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WARRICK v. McLAUGHLIN

United States District Court, S.D. New York


February 5, 2004.

MYRON WARRICK, Petitioner, -against- HERBERT McLAUGHLIN, SUPERINTENDENT, Respondent

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE DENISE L. COTE, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

  Myron Warrick ("Warrick") has made an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Warrrick contends that his confinement by the state of New York is unlawful because: 1) a pretrial determination made by one state court trial judge was not followed by another trial judge who was later assigned to preside over Warrick's case; 2) he was denied a speedy trial; 3) his statutory right to testify before the grand jury that returned an indictment against him was violated; 4) the prosecution failed to establish a complete chain of custody for evidence used at his trial and, thereby, failed to prove all the elements of the charged crimes and concomitantly denied the petitioner his right to due process; 5) the grand jury proceedings that resulted in an indictment against Warrick were infirm because police laboratory reports presented to the grand jury did not conform to state statutory requirements and, as a consequence, material information was withheld from Warrick, pretrial, in violation of the rule Page 2 set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963); and 6) Warrick received ineffective assistance from his trial counsel in violation of the Sixth and Fourteenth Amendments to the Constitution. The respondent opposes Warrick's petition for habeas corpus relief. The petition is addressed below.

  II. BACKGROUND

  Warrick's incarceration arises out of a narcotics buy and bust operation conducted in the Harlem neighborhood of Manhattan. On September 2, 1998, Police Officer Anthony Ortiz ("Ortiz"), serving in an undercover capacity, purchased a $10 glassine envelope of heroin from Warrick using pre-recorded buy money. The transaction was observed by another police officer, commonly referred to as a "ghost officer," whose responsibility it was to observe the transaction and to ensure Ortiz's safety. After the purchase was made, Ortiz communicated a description of Warrick's race and clothing to other officers who were in the vicinity. Ortiz did not include a description of Warrick's facial features when he communicated with other law enforcement officers. According to Ortiz, he does not concentrate on a narcotics peddler's face or eyes while making a purchase because that makes such vendors nervous.

  A detective, who was working as a backup officer to Ortiz, received Ortiz's transmission and traveled to the scene of the heroin purchase. Warrick, who at the time of the instant heroin sale had previously been convicted for crimes, perceived, as the detective approached him, that he was a police officer; therefore, Warrick began to run. Warrick explained that he is a disabled veteran and had just used his disability benefit funds to purchase a sufficient quantity of heroin for his monthly consumption. As Warrick ran, he stumbled and was apprehended by the detective. After Warrick was handcuffed by the detective, 24 glassine envelopes of heroin Page 3 bearing the legend "Mr. Fieldgood" — the legend also found on the packet of heroin purchased by Ortiz — were found on the ground underneath Warrick's body. Furthermore, the detective recovered a $10 bill from Warrick's pants pocket that was later determined to be part of the prerecorded buy money that had been distributed previously to Ortiz for use in connection with the buy and bust operation.

  Approximately five minutes after purchasing heroin from Warrick, Ortiz drove past him in an automobile. At that time, Warrick was in police custody. When Ortiz drove past Warrick, he was certain that Warrick was the person from whom he had purchased heroin only minutes before because Warrick was wearing the same clothing he had been wearing when the sale was consummated.

  Following Warrick's arrest, his first attorney notified the prosecutor assigned to Warrick's case that Warrick wished to testify before the grand jury that would hear evidence concerning the events leading up to Warrick's arrest. However, after several postponements of the prosecutor's grand jury presentation — many of which were consented to by Warrick's counsel — Warrick failed to appear before the grand jury on the date reserved for him to testify before that body. When Warrick did not appear at his attorney's office on that date, and did not contact his attorney via telephone, Warrick's counsel informed the prosecutor that Warrick's prior notice to give testimony before the grand jury was being withdrawn. Warrick maintains that he neither authorized his counsel to consent to the prosecutor's postponed grand jury presentations nor authorized his counsel to withdraw his notice to give testimony before the grand jury. Therefore, he contends that his right to a speedy trial was violated and that his right to testify in his own behalf was also violated. Page 4

