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SCOTT v. GREINER

United States District Court, E.D. New York


January 27, 2004.

CLARENCE SCOTT, Petitioner, -against- CHARLES GREINER, Superintendent, Green Haven Correctional Facility, Respondent

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

MEMORANDUM AND ORDER

Clarence Scott petitions for a writ of habeas corpus, challenging his convictions in state court for criminal possession of crack cocaine. On January 23, 2004, I held oral argument, in which Scott participated by telephone conference. The petition is denied for the reasons set forth below,

BACKGROUND
  The People's evidence at trial established that, at around 12:20 a.m. on January 1, Page 2 1998, in the vicinity of South Road, Jamaica Queens, three plain-clothed police officers patrolling the area in an unmarked car heard gunshots at a nearby housing project. While investigating this area, they observed Scott in a courtyard next to the housing project. When one of the officers exited the car to ask Scott if he could speak with him (to ascertain whether or not he could provide any information about the gunshots), Scott ran away from the officer. While in flight, he discarded a brown bag. This brown bag contained 333 vials of crack cocaine. Scott testified that he went out shortly before midnight to buy wine. He further testified that he ran because he thought he was being accosted by a man with a gun, and he never possessed or dropped any bag filled with drugs.

  Scott was charged with criminal possession of a controlled substance in the first and third degrees. After deliberations, the jury convicted him of both offenses. Scott was sentenced to concurrent prison terms of from fifteen years to life and from four and a half to nine years imprisonment. The judgment of conviction was entered on February 18, 1999.

  In January of 1999, Scott, through counsel, appealed his conviction to the Appellate Division. Appellate counsel claimed that Scott's conviction could not be sustained because his trial counsel was ineffective for the following reasons: (a) he elicited and opened the door to prior convictions, including one for drug possession, which had been excluded by the court's Sandoval*fn1 ruling; (b) he failed to object to extensive irrelevant and prejudicial expert testimony about drug packaging; (c) he repeatedly had difficulty moving items into evidence; and Page 3 (d) he delivered a bizarre summation that failed to address his criminal history. The Appellate Division rejected these arguments and affirmed Scott's conviction on June 26, 2000. See People v. Scott. 711 N.Y.S.2d 890 (2d Dep't 2000). It held that "the defendant received the effective assistance of counsel." Id. On August 4, 2000, the New York Court of Appeals denied Scott's application for leave to appeal his conviction. People v. Scott. 95 N.Y.2d 871 (2000).

  On May 14, 2001, Scott, proceeding pro se, filed a petition for a writ of error coram nobis, alleging ineffective assistance of appellate counsel. In particular, he maintained that appellate counsel was deficient because she failed to argue that trial counsel was also ineffective based on his failure to properly request a Dunaway*fn2 hearing. The Appellate Division, Second Department, denied the writ on October 15, 2001, stating that Scott "has failed to establish that he was denied the effective assistance of appellate counsel." People v. Scott. 731 N.Y.S.2d 670 (2d Dep't 2001).

  On December 18, 2001, Scott filed a pro se motion in the state Supreme Court to vacate his judgment of conviction pursuant to N.Y. Crim. Proc, Law § 440.10. He asserted that he was denied his right to effective assistance of trial counsel when counsel failed to accurately marshal facts in his omnibus motion seeking a Dunaway hearing to determine whether he was unlawfully seized, searched and arrested. The state Supreme Court rejected Scott's arguments as procedurally barred. See People v. Scott. Indict. No. N10218/98, slip. op. (N.Y.Sup.Ct., Queens County, January 2, 2002) ("Defendant's claim is procedurally barred since it is based upon matters in the record which could have been raised on direct appeal. In any event, Page 4 defendant was afforded meaningful representation since counsel employed a trial strategy that any reasonably competent attorney might well have pursued.")(citations omitted).

  On April 22, 2002,*fn3 Scott filed the instant pro se petition for a writ of habeas corpus in this Court, challenging his convictions on the following grounds:

(a) he was deprived of the effective assistance of counsel at trial,
(b) he was deprived of the effective assistance of appellate counsel on his direct appeal,
(c) he was unlawfully convicted by use of evidence obtained through an unconstitutional search and seizure, and
(d) he was deprived of the effective assistance of counsel during pretrial motion practice.
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 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 Page 5 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 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 Page 6 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." Id. (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:

[f]or 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.
Sellan v. Kuhlman. 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).

