446/94, slip op. at 2 (N.Y. Sup. Ct., King's County Nov. 12, 1999). Accordingly, the court denied Marsh's motion to set aside his conviction on that basis. In a later ruling on Marsh's challenge to his sentence in his January 24, 2000, section 440.10 motion, the court held, "Defendant's claim that his sentence was excessive is an issue which could have been part of his appeal, or part of his prior motions under CPL § 440.10, but was not. As such, it is procedurally barred and the Court will not consider it." People v. Marsh, Ind. No. 7446/94, slip op. at 3 (N.Y. Sup. Ct., King's County June 15, 2000).

  Federal habeas review of a state prisoner's claim is prohibited if a state court judgment denying the claim is based on an "adequate and independent state ground." Harris v. Reed, 489 U.S. 255, 261 (1992); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d. Cir. 1995). A procedural default in state court is an adequate and independent ground barring federal habeas review. Coleman v. Thompson, 501 U.S. 722, 744, 750 (1991) (noting the state's interest Page 14 in "channeling the resolution of claims to the most appropriate forum, in finality, and in having the opportunity to correct [its] own errors"); see also Lee v. Kemna, 534 U.S. 362, 376, 381 (2002) (noting the existence of a "small category" of "exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question").

  A defaulted claim will be considered by the court upon a showing of cause and prejudice. See Coleman, 501 U.S. at 750; Teague v. Lane, 489 U.S. 288, 298 (1989). A petitioner may establish cause by showing "`that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that some interference by officials . . . made compliance impracticable.'" Coleman, 501 U.S. at 753 (ellipses in original) (quotation marks omitted) (quoting Murray v. Carrier, 477 U.S. 478, 492 (1986)). To satisfy the prejudice requirement, the alleged error must have worked to the petitioner's "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Torres v. Senkowski, 316 F.3d 147, 152 (2d Cir. 2003) (quotation marks omitted). If the petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim, i.e., "that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Schlup v. Delo, 513 U.S. 298, 321 (1995)).

  Marsh offers no explanation as to why he could not have raised these claims on direct appeal. Furthermore, even if he had been prevented in some manner from doing so, it would still be necessary to demonstrate that he suffered an "actual and substantial disadvantage" to his case or that a fundamental miscarriage of justice resulted. Marsh offers no basis for Page 15 drawing either conclusion. In any event, even if I could review the sentencing challenge and the allegation that he was denied a fair trial because the VCR was returned to Parris before Marsh had an opportunity to inspect it on the merits, they would have to be rejected, as discussed below.*fn4

  3. Marsh's Arrest

  Marsh alleges that he was arrested without probable cause. Under Stone v. Powell, 428 U.S. 465, 493 (1976), a federal habeas court is barred from reviewing Fourth Amendment claims so long as the state has provided the petitioner with the opportunity for full and fair litigation of his or her claim. Id. at 494. Here, Marsh was granted a pretrial Dunaway, Mapp, and Huntley hearing to litigate these very claims. (See Resp. Ex. A: Tr. at 2-10.)

  4. Suppression

  Marsh claims that certain statements he made to Parris just before his arrest should have been suppressed, because the statements were made prior to Miranda warnings and were, moreover, the fruit of an illegal arrest. It is important to note that although the trial court ruled the statements admissible, the government chose not to introduce them, making this a definitive example of, at worst, harmless error.

  In any event, the state courts' decisions were certainly not unreasonable. The Appellate Division held: "[T]he hearing court properly determined that certain statements made by the defendant were spontaneous and were not the result of custodial interrogation." Marsh, Page 16 646 N.Y.S.2d at 452. According to Parris's testimony at the pretrial hearing, he approached Marsh with his gun drawn and identification displayed and ordered Marsh to put down the VCR. (Hearing Tr. at 12-13.) Marsh put down the VGR, put up his hands, and said, "[I]t wasn't me, it wasn't me." (Id. at 13.) Marsh then ran. (Id.) Marsh finally stopped running, but continued to say, "[I]t wasn't me, it wasn't me." (Id.) As Parris handcuffed Marsh, Marsh said, "[T]he VCR was mine. I was trying to sell it to get some money." (Id. at 14.) Parris responded that the VCR was his, at which point Marsh changed his story, claiming that "he had just purchased the VCR" and asking Parris why he had not chased the men in the car with whom Marsh had been talking. (Id.) Based on these facts, it was not unreasonable for the state court to find that Marsh's statements, "[I]t wasn't me, it wasn't me," were spontaneous and not the result of custodial interrogation. Nor was the court unreasonable in suppressing Marsh's last statement — that he had just purchased the VCR from the people in the car — on the ground that it was a hearsay response to Parris's statement that the VCR in fact belonged to him (i.e., Parris). Moreover, though Marsh finds fault with the court's suppression of his last statement (that he had just purchased the VCR, etc.), that ruling helped him significantly by precluding the government from calling his inconsistent excuses to the jury's attention. At any rate, as the government never actually offered the statements into evidence, any error was harmless. Therefore this claim does not justify issuance of the writ.