  A New York County grand jury returned an indictment against Warrick, charging him with criminal sale and criminal possession of a controlled substance in the third degree. Thereafter, Warrick was assigned new counsel. Warrick's second attorney made a motion that the indictment be dismissed, because Warrick had not been given an opportunity to testify before the grand jury, as he had informed the prosecutor he wanted to do. He also urged the court to dismiss the indictment because more than six months (180 days) elapsed between the filing of the felony complaint against Warrick and his arraignment on the indictment, a violation of New York's speedy trial statute. The motion was denied. The court found that Warrick had forfeited his right to testify before the grand jury when he failed to appear before that body on the date he was scheduled to testify. The court also found that, during the eight months between the date on which a felony complaint was filed against Warrick and the date on which he was arraigned on the indictment, only 109 days of delay were attributable to the prosecution, under the state's speedy trial statute, and the balance was attributable to Warrick or otherwise excluded from consideration. Therefore, Warrick's statutory right to a speedy trial had not been violated.

  Thereafter, a pretrial hearing was held to determine whether: (a) probable cause existed to arrest Warrick; (b) evidence concerning the identification of Warrick by the undercover officer should be suppressed at his trial; and (c) physical evidence seized from Warrick should also be suppressed at his trial.*fn1 After the pretrial hearing was concluded and determinations adverse to Warrick were rendered, Warrick proceeded to trial before a jury. Page 5

  At the trial, Ortiz and the detective who arrested Warrick testified about the events on September 2, 1998, that led to Warrick's arrest. The prosecution also offered testimony from two chemists employed by the New York City Police Department, who explained that the substances found in the glassine envelope purchased by Ortiz and in the 24 glassine envelopes recovered at the time of Warrick's arrest, tested positive for the presence of heroin.

  Warrick testified in his own behalf He stated that he had become addicted to heroin while serving in the United States military during the Vietnam War and that he suffered with AIDS. Warrick explained to the jury that the $10 in pre-recorded buy money that was recovered from him, was obtained from a narcotics peddler as change, when he paid $250 for the 24 glassine envelopes of heroin that were recovered at the time of his arrest. Warrick was found guilty of both charges contained in the indictment returned against him by the grand jury. He was later sentenced, based upon his status as a predicate felony offender, to concurrent terms of 5 to 10 years incarceration.*fn2

  Approximately one month later, in February 2000, Warrick made an application, pursuant to New York's Criminal Procedure Law ("CPL") section 440.10, that his conviction be vacated because: (a) he had received ineffective assistance from his trial counsel; and (b) the police laboratory controlled substance report presented to the grand jury that returned an indictment against him was defective, in that it did not contain a certified transmittal memorandum as required by CPL § 190.30(2)(a). Therefore, according to Warrick, the grand jury proceeding and the indictment returned by the grand jury were invalid. Warrick also alleged that the evidence Page 6 presented to the grand jury was not legally sufficient to permit it to return an indictment against him and, furthermore, that the grand jury members were not given proper legal instructions by the prosecutor. With respect to Warrick's claim that he received ineffective assistance from his counsel, Warrick claimed that his counsel failed to investigate the case properly and, thus, did not prepare adequately for his trial. In addition, Warrick alleged that his counsel failed to challenge the use at his trial of the defective laboratory analysis reports.

  The trial court, perforce of CPL § 440.10(2)(b), was constrained to deny Warrick's motion because the judgment entered against him could be appealed and because sufficient facts appeared on the trial record with respect to the contentions made by Warrick, through his motion, to permit an appellate court to review those issues. However, notwithstanding the statutory constraint which barred the trial court from entertaining Warrick's motion, that court indicated that it found the claims raised by Warrick to be meritless.

  Warrick sought leave from the New York State Supreme Court, Appellate Division, First Department, to appeal from the denial of his CPL § 440.10 motion. That application was denied by a justice of the Appellate Division.