 B. Scott's Claims

  1. Ineffective Assistance of Trial Counsel

  Scott asserts that he was deprived of his Sixth Amendment right to effective assistance of counsel in the trial court because his attorney

  (a) elicited and opened the door to prior conviction [s], including one for Drug Possession, which had been excluded by the Court's Sandoval Ruling in this Drug Possession case; (b) failed to object to extensive irrelevant and prejudicial expert testimony about drug packaging; (c) repeatedly had difficulty moving items into evidence; and (d) delivered a bizarre summation that failed to address [his] criminal history. Page 7

 (Pet. at 5(A).)

  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 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 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," Strickland, 466 U.S. 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, "[j]udicial 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 circumstance, the challenged action `might be considered sound trial strategy.'" Id at 689 (citation 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 — Page 8 dependent consideration of the challenged conduct as seen `from counsel's perspective at the time.'" Wiggins v. Smith. 123 So. 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).

  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).

  Under these standards, Scott cannot prevail on any of his ineffective assistance of trial counsel claims. I discuss each allegation, in turn, below.

  a. The Prior Narcotics Conviction

  At a Sandoval hearing, the trial court precluded the People from asking Scott about the nature or underlying facts of his prior misdemeanor drug possession conviction. Instead, the court ruled that only the fact of this misdemeanor conviction could come into Page 9 evidence; not the particular offense of conviction. (Tr. at 14-15.)*fn4 Defense counsel had argued, and the court had agreed, that the probative value of the fact that it was a drug conviction was outweighed by the unfair prejudicial impact of this evidence on the jury. (Tr. at 13, 15.) Nevertheless, on direct examination defense counsel elicited that Scott had been convicted previously of drug possession:

Q: . . . [o]n January 29th of 1993, were you convicted of attempted criminal possession of a controlled substance?
A: Yes, sir.
Q: A "B" misdemeanor?
A: Yes, sir
(Tr. at 446.) In response to further questioning by defense counsel, Scott stated that he had received a sentence of fifteen days. (Tr. at 446-47.)

  When the prosecutor raised this prior conviction for drug possession on cross-examination, and defense counsel objected, the court ruled that defense counsel had "opened the door" to this questioning. (Tr. at 466-68.) Subsequently, the prosecutor brought out that the prior conviction involved crack cocaine (as in the present case) with which Scott was "familiar." (Tr. at 471.) When asked if he had seen crack cocaine vials before, he admitted that he had, but he denied ever handling them. Id. On redirect, defense counsel confirmed that this conviction occurred almost six years ago. (Tr. at 490.) Neither defense counsel nor the prosecutor referred to this conviction in their closing arguments.

  While defense counsel may not have chosen the wisest course in eliciting Scott's prior conviction for drug possession under these circumstances, the state court's conclusion that Page 10 Scott received effective assistance was not unreasonable. Counsel's choice to elicit these details of the conviction could reasonably have been characterized as a tactical decision. For instance, defense counsel could fairly have decided that it was best to elicit the nature of the misdemeanor conviction, prior to the prosecution eliciting the fact of it, so the jury would not be left speculating (perhaps in a way adverse to Scott) as to what that conviction involved. See, e.g., Jeremiah v. Artuz, 181 F. Supp.2d 194, 205 (E.D.N.Y. 2002) ("Trial counsel could reasonably have determined that, since the prosecutor was not precluded from inquiring into the underlying acts [of the otherwise inadmissible information that petitioner had been adjudicated a youthful offender], it was preferable to elicit petitioner's version of the incident directly and attempt to minimize it, not only by petitioner's description of the facts, but also by the information that he had received probation upon his admission of guilt.") Or perhaps counsel wished to emphasize the difference in kind between his prior conviction for a minor drug violation and what he was accused of at trial — felony possession of 333 vials of crack cocaine. One element of the crime of criminal possession of a controlled substance in the third degree is the intent to sell. See N.Y. Penal Law § 220.16.*fn5 Counsel may have been attempting to portray Scott as, at worst, a former user of drugs, rather than a seller who would be carrying large quantities of drugs. Finally, counsel may have been seeking to minimize the adverse impact of this misdemeanor drug Page 11 conviction by eliciting both that the sentence was only fifteen days and that the offense occurred almost six years earlier.

