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United States District Court, E.D. New York

May 3, 2004.

KEVIN RAVELLO, Petitioner,
EDWARD DONNELLY, Superintendent, Wende Correctional Facility, Respondent

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


Kevin Ravello petitions for a writ of habeas corpus, challenging his convictions in state court arising out of the murder of Isadora Kong. The petition is denied for the reasons set forth below.

  BACKGROUND The People's evidence at trial established that, on March 8 or 9, 1996, Ravello and his co-defendant, Odell Rogers, killed Isadora Kong by stabbing her numerous times, all over her body, and strangling her in her apartment at 843 Lincoln Avenue, Brooklyn, New York. Telephone records revealed numerous calls to Kong's apartment from Rogers's apartment on March 8, 1996. When the police questioned Rogers about the murder, he implicated Ravello.

  Upon Ravello's arrest, he initially denied participating in the murder or even knowing Kong. After detectives told him that Rogers was present in the police station and that Ravello's fingerprints had been found in Kong's apartment,*fn1 Ravello made oral confessions, one of which was videotaped, in which he admitted that he knew Kong, that he occasionally had sex with her, and that on the day of her murder he accompanied Rogers to Kong's apartment because Rogers wanted to get money from her. Ravello also admitted that he held Kong while Rogers retrieved a knife from Kong's kitchen and stabbed her to death. Ravello stated that Rogers took jewelry and other property from Kong's apartment, and that he and Rogers divided the money from the sale of the jewelry after the murder.

  Ravello was charged with three counts of murder in the second degree, two counts of robbery in the first degree, and one count of robbery in the second degree. On September 15, 1997, the jury convicted Ravello of two counts of murder in the second degree. He was sentenced on September 25, 1997, to concurrent terms of imprisonment of twenty-five years to life on each count.

  Through counsel, Ravello appealed to the Appellate Division, Second Department. Appellate counsel argued that Ravello was denied effective assistance of trial counsel because: (1) counsel abandoned the defense that he advanced at the pretrial hearings, i.e., that Ravello's confessions were untruthful, involuntary and the product of police coercion, and instead attempted to convince the jury that Ravello did not share Rogers's intent to commit the murder; and (2) counsel failed to advance an alternative defense theory to the jury during summation.

  In a pro se supplemental brief, Ravello raised the following additional claims: (3) the confessions were coerced and obtained in violation of Ravello's right to counsel; and (4) Ravello's illegal confession was the fruit of a warrantless arrest inside his home, in violation of the rule in Payton v. New York, 445 U.S. 573 (1980).*fn2

  On November 27, 2000, the Appellate Division unanimously affirmed the conviction. It held that Ravello received "meaningful representation" from his trial attorney. The court also rejected the claims raised in the pro se supplemental brief, holding that the claims were "either unpreserved for appellate review or without merit." See People v. Ravello, 716 N.Y.S.2d 898 (2d Dep't 2000). On April 16, 2001, the New York State Court of Appeals denied Ravello's application for leave to appeal. See People v. Ravello, 96 N.Y.2d 805 (2001) (Ciparick, J.).

  In papers dated April 28, 2001, Ravello moved for a writ of error coram nobis in the Appellate Division, claiming ineffective assistance of appellate counsel based on the alleged failure to include in the leave letter to the Court of Appeals the claims contained in