  5. Challenges to the Sentence

  a. The Eighth Amendment Claim

  Marsh's 20 years-to-life sentence fell within the maximum sentence authorized by New York law for a persistent violent felony offender, and therefore does not qualify for Page 17 consideration as excessive under the Eighth Amendment. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) ("No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law."). I note, however, that Marsh's sentence is not grossly disproportionate and is therefore not unconstitutional. See Ewing v. California, 538 U.S. 11 (2003).

  b. Vindictive Sentencing

  Marsh alleges that he was punished for exercising his right to a trial. "`To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort.'" United States v. Goodwin, 457 U.S. 368, 372 (1982) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)). It is "patently unconstitutional" "for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights." Hayes, 434 U.S. at 363 (quotation marks omitted). "But in the `give-and-take' of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer." Id. "By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial." Id.

 

While confronting a defendant with the risk of more severe punishment clearly may have a "discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable" — and permissible — "attribute of any legitimate system which tolerates and encourages the negotiation of pleas."
Id. at 364 (alteration in original) (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 31 (1973)); see also Goodwin, 457 U.S. at 378 ("[The Supreme Court has] accepted as constitutionally legitimate Page 18 the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his constitutional right to stand trial.").

  Prior to trial, the government offered Marsh a plea to attempted burglary in the second degree, with an accompanying sentencing range of six years to life:

THE COURT: What was the last offer in this case, six to life?
[PROSECUTOR]: Yes. Attempted burglary two, a C felony.
(Hearing Tr. at 42.) Later, about midway through the government's case, another discussion occurred regarding a possible plea:
[DEFENSE]: Judge, with the Court's permission, I also wanted the record to reflect the conference that we had at the bench prior to my client's coming into the courtroom; that the People have made an offer of a misdemeanor and one year, at this point, to my client and that your Honor indicated that you would not accept that offer.
THE COURT: I made it clear that it's an offer for something which time he's already served and which proof is overwhelming. And the offer is only being made by the District Attorney, it's clear to this Court, for reasons unrelated to the merits of the matter. I'm convinced of that and therefore, I refuse to accept that.
The Court is not a rubber stamp for the District Attorney's office.
[DEFENSE]: All right I would just indicate for the record that my client would accept that offer, were it to actually be made to him.
(Tr. at 566.)

  I have reviewed the sentencing minutes, and there is no evidence of vindictiveness on the part of either the sentencing court or the prosecutor. In fact, the sentencing court made its position clear when it refused to accept Marsh's plea to a misdemeanor. (Id.) As set forth above, just prior to trial, the government offered Marsh a plea carrying a range of six years to life. (Hearing Tr. at 42.) That the government, for reasons not set forth in the record, later made Page 19 Marsh a much better offer (from Marsh's standpoint), is insufficient to create a presumption that its later request of 20 years to life was made to penalize Marsh for exercising his right to trial. Cf. Goodwin, 457 U.S. at 382 ("[T]he mere fact that a defendant refuses to plead guilty and forces the government to prove its case is insufficient to warrant a presumption that subsequent changes in the charging decision are unjustified."). Marsh's claim therefore does not justify issuance of the writ.

  6. Ineffective Assistance of Counsel

  Marsh claims his counsel was ineffective for (1) not investigating and challenging the alleged inconsistencies with respect to the VCR receipt that Parris provided as proof of ownership, and not requesting to see the original, (2) not attempting to locate the people in the car from whom Marsh allegedly bought the VCR and to whom he was talking when Parris accosted him, (3) failing to request that fingerprints be lifted from the VCR, (4) failing to request dust samples from the basement of Parris's home to compare with dust taken off the clothes Marsh was wearing at the time of his arrest, (5) failing to effectively argue that Marsh was entitled to notice under New York Penal Law section 450.10 before the VCR was returned to Parris, (6) failing to properly argue for exclusion of the VCR, and (7) failing to present witnesses or evidence at trial. The Supreme Court has established the following standard for ineffective assistance claims:

  First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it Page 20 cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

 Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, to make out this type of claim, the petitioner must demonstrate both (1) that his attorney's performance "fell below an objective standard of reasonableness," id. at 688, and (2) 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. In assessing the reasonableness of counsel's performance, "judicial scrutiny of counsel's performance must be highly deferential," and the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (quotation marks omitted); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998); see also Yarborough v. Gentry, 124 S.Ct. 1, 4 (2003) (per curiam) ("[C]ounsel has wide latitude in deciding how best to represent a client. . . .").