  For similar reasons, defense counsel's questioning of Scott about one other misdemeanor that was the subject of the Sandoval hearing does not constitute ineffective assistance of counsel. At the Sandoval hearing the court had similarly ruled that only the fact of Scott's criminal trespass conviction could come into evidence. (Tr. at 6-7.) At trial, defense counsel questioned Scott about this conviction and what sentence he received. (Tr. at 445.) At the very least, the state court's rejection of the claim was not unreasonable.

  b. The Expert Testimony

  Next, Scott argues that his trial counsel should have objected to the "extensive" and "irrelevant" and "prejudicial" expert testimony regarding drug packaging. In Scott's appellate counsel's state court brief, on which Scott appears to rely here, appellate counsel cited the following as examples where defense counsel failed to object to the undercover officer's*fn6 testimony: (1) that cocaine is packaged in vials, but also in "dollar bills," "tinfoils," and "glassines or Ziploc," bags of various sizes (Tr. at 310-11); (2) concerning the packaging of heroin and the packaging and cost of marijuana (Tr. at 311); and (3) that heroin packaging is related to gang activity.*fn7 (Defendant-Appellant Br. ("App. Br.") at 32.) Appellate counsel stated that defense counsel should have objected to this testimony because no evidence was adduced at Page 12 trial that Scott ever possessed heroin, marijuana or differently packaged cocaine. (Id) With respect to the "gang" reference, appellate counsel maintained that it was overly prejudicial.

  Based on my review of the expert testimony, I have determined that Scott's contention is misplaced. The New York courts have allowed expert testimony concerning the packaging and distribution of narcotics, which is normally outside of the average juror's knowledge. Such information is relevant to the issue of intent. See, e.g., People v. Gaynor. 685 N.Y.S.2d 3, 4 (1st Dep't 1999) ("The court properly exercised its discretion in receiving testimony from an expert concerning packaging and market value of narcotics. This testimony contained details that were highly unlikely to be within the knowledge of an average juror [and] was relevant to intent to sell under the third-degree possession count and to knowledge of weight."); People v. Vaughan. 590 N.Y.S.2d 246, 247 (2d Dep't 1992) ("the Supreme Court properly allowed expert testimony regarding the pricing and packaging of cocaine, since this subject is not within the knowledge of the average juror."): cf. People v. Brown, 97 N.Y.2d 500, 505 (2002) ("Although the average juror may be familiar with the reality that drugs are sold on neighborhood streets, it cannot be said that the average juror is aware of the specialized terminology used in the course of narcotics street sales or the intricacies of how drugs and money are shuttled about in an effort to prevent their discovery and seizure by the police. Testimony of this nature . . . may be helpful to the jury in understanding the evidence presented and in resolving material factual issues.") (citations omitted).

  Here, because intent to sell was part of the criminal possession crime charged, see N.Y. Penal Law § 220.16, the above testimony (at least as to the packaging of cocaine) was relevant. The expert properly testified as to how crack cocaine is packaged (in vials), how the Page 13 packaging may indicate a street level sale, and the street value of the drugs, leaving the ultimate question of intent to the jury. (See Tr. at 311-13, 316-17.) As to the packaging testimony about the other drugs, I agree that it was irrelevant and should have been objected to by defense counsel, but that does not mean counsel was ineffective for not doing so. That testimony was limited in length,*fn8 and would not have greatly influenced the jury in a case involving only crack cocaine. Furthermore, I note that defense counsel did indeed make successful objections to other aspects of the expert testimony on relevance grounds. (See, e.g., Tr. at 313-15 (objecting to testimony about how many vials of crack cocaine he has bought at one time).) In any event, whatever prejudice might have resulted from the expert testimony would have been greatly outweighed by the considerable evidence against Scott, as I discuss in further detail in Part B.1.e. Therefore, I am confident that the result of the trial would not have been any different absent the challenged testimony.

  c. Moving Items into Evidence

  Scott states in a conclusory fashion that his trial counsel "repeatedly had difficulty moving items into evidence," but does not provide any examples of this failing. As noted earlier, appellate counsel raised this issue on direct appeal. She stated that "[c]ounsel's lack of adequate preparation and basic knowledge of criminal procedure was revealed by numerous aspects of his trial performance." (App. Br. at 33.) She provided the following examples: (1) that the trial judge had to instruct counsel to mark items for identification; and (2) that the trial judge scolded counsel several times for presenting items to the jury prior to their admittance into evidence. (I Page 14 pause here to note that if those particular failings offend the Sixth Amendment, a great many federal convictions are in jeopardy.) Nowhere in the brief, however, did appellate counsel point to items that were not received in evidence. In fact, the record reflects that many exhibits offered into evidence by trial counsel were received into evidence.*fn9 Thus, the challenged conduct could not support a finding of ineffective assistance of trial counsel.

