United States District Court, E.D. New York
March 15, 2004.
ABDULA MUSA, Petitioner against DANIEL A. SENKOWSKI, Superintendent, Respondent
The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
MEMORANDUM, JUDGMENT & ORDER
This petition for a writ of habeas corpus was filed on November 15,
2002. Respondent filed papers in opposition on March 3, 2003.
Petitioner's request for counsel was denied on July 25, 2003 with
leave to renew upon showing of sufficient merit. Affidavits and
memoranda of law were filed by respondent on December 4, 2003 and
January 7, 2004. By letter dated February 12, 2004, petitioner
attempted to controvert respondent's arguments.
No hearing is required. The case can be decided on the papers.
Respondent originally rested on procedural defenses to the habeas
petition. At the court's request respondent then addressed the merits.
The petitioner claims:
Ground One: Conviction obtained by use of
evidence gained pursuant to an unconstitutional
search and seizure.
Supporting Facts: Officer approached vehicle I
was passenger in, put a gun to my
head, never informed me I was under arrest. He
searched and seized property from vehicle as well
as from my personal possession without a warrant.
Never read me my Miranda rights, nor did I ever
sign the Miranda form. He also testified in court
he took me to the precinct and didn't even talk to
me for four hours.
Ground Two: Conviction obtained by use of evidence
obtained pursuant to an unlawful arrest.
Supporting Facts: In accordance with the law once
the officer stopped my mobility by putting a gun to
my head I was under arrest. Officer never informed
me that I was under arrest, never at all read me my
Miranda rights, and unlawfully seized two watches
from my possession that were used to obtain a
conviction in this case.
Ground Three: Convictions obtained by the
unconstitutional failure of the prosecution to
disclose to the defendant evidence favorable to the
defendant. Supporting Facts: Walter Stevens Parole
Officer kept a memo book of all contact between
myself and the Special Narcotics Unit of the
N.Y.P.D. Officer McDonald no relation to Sgt.
McDonald who testified, and Officer James were not
produced as promised by the prosecution, claiming
that these officers of the N.Y.P.D. were
transferred from the 81st Pct. And D, A. claimed he
didn't know [their] whereabouts, [their] testimony
would have produced evidence favorable to the
Ground Four: Blanket exclusion of all spectators
during a portion of the trial.
Supporting Facts: Judge had bailiff clear courtroom
of all spectators. He called the jury back in and
instead of allowing the public back into the
courtroom he allowed the prosecutions star witness
to testify in a conducive atmosphere, not exposed
to public scrutiny.
By undated papers received on December 9, 2003, defendant now asks this
court to ascertain "the truth about his sentence" and, in doing so,
raises the following claims:
(1) That defendant was improperly sentenced as a
persistent felony offender;
(2) That the cross-examination portion of Detective
Thomas Visconti's trial testimony, primarily that
portion which dealt with the reading of defendant's
Miranda rights, was inaccurately
transcribed and was altered by a second or third
(3) That defendant received ineffective assistance
of trial counsel by virtue of counsel's failure to
raise a defense recognized by law;
(4) That defendant's conviction was obtained by use
of evidence gained pursuant to an unconstitutional
search and seizure;
(5) That the trial court erroneously issued a
blanket exclusion of all spectators during a
portion of the trial;
(6) That the prosecution failed to disclose to the
defendant favorable evidence, namely the testimony
of Parole Officer Walter Stevens who kept a
memobook of all contact between defendant and two
N.Y.P.D. officers who did not testify at trial;
(7) That defense counsel prejudiced defendant by
slandering defendant's mother
(8) That defendant was prejudiced by the trial
court's decision to interrupt defense counsel's
summation so that the jury could go to lunch;
(9) That defendant was deprived of his right to a
speedy trial pursuant to N.Y.C.P.L. §§
30.30, 30.20; and
(10) That the trial court erred by failing to give
an adverse inference charge for the loss of
Detective Thomas Visconti's police memobook.
These original and two amended claims have been considered by this
court. None have merit.
On the form for his original petition, petitioner (sometimes referred
to below as defendant) answered question 13 as follows:
If any grounds listed in 12 A, B, C, and D were not
previously presented in any court, state or
federal, state briefly what grounds were
not so presented, and give your reason for not
presenting them: By the advice of my Appellate
Counsel "don't put all your eggs in one basket" I
didn't raise any of the grounds listed in 12 A, B,
C, or D.
Defendant's position at the trial was that he had been induced by the
police to locate drug spots and that he conducted the alleged crimes as a
police agent. See Transcript of Trial pp 285-300. Defense counsel
consulted with petitioner while outlining the defense to the trial court.
Id. p. 300. While the trial court appeared skeptical, it allowed the
defense to try to prove this claim. Id. 285-301. The defendant himself
testified at length in support of this contention. Id. 376 ff. Defense
counsel was aggressive and highly competent in his examination of all
his motion practice and his summation. The jury did not accept the
The record supports the following sequence of events.
On June 14, 1995, at approximately 6:45 p.m., defendant, armed with a
gun and accompanied by two armed assailants, entered a grocery store at
999 President Street, in Brooklyn. While pointing to a police "badge"
that was hanging from a chain around his neck, defendant placed his gun
to the head of Jose DeJesus, an employee who was in the front of the
store. One of defendant's accomplices then handcuffed DeJesus and took
him to the rear of the store. Meanwhile, defendant's other accomplice
handcuffed Jose Beato, the store manager who was behind the front
counter. After ordering DeJesus and Beato to lie face down on the floor,
defendant took money and personal property from them. Defendant also took
money and several items from the store. Defendant and his cohorts then
Defendant's actions were captured on videotape by the store's security
camera. When the police arrested defendant two weeks later, they found
him with DeJesus' wrist watch. Upon watching the surveillance videotape,
defendant admitted to the police that he was one of the individuals
pictured on the tape and that the police badge he had worn belonged to a
security guard at St. Vincent's hospital.