  In assessing counsel's performance, I "must conduct an objective review . . . measured for `reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen `from counsel's perspective at the time.'" Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003) (citations omitted) (quoting Strickland, 466 U.S. at 688-89)). The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct" and has instead emphasized that "`the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Id., at 2535 (quoting Strickland, 466 U.S. at 688). Page 21

  To establish the requisite effect of counsel's performance on the outcome of the proceeding, it is not sufficient if the petitioner shows merely that counsel's errors had "some conceivable effect" on the outcome. Strickland, 466 U.S. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. This determination, unlike the determination whether counsel's performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993), The record establishes that defense counsel provided Marsh with competent representation. I address Marsh's contentions in turn.

  a. Failure to Investigate and Challenge the VCR Receipt

  Marsh makes much of the fact that though Parris claimed to own the VCR, his name was not on the receipt. Parris's name did not have to be on the receipt, however, for Parris to be the "rightful owner." Parris testified, uncontradicted, that the VCR was a gift from his then-fiancee. (Tr. at 418-19.) It was therefore unnecessary for the purchaser of the VCR to testify, and Marsh's attorney was not ineffective for failing to call that person.

  b. Failure to Attempt to Locate the People in the Car

  Marsh contends that his attorney should have attempted to discover who Marsh was talking to in the car when he was confronted by Parris. First, though it is impossible to say with any certainty what the people in the car would have testified to had they been found, it is highly unlikely that they would have corroborated Marsh's story that they sold him the stolen VCR. Defense counsel knew that Marsh had given Parris contradictory versions of the events at Page 22 the time of his arrest, as related above.*fn5 Marsh has also provided differing accounts of where he obtained the VCR to the various courts hearing his claims, arguing here that he obtained the VCR from the occupants of the car, but arguing in some state court briefs that he bought it at a store. (See Resp. Ex. Q at [11] ("Most notably, defendant provided counsel with pertinent information as to the store employees who could be considered an eyewitness and also an alibi[;] . . . they could substantiate defendant[']s defense that he was not the seller of the property but the buyer. . . .").)

  Second, the record reveals that there was no information about the car or its occupants that the defense attorney could have used to locate them. No one noticed the car's license plate. Rodney Perry, a friend of Marsh's, remembered only that "it was some kind of Cadillac, in the late 70's or early 8O's." (Id. at 597.) Perry could not recall its color or describe any of the people inside. (Id.) With such limited information, defense counsel could have reasonably concluded that it was either impossible or a waste of valuable time to attempt to locate the car. Further, defense counsel focused on the car in his summation, arguing that the absence of information regarding the car was due in part to Parris's personal involvement in the case, an involvement that precluded him from acting professionally. (Id. at 666-74, 688, 693-95.) Defense counsel pointed to the absence of information about the car and urged the jury that such absence of evidence amounted to reasonable doubt. (Id.) Therefore, Marsh's counsel was not ineffective for not attempting to locate the car or its occupants. Page 23

  c. Failure to Request Fingerprints and Dust Samples

  Marsh argues that his attorney should have requested that fingerprints be lifted from the VCR and Parris's home, and that dust samples from Parris's basement be compared to the dust found on Marsh's clothes. Sergeant Philip Nelson, who was working at the 81st Precinct the night Marsh was arrested, testified that because so many people had touched the VCR, it would have been futile to lift fingerprints. (Id. at 547.) Besides, when the police take into custody the actual fingers of the thief (along with the rest of him), wrapped around the stolen property, they typically do not bother trying to find fingerprints.

