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United States District Court, W.D. New York

April 26, 2004.

JOSEPH PONDER, Petitioner, -vs- PAUL LEVINE, Superintendent, Respondent, 96-B-0640

The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge

Petitioner, currently incarcerated in a New York State prison and serving an indeterminate sentence of eight and one-third to twenty-five years following his conviction*fn2 in New York State Court for Monroe County, filed a July 25, 2000 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action was subsequently referred to Magistrate Judge Hugh B. Scott, pursuant to 28 U.S.C. § 636(b)(1)(B), for an evaluation of the merits and a recommended disposition. Judge Scott filed a July 16, 2003 Report and Recommendation ("R & R") in which he recommended that the petition be denied and the action be dismissed. Petitioner timely filed his Objections to the R & R on August 27, 2003. On September 24, the Respondent filed an Opposition to the petitioner's Objections. While familiarity with the facts of this case is presumed, relevant facts will be discussed as needed.*fn3 Petitioner contends in support of his petition that (1) the videotaped conditional examination*fn4 of an adverse witness deprived him of his constitutional right to confront that witness, (2) the trial court's errors in responding to jurors' notes denied him a fair trial, (3) he was denied his constitutional right to effective assistance of trial and appellate counsel*fn5 and (4) the trial court's error in charging the jury concerning the presumption of innocence caused him "undue prejudice." Pet. ¶ 12.

After an extensive examination of the state court record,*fn6 Judge Scott concluded that the use of the witness's videotaped testimony did not violate the Confrontation Clause of the Sixth Amendment. See R & R, at 11-14 (finding no constitutional violation because the videotaped examination maximized the jury's view of the witness and had been conducted with the petitioner and his counsel present throughout both direct testimony and cross-examination). With respect to petitioner's second claim, Judge Scott found it to be procedurally barred because petitioner's counsel did not contemporaneously object to the trial court's responses. Id. at 14-16. Judge Scott further reasoned that, even if the claim was not procedurally barred, it nonetheless failed on the merits. See id. at 16-17 (holding that the procedures for responding to jury notes, as set forth in section 301.30 of New York's Criminal Procedure Laws, were met as to all but one of the notes in petitioner's trial).*fn7 Judge Scott determined that petitioner's third claim failed because he had not met his burden of proving that either his trial or appellate counsel was ineffective. Id. at 17-24 (indicating that petitioner failed to demonstrate that the performances of trial and appellate counsel were deficient and that such deficiency was prejudicial to the outcome of the case). Finally, Judge Scott held that petitioner's fourth claim was procedurally barred because his attorney had not objected to the jury charge and, further, that the claim lacked merit. See id. at 24-26. This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate" and may adopt those parts of the R & R to which no specific objection is raised, so long as such are not clearly erroneous. 28 U.S.C. § 636(b)(1)(C) (2001). It is entirely within the province of this Court to adopt the portions of the R & R to which no specific objection is raised. See Black v. Walker, 2000 WL 461106, at *1 (W.D.N.Y. 2000). However, the undersigned must make a de novo determination with respect to those portions of the R & R to which specific objections have been made. 28 U.S.C. § 636(b)(1)(C); see also United States v. Raddatz, 447 U.S. 667, 673-676 (1980).

  The Court now turns to petitioner's specific objections. While petitioner has submitted several purported objections to the R & R, his only specific and cognizable objection is with respect to Judge Scott's findings regarding the ineffective assistance of counsel claims. It is significant to note that petitioner's arguments in support of such objection are merely reiterations of the same arguments that he has made in support of his habeas petition. Thus, while this Court could review the R&R only for clear error,*fn8 the undersigned will nonetheless make a de novo determination as to petitioner's specific objections.

  As discussed by Judge Scott in the R & R, petitioner's ineffective assistance of counsel claim is properly analyzed pursuant to the two-prong test as set forth in Strickland v. Washington, 466 U.S. 668 (1984). Petitioner must first "show that counsel's performance was deficient," and, second, "that counsel's errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable." Strickland, at 687. "As to the first prong, to determine whether an attorney's conduct was deficient, `[t]he court must *** determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.'" Pavel v. Hollins, 261 F.3d 210, 216 (2d Cir. 2001) (quoting Strickland, at 690). "As to the second prong, to establish *** `prejudice[]' by [an] attorney's constitutionally deficient performance, a claimant must `show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 216 (quoting Strickland, at 694). As noted by Judge Scott, this test applies to the analyses for both petitioner's trial and appellate counsel. See R & R, at 18 (citing Mayo v. Henderson, 13 E3d 528, 533 (2d Cir. 1994)).