Defendant was charged, under Kings County Indictment Number 8158/95,
with seven counts of Robbery in the First Degree (N.Y.P.L. §
160.15), seven counts of Robbery in the Second Degree (N.Y.P.L. §
160.1 ), four counts of Grand Larceny in the Fourth Degree (N.Y.P.L.
§ 155.30 ), two counts of Criminal Impersonation in the Second
Degree (N.Y.P.L. § 190.25), and three counts of Unlawful
Imprisonment in the Second Degree (N.Y.P.L. § 135.05. The counts in
the indictment pertained to the June 14, 1995, robbery which is the
of the instant petition, as well as two other robberies which
defendant committed on June 15, 1995, and June 25, 1995, respectively.
Defendant's accomplice and nephew, Earl Dicks, was charged under the
same indictment. Dicks pled guilty to first-degree robbery and was
sentenced to a prison term of four and one-half years to nine and
one-half years. Defendant's other accomplice, Anthony Roberts, was
charged similarly under Kings County Indictment Number 13728/96. Roberts
pled guilty to attempted second-degree robbery and was sentenced to a
prison term of three and one-half years to seven years.
On September 25, 1996, following a jury trial, defendant was convicted
of three counts of Robbery in the First Degree (N.Y, P.L. §
160.15) two counts of Unlawful Imprisonment in the Second Degree
(N.Y.P.L. § 135.05), and one count of Criminal Impersonation in
the Second Degree (N.Y.P.L. § 190.25).
On December 10, 1996, defendant's trial counsel, David Chidakel,
successfully moved to set aside the jury verdict pursuant to N.Y.C.P.L.
§ 330.30(1) on the ground that the jury foreperson failed to disclose
during voir dire or at any time during the trial that
criminal charges for third-degree criminal sale of a controlled substance
were pending against her. Defendant's motion was granted on February
On May 12, 1997, following his re-trial by a jury, with the same
counsel as on the first trial, defendant was convicted of three counts of
Robbery in the First Degree (N.Y.P.L. § 160.15 ).
On September 9, 1997, defendant was sentenced as a persistent felony
offender to a prison term of twenty-five years to life on each robbery
count, to be served concurrently.
At both his first trial and subsequent re-trial, defendant's defense
was that his actions were motivated by his honorable intentions to rid
the neighborhood of drugs that were allegedly being sold at the grocery
In May, 1999, defendant, through appointed appellate counsel David
Weiss, filed an appellate brief in the Appellate Division claiming that
defendant's trial counsel rendered ineffective assistance by pursuing a
defense that was inadequate as a matter of law.
Defendant filed a pro se supplemental appellate
brief in the Appellate Division raising the following claims:
(a) that the destruction of the original
surveillance videotape by the police constituted a
Brady violation and warranted dismissal
of the indictment;
(b) that the trial court abused its discretion when
it failed to sanction the People for the loss of
the detective's memobook;
(c) that defendant was deprived of his statutory
and constitutional right to a speedy trial; and
(d) that the trial court abused its discretion by
refusing to accept defendant's waiver of
sequestration of the jury.
By decision and order dated May 14, 2001, the Appellate Division
unanimously affirmed defendant's judgment of conviction. People v.
Musa Abdullah, 283 A.D.2d 512
, 724N.Y.S.2d 636 (2d Dep't 2001). On
November 28, 2001, the New York Court of Appeals denied leave to appeal.
People v. Musa Abdullah, 97 N.Y.2d 654
, 737 N.Y.S.2d 55
The respondent's position was that none of petitioner's claims could be
considered by this court. An affidavit of December 4, 2003 states:
Defendant has failed to exhaust his state remedies
with respect to all four of his [original] claims.
Defendant's first three claims must be deemed
barred because they pertain to matters that are
based on the record and could have been raised by
defendant on his direct appeal. Defendant's fourth
claim, that during an unspecified portion of his
trial the courtroom was closed to the public,
appears to be based on matters that are
dehors the record. Therefore, a state
remedy in which to exhaust this claim still
remains available to defendant. Accordingly,
defendant's petition should be dismissed in its
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), a federal court may grant a writ of habeas corpus to a state
prisoner on a claim that was "adjudicated on the merits" in state court
only if it concludes that the adjudication of the claim "(1) resulted in
a decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court
of the United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a
procedural, resolution of a federal claim." Sellan v. Kuhlman,
261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle,
196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a
federal habeas court may grant the writ if the state court arrives at a
conclusion opposite to that reached by [the Supreme Court] on a question
of law or if the state court decides a case differently than this Court
has on a set of materially indistinguishable facts." Williams v,
Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and
writing for the majority in this part). Under the "unreasonable
application" clause, "a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from this
Court's decisions but unreasonably applies that principle to the facts of
the prisoner's case." Id. at 413. "[F]ederal law, as
determined by the Supreme Court, may as much be a generalized
standard that must be followed, as a bright-line rule designed to
effectuate such a standard in a particular context." Overton v.
Newton, 295 F.3d 270, 278 (2d Cir. 2002). Determination of factual
issues made by a state court "shall be presumed to be correct," and the
applicant "shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence."