  In September 2000, Warrick appealed from the judgment of conviction entered in the New York State Supreme Court, New York County, following his trial. He asked the Appellate Division to upset his conviction because: (i) statements made by the prosecutor in his closing arguments to the jury were improper and violated Warrick's right to due process; and (ii) inasmuch as Warrick was a veteran who suffered from serious health problems, the sentence imposed upon him was excessive and harsh. In addition to the brief submitted to the Appellate Division by Warrick's counsel, Warrick submitted a pro se supplemental brief to that court. In Page 7 that document, he urged the court to vacate his conviction because: (a) his trial counsel consented to pre-indictment adjournments without authorization from Warrick; (b) his trial counsel waived Warrick's statutory right to a speedy trial and his right to testify before the grand jury without Warrick's consent; (c) the trial court's determination to admit into evidence 25 glassine envelopes of heroin was an error; and (d) Warrick was denied his right to a fair trial and to due process because of ineffective assistance he received from his trial counsel.

  The Appellate Division affirmed petitioner's conviction finding that any comments made by the prosecutor that may have appealed to the jurors' emotions were, to the extent they may have been improper, cured by the trial court's prompt, curative instructions to the jurors. Although the court affirmed the conviction, it determined to reduce Warrick's sentence from concurrent terms of 5 to 10 years to a sentence of 4 1/2 to 9 years imprisonment. It did so based upon Warrick's military record. The court also noted that, with respect to all the other claims raised either by Warrick's counsel in his briefer by Warrick through his supplemental brief, the court had considered them and rejected them. See People v. Warrick, 287 A.D.2d 327, 731 N.Y.S.2d 374 (App. Div. 1st Dep't 2001). Warrick sought leave to appeal from the determination of the Appellate Division to the New York Court of Appeals. His application was denied. See People v. Warrick, 97 N.Y.2d 689, 738 N.Y.S.2d 305 (2001).

  After leave to appeal to the New York Court of Appeals was denied, Warrick filed a second CPL § 440.10 motion in the trial court. He asked that his conviction be vacated because he received ineffective assistance from his trial counsel. He also resurrected the claims he made in his supplemental brief to the Appellate Division. However, in doing so, Warrick modified his previously asserted speedy trial claim and his claim concerning his right to testify before the Page 8 grand jury so as to allege federal constitutional violations in addition to violations of New York law.

  The trial court, relying upon New York statutory provisions, see CPL § 440.10(2)(a) and CPL § 440.10(3), denied Warrick's motion finding that the claims presented were either raised on direct appeal or in the prior CPL § 440.10 motion Warrick filed or that there was sufficient evidence in the record from which the claims could have been presented on direct appeal to the Appellate Division or in Warrick's earlier CPL § 440.10 motion. Thereafter, Warrick sought leave to appeal to the Appellate Division from the determination by the trial court to deny his second CPL § 440.10 motion. That application was denied by a justice of the Appellate Division because he determined that Warrick was procedurally barred by New York law from making the claims that comprised that motion.

  III. DISCUSSION

 Law of the Case

  Before a habeas corpus petitioner can seek judicial relief in a federal court, he must have presented the substance of his federal constitutional claim to the highest state court for adjudication. See 28 U.S.C. § 2254(b)(1). Based on the record before the Court, it does not appear that the petitioner's allegation that his right to due process was violated, when a pretrial determination made by one state court trial judge was not followed by another trial judge, who was later assigned to preside over the petitioner's case, was ever presented for adjudication to the New York state courts; therefore, the claim is unexhausted. However, because it appears that the claim lacks merit, it will be examined below. See 28 U.S.C. § 2254(b)(2). Page 9 Warrick's claim that a pretrial determination by one judge concerning the number of days chargeable to the prosecution, under the state's speedy trial statute, was disregarded by another judge of coordinate jurisdiction is not supported by the record before the Court. Warrick claims that on March 4, 1999, a New York State Supreme Court justice made a ruling that 84 days were chargeable to the prosecution under the applicable state speedy trial statute. However, a review of the transcript generated during the court proceeding on that date does not indicate that such a ruling was made. Moreover, after an indictment was returned against Warrick by a grand jury, his second assigned counsel made an application that the indictment be dismissed, in part, because of a violation of the state's speedy trial statute. The New York State Supreme Court justice who entertained that motion analyzed carefully, in a written decision, how the time between the filing of a felony complaint against Warrick and his subsequent arraignment on an indictment should be apportioned among the parties in determining whether Warrick's statutory right to a speedy trial was violated. Based upon the court's analysis, no violation occurred.