  d. The Summation

  Scott also objects to his counsel's summation as "bizarre" and as lacking in a recitation of his criminal history. (Pet. at 5(A).) In the appellate brief on direct appeal, his appellate counsel highlighted several problematic remarks in the summation, including the following: (1) the summation began with a quote from "The Night Before Christmas" (Tr. at 504-505); (2) the court admonished counsel for wearing Scott's jacket from the incident, despite repeated warnings not to "demonstrate" (Tr. at 507-08); and (3) counsel argued that the police should have tested the bag in which the crack was found for DNA evidence and relatedly remarked that "If you had a dress and you had semen on it" then you would test it, referring to Monica Lewinsky (Tr. at 518-520). (See App. Br. at 34-35.)

  I have reviewed defense counsel's summation. In addition to the problems recited by Scott's appellate counsel, the transcript reveals that defense counsel made some inappropriate statements (see Tr. at 505, 513, 525 (referring to the location in question as a "ghetto")), and attempted to argue facts not testified to at trial (see Tr. at 510, 512-13, 526). Furthermore, he repeatedly tried to explain the law to the jury, despite several warnings from the trial judge. (Tr. at 528-29.) Page 15

  Despite this troublesome (and in some respects unprofessional) conduct, I cannot say that trial counsel was ineffective. First, he did elicit inconsistencies in the officers' testimony as to where the drug-filled bag was recovered. (Tr. at 516-17). He also tried to undermine the officers' testimony by suggesting it was improbable. (See Tr. at 510-11 (arguing that officer's story that he went to walk alone in dark area where shots had been heard was not believable); Tr. at 513-14 (arguing that officers' testimony — that there was no one around except for Scott and no debris in the area except the bag of drugs — was not believable since it was a crowded city location and it was just after midnight on New Year's Eve).) Second, defense counsel pointed out that one of the officers at the scene never saw Scott throw anything to the ground, let alone a bag a drugs (Tr. at 516), while the other officer only saw him throw an object, not necessarily a paper bag, and lost sight of the bag at some point (Tr. at 520). In any event, due to the overwhelming evidence against Scott, which included eye-witness testimony from two witnesses, I cannot say that the result of the trial would have been different if trial counsel's inappropriate statements had not been made. More importantly, I cannot characterize as unreasonable the state court decision rejecting the claim. (See infra Part B.1.e.)*fn10

  e. Prejudice

  Even if trial counsel was constitutionally deficient in any of the above areas, Scott could not have suffered any prejudice. Thus, Scott cannot make out his ineffective assistance of trial counsel claim.

  The evidence against Scott was overwhelming. According to the People's Page 16 evidence at trial, three plain-clothes police officers on patrol in an unmarked car in Jamaica, Queens heard guns shots at approximately 12:20 a.m on January 1, 1998, (Tr. 205-08, 255.) Once they began to canvas the area, they noticed Scott in the middle of a courtyard between the buildings of a housing project where the shots were heard. (Tr. at 209, 346, 351.) One of the officers exited the car to speak with Scott, who was about fifteen to twenty-five feet away from the police car. (Tr. at 209, 260-61, 336, 347.) At that point, he asked Scott, "Excuse me, sir, could I have a minute of your time? Police Officer." (Tr. at 211.) Scott immediately fled towards the street. (Tr. 211, 337)The officer ran after him. (Tr. at 348, 352, 359-60.) Approximately fifteen seconds later, Scott threw a brown bag to the ground. (Tr. at 212-13, 338.) No one else was on the street at that time. (Tr. at 339-40.) About two minutes later, the officer caught Scott (Tr. at 213-14), while in the meantime, the other two officers who had been waiting in the police car drove around to meet them (Tr. at 214, 338, 363). The first officer told the other two that Scott had thrown a bag, and where it was, so that they could retrieve it, which they did. (Tr. at 214-16, 340.) Inside the bag they found 333 vials of crack cocaine. (Id.)

