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United States District Court, S.D. New York

April 27, 2004.

NYEEM ADAMS, Petitioner, -v- CHARLES GREINER, Superintendent, Respondent

The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


Nyeem Adams petitions for a writ of habeas corpus following his conviction in Bronx Supreme Court for murder. The jury found that Adams brutally beat to death one James Smith, rejecting defenses of justification (based on theories of self-defense and defense against burglary) and lack of causation (based on doubts Adams attempted to raise about the medical examiner's testimony and the claim that the blows Adams admitted to striking were not severe enough to cause Smith's death), and Adams was sentenced to imprisonment for 25 years to life. Adams raises a multitude of claims of constitutional error in the proceedings against him. None of them warrants overturning his conviction, and, accordingly, the petition will be denied.

  Adams's claims have been extensively litigated, and repeatedly rejected, in the state courts, through both direct appeal and post-trial motions. See, e.g., People v. Adams, 688 N.Y.S.2d 1 (1st Dep't 1999); People v. Adams, No. 8439/94 (Bronx Cty. Sup. Ct., Sept. 17, 2003) (Bamberger, J.); People v. Adams, No. 8439/94 (Bronx Cty. Sup. Ct., Sept. 27, 2000) (Bamberger, J.). After filing this habeas petition and receiving the state's opposition questioning whether one part of one claim had been properly exhausted, Adams requested that the petition be held in abeyance to permit him to present that argument to the state courts. The Court granted this request in an Order dated April 14, 2003, and Adams then presented the arguably unexhausted argument along with a host of other claims in yet another state collateral attack. Adams's arguments were again rejected by the trial court, People v. Adams, No. 8439/94 (Bronx Cty. Sup. Ct., Sept. 17, 2003) (Bamberger, J.), and the Court was informed by both Adams and the Bronx County District Attorney's Office that leave to appeal was denied by the Appellate Division on March 15, 2004. Adams timely reported this result to this Court by letter dated March 29, 2004, and asked that his petition be restored to the calendar. The petition is now ripe for review.


  In reviewing Adams's many claims for relief, it is important to recall the basic facts presented at his trial. The evidence establishes that on October 25, 1994, Adams brutally and repeatedly beat Smith about the head with a piece of wood, variously described as a bed slat or two-by-four. The prosecution produced two eyewitnesses to this attack, as well as the medical examiner's testimony, and Adams admitted as much in his own testimony, although he disputed the number of blows that were struck. The defense vigorously cross-examined the medical examiner, but the overwhelming evidence supported the conclusion that Smith's injuries were devastating, that his death was caused by blunt force trauma to the head and neck, and that he had no chance of surviving the beating Adams administered. Adams testified that he had encountered Smith in a corridor inside the building, in close proximity to the apartment where Adams lived with his mother, sister and nephew, near a window ledge that could be reached from the corridor, and that Smith attacked him with a knife when he challenged Smith's presence. The defense also presented evidence that Smith had been observed, more than two weeks before the killing, on a window ledge in proximity to the apartment where Adams lived with his mother, sister, and nephew.*fn1 Adams was permitted to argue that he struck Smith in self-defense and to prevent a burglary, but not that he acted in defense of another, specifically, to protect his three-year-old nephew from sexual assault by Smith. The trial judge concluded that the undisputed evidence showed that the attack took place on the street, and that Adams's nephew was throughout the attack inside the apartment and safe — indeed, remote — from any possible imminent attack. In any event, the jury rejected Adams's claims of justification and found him guilty of second-degree murder by killing Smith without intent, but with a high degree of recklessness amounting to depraved indifference to human life, in violation of N.Y.P.L. § 125.25(2).

  Adams's story was contradicted by a number of witnesses. Adams testified that the alleged fight in the hallway was observed by a security guard. But the security guard on duty in the building testified that he saw no altercation whatsoever in the hall that day, and that he called the police when he was advised of the beating of Smith outside the building. Adams testified that after the attack, he went to a class at Bronx Community College, and described the incident to his professor, who told him he'd done the right thing. But on rebuttal, the prosecution called the teacher, who flatly stated that Adams had no such conversation with her, and that she did not observe the eye injury that he testified he'd received from Smith's knife. Adams testified that he had only hit Smith four or five times, and that the victim had no marks on him. But the eyewitnesses testified to seeing far more blows, and both witnesses and the police officer who arrived on the scene immediately thereafter described devastating injuries to Smith.