  Since the written decision on Warrick's motion did not countermand any previous order made by another New York State Supreme Court justice on this issue, Warrick's "law of the case" claim is baseless. Moreover, through the above-referenced motion, Warrick was given an opportunity to be heard fully on his broader claim that his statutory right to a speedy trial had been violated by the prosecution. Therefore, his allegation in the instant petition, that a due process violation occurred, in this circumstance, is meritless.

 Speedy Trial

  Warrick contends that because approximately eight months elapsed from the date on which a felony complaint was filed against him and the date on which he was arraigned on an Page 10 indictment, his speedy trial rights were violated. The Sixth Amendment guarantees a right to a speedy trial. That right is made applicable to the states through the due process clause of the Fourteenth Amendment. See Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 993 (1967).

  As noted above, Warrick made an application in the trial court through which the merits of his speedy trial claim were analyzed. The trial court determined that the claim had no merit. That court found that, from September 3, 1998, through December 7, 1998, 89 days were chargeable to the prosecution under the state's speedy trial statute. The court found further that, between December 7, 1998, and March 4, 1999, when the case next appeared on the court's calendar, no time was chargeable to the prosecution because the record generated on December 7, 1998, indicated that Warrick's counsel consented to the adjournment so that a date might be fixed for Warrick to testify before the grand jury.

  On March 4, 1999, the case was adjourned to May 17, 1999 and the transcript generated during that proceeding indicates that Warrick's counsel did not consent to the adjournment. However, two days later, Warrick's counsel wrote to the assigned prosecutor and confirmed his prior consent for the adjournment from December 7, 1998, through March 4, 1999. He also indicated that it was his intention to consent to the exclusion from the period covered by the state speedy trial statute such additional time, as might elapse, until Warrick either testified before the grand jury or withdrew his notice of his desire to testify before that body. On May 11, 1999, that notice was withdrawn by Warrick's counsel. Therefore, the court found that the time between March 4, 1999, and May 11, 1999, should be excluded from consideration in determining whether the state's speedy trial statute had been violated. Page 11

  The trial court determined that the period between May 11, 1999, and May 17, 1999, should be charged against the prosecution. On May 17, 1999, Warrick was not arraigned, although an indictment had been returned against him. Instead, the matter was adjourned to May 25, 1999. The eight days between May 17, 1999, and May 25, 1999, were assessed against the prosecution. On May 25, 1999, Warrick was arraigned on the indictment. However, his case was then adjourned to May 27, 1999, so that new counsel might be appointed for him. Pursuant to CPL § 30.30(4)(f), this two-day period was excluded from consideration in determining whether the state's speedy trial statute had been violated. On May 27, 1999, new counsel was appointed for Warrick and his case was adjourned to June 7, 1999, so that a pretrial motion might be filed. In accordance with New York law, this period could not be considered in determining whether the speedy trial statute had been violated. See CPL § 30.30(4)(a).

  On June 7, 1999, Warrick's case was adjourned to July 19, 1999, so that the court could render a decision on Warrick's pretrial motion. Pursuant to CPL § 30.30(4)(a), this period was excluded from consideration in determining whether Warrick's statutory right to a speedy trial was violated. In summary, the trial court found that 109 days should be attributable to the prosecution and, thus, Warrick's statutory right to a speedy trial was not violated.

  The determination reached by the trial court on Warrick's speedy trial motion was not among the issues raised on direct appeal by Warrick. However, he did raise his speedy trial claim in his second CPL § 440.10 motion. That motion was denied on procedural grounds, and the Appellate Division determined that leave to appeal from that determination should not be granted; it reached that conclusion because the claims raised by Warrick were procedurally defaulted. Page 12

  Pursuant to 28 U.S.C. § 2254(e)(1), the factual findings by a state court are presumed to be correct and a habeas corpus petitioner, such as Warrick, bears the burden of rebutting that presumption by clear and convincing evidence. See Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001). The factual findings made by the trial court on both prongs of Warrick's speedy trial motion are entitled to a presumption of correctness. Warrick has not met his burden of overcoming that presumption by clear and convincing evidence. This is so because the record before the Court establishes that Warrick stated in open court that he wished to testify before the grand jury. Furthermore, Warrick's counsel confirmed Warrick's desire to testify before the grand jury in a writing sent to the prosecutor. The record also shows that Warrick's counsel consented to adjournments solely to enable Warrick to testify before the grand jury. However, on the date scheduled for Warrick's grand jury testimony, he failed to attend the grand jury session and did not contact his attorney to explain his absence.