28 U.S.C. § 2254(e)(1).
III. Limitations Period
Congress has set a one-year period of limitations for the filing of an
application for a writ of habeas corpus by a person in custody pursuant
to a state court judgment. See 28 U.S.C. § 2244(d)(1). This
limitations period ordinarily begins to run on "the date on which the
judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review." Id. §
2244(d)(1)(A). A conviction becomes final for habeas purposes when the
ninety-day period for filing a petition for a writ of certiorari to the
United States Supreme Court has expired. See McKinney v. Artuz,
No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see
also Sup.Ct. R. 13.
Prisoners whose convictions became final before the effective date of
AEDPA, April 24, 1996, had a grace period of one year, until April 24,
1997, to file their habeas application. See Ross v. Artuz,
150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's
apparent failure to comply with the AEDPA statute of limitation on its
own motion." Acosta v, Artuz, 221 F.3d 117, 121 (2d Cir. 2000).
"If the court chooses to raise sua sponte the affirmative defense of
failure to comply with the AEDPA statute of limitation, however, the
court must provide the petitioner
with notice and an opportunity to be heard before dismissing on
such ground." Id.
In calculating the one-year limitation period, the "time during which a
properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending shall
not be counted. . . ." 28 U.S.C. § 2244(d)(2). The "filing of
creative, unrecognized motions for leave to appeal" does not toll the
statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253
(2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000)
("[A]n application is `properly filed' when its delivery and
acceptance are in compliance with the applicable laws and rules governing
filings. These usually prescribe, for example, the form of the document,
the time limits upon its delivery, the court and office in which it must
be lodged, and the requisite filing fee. . . . The question whether an
application has been `properly filed' is quite separate from the question
whether the claims contained in the application are meritorious and free
of procedural bar." (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to
encompass all the time during which a state prisoner attempts, through
proper use of state procedures, to exhaust state court remedies with
regard to a particular post-conviction application. See Bennett v.
Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd,
531 U.S. 4 (2000). "[A] state-court petition is `pending' from the time it
is first filed until finally disposed of and further appellate review is
unavailable under the particular state's procedures." Bennett,
199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding
that the term "pending" includes the intervals between a lower court
decision and a filing in a higher court for motions for collateral
review), A motion for extension of time to file an appeal does not toll
AEDPA's limitations period unless an extension is actually granted.
See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not
violate the Suspension Clause. See Muniz v. United States,
236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always
require that a first federal petition be decided on the merits and not
barred procedurally" (quotation omitted)); Rodriguez v. Artuz,
990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is
not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting
filing requirements. Brown v. Superintendent, 1998 U.S. Dist.
LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb.
23, 1998). But "[it] has long been recognized that ignorance does not
excuse lack of compliance with the law." Velasquez v. United
States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that
Bureau of Prison's failure to notify prisoners regarding AEDPA's time
limitation did not warrant acceptance of untimely petition); see also
Brown, 1998 WL 75686 at *4 ("self-serving statement that the
litigant is ignorant of the law is not grounds for equitable tolling of a
statute of limitations").
The Supreme Court held in Duncan v. Walker that "an
application for federal habeas corpus review is not an `application for
State post-conviction or other collateral review' within the meaning of
28 U.S.C. § 2244(d)(2)," and that therefore the section does "not
toll the limitation period during the pendency of [a petitioner's] first
federal habeas petition." 533 U.S. 167, 181-82 (2001). Duncan
reversed a case in this circuit which held to the contrary. See
Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme
Court has now declared that AEDPA's one-year limitations period is not
tolled during the pendency of a properly filed federal habeas petition,
this statute of limitations is not jurisdictional and may be tolled
equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.
"Equitable tolling . . . is only appropriate in `rare and
exceptional circumstances,' To merit application of equitable tolling,
the petitioner must demonstrate that he acted with `reasonable diligence'
during the period he wishes to have tolled, but that despite his efforts,
extraordinary circumstances `beyond his control' prevented successful
filing during that time." Smaldone v. Senkowski, 273 F.3d 133,
138 (2d Cir. 2001). Although state prisoners are not entitled to counsel
as of right in either New York state collateral or federal habeas corpus
proceedings, the Court of Appeals for the Second Circuit has stated that
"an attorney's conduct, if it is sufficiently egregious, may constitute
the sort of `extraordinary circumstances' that would justify the
application of equitable tolling to the one-year limitations period of
AEDPA." Baldayaque v. United States, No. 02-2611, 2003 U.S. App.
LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone,
273 F.3d at 138-39 (attorney calculation error does not justify equitable
Prisoners cannot circumvent the strict AEDPA limitations period by
invoking the "relation back" doctrine by arguing that a new petition
should be treated as having been filed on the same day as a first
petition. As the court of appeals has explained,
If [the limitations period] were interpreted as
Petitioner argues, the result would be
impractical. A habeas petitioner could file a
non-exhausted application in federal court within
the limitations period and suffer a dismissal
without prejudice. He could then wait decades to
exhaust his state court remedies and could also
wait decades after exhausting his state remedies
before returning to federal court to "continue"
his federal remedy, without running afoul of the
statute of limitations.
Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting
Graham v. Johnson, 15S F.3d 762, 780 (5th Cir. 1999)).
In the past, a state prisoner's federal habeas petition had to be
dismissed if the prisoner did not exhaust available state remedies as to
any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522
(1989). "This exhaustion requirement is . . . grounded in principles
of comity; in a federal system, the States should have the first
opportunity to address and correct alleged violations of [a] state
prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722,
731 (1991). The exhaustion requirement requires the petitioner to have
presented to the state court "both the factual and legal premises of the
claim he asserts in federal court." Daye v. Attorney General,
696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion,
deny on the merits habeas petitions containing unexhausted
claims so-called "mixed petitions." See
28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the state."). In addition,
the state may waive the exhaustion requirement, but a "State shall not be
deemed to have waived the exhaustion requirement or be estopped from
reliance upon the requirement unless the State, through counsel, expressly
waives the requirement." Id. § 2254(b)(3); see also Ramos v.