  In this Court, Adams argues that his constitutional rights were violated in a number of respects. The Court has carefully considered these arguments and thoroughly reviewed the record. Such a review is necessitated because Adams sets forth a large number of claims in very compressed, and often misleading, statements that assume a detailed knowledge of the trial events. This opinion, however, can be relatively brief, because Adams's claims have been repeatedly reviewed in the state courts, and little purpose would be served by repeating yet again the extensive discussions of the facts contained in some of those decisions.

  Finally, before addressing Adams's specific claims, the Court pauses to note the limited nature of habeas corpus review. Habeas corpus is not an extension of the appeals process in the state court. Rather, it is a remedy for violations of a defendant's rights under the federal constitution, and a very narrow remedy at that. This Court may not grant the writ on the basis of a constitutional claim that was presented to and decided by the state courts unless the state adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of," Supreme Court precedent. 28 U.S.C. § 2254(d). See Williams v. Taylor, 529 U.S. 362 (2000). Nor may the Court address arguments, subject to the narrowest exceptions, that were rejected by the state courts on the adequate and independent state grounds of procedural default. Lambrix v. Singletary, 520 U.S. 518 (1997); Coleman v. Thompson, 501 U.S. 722 (1991). With that background, the Court turns to Adams's specific arguments.


 I. Defense of Justification

  Adams first argues that he was prevented from arguing to the jury his defense of justification by defense of a third party. The argument clearly states a claim of denial of a federal constitutional right, since, as the Supreme Court has recognized, the right to present a defense is one of the "minimum essentials of a fair trial" protected by the due process clause of the Fourteenth Amendment Chambers v. Mississippi, 410 U.S. 284, 294 (1965). But whether a particular belief or state of mind constitutes a defense depends on the definitions of the crime charged, and of various defenses, under state law. A defendant has no federal constitutional right to present a "defense" consisting of evidence that he acted with a mental state or for a purpose that is irrelevant to his guilt as a matter of substantive state law.

  Under N.Y.P.L. § 35.15(1), the defense of another person constitutes a justification for the use of force only where the accused "reasonably believes" that force is "necessary" to defend a third party "from what he reasonably believes to be the use or imminent use of unlawful physical force." Justification for the use of deadly force is further limited by additional requirements, such as that the force being defended against is "deadly" or that the target is "committing or attempting to commit a kidnapping, forcible rape, forcible sodomy, or robbery." N.Y.P.L. § 35.15(2). Adams sought to offer evidence that he believed Smith was a violent pedophile who presented a danger to Adams's young nephew. The trial court carefully held a lengthy hearing, outside the presence of the jury, to test the admissibility of this proffered defense. The evidence at the hearing established that Smith had been arrested for allegedly masturbating on the window ledge outside Adams's apartment on October 7, 1994. Taken in the light most favorable to the defendant, the evidence also indicated that Adams had been told (by a person who did not testify) that Smith had a record of arrests for sexual assaults against adults, that Smith was a pedophile, and that Smith had admitted to the informant that he had tried to enter the Adams apartment on October 7 and that on that occasion he had been masturbating while watching Adams's nephew. The court concluded that under New York law, Adams's asserted belief that he was defending his nephew against forcible sodomy was not a defense and could not be the subject of testimony at the trial, because at the time of Adams's attack on Smith, more than two weeks after the October 7 incident, Smith was nowhere near the child, and there was no basis for the jury to determine that Adams could have had a reasonable belief either that Smith was presently engaged in assaulting Adams's nephew or that such an assault was "imminent." This conclusion was affirmed by the Appellate Division, which held that

Even when examined in a light most favorable to defendant, there was no reasonable view of the evidence, including the evidence presented by defendant in his offer of proof, that defendant used deadly physical force in defense of his nephew, who was inside an apartment, far from the street where the deadly altercation occurred.
Adams, 688 N.Y.S.2d at 1.

  This determination, which appears to this Court to be entirely correct as a matter of state substantive criminal law, cannot be an unreasonable application of Supreme Court precedent. The applicable federal principle is that a defendant is denied due process if he is not permitted to offer evidence supporting an applicable defense. That principle does not supersede state substantive determinations of the conditions under which the use of force is justified, nor does it trump reasonable rules of evidence and procedure. See, e.g., Zarvela v. Artuz, ___ F.3d ___, 2004 WL 739845, at *3 (2d Cir. Apr. 7, 2004). Here, the state courts correctly concluded that the testimony Adams wished to offer did not permit a reasonable jury to find the kind of imminent threat of violence that state law requires to establish the justification of defense of others. Refusing to instruct the jury on that justification, or to permit Adams to testify to his alleged belief (which no reasonable jury could find to have been reasonable) that Smith was about to sodomize his nephew, deprived Adams of no federal constitutional right.