  Under the circumstances, Warrick has not demonstrated, clearly and convincingly, that the trial court's finding that the prosecution's delay in obtaining an indictment so as to afford Warrick an opportunity to testify before the grand jury was unreasonable or violative of Warrick's speedy trial right.

  Since Warrick's speedy trial claim was procedurally defaulted in the state courts, Warrick is required to show cause for his default and prejudice attributable thereto such that the failure to consider his federal claim will result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2564-2565 (1991). A fundamental miscarriage of justice exists when a habeas corpus petitioner is actually innocent of the charge for which he has been convicted. See Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 1611 Page 13 (1998). Warrick has not shown that the delay in prosecuting his case, about which he complains, caused him prejudice. For example, he has not explained how, if at all, his defense was in any way impaired due to the delay which is the focus of this claim. Furthermore, nothing in the record establishes that Warrick is factually innocent. Under the circumstances presented here, Warrick is not entitled to habeas corpus relief on this claim.

 Right to Testify Before the Grand Jury

  A criminal defendant's right to testify before a grand jury is not a constitutional right; it is a right created by New York statute. See CPL § 190.50(5). Claims grounded solely on state law cannot form the basis for habeas corpus relief. See Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480 (1991). Therefore, this claim need not be entertained by the court.

 Chain of Evidence

  Warrick's claim that the prosecutor failed to establish a complete chain of custody with respect to the handling of the heroin that was the subject of his trial, is an attack upon an evidentiary ruling by the trial court. Generally, evidentiary rulings made by a state trial judge are matters of state law and, thus, do not present a constitutional issue. See Estelle, supra. However, where evidence is improperly admitted into the trial record that is "so extremely unfair that its admission violates fundamental conceptions of justice," Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 674 (1990), due process is violated. See Dunnigan v. Keane, 137 F.3d 117 (2d Cir. 1998). Contrary to Warrick's contention, in the instant case, there is ample evidence in the record from the testimony of police officers and police chemists to establish a complete chain of custody for the narcotics that were the subject of his trial. Warrick has made no showing that the admission into evidence of the narcotics rendered his trial fundamentally unfair. Even if the Page 14 evidentiary ruling made concerning the narcotics was error — and nothing in the record supports that — any defect in the chain of custody might affect the weight, if any, the jurors accorded to the evidence but would not affect its admissibility. See United States v. Hon, 904 F.2d 803, 810 (2d Cir. 1990); Barksdale v. United States, No. CV 94-4556, 1995 WL 313145, at *1 (E.D.N.Y. May 8, 1995). The Court finds that Warrick has not established that a due process violation occurred, as he alleges, for which habeas corpus relief would be warranted.

 Infirm Grand Jury Proceedings

  Warrick maintains that the integrity of the grand jury proceedings out of which an indictment was returned against him, was impaired, in part, by the introduction of hearsay into the proceedings and, further, because police laboratory reports presented to the grand jury were not in conformity with New York's statutory requirements.