Keane, No, 98 CIV, 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y.
2000) (state's failure to raise exhaustion requirement does not waive the
V. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims
if those claims were defaulted in state court pursuant to an independent
and adequate state procedural rule, "unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice."
Coleman, 501 U.S. at 750.
If a state court holding contains a plain statement that a claim is
procedurally barred then the federal habeas court may not review it, even
if the state court also rejected the claim on the merits in the
alternative. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989)
("a state court need not fear reaching the merits of a federal claim in
an alternative holding" so long as it explicitly invokes a state
procedural rule as a separate basis for its decision).
When a state court "says that a claim is `not preserved for appellate
review' and then ruled `in any event' on the merits, such a claim is not
preserved." Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir.
1996). When a state court "uses language such as `the defendant's
remaining contentions are either unpreserved for appellate review or
without merit,' the validity of the claim is preserved and is subject to
federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804,
810 (2d Cir. 2000). Where "a state court's ruling does not make clear
whether a claim was rejected for procedural or substantive reasons and
where the record does not otherwise preclude the possibility that the
claim was denied on procedural grounds, AEDPA deference is not given,
because we cannot say that the state court's decision was on the merits."
Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n.3
(2d Cir. July 11, 2003) (citing Miranda v. Bennett,
322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an
open question whether there are "situations in which, because of uncertainty
as to what the state
courts have held, no procedural bar exists and yet no AEDPA
deference is required." Id.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate
state ground bar by demonstrating a constitutional violation that
resulted in a fundamental miscarriage of justice, i.e., that he
is actually innocent of the crime for which he has been convicted."
Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy,"
Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has
stated that "in appropriate cases, the principles of comity and finality
that inform the concepts of cause and prejudice must yield to the
imperative of correcting a fundamentally unjust incarceration,"
id. at 320-21 (quotations omitted). To ensure that this
exception remains rare and will be applied only in the extraordinary
case, the Court has "explicitly tied" the miscarriage of justice
exception to the petitioner's innocence. Id. at 321. "To be
credible, such a claim requires petitioner to support his allegations of
constitutional error with new reliable evidence . . . that was not
presented at trial. Because such evidence is obviously unavailable in the
vast majority of cases, claims of actual innocence are rarely
successful." Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing
of the petitioner's defaulted claim and is not itself cognizable in
habeas as a free-standing claim. See Herrera v. Collins,
506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly
discovered evidence have never been held to state a ground for federal
habeas relief absent an independent constitutional violation occurring in
the underlying state criminal proceeding."). A habeas court is, in short,
concerned `"not [with] the petitioners' innocence or guilt but solely
[with] the question whether their constitutional rights have been
preserved.'" Id. (quoting Moore v. Dempsey,
261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979)
(habeas court may review an independent constitutional claim
that the evidence adduced at trial was insufficient to convict a criminal
defendant beyond a reasonable doubt); Thompson v. Louisville,
362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on
direct review from conviction in Louisville's police court where
there was no evidence that defendant violated city ordinances).
VII. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal
defendant "shall enjoy the right . . . to have the Assistance of
Counsel for his defence." U.S. Const, amend. VI. This right to counsel is
"the right to effective assistance of counsel." McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970) (emphasis added). The
Supreme Court has explained that in giving meaning to this requirement we
must be guided by its purpose "to ensure a fair trial"
and that therefore the "benchmark for judging any claim of
ineffectiveness must be whether counsel's conduct so undermined the
proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result." Strickland v.
Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth
Amendment claim, a petitioner must prove both that counsel's
representation "fell below an objective standard of reasonableness"
measured under "prevailing professional norms," id. at 688, and
that "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different," id. at 694. See also Wiggins v. Smith, 539
U.S. _, No. 02-311, slip op. at 8-10 (June 26, 2003); United States
v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable
probability" is "a probability sufficient to undermine confidence
in the outcome." Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be
addressed in either order, and "[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice
. . . that course should be followed." Id. at 697. In
evaluating the prejudice suffered by a petitioner as a result of
counsel's deficient performance, the court looks to the "cumulative
weight of error" in order to determine whether the prejudice "reache[s]
the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191,
202 (2d Cir. 2001). The court must also keep in mind that "a verdict or
conclusion only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record support."
Strickland, 466 U.S. at 696. "The result of a [criminal]
proceeding can be rendered unreliable, and hence the proceeding itself
unfair, even if the errors of counsel cannot be shown by a preponderance
of the evidence to have determined the outcome." Purdy v.
Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb.
6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective
assistance may be demonstrated where counsel performs competently in some
respects but not in others. See Eze v. Senkowski, 321 F.3d 110,
112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough
investigation of the facts and law are "virtually unchallengeable,"
though strategic choices "made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation." Strickland, 466 U.S.
at 690-91. Counsel, in other words, "has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary." Id. at 691. Where counsel fails to
reasonable investigation that is reasonably necessary to the
defense, a court must conclude that the decision not to call an expert
cannot have been based on strategic considerations and will thus be
subject to review under Strickland's prejudice prong. See
Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel
ineffective in a child sexual abuse case where his failure to call a
medical expert was based on an insufficient investigation);
Lindstadt, 239 F.3d at 201 (same). The court of appeals for the
Second Circuit has recently gone so far as to imply that all of counsel's
significant trial decisions must be justified by a sound strategy
a significant raising of the bar that would appear to require an
unrealistic degree of perfection in counsel. See Eze, 2003 U, S.