 II. Limitation of Cross-Examination

  Adams claims that he was denied a fair trial by the trial court's limitation of his attempted cross-examination of the prosecution's rebuttal witness. Adams had testified that he attacked Smith in self-defense after Smith had threatened and cut him with a knife, and that he had so stated on the day of the incident to a teacher of his. The teacher testified in rebuttal that Adams had not spoken to her about the incident, and that she did not observe any injuries when he attended class that day. Adams claims that the trial court erred by refusing to permit him to cross-examine the witness about the extent of her recollections of other events on that day.

  On direct appeal, the Appellate Division rejected this claim on the ground that Adams had failed to preserve the claim as a matter of state law, because, after the trial court had sustained objections to his questions, Adams "`simply proceeded to another subject, never calling to the trial court's attention the purpose of the question[s], or disputing the People's claim that [they were] irrelevant, or in any way attempting to call the court's attention to the nature of the alleged error.'" Adams, 688 N.Y.S.2d at 1, quoting People v. George. 67 N.Y.2d 817, 819 (1986). This independent state ground of procedural default precludes review by this Court absent a showing of cause and prejudice. Wainwright v. Sykes, 433 U.S. 72 (1977). Adams has not attempted to make such a showing.

  At any rate, the Appellate Division went on to hold that if it were to review this argument, "we would find that the court properly exercised its discretion in limiting collateral and cumulative questioning." Adams, 688 N.Y.S.2d at 1. Such a ruling would have been correct on the merits. While Adams does not spell out in the present petitions the questions he claims he should have been allowed to ask, in his brief on direct appeal he specified as error the court's sustaining objections to a few questions about whether the witness could recall the names of other students, or whether she had conversations with other students on that day. See Brief for Defendant-Appellant to the Appellate Division, at 27 (annexed as Exh. 1 to the Affidavit of Albert J. Ceva in Opposition to the Petition). A trial court has broad discretion over the length and scope of cross-examination. See, e.g., United States v. Wilkerson, 361 F.3d 717, 734 (2d Cir. 2004); United States v. Rivera, 971 F.2d 876, 886 (2d Cir. 1992). Here, the trial court permitted extensive questioning going to the witness' memory of the day in question, eliciting that she could not remember what Adams was wearing, whether he wore glasses, how he wore his hair, and when he came to class. (Tr. 845-50.) Precluding yet further inquiry into collateral matters was well within the judge's discretion and could not have prejudiced the defense. III. Testimony on State of Mind

  Adams claims that the trial court erroneously precluded testimony relating to his state of mind in connection with his justification defense. Although Adams does not specify what testimony he is referring to, the apparent reference is to the exclusion of his alleged belief that he was defending his nephew from a violent pedophile. This is merely an aspect of the claim discussed above in point I, and is rejected for the reasons set forth therein.

 IV. Discovery of Smith's Medical Records

  Adams objects that the prosecutor failed to provide discovery of medical records concerning Smith's death. In light of Adams's claim that "the medical examiner testified that these records were not a part of the autopsy report," Pet. at ¶ 12 D, he apparently is referring to certain toxicology reports and autopsy slides that were the subject of considerable discussion at the trial.

  In order to establish a denial of due process, Adams must establish that the state suppressed material exculpatory evidence. Brady v. Maryland, 373 U.S. 83 (1962). But Adams cannot show this. To the contrary, as exhaustively demonstrated in Justice Bamberger's opinion denying Adams's most recent state post-conviction application, the records in question were not substantially exculpatory at all, let alone sufficiently likely to have had an effect on the verdict to meet Brady's materiality standard, and all of them were in fact made available to the defense during the trial. People v. Adams, No. 8439/94, at 4-18 (Bronx Cty. Sup. Ct., Sept. 17, 2003). It is well established that Brady does not constitute a rule of pre-trial discovery, and that its requirements are satisfied where the defense obtains potentially exculpatory material in time to permit its effective use at trial. See, e.g., United States v. Maniktala, 934 F.2d 25, 28 (2d Cir. 1991); United States v. Kelly, 91 F. Supp.2d 580, 585 (S.D.N.Y. 2000) (Brady "establishes no general right of pre-trial discovery. . . . Due process requires only that a defendant receive such information before it is too late for him to make beneficial use of it at trial.").