  In those circumstances, Scott cannot persuasively argue that, but for the challenged conduct of his trial counsel, the result of his trial would have been different. Therefore, I agree with the state court that counsel was not ineffective under Strickland.

 2. Ineffective Assistance of Appellate Counsel

  Scott contends that appellate counsel erred in not presenting an ineffective assistance of trial counsel claim based on trial counsel's failure to request a Dunaway hearing to challenge the allegedly unlawful seizure of Scott, and to seek suppression of the evidence discovered as a result of the seizure. (Pet. at 5(B).) Page 17

  Although the Supreme Court formulated the Strickland test in the context of examining a claim of ineffective assistance of trial counsel, the same test applies to claims regarding the performance of appellate counsel. See Mayo v. Henderson. 13 F.3d 528, 533 (2d Cir. 1994); Claudio v. Scully. 982 F.2d 798, 803 (2d Cir. 1992). The second prong is different, however; the petitioner must establish that "there was a reasonable probability that [his] claim would have been successful before the [state's highest court]." Mayo. 13 F.3d at 534 (brackets in original, quotations and citations omitted).

  It is well-established that, on appeal, counsel need not present every nonfrivolous argument that could be made. See id at 533; see also Evitts v. Lucey. 469 U.S. 387, 394 (1985) (emphasizing that appellate counsel "need not advance every argument, regardless of merit, urged by the appellant.") (emphasis in original, citation omitted). Rather, counsel is expected to winnow out the weaker arguments and focus on the stronger ones. Jones v. Barnes. 463 U.S. 745, 751-52 (1983). Reviewing courts should not employ hindsight to second-guess an appellate attorney's strategy choices. See Mayo. 13 F.3d at 533. A petitioner, however, may establish constitutionally inadequate performance if he shows that his appellate counsel omitted material and obvious issues while pursuing matters that were patently and significantly weaker. Cf. Jackson v. Leonardo. 162 F.3d 81, 85 (2d Cir. 1998) ("[R]elief may be warranted when a decision by counsel cannot be justified as a result of some kind of plausible trial strategy.").

  Under these standards, I find Scott's claim to be meritless. Appellate counsel filed a substantial brief in which she raised a claim of ineffective assistance of counsel based on four different grounds, as discussed in detail above. Tellingly, Scott now relies on these claims and his appellate counsel's brief to make out his ineffective assistance of trial counsel argument. Page 18

  That aside, appellate counsel was not deficient in not raising the Dunaway claim as a fifth claim, because it is a weak argument. Prior to filing an appeal, appellate counsel wrote Scott a letter, dated December 9, 1999, explaining to him what issues she planned to raise on appeal and why. In that letter she further explained that she would not raise the suppression issue because it was not that strong, but that she would do additional research on it to evaluate its merit. In her affirmation in response to Scott's coram nobis application, she attested that after researching the relevant law and considering the facts of Scott's case she concluded that a suppression motion would have little chance of success. (Lerner Aff. ¶¶ 9, 11.) When Scott submitted his application for error coram nobis, his appellate counsel affirmed that she had carefully considered this issue but had decided not to raise it because she thought the other issues would be much more likely to succeed. This is exactly the kind of strategic assessment that is the hallmark of an effective attorney.

  As related above, two police officers testified that, after hearing gunshots while on patrol shortly after midnight on New Year's Day, 1998, they saw Scott alone in a courtyard. When one of the officers identified himself and asked to speak to Scott, he ran away and threw a paper bag that later proved to contain 333 vials of crack cocaine. Based on this testimony, the Appellate Division would no doubt have concluded that the police had reasonable suspicion, based on objective, articulable facts (the recent gunshots and Scott's flight), to conduct an investigative detention of Scott, and that the thrown bag furnished probable cause to arrest him. See, e.g., People v. Harrington. 597 N.Y.S.2d 723, 724 (2d Dep't 1993) (probable cause to arrest where police heard gunshots, approached defendant who was nearby to inquire, and defendant immediately fled and dropped gun during chase); People v. Smith. 591 N.Y.S.2d 418, 419 (2d Page 19 Dep't 1992) (probable cause to arrest defendant where police interviewed bystanders after hearing gunshots, defendants reversed direction and ran away so as to avoid any interview, and during chase abandoned a gun); see also Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (in holding that an unprovoked flight from police in a high-crime area justified an investigatory stop, stated: "Headlong flight-wherever it occurs-is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.").