App. LEXIS 2511, at *78-*79 (remanding to district court for factual
hearing because it was "unable to assess with confidence whether
strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance." Strickland,
466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective
assistance of counsel must be fairly presented to a state court before a
federal habeas court may rule upon it. See Rodriguez v. Hoke,
928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted
where petitioner's claim of ineffective assistance of counsel alleged
more deficiencies before the habeas court than were presented to the
state court, because "[t]he state courts should have been given the
opportunity to consider all the circumstances and the cumulative effect
of all the claims as a whole" (quotation omitted)). Where an additional
factual claim in support of the ineffective-assistance allegation merely
"supplements" the ineffectiveness claim and does not "fundamentally
alter" it, dismissal is not required. Caballero v. Keane,
42 F.3d 738, 741 (2d
Cir. 1994). Each significant factual claim in support of an
ineffective-assistance allegation premised on appellate counsel's
deficient performance must be exhausted. See Word v. Lord, No.
00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18,
2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of
an ineffective assistance of trial counsel claim, the same test is used
with respect to claims of ineffective appellate counsel. See Claudio
v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does
not have a duty to advance every nonfrivolous argument that could be
made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a
petitioner may establish that appellate counsel was constitutionally
ineffective "if he shows that counsel omitted significant and obvious
issues while pursuing issues that were clearly and significantly weaker,"
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a
federal or a state law claim that was improperly omitted from an appeal
may form the basis for an ineffective assistance of appellate counsel
claim, "so long as the failure to raise the state . . . claim fell
outside the wide range of professionally competent assistance."
Id. (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief does not lie for mere errors of state law.
Estelle v. McGuire, 502 U.S. 62, 68 (1991). Nonetheless, the Due
Process Clause requires that state courts conducting criminal trials
"proceed consistently with `that fundamental fairness' which is
`essential to the very concept of justice.'" Dunnigan v. Keane,
137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California,
314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of
a constitutional violation may be corrected by a habeas court, but even
an error of
constitutional dimensions will merit habeas corpus relief only if
it had a `"substantial and injurious effect or influence in determining
the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 623
(1993) (quotation omitted).
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error
amounted to a deprivation of due process, he must show that the error was
so pervasive as to have denied him a fundamentally fair trial. United
States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether
the erroneously admitted evidence, viewed objectively in light of the
entire record before the jury, was sufficiently material to provide the
basis for conviction or to remove a reasonable doubt that would have
existed on the record without it. In short it must have been `crucial,
critical, highly significant.'" Collins v. Scully, 755 F.2d 16,
19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410,
414-15 (5th Cir. 1982). This test applies post-AEDPA. See Wade v.
Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).
IX. Verdict Against the Weight of the Evidence
To the degree petitioner claims that his guilt was not proven beyond a
reasonable doubt, the relevant question for this court is whether, 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). Petitioner "bears a very heavy burden" when
challenging the legal sufficiency of the evidence in a state criminal
conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To
the degree petitioner claims the verdict was against the weight of the
evidence, such a claim does not present a federal constitutional issue.
X. Legal Claims Frequently Raised in Habeas Corpus Applications
For an explication of the law concerning other claims that are
frequently raised before this court in applications for a writ of habeas
corpus, see Waters v. McGuiness, 99-CV-0615, 03-MISC-0066 (JBW),
2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y. June 16, 2003) (grand
jury claims); Custodio v. Duncans, Nos. 99-CV-2561, 03-MISC-0066
(JBW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y. June 11, 2003)
(Batson challenges); Reyes v. Irwin, 99-CV-3758,
03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y. June
20, 2003) (Wade claims); Brathwaite v. Duncan,
00-CV-0860, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11056, at *4-*5
(E.D.N.Y. June 10, 2003) (Sandoval claims); Thomas v,
Kuhlman, 255 F. Supp.2d 99, 108-09 (E.D.N.Y. 2003) (perjured
testimony); Martinez v. Greiner, 99-CV-4663, 03-MISC-0066 (JBW),
2003 U.S. Dist. LEXIS 11046, at *7 (E.D.N.Y. June 20, 2003) (Fourth
Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MISC-0066
(JBW), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003)
(Rosario claims); Beniquez v. Bennett, 00-CV-0985,
03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11032, at *15-*16 (E.D.N.Y.
June 16, 2003) (Prosecutorial misconduct); Cox v. Donnelly,
99-CV-8216, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 9886, at *12-*14
(E.D.N.Y. June 12 2003) (shifting burden of proof); Jelinek v.
Costello, 247 F. Supp.2d 212, 266-67 (E.D.N.Y. 2003) (right to
self-representation); Stewart v. Senkowski, 00-CV-0806,
03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11028, at *6 (E.D.N.Y. June 16,
2003) (erroneous jury instructions); Jenkins v. Artuz,
98-CV-7837, 00-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11049, at *7-*8
(E.D.N.Y. June 13, 2003) (abuse of discretion in sentencing);
XI. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily
demonstrate that any constitutional error "had substantial and injurious
effect or influence in determining the jury's verdict," and that the
error resulted in "actual prejudice." Brecht v. Abrahamson,
507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated on the merits in the state courts
and there is no ruling which commands AEDPA deference, it is unclear what
the standard for review for harmlessness should be in a collateral attack
when a federal court finds constitutional error. Should it proceed under
the "beyond a reasonable doubt" standard of Chapman v.