  Further, Marsh assumes that fingerprinting and dust samples would have exculpated him. His attorney, however, could strategically have decided not to fingerprint or compare dust samples out of fear that it would inculpate his client. In fact, defense counsel focused throughout the trial and his summation on such holes in the investigation as these, arguing that they were indications that Parris was overzealous and unprofessional. (Id. at 666-74, 688, 693-95.) Defense counsel also argued that the government's failure to fingerprint and compare dust samples, along with other investigatory oversights, added up to reasonable doubt. Therefore, Marsh's counsel was not ineffective for failing to request that VCR be fingerprinted, or that dust samples from Parris's basement be compared to dust on Marsh's clothes.

  d. The Section 450.10 Violation

  Though respondent concedes that it should have served notice on Marsh prior to releasing the VCR to Parris, Marsh was not prejudiced by the government's failure. Neither the condition nor the value of the VCR was an element of the crimes with which Marsh was charged. Further, Parris testified that the VCR was in substantially the same condition at trial as it was on Page 24 the night of its recovery. (Id. at 338.) Parris also testified that the photographs of the VCR, which were entered into evidence at trial, were a fair and accurate representation of the VCR on the night of its recovery. (Id. at 356.) There was therefore no reason for defense counsel to complain about the lack of notice, and Marsh was not prejudiced by such failure.

  e. Failure to Seek Exclusion of the VCR

  Marsh suggests various theories as to why the VCR should have been excluded, and why his attorney was ineffective for failing to make these arguments. The record shows, however, that defense counsel did attempt to exclude the VCR on chain of custody grounds. Though ultimately a losing argument, defense counsel cannot be faulted in the first instance for deciding that it was the best of a few bad arguments. It is not the province of this Court to second-guess defense counsel's sound trial strategy. See Strickland, 466 U.S. at 689; Jackson, 162 F.3d at 85; see also Gentry, 124 S.Ct. at 4.

  f. Failure to Present Witnesses or Evidence at Trial

  Marsh claims that, despite providing his lawyer with the necessary information to locate possible witnesses, and despite leads arising from discovery materials provided by the government before trial, defense counsel, out of sheer lack of effort, failed to present any evidence or witnesses. Unfortunately, Marsh fails to specify what information he provided his attorney and in what way his attorney could have followed up on discovery materials. Though defense counsel did not put on a case, he provided Marsh with meaningful and effective representation. Counsel obtained a Dunaway, Mapp, and Huntley hearing prior to trial, at which he argued that there was no probable cause for Marsh's arrest. Counsel developed a cohesive defense theory — that Marsh had purchased the VCR from the occupants of the car and that Parris Page 25 was too personally involved in the case to act professionally — that was a theme throughout his opening, cross-examinations, and summation. Further, counsel diligently cross-examined the government's witnesses. In these ways, he provided Marsh with effective representation.

  g. Prejudice

  Marsh cannot show that he was actually prejudiced by counsel's allegedly deficient performance. The evidence against Marsh was so overwhelming — he was arrested by a police officer, who was also the victim, with the VCR in his hands — that it is unlikely that any attorney could have won him an acquittal. Therefore, as Marsh has failed to show that his lawyer was ineffective, or that he was prejudiced by the alleged errors, his ineffective assistance of trial counsel claim cannot justify issuance of the writ.

  7. Sufficiency of the Evidence

  A petitioner "challenging the sufficiency of the evidence bears a very heavy burden." Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997) (quotation marks omitted). A state criminal conviction will be upheld if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia 443 U.S. 307, 319 (1979). In making this assessment, a court may neither "disturb the jury's findings with respect to the witnesses' credibility," United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989), nor "make credibility judgments about the testimony presented at petitioner's trial or . . . weigh conflicting testimony." Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (citing United States v. Zabare, 871 F.2d 282, 286 (2d Cir. 1989)). Thus, under this "rigorous standard," a "federal habeas court faced with a record of historical facts that supports conflicting inferences must Page 26 presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994) (quoting Jackson, 443 U.S. at 326).

  Here, there was ample evidence to support the jury's finding that Marsh committed burglary at Parris's home. On June 20, 1994, at 12:30 a.m., Parris's mother awoke to her dog barking. (Tr. at 619-20.) She investigated and found her front door open and various damage done to a grating and other doors. (Id. at 621, 624, 628.) Parris came home, saw the damage, and noticed that his VCR was missing. (Id. at 318, 320-23, 382, 405, 408.) Parris left for the police precinct and, just over three blocks from his home, saw Marsh holding what looked to be, and was later confirmed to be, Parris's VCR. (Id. at 324-29, 412, 415, 418-19, 437-38.) Marsh's clothes, like Parris's basement, were extremely dusty and dirty. (Id. at 365-66, 402.) As any issues of credibility were for the jury to decide, there was ample evidence supporting the jury's verdict. Page 27

  CONCLUSION

  For the foregoing reasons, the petition is denied. Because Marsh has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.*fn6

  So Ordered.


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