  Petitioner has failed to show that his constitutional right to effective assistance of counsel was violated. First, there was no error by trial counsel concerning the videotaped testimony of the adverse witness. The record shows that petitioner's trial counsel not only objected to the use of the videotaped testimony but also conducted a videotaped rigorous cross-examination of the witness. Moreover, as discussed by Judge Scott, the pre-trial examination allowed his counsel to submit authority to the trial court in an effort to exclude the witness's most damaging testimony — namely, the victim's identification of petitioner at the scene. See R & R, at 19. Second, trial counsel's failure to object to the court's alleged errors in responding to jury notes did not constitute ineffective assistance of counsel for the reasons stated in the R & R. See R & R, at 16 (discussing the requirements of New York's applicable criminal procedure law as it pertained to the jury notes). Third, the performance of trial counsel was not defective for failing to object to the allegedly erroneous jury charge. According to petitioner, the jury charge was faulty because it did not instruct the jury "that the presumption of innocence continued throughout deliberations *** until such time as the jury found that it had been overcome by proof beyond a reasonable doubt." Pet.'s Objs., at 9. A faulty or omitted jury charge may, under certain circumstances, violate a defendant's due process right to a fair trial. Henderson v. Kibbe, 431 U.S. 145, 154-155 (1977); Cupp v. Naughten, 414 U.S. 141, 147-148 (1973). However, as Judge Scott observed, "`[t]he Supreme Court has made it clear that errors in instructions to the jury rarely rise to a constitutional level.'" R & R, at 25 (quoting Victory v. Bombard, 570 E2d 66, 69 n.3 (2d Cir. 1978)). Indeed, a "`petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law.'" Davis v. Strack, 270 E3d 111, 123 (2d Cir. 2001) (quoting Casillas v. Scully, 769 E2d 60, 63 (2d Cir. 1985)). The instructions given by the trial court were the standard New York State jury instructions and they were consistent with federal law. Where, as here, "the court committed no error in its jury charges, it follows that [petitioner's] defense counsel was not constitutionally ineffective by failing to object." Manning v. Walker, 2001 WL 25637, at *19 (E.D.N.Y. 2001). See also Duncan v. Griener, 1999 WL 20890, at *10 (S.D.N.Y. 1999) (finding no evidence of ineffective assistance of counsel inasmuch as trial counsel's failure to object would have been fruitless). Furthermore, petitioner cannot satisfy the second prong of his claim because he cannot show that he was prejudiced in some way by the actions or omissions of his trial counsel. See R & R, at 21 (discussing the reasons why petitioner was not prejudiced by trial counsel's performance). With regard to petitioner's claim of ineffective assistance of appellate counsel, "[b]ecause there is no evidence in the record to support an ineffective assistance of trial counsel claim, appellate counsel was not ineffective when he did not raise that frivolous claim on appeal." R & R, at 24. A claim of ineffective assistance of appellate counsel is established only when the petitioner shows that counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo, at 533; see a/so Jones v. Barnes, 463 U.S. 745, 751-53 (1983) (holding that habeas courts should not "second guess" the reasonable decisions of appellate counsel in deciding which issues to pursue on appeal); Tsirizotakis v. LeFevre, 736 F.2d 57, 65 (2d Cir. 1984) (same). Petitioner has failed to make such a showing. Moreover, even if the Court were to find that petitioner had satisfied the first prong, petitioner has failed to demonstrate that he was prejudiced by the failure of appellate counsel to raise the ineffective assistance of trial counsel on appeal.

  In sum, upon de novo review of those portions of the R & R to which petitioner specifically objects, the Court finds that petitioner has shown neither that his constitutional right to effective assistance of counsel had been violated nor that Judge Scott made any erroneous factual analyses or conclusions of law.

  Accordingly, it is hereby ORDERED that petitioner's Objections are overruled, that Judge Scott's R & R is adopted in its entirety, that petitioner's petition for a writ of habeas corpus is denied and that the Clerk of this Court shall close this case.

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