California, 386 U.S. 18 (1967) (conviction infected by
constitutional error must be overturned unless "harmless beyond a
reasonable doubt") or under the "substantial and injurious effect or
influence" standard of Brecht (for cases on collateral review,
an error is generally considered harmless if it did not have a
"substantial and injurious effect or influence in determining the jury's
verdict")? The correct standard of review is an open question in this
circuit. See Cotto v. Herbert, No. 01-2694, 2003 U.S. App. LEXIS
8326, at *92 (2d Cir. May l, 2003).
XII. Certificate of Appealability
This opinion complies with Miranda v, Bennett, 322 F.3d 171,
175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil
Procedure. No other issue open to consideration by this court has merit.
See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not
elaborate or give reasons for rejecting claims which it regards as
frivolous or totally without merit").
A certificate of appealability may be granted with respect to any one
of petitioner's claims only if petitioner can make a substantial showing
of the denial of a constitutional right. Petitioner has a right to
seek a certificate of appealability from the Court of Appeals for
the Second Circuit. See 28 U.S.C. § 2253;
Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). The court has
taken into account the rule of section 2253(c)(3) of Title 28 of the
United States Code that a certficate of appealability "shall indicate
which specific issue or issues satisfy the [substantial showing of the
denial of a constitutional right] required by paragraph (2)." See
also Shabazz v. Artuz, F.3d , No. 02-2320, slip op.
at 10 (2d Cir. July 18, 2003).
XIII. Analysis of Claims
As set forth in respondent's original response, dated March 14, 2003,
defendant never raised on direct appeal the fourth claim contained in his
habeas petition that during an unspecified portion of
his trial the courtroom was closed to the public. Even though he was
informed of this problem, defendant has not yet moved to vacate his
judgment of conviction on that ground. Therefore, because defendant has
failed, thus far, to utilize the avenues of relief available to him in
the state court system, his claim remains unexhausted. See
28 U.S.C. § 2254(b) and (c). Accordingly, this Court has the authority
to dismiss defendant's entire petition. See Caballero v.
Keane, 42 F.3d 738, 740 (2d Cir. 1994) (citations omitted):
see also Rose v. Lundy, 455 U.S. 509, 522
(1982); Levine v. Commissioner of Correctional Services,
44 F.3d 121, 124 (2d Cir. 1995).
Notwithstanding defendant's failure to exhaust his available state
remedies, this court has the authority to deny defendant's petition on
the merits. 28 U.S.C. § 2254(b)(2). It chooses to deny defendant's
petition because none of his claims provide a ground for federal
habeas corpus relief. All are without merit and frivolous.
In Grounds One and Two of his petition, defendant claims for the first
time that his conviction was obtained by the use of evidence gained
pursuant to an unconstitutional search and seizure and an unlawful
arrest. Both of these grounds constitute Fourth Amendment Claims.
Defendant had a full and fair opportunity to litigate these issues in
state court. He is procedurally barred from raising them in this court.
"Under Stone v. Powell, 428 U.S. 465 (1976), federal
habeas corpus relief is not available on the ground
that evidence produce at trial was the result of an unconstitutional
search and seizure, unless the state denied the prisoner an opportunity
for full and fair litigation of the claim." Grey v. Hoke,
993 F.2d 117, 121 (2d Cir. 1991); see also McPhail v.
Warden, Attica Correctional Facility, 707 F.2d 67, 69 (2d Cir.
1983); Gates v. Henderson 568 F.2d 830, 836-40 (2d Cir. 1977)
(en banc), cert. denied.
434 U.S. 1038 (1978); Jenkins v. Bara, 663 F. Supp. 891, 894 (E.D.N.Y.
Here, a full and fair suppression hearing was conducted prior to trial.
See Mapp/Dunaway/Huntley/Wade Hearing minutes, dated
May 2, 1996 and August 8, 1996. Defendant was also afforded the
opportunity on direct appeal to contest the hearing court's
determination, but failed to do so.
In any event, defendant's claims are without merit. There is nothing in
the hearing record to indicate that an illegal search and seizure or
unlawful arrest occurred. The hearing record supports a finding that the
conduct of the police in apprehending defendant was lawful.
The hearing evidence established that, after viewing the store's
surveillance videotape which captured defendant and his two accomplices
as they committed the robbery, Detective Thomas Visconti obtained still
photographs of defendant and the other men. He then
determined that defendant's nephew was one of those seen in the
videotape and, after speaking with him, learned defendant's whereabouts.
When the detective found defendant, he arrested him for robbery and
transported him to the 83rd Precinct. Incident to arrest,
the detective searched defendant and recovered from his pants pocket two
watches. Prior to speaking with defendant at the precinct, Detective
Visconti read defendant his Miranda rights and defendant orally
waived each of them. Detective Visconti read defendant his rights from a
card contained in his police memobook. During the investigation,
Detective Visconti's memobook was misplaced and was not available for
trial. The People were subsequently sanctioned for its loss with an
adverse inference charge by the trial court.
A detective orally advised defendant of his Miranda rights.
Defendant orally waived them. Defendant then made several statements to
the detective that consisted of an admission that he was, in fact, one of
the men shown on the tape. Thereafter, defendant was identified in a
lineup by Jose DeJesus, one of the robbery victims, as the man who had
placed a gun to DeJesus's head in the store during the robbery.
On the basis of the evidence, the hearing court determined that no
Fourth Amendment violation occurred. It found that on the basis of the
videotape alone, the detective had sufficient probable cause to arrest
defendant and bring him to the precinct house. It concluded that the
detective had probable cause to search defendant and the area immediately
The determinations of the hearing court are entitled to the presumption
of correctness. There is no basis for questioning its findings.