  Furthermore, as noted above, it is far more advantageous to an appealing defendant to winnow out the weaker arguments (such as the Dunaway issue) in favor of focusing the appellate court on the stronger issues (the ones that appellate counsel here raised). Thus, the Appellate Division's application of Strickland here was not unreasonable and therefore Scott is not entitled to the writ on this ground, either.

 3. Ineffective Assistance of Pre-Trial Counsel

  Scott also challenges his conviction based on the failure of his pretrial counsel to obtain a Dunaway hearing to suppress the physical evidence against him. Specifically, he claims that his pre-trial counsel was ineffective because he filed an omnibus motion that contained incorrect information — that when he was apprehended the police found drugs and drug paraphernalia on his person, when that was not true. Scott asserts that due to this misinformation, coupled with the motion's deficient factual statement, the state court denied a hearing. (Pet. at 6(D).) Respondent maintains that I cannot examine this claim because review is barred by an independent and adequate state procedural rule. (Resp't Aff. & Mem. Law Opp. Writ at 7.)

  Federal habeas review of a state prisoner's claim is prohibited if a state court Page 20 judgment denying the claim is based on an "adequate and independent state ground." Harris v. Reed. 489 U.S. 255, 261 (1992); Levine v. Commissioner 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, 750 (1991) (noting the State's interest in "channeling the resolution of claims to the most appropriate forum, in finality, and having the opportunity to correct [their] 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").

  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 also rejected the claim on the merits in the alternative. See Harris. 489 U.S. at 264 n. 10 ("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) (emphasis in original). Where 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).

  Because a state procedural bar represents an adequate and independent state ground for deciding the claim against the petitioner, however, a federal habeas court may review a procedurally barred claim on the merits only if the petitioner demonstrates cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrates that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. Page 21

  The state court here did rely on the independent and adequate state ground of procedural default. See People v. Scott, Indict. No. N10218/98, slip, op. (N.Y.Sup.Ct., Queens County, January 2, 2002) ("Defendant's claim is procedurally barred since it is based upon matters in the record which could have been raised on direct appeal. In any event, defendant was afforded meaningful representation since counsel employed a trial strategy that any reasonably competent attorney might well have pursued.") As the state court said, rather than raising this claim on direct appeal before the state Appellate Division, Scott instead raised it in a motion to vacate his judgment. This was fatal to his claim. Pursuant to N.Y. Crim. Proc, Law § 440.10(2)(c),

[T]he court must deny a motion to vacate a judgment when: Although 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.
Accordingly, his claim is procedurally barred. Furthermore, Scott has failed to establish cause for the default or actual prejudice. In any event, for the reasons stated above in connection with the ineffective assistance of appellate counsel claim, the motion to suppress had no merit. Therefore, even if pre-trial counsel's effort fell below an objective standard of reasonableness, Scott cannot show that the failure affected the outcome of the case.

  4. The Search and Seizure

  Last, Scott argues that his "[c]onviction [was] obtained by use of evidence gained pursuant to an unconstitutional search and seizure, and unlawful arrest." (Pet. at 6(C).) To support this contention, he relates that Page 22

 

[He] was pursued by a plain clothes officer through a darkened courtyard for no apparent reason, [] having done nothing suspiciously out of the ordinary. When [he] was apprehended and searched officers had no reason to restrain him having found nothing illegal on [his] person. Officers continued to restrain [him] while they went in search of something they say [he] threw away while running. Officers found a bag containing drugs and then arrested [him].
(Id.) Respondent asserts that I cannot review this issue because Scott had a full and fair opportunity to litigate this Fourth Amendment claim in state court under N.Y. Crim. Proc. Law § 710.20, which outlines the motion and hearing procedure to be used.*fn11 (Resp't Mem. Law Opp. Pet. for Writ at 38.) I agree.

  Under Stone v. Powell. 428 U.S. 465 (1976), a federal habeas court is barred from reviewing the merits of a Fourth Amendment claim so long as the state has provided petitioner with the opportunity for a full and fair litigation of his claim. Fourth Amendment claims in habeas petitions may be undertaken "in only one of two instances: (a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan v. Riley. 975 F.2d 67, 70 (2d Cir. 1992). Neither of those circumstances is present here. Thus, I Page 23 cannot review this particular claim.

  CONCLUSION

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

  So Ordered


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