  Claims of error in proceedings before a grand jury are not cognizable in a federal habeas corpus proceeding. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989); Cadilla v. Johnson, 119 F. Supp.2d 366, 371-72 (S.D.N.Y. 2000). Moreover, where, as here, there has been a verdict rendered by a petit jury convicting a criminal defendant "any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt." United States v. Mechanik, 475 U.S. 66, 70, 106 S.Ct. 938, 942 (1986). This is a result of the fact that the petit jury's guilty verdict establishes not only that probable cause existed to believe that the criminal defendant was guilty of the crime charged but, also, that the criminal defendant is, in fact, guilty of the charged crime beyond a reasonable doubt. See id. Accordingly, Warrick is not entitled to habeas corpus relief based upon his claim that the grand jury proceedings were infirm. Page 15

  With respect to that aspect of the instant claim that relates to a Brady violation, Warrick complains that various documents prepared by police personnel, in connection with the narcotics that were the subject of his trial, were not surrendered to him prior to the commencement of a pretrial suppression hearing that was held in the trial court. Warrick is wrong. In his submissions to the Court, Warrick has listed these documents as being among the items provided to him pursuant to People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448 (1961). The minutes generated at the time of the suppression hearing make clear that all Rosario material had been surrendered to Warrick's counsel and Warrick's counsel acknowledged receiving that material. Furthermore, it is not free from doubt that the documents at issue constituted Brady material. In any event, the Appellate Division considered and rejected Warrick's claim regarding the timing of his receipt of these documents. Therefore, he would not be entitled to habeas corpus relief based on this branch of his claim unless he demonstrated that the decision of the Appellate Division was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the prior state court proceedings. See 28 U.S.C. § 2254(d)(1). This Warrick has not done.

 Ineffective Assistance of Counsel

  The Supreme Court has explained that the right to counsel guaranteed by the Sixth Amendment is the "right to effective assistance of counsel," Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14 [1970]). To determine whether counsel's assistance was effective, the Supreme Court devised a two-part test. See Strickland, 466 U.S. at 687-696, Page 16 104 S.Ct. at 2064-2069. First, a criminal defendant must show that counsel's performance was deficient; that is, that it fell below an "objective standard of reasonableness" measured under "prevailing professional norms." Id. at 686-688, 2064-2065. Second, the criminal defendant must affirmatively demonstrate prejudice, by showing that "there is a reasonable probability that but for counsel's [error], the result of the proceeding would have been different." Id. at 694, 2068. See also United States v. Javino, 960 F.2d 1137, 1145 (2d Cir.), cert. denied, 506 U.S. 979, 113 S.Ct. 477 (1992). A reasonable probability has been defined as "a probability sufficient to undermine confidence in the outcome." See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Considerable deference is accorded counsel's performance; counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 2066.

  Warrick contends that the attorney who represented him prior to his indictment rendered ineffective assistance to him by failing to ensure that Warrick could exercise his statutory right to testify before the grand jury and by consenting to adjournments without Warrick's consent. The record before the Court establishes that Warrick's first attorney notified the prosecution of Warrick's desire to testify before the grand jury and, in several court appearances and in a written communication with the prosecutor, reaffirmed that Warrick desired to testify before the grand jury. After Warrick's second attorney made a pretrial motion to dismiss the indictment, in part because Warrick's right to testify before the grand jury was allegedly violated, the trial court found that the adjournments about which Warrick complains, some of which were on consent, were made in order to arrange for Warrick to testify before the grand jury. It was only when Warrick failed to appear and give his grand jury testimony on the date reserved for that Page 17 appearance, that Warrick's first attorney withdrew Warrick's request to testify before the grand jury.

  Since the record establishes that Warrick's first attorney took steps to ensure that Warrick would be able to testify before the grand jury, and that he consented to adjournments in the proceedings solely to ensure that Warrick could testify before the grand jury, he did not render ineffective assistance to Warrick. However, even if Warrick's first counsel had failed to take steps to ensure that Warrick exercised his statutory right to testify before the grand jury, no finding of ineffective assistance of counsel would be warranted. Warwick's right to testify before the grand jury is not a constitutional right, it is a right created by statute. Moreover, New York courts have held that an attorney's failure to ensure that a criminal defendant testifies before the grand jury does not constitute ineffective assistance of counsel. See Kohler v. Kelly, 890 F. Supp. 207, 213 (W.D.N.Y. 1994).

  As noted above, petitioner's second counsel, upon assuming the responsibility for representing Warrick, made an application that Warrick's indictment be dismissed because his right to testify in the grand jury and his right to a speedy trial had been violated. Once that motion was resolved, he made a pretrial motion challenging the existence of probable cause for Warrick's arrest and requesting that testimony concerning the identification of Warrick as the perpetrator of the charged crimes and testimony regarding the physical evidence be suppressed at Warrick's trial. These pretrial motions were reasonable and appropriate for a criminal defense attorney to make in the defense of his client. This conduct was well within professional norms.