In Ground Three of his petition, defendant claims for the first time
that his conviction
was obtained as a result of the People's failure to disclose
favorable evidence, namely the testimony of Parole Officer Walter Stevens
who kept a memobook of all contact between defendant and two police
officers who did not testify at trial. Defendant's claim, whether
interpreted as a Brady v. Maryland, 373 U.S. 83 (1963),
violation claim or as a claim that the trial court failed to give a
missing witness charge, is insufficient to entitle him to the
habeas relief he seeks. It is without merit.
Insofar as defendant's claim can be viewed as a Brady
violation claim, it is rejected because defendant has failed to satisfy
the requisite showing for habeas relief. In order to establish
a violation of Brady v. Maryland 373 U.S. 83 (1973), to warrant
habeas relief, a defendant must prove: (1) that the People
possessed evidence favorable to the defense, (2) that the defendant did
not possess or could not obtain the evidence with any reasonable
diligence, (3) that the People suppressed the favorable evidence, and (4)
that had the evidence been disclosed, there is a reasonable probability
that the outcome of the trial would have been different. See
United States v. Zagari, 111 F.3d 307, 320 (2d Cir. 1997).
Defendant fails to specify how the memobook or the testimony of Parole
Officer Walter Stevens, or that of the two New York City Police Officers
whom defendant refers to as "McDonald" and "James" would have been
"favorable" to the defense. Defendant has failed to satisfy his burden.
The People have no duty to disclose evidence whose exculpatory value is
merely speculative. See, e.g., Tate v.
Wood, 963 F.2d 20, 25 (2d Cir. 1992). Here the testimony of the
police officer demonstrated that the memobook would not have assisted
petitioner, even if it could be found.
There is no showing, in any event, that the memobook was availabe to
The case is thus completely different from Banks v. Dretke,
72 U.S.L. Week 4193 (Feb. 24, 2004), where materials favorable to
defendant were in the prosecution's possession.
To the extent that defendant's claim can be deemed a complaint that the
missing witness charge with respect to a parole officer or two police
officers should have been given at trial, it is meritless. The record
shows that a missing witness charge was not warranted. Prior to
summations, defense counsel alerted the court to the absence of Parole
Officer Walter Stevens and police officers "James or McDonnell," and
stated that the defense had been unable to find them (647). Defense
counsel, who never asked that the People produce any of these witnesses,
went on to refer to Walter Stevens as an "essential" witness for the
defense (647-48). On that basis, defense counsel requested a missing
witness charge for Stevens (655). The court denied defense counsel's
request because Parole Officer Stevens was not within the People's
control and because witnesses for the defense had testified that Walter
Stevens was out of the country at the time of trial (655).
The failure to give a missing witness charge will "rarely support
reversal or habeas relief since reviewing courts recognize the aura of
gamesmanship that frequently accompanies requests for a missing witness
charge as to which the trial judge will have a surer sense than any
reviewing court." Manning v. Walker, 2001 U.S. Dist. LEXIS 109
(E.D.N.Y. 2001) (quoting Malik v. Kelly, 1999 U.S. Dist. LEXIS
7942, *21-22 (E.D.N.Y. 1999).
The decision whether to give a missing witness charge is committed to
the sound discretion of the trial court. See United States
v. Torres, 845 F.2d 1165, 1170-71 (2d Cir. 1988). As the record
shows, the trial court exercised its discretion appropriately when it
declined to give a missing witness charge.
Defendant's petition, insofar as it rests on this claim, is without
In Ground Four of his petition, defendant claims for the first time
that the court directed the bailiff to clear the courtroom of all
spectators during the testimony of the People's "star witness." The
record is devoid of any indication that the courtroom was closed to the
public at any time during the trial.
Assuming that the "star witness" to whom defendant refers was Jose
DeJesus, one of defendant's two robbery victims, there is nothing in the
record to support a finding that DeJesus would have been reluctant or
fearful to testify in open court. The circumstances of this case were not
such that the issue of courtroom closure would have been raised. As
opposed to a narcotics buy-and-bust drug cases, where a testifying
undercover officer may have reason to fear exposure of his identity to
the public, this case involved the robbery of a small grocery store and
This claim has no merit.
This and the following claims were raised after the original petition.
Those claims raised in the original petition are covered in "A" to "D",
In claim 3 often claims, defendant reiterates the same ineffective
assistance of trial counsel argument he raised in his main brief on
direct appeal to the Appellate Division. In that brief, defendant argued
that his counsel was ineffective because he pursued a theory of defense
that conceded guilt and did not constitute a "legal defense".
A defendant claiming that he was denied the effective assistance of
counsel must show
both that trial counsel's performance was deficient and that he was
prejudiced by this deficient performance. See Strickland
v. Washington, 466 U.S. 668, 690 (1984). In Strickland,
the Supreme Court noted that a reviewing court should make every effort
to eliminate "the distorting effects of hindsight" in assessing attorney
performance and should "indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable assistance . . ." 466
U.S. at 690. See Smithy. Y1st, 826 F.2d 872, 874
(9th Cir. 1987); Kelly v. United States,
820 F.2d 1173, 1176 (11th Cir. 1987). Defendant has failed to
demonstrate that counsel's performance was deficient and that his
representation fell outside the `Vide range of professionally competent
assistance," Strickland, 466 U.S. at 690.
Defendant, who never offered an alternative defense theory, was
effectively and meaningfully represented by trial counsel at every stage
of the proceedings. See Kelly, 820 F.2d at 1176;
Young v. Zant, 787 F.2d 1489, 1492 (11th Cir. 1984).
Defendant's complaint about his trial counsel must be considered in
light of the fact that this same attorney had successfully moved to
vacate defendant's original conviction. Such a result belies defendant's
claims that this attorney failed to provide effective representation.