  The toxicology reports yielded no inference of recent drug use by Smith; blood and brain tests were negative for drugs, and the detection of cocaine metabolites in the bile was consistent with past drug use. (Tr. 560.) Although the reports were provided after the medical examiner's testimony, the defense declined the court's offer to recall her for further cross-examination based on the reports, and made no effort to introduce them into evidence. (Tr. 561.) Adams's further claim that the reports might not really have been Smith's relies on discrepancies in the name on the envelope in which they were brought to court and in certain dates; these discrepancies were entirely the product of events at trial and were known and available to the defense for any exculpatory use that could have been made of them. Moreover, Adams did not specifically invoke the Brady doctrine in his direct appeal, although he raised the failure to produce the reports in his pro se brief to the Appellate Division under New York's stricter Rosario rule (Pro Se Brief for Defendant-Appellant at 20-27, annexed as Exh. 3 to Ceva Aff.), and the Appellate Division "considered and rejected" the claim. Adams, 688 N.Y.S.2d at 1. Thus, as the state court ruled, the failure to raise the Brady claim on direct appeal "preclud[es] its consideration" on state collateral review. Adams, No. 8439/94 at 12 (Sept. 17, 2003).

  The autopsy slides constitute an even less substantial claim. The slides were made available for inspection by the defense before the trial, although it appears defense counsel and his expert did not take advantage of the offer. Although there apparently had been some confusion about the number of copies of the slides that had been made (the prosecution had required defense counsel to inspect the slides at the district attorney's office, rather than giving a copy to the defense, in the apparently mistaken belief that there was only one set), there has never been any reason to believe that the second set of slides contained any exculpatory information, and the defense was given the opportunity to examine and compare all the slides in advance of the medical examiner's testimony. Adams, No. 8439/94 at 13-14 (Sept. 17, 2003). In addition to the lack of substantive merit to Adams's Brady claim, the state court rejected that claim on his recent motion on the independent state ground that the claim had been waived, since all the information necessary to raise the claim had been available to Adams on the trial record, but he had nevertheless failed to raise the federal claim in his first motion for a new trial or on direct appeal, even though he did raise the failure to produce the slides as a state law claim both on the motion and in his pro se appellate brief. Id. at 16; see also id. at 14-15.

  Finally, the records of Smith's treatment upon arrival at the hospital were also produced to defendant during the cross-examination of the medical examiner. The defense did not use the records at the trial, or seek a continuance for further examination. (Tr. 157-90, 191-94.) So far as the Court can tell, Adams has never, at trial, on appeal, or in his repeated post-trial motions, identified anything exculpatory in those records. The state court rejected the Brady claim both because the medical reports were not shown to be exculpatory, and because of the failure to raise the federal Brady claim on appeal. Adams, No. 8439/94 at 17-18 (Sept. 17, 2003).

  Thus, the Court agrees with Justice Bamberger's meticulous, detailed analysis of petitioner's complicated but ultimately clearly meritless claims regarding discovery of Smith's medical records. At a minimum, the state court applied the correct legal standard and carefully combed the extensive record (with which that court had intimate familiarity). Any argument that the state court's resolution of this claim was an unreasonable application of the Supreme Court's Brady precedents is frivolous. These claims accordingly provide no basis for habeas relief from Adams's conviction.

 V. Additional Discovery Issues

  Adams claims that the district attorney "failed to turn over pertinent discovery materials to the defense." Pet. ¶ 12 E. The claim completely fails to specify what materials are being referred to. Since Adams's claims relating to various medical records are set forth as a separate ground of argument, rejected above, the Court assumes that Adams refers here to various items of impeachment material and evidence relating to the victim that are discussed in his latest state collateral attack.

  To the extent that Adams claims violations of state discovery rules, such as the rule of People v. Rosario, 9 N.Y.2d 286 (1961), such claims are not cognizable on habeas corpus, since they are not based on federal constitutional law. To the extent he asserts a federal claim, he must establish that the prosecution suppressed material exculpatory evidence in violation of the Brady standard set forth above. The state court dealt with these matters thoroughly, see Adams, No. 8439/94 at 18-32 (Sept. 17, 2003), so this Court can address them more summarily.

  (a) Prior conviction of eyewitness. With respect to the harassment conviction of one of the eyewitnesses to the crime, the state court found a procedural default, since the matter was raised in the petitioner's new trial motion (apparently not specifically as a federal claim) and not presented on appeal. Id. at 19-20. At any rate, the state court's finding on the merits that "there was no possibility that the verdict would have been different if the jurors had known that [the witness] had been convicted of the violation of harassment," id. at 20, is a more than reasonable application of the Brady standard. There were two witnesses to the assault, the testimony of the other eyewitness was "overwhelming and unimpeached in any way," id., the undisclosed impeachment material concerned a trivial matter, and in any event defendant admitted beating the victim.

  (b) Detective's interview notes. With respect to the alleged notes of a detective concerning an interview with another witness, the issue is also procedurally defaulted, as the state court found, because Adams did not present the federal claim to the state courts, although the matter was explored on the trial record, raised (as a state-law Rosario issue) in defendant's pro se brief on appeal, and rejected by the Appellate Division. See id. at 25. At any rate, there is no basis on the record to conclude that such notes even existed. The prosecutor represented at trial that he had turned over all the notes that existed with respect to the witness. To the extent the witness recalled that the detective had taken notes during an earlier interview, this testimony raised a question of credibility, as the trial court noted at the time, which the defense was free to pursue, in front of the jury or in a separate application, since the detective was available and indeed testified at trial. (Tr. 425-29, 537, 954-67.) The defense failed to pursue the matter. Adams, No. 8439/94 at 25 (Sept. 17, 2003). On this record, Adams has failed to show that the alleged notes ever existed, let alone that they were exculpatory or would have affected the outcome of the case.

  (c) Documents regarding prosecution of Smith, Adams claims that he did not receive certain information in the file of the prosecutor who had handled the prosecution of Smith in connection with the October 7 incident that might have supported his claim that Smith was a sexual predator. In the context of the issues in this case, this information is not exculpatory unless it would have assisted the defense in establishing the excluded defense-of-others justification. As discussed above, this defense was precluded, not for lack of evidence of Smith's prior sexual misconduct, but because there was no basis for Adams reasonably to believe that his nephew, safely in the apartment above, was in imminent danger on the occasion when Adams assaulted Smith on the street below. None of the information in question (e.g., a note in the file regarding the possible referral of Smith to a treatment program for sex offenders, an affidavit from Adams's mother regarding the October 7 incident, and records of an earlier sexual assault case against Smith in Brooklyn) would have affected this conclusion.

  At any rate, the material was not suppressed by the prosecution, and it is unclear how its earlier production could have affected the case. The entire file was provided to defense counsel during the hearing on whether the defense would be permitted to raise the claim of defense of others. Adams, No. 8439/94 at 28 (Sept. 17, 2003). The question of a possible plea agreement for Smith involving a sex offender program was explored on the record. (Tr. 579). It is unclear whether an affidavit from Adams's mother ever existed, id. at 28-29, 32, but in any case, Adams clearly had access to his mother, who testified at the hearing, was aware of her knowledge of the October 7 incident, and had the opportunity to elicit whatever information she could provide on the subject. Adams himself testified at the hearing that, even before the killing, he knew of Smith's sexual assault case (Tr. 538), and the defense referred to it early in the trial (Tr. 220-21). The defense thus had every opportunity to obtain those records before the trial; although it does not appear that the defense did so, it knew the name of the victim and even had her on a witness list before trial. Adams, No. 8439/94 at 32 (Sept. 17, 2003). Moreover, since the case in fact involved an incident in which Smith was alleged to have groped an adult woman on the subway, id. at 29, it is difficult to see how any evidence on this matter would have helped Adams's claim that Smith was a violent pedophile.

  Under these circumstances, the state court's rejection of Adams's Brady claim was clearly a reasonable interpretation of Supreme Court precedent. Indeed, it is difficult to see how Adams can make any claim of suppression of evidence at all. All of the evidence referred to (to the extent it exists at all) was in the defense's possession and was or could have been utilized by the defense in arguing the question of the precluded justification defense. None of it, in any event, did or should have altered the trial court's conclusion that the evidence (including all the matters discussed in this section) would not permit a reasonable jury to find that such a defense existed here. Adams's Brady claims are thus without merit.

 VI. Preclusion of Evidence

  Adams claims his rights to compulsory process and due process of law were denied by the trial court's refusal to permit him "to introduce evidence and information in the district attorney's file." Pet. ¶ 12 F. This claim, which essentially concerns the preclusion of testimony relating to the purported defense-of-others justification, does no more than restate Adams's claims of "[d]epriving the defendant of his justification defense and his right to present a complete defense." Id. That claim is thoroughly discussed and rejected at point I above.

 VII. Insufficient Evidence to Support Verdict

  Adams claims that the evidence "did not support the verdict of depraved indifference." Pet. ¶ 12 G. This argument is beyond frivolous. For constitutional purposes, the evidence is sufficient if any reasonable jury could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia. 443 U.S. 309 (1979). Here, the evidence of Adams's actions, as reported by two eyewitnesses, which involved repeated violent blows to the head with a heavy piece of wood, amply support an inference of extreme disregard for human life. A reasonable jury that believed that testimony, as it was the jury's prerogative to do, could easily have found the defendant guilty of depraved indifference, or even of intent to kill.*fn2

 VIII. Trial Counsel Conflict

  Adams complains that the trial judge failed to advise him of his right to conflict-free counsel, alleging that his trial counsel (who was also his uncle) had a conflict of interest. As the petition does not describe the nature of the alleged conflict, the Court assumes that Adams intends to rely on the same conflicts asserted in his earlier petition for state collateral relief. See People v. Adams, No. 8439/94 at 8-14 (Bronx Cty. Sup.Ct. Sept. 27, 2000) (Bamberger, J.).

  A defendant has a Sixth Amendment right to be represented by conflict-free counsel. Cuyler v. Sullivan, 446 U.S. 335 (1980). This right is denied where the attorney has a potential conflict that resulted in prejudice to the defendant, or an actual conflict that adversely affected the attorney's performance. Winkler v. Keane, 7 F.3d 304, 307 (2d Cir. 1993). Thus, even if an actual conflict is demonstrated, the minimum showing of adverse effect required to undermine a conviction is a showing that "some plausible alternative defense strategy or tactic might have been pursued, and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests." United States v. Schwartz, 283 F.2d 76, 92 (2d Cir. 2002). As for the duty of the trial judge, "[u]nless the trial court knows or reasonably should have known that a particular conflict exists, the court need not initiate an inquiry." Cuyler, 446 U.S. at 447.

  None of the three alleged "conflicts" asserted by Adams warrants relief. Justice Bamberger carefully analyzed these claims in response to Adams's earlier post-trial petition, applying the standard articulated in People v. Gomberg, 38 N.Y.2d 307, 313-14 (1975), which is substantially similar to the Supreme Court's Cuyler rule. First, Adams argues that his attorney also represented him in a civil suit against his landlord asserting a failure to protect against Smith's alleged attempted burglaries of the Adams apartment. The state court rejected Adams's argument on the independent procedural ground that he had failed to raise the issue (which was fully explored in the trial record (Tr. 239-245)) on appeal (where Adams was represented by new counsel). Adams, No. 8439/94 at 11 (Sept. 27, 2000). At any rate, there is no apparent conflict in representing the defendant in a criminal case and in related civil proceedings, even had that been the case. The state court found, moreover, that in fact it was not Adams's lawyer, but another lawyer (with whom defense counsel was friendly but had no business relationship), who represented not Adams, but his mother, in the civil case. Id. at 10, 10 n.3. Adams suggests no reason why this Court should reject these findings, to which the Court must defer, see 28 U.S.C. § 2254(e)(1), and which in any event are based directly on the trial record. Finally, the issue was vetted at trial, and after further consultation with counsel, Adams elected to proceed with the same lawyer. Adams suggests no way in which the representation of his mother by a lawyer friendly with defense counsel in a related civil action in which his mother's interests were apparently aligned with his could have influenced defense counsel's strategy in any way adverse to him in the criminal case.

  Second, Adams argues that his lawyer also represented a defense witness. The witness, Calvin Ellis, was the man who testified at trial that he had seen Smith on the Adams apartment window ledge on October 7, testimony that formed a critical part of Adams's defense. Ellis provided an affidavit in connection with Adams's state collateral attack, indicating that Adams's lawyer had volunteered to represent him pro bono in connection with his role in this case, and advised him not to speak with representatives of the district attorney's office before his appearance at trial. Adams, No. 8439/94 at 11-12 (Sept. 27, 2000). As Justice Bamberger found, defense counsel's representation of Ellis grew out of his representation of Adams, and the advice given to Ellis was protective of Adams's interests, not adverse to them.*fn3 There is no indication in the record that the trial judge was aware or should have been aware of this representation at the time of the trial. Counsel advised Ellis not to talk to the authorities, and called him to give trial testimony favorable to Adams's defense. Adams's petition suggests no way in which any representation of Ellis could have affected counsel's performance to Adams's detriment, and presents no alternative strategy that counsel could conceivably have pursued. Third, Adams claims that his lawyer had previously represented one of the prosecution's eyewitnesses in an unrelated civil suit against the landlord. Once again, there is no basis for any claim that the trial judge should have instituted an inquiry into this matter, since Adams's post-trial petition was the first time that the matter was brought to her attention. Justice Bamberger noted that the factual showing that this representation had even occurred was deficient, since Adams asserted only hearsay knowledge that it had, and no sworn testimony by anyone with knowledge of the representation was presented even in the post-trial motion. Adams, No. 8439/94 at 12-13 (Sept. 27, 2000). This alone would have been an adequate basis to reject Adams's claim. See N.Y.C.P.L. § 440.30(4)(b). Assuming arguendo that such representation had occurred, however, it is at least conceivable — though by no means likely — that counsel's cross-examination of a former client might have been affected by reluctance to attack her credibility. See, e.g., United States v. Cunningham, 672 F.2d 1064, 1068 (2d Cir. 1982). But there is no basis in the record to infer that such reluctance affected defense counsel's performance in this case, and Adams's claim that counsel's cross-examination was thus affected is, as the state court found, "incomprehensible and indecipherable." Adams, No. 8439/94 at 14 (Sept. 27, 2000). In his summation, defense counsel both attacked the witness's credibility and used her testimony to impeach the credibility of the other eyewitness. (Tr. 984-85.) At any rate, Adams did not dispute, and does not dispute now, that he assaulted Smith, relying on causation and justification defenses instead. Adams does not disavow that strategy now, nor does he make any claim (which would surely be far-fetched, in light of the corroborating testimony of a second eyewitness) that this strategy was based on his lawyer's reluctance to confront his former client. Neither does Adams suggest, even with the benefit of hindsight, any line of cross-examination or argument that could have been pursued by a lawyer free of any duty to the witness. There is thus no basis for questioning the state court's resolution of this argument.

  Accordingly, with respect to the claims of conflict of interest, the state court applied the correct legal standard, and its application of that standard was, to say the least, reasonable. There is no basis for federal habeas.

 IX. Prosecutorial Conduct at Trial

  Adams argues that the prosecutor made inappropriate comments during cross-examination and in summation. The state court rejected this claim on the independent state law ground of procedural default, because it was not raised on direct appeal, either by counsel or in defendant's pro se brief. Adams, No. 8439/94 at 14 (Sept. 27, 2000). In his habeas petition, Adams makes no attempt to meet the cause and prejudice standard necessary to relieve him of this procedural default.

  At any rate, there is no merit to Adams's argument. Prosecutorial conduct on summation can deny a defendant a fair trial but only if the remarks go beyond "improper" or "undesirable" and amount to conduct sufficiently egregious that "it so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright 477 U.S. 168, 180-81 (1986) (internal quotations omitted). In both the habeas petition and in his earlier state petition, Adams is vague about the basis of this claim. He does not refer to any specific comment "during cross-examination," Pet. ¶ 12 I; to the extent that the reference is to a portion of the cross-examination set forth extensively in Adams's coram nobis petition (annexed as Exh. 16 to Ceva Aff., at 18-20), that examination discloses no impropriety (and no defense objections). Adams's specification of summation error refers generally to "impl[ying] that the defendant was unworthy of belief' and "deliberately mis-stat[ing] the law." Pet. ¶ 12 I. In his state application, he more specifically refers to the prosecutor's reference to him as "Dr. Denial." Motion to Vacate Judgement [sic] at 10 (annexed as Exh. 10 to Ceva Aff). Upon review of the prosecutor's summation, this Court finds no excess of the sort that could possibly have denied defendant a fair trial.*fn4

 X. Cumulative Effect of Errors

  Adams's claim that the cumulative effect of the various errors alleged in the petition denied him a fair trial, Pet. ¶ 12 J, is a mere make-weight. As demonstrated in the other sections of this opinion, there is no merit to any of his claims. Taking them cumulatively rather than individually does not improve them. An overall review of defendant's trial shows that he was vigorously represented, that he presented to the jury his defenses of justification and lack of causation, and that the evidence amply warranted the jury's verdict rejecting these claims. The state courts, moreover, have carefully reviewed every claim of error defendant has presented and attentively responded in detail to his arguments. This Court is left with absolute confidence in the overall fairness of the state court proceedings.

 XI. Effectiveness of Appellate Counsel

  Finally, Adams attacks the effectiveness of his appellate counsel for failing to raise various arguments. These arguments were presented to the Appellate Division by way of a petition for coram nobis, and were rejected on the merits. People v. Adams, No. 8439/94 (N.Y. App. Div., 1st Dep't July 25, 2002). Although the Appellate Division's opinion does not set forth detailed reasoning, it relies on People v. Bienvenido de la Hoz, 520 N.Y.S.2d 386 (1st Dep't 1987), which in turn correctly stated the federal standards for ineffective assistance of counsel set forth in Evitts v. Lucey, 469 U.S. 387 (1985), and Strickland v. Washington, 466 U.S. 668 (1984). Thus, the state court's resolution of these issues cannot be set aside unless it represents an unreasonable application of those standards, which also apply to claims of ineffective assistance of appellate counsel. Murray v. Carrier, 477 U.S. 478 (1986).

  As the Supreme Court notes in Jones v. Barnes, 463 U.S. 745, 753 (1983), effective appellate advocacy requires a careful tactical selection of "the most promising issues for review" to avoid "burying good arguments" by raising "every colorable issue" that could be imagined. Adams's appellate lawyer concentrated her fire (as, essentially, does Adams himself) on the claim that his justification defense was unduly hampered by the trial court's exclusion of his claim of defense of others. See Brief for Defendant-Appellant to the App. Div. (Ceva Aff., Exh. 1). This was a reasonable strategic choice. Moreover, the arguments Adams accuses counsel of failing to raise had little or no prospect of success. For this reason, counsel cannot be found to have performed unreasonably in failing to raise them, nor can Adams show that he was in any way prejudiced by that failure. Two of them have already been discussed. The claim that the evidence was insufficient to support a finding of depraved indifference, Pet. ¶ 12 L, as noted above, is frivolous, and the claim that the prosecutor's summation was improper, id. ¶ 12 M, is also without merit.

  Adams's final claim of ineffective lawyering, that appellate counsel should have claimed that Adams's right to be present at trial was violated, Pet. ¶ 12 K, offered no better prospect for relief. The right to be present at trial does not preclude a court from conducting an ex parte hearing where appropriate. On habeas, Adams refers only to an unspecific "ex parte conversation with a defense witness." Id. In the coram nobis petition that presented this claim to the state courts, Adams referred to an occasion "when Judge Bamberger took A.D.A. Gershner into the robing room and held an Ex Parte proceeding." Petition at 8 (annexed as Exh. 16 to Ceva Aff.). Gershner was the prosecutor in charge of the Smith prosecution. During the hearing on the precluded justification defense, the trial judge spoke to Gershner, who was interviewed by defense counsel and who testified in open court, to determine if any of the notes in the prosecutor's file constituted work product that should be withheld from the defense. The conversation was on the record and the court disclosed the conversation to defense counsel and defendant. (Tr. 655-61.) On this record, it is difficult to see how the brief ex parte conversation was improper, or, if any error at all was committed, how it could have been other than harmless, given that the defense was advised of the conversation, had every opportunity to challenge any factual assertion made by Gershner, and in any event received the entire file in question. Given these considerations, the Appellate Division's conclusion that appellate counsel's failure to raise this issue on direct appeal did not constitute ineffective assistance of counsel was a reasonable application of the Supreme Court's precedents.


  The Court has carefully considered all of the grounds asserted by Adams for granting the writ, and finds them to be without merit. The writ is accordingly denied. Petitioner's motion for appointment of counsel is denied as moot.

  As Adams has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000). In this regard, it should be noted that the length of this opinion is a function of the number of issues raised by petitioner, and the necessity of exploring and explicating a lengthy factual record as well as an extensive record of prior applications for relief in the state courts, and not of the difficulty of the issues raised.*fn5

  The Court does, however, grant permission to petitioner to proceed in forma pauperis in any appeal he may pursue.


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