  Warrick complains that his attorney did not challenge a prospective juror for cause or peremptorily, when, according to Warrick, the prospective juror indicated that those who sell Page 18 drugs "should be shot." However, a review of the transcript of the voir dire proceedings does not support Warrick's recollection of events. The prospective juror did not make such a comment. While the prospective juror did express sympathy for those who used drugs, indicating that he believed such persons were ill and that their illness motivates them to engage in criminal conduct, and did express disdain for those who sell drugs, he assured the court and all parties that he could be an impartial juror at Warrick's trial. Given Warrick's defense, that he purchased drugs for his own consumption and was not a seller of drugs, the determination made by Warrick's counsel not to challenge this prospective juror was a strategic one. Strategic decisions made by counsel do not support a claim of ineffective assistance of counsel. See Mason v. Scully, 16 F.3d 38, 42 (2d Cir. 1994).

  Warrick also complains that his trial counsel failed to make an opening statement and, thereby, rendered ineffective assistance to him. However, there was no obligation upon Warrick's trial counsel to make an opening statement. His determination not to do so was a strategic decision and, thus, is not a basis upon which to conclude that he rendered ineffective assistance to Warrick.

  Warrick claims that his counsel failed to object to inadmissible evidence that was damaging to him. This claim relates to his assertion that documents generated by police personnel concerning the drugs that were the subject of the trial did not conform to state statutory requirements. This issue was addressed earlier in this writing and will not be discussed in great detail again. However, it is appropriate to point out that Warrick's counsel sought, through a pretrial motion, to prevent the prosecution from eliciting trial testimony concerning the heroin purchased by the undercover officer and seized at the time of Warrick's arrest. That motion was Page 19 unsuccessful and paved the way for the use of the heroin and the reports generated concerning it at Warrick's trial. As discussed earlier, the pretrial motion practice engaged in by Warrick's counsel was conduct that fell within professional norms.

  In his closing arguments to the jury, Warrick's counsel asked them to focus on the fact that, Ortiz did not concentrate on the perpetrator's facial features and eyes. He reminded the jury that the prosecutor did not present as a witness the ghost officer, whose role it was to observe the undercover officer during the buy and bust operation. He urged the jurors to consider whether the ghost officer's absence was an indication that he could not offer corroborating testimony linking Warrick to the charged crimes. Warrick's counsel also asked the jurors to consider whether his client's testimony about his medical condition and his drug addition was credible and supported Warrick's testimony that he purchased 24 glassine envelopes of heroin for use throughout the month of September.

  On the whole, the final argument given by Warrick's counsel was reasonable and appropriate, given the defense's theory of the case, that Warrick was merely a consumer not a seller of heroin.

  Warrick complains that his trial counsel did not object to comments made by the prosecutor concerning the location of the charged offenses and its proximity to a school. However, the record reflects that Warrick's counsel did lodge such an objection, which was overruled by the trial judge. Subsequently, when the prosecutor returned to this theme in his summation, the court stopped him and gave the jurors a curative instruction that informed them that the proximity of a school to the situs of the charged crimes was not a matter for their Page 20 consideration and, therefore, they should disregard the comments made by the prosecutor on that issue. Warrick's counsel's attempt to protect his client from such an argument through his objection, although overruled, was reasonable and appropriate.

  Warrick also alleges that his counsel was ineffective for not raising mitigating factors at the time he was sentenced. However, Warrick has not identified the mitigating factors he claims should have been presented to the sentencing judge. Based upon the record as a whole, the Court finds that there is no merit to Warrick's claim that his second assigned counsel rendered ineffective assistance to him.

  IV. RECOMMENDATION

  For the reasons set forth above, Warrick's application for a writ of habeas corpus should be denied.

 

V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Denise L. Cote, 500 Centre Street, Room 1040, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Cote. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Reynoso, Page 21 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).


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