At the re-trial, in accordance with defendant's wishes and consistent
with his testimony, counsel pursued a defense theory that defendant had
committed the robbery with the honorable intention of destroying drugs
allegedly kept at the President Street grocery store and preventing the
sale of those drugs. Counsel's theory, which was, as the record shows,
defendant's own creation, arguably was the only viable theory available.
Having represented defendant at the prior trial and having witnessed a
conviction, counsel was well aware of the strength of the People's
evidence. During the re-trial, counsel
was faced, once again, with the unshakable testimony of Jose
DeJesus identifying defendant as the robber, a videotape clearly showing
defendant committing the robbery, and the highly credible testimony of
Detective Visconti recounting defendant's own admission that he was one
of the men shown in the videotape. Counsel was also still bound by
defendant's own version of the events. Given such circumstances and the
overwhelming evidence of defendant's guilt, counsel had little choice but
to pursue his client's theory and try to prevail upon the mercy of the
This claim has no merit.
In claim 9 of his ten, defendant reiterates the same argument that he
set forth in Point III of his pro se supplemental
brief to the Appellate Division. In that point, defendant claimed that
his right to speedy trial pursuant to N.Y.C.P.L. §§ 30.30, 30.20 was
violated. Defendant's claim is without merit. The record does not support
a finding that defendant was deprived of his statutory or constitutional
right to a speedy trial.
The records show that the time that elapsed from the filing of the
felony complaint on June 29, 1995, to the date of defendant's first speedy
trial motion on September 11, 1996, was fourteen months and thirteen days.
This was not an inordinate amount of delay. See Barker v.
Wingo, 407 U.S. 514, 533-36 (1972) (five years). There is no record
to indicate that any of the adjournments were not consented to by
defendant or were otherwise marked improperly.
Insofar as defendant's re-trial is considered, there was no unlawful or
unreasonable delay from the date defendant's verdict was set aside on
February 13, 1997, to the date of defendant's complaints of delay during
his re-trial on May 8, 1997.
This claim has no merit.
In claim 10 of his 10, defendant reiterates the same argument he
advanced in Point II of his pro se supplemental brief
to the Appellate Division. In that point, defendant claimed that the
trial court abused its discretion by failing to give an adverse inference
charge for the loss of Detective Thomas Visconti's police memobook, which
contained the card from which defendant was read his Miranda
Defendant's claim is belied by the record. It shows that the trial
court did in fact sanction the People for their failure to preserve
Detective Thomas Visconti's memobook.
In response to defense counsel's specific request for an adverse
inference charge the court instructed the jury during its final charge as
Now, during the course of the trial you have heard
testimony concerning a videotape and Detective
Visconti's memobook. Part of the videotape and the
entire memobook have been lost and/or detsroyed.
The People have a legal obligation to turn over
these items. Such evidence, if it had been
produced by the People, could possibly be of
material help and assistance to the jury in your
deliberations. You may not, under the law,
speculate or guess as to what the items might have
contained. However, from the failure of the People
to produce these items, the law permits but does
not require you to infer, if you believe it proper
to do so, that if the items had been produced,
such evidence would not support and would even
contradict the other evidence submitted by the
People (Exhibit B at 761-62).
This claim has no merit.
In claim l of his ten defendant claims for the first time that he was
improperly adjudicated a persistent felony offender. In support of this
claim, defendant argues that at
sentencing the prosecutor and the court erroneously deemed one
prior felony conviction and one prior violation of parole as two prior
felony convictions. Defendant's claim is belied by the transcript of his
sentencing proceeding and by his criminal history, both of which fully
support a finding that defendant was properly adjudicated a persistent
The record shows that, during sentencing, the prosecutor presented the
court with certificates of disposition signed and sealed by the clerk of
the Supreme Court and a certified copy of defendant's RAP sheet,
confirming defendant's convictions for four prior felonies. In
arguing that defendant should be sentenced as a persistent felony
offender, the prosecutor correctly asserted that defendant had four prior
felony convictions: (1) a first-degree manslaughter conviction in 1970
for which he was sentenced to eight years in prison; (2) a first-degree
robbery conviction, under 1986 indictment, for which he received four to
twelve years in prison; (3) a conviction for criminal sale of a
controlled substance, under a 1986 indictment, to which he pled guilty;
and (4) another first-degree robbery conviction, under a different 1986
indictment, for which he received four to twelve years in prison.
See Exhibit B at S. 9-14. The facts of defendant's prior two
first-degree robbery convictions were almost identical in that in both
cases defendant robbed a fuel company at gunpoint.
Given defendant's history, the prosecutor correctly argued that
defendant should be adjudicated a persistent felony offender and the
court, in accordance with statutory law, properly sentenced him.
Defendant's claim concerning his persistent felony offender status
provides no basis for habeas relief.
This claim has no merit.
In claim 2 of his ten, defendant asserts for the first time that the
cross-examination portion of Detective Thomas Visconti's trial testimony,
primarily that portion which dealt with the reading of defendant's
Miranda rights, was inaccurately transcribed and was altered by
a second or third unnamed party. Defendant also asks this court to
appoint an expert to examine the transcript. Defendant's unsupported and
unfounded assertion that the trial transcript has in any way been
tampered with or altered has no basis. The claim for correction was not
made in State court.
This claim has no merit.
In claims 7 and 8 of his ten, defendant claims for the first time that
he was prejudiced by defense counsel's slandering of defendant's mother
during summation and by the trial court's decision to interrupt counsel's
summation so that the jury could have lunch. Defendant's claim is
unsupported by the record.
This claim has no merit.
No other possible claim is more than frivolous.
The petition for a writ of habeas corpus is dismissed. A certificate of
appealability is denied since no claim has any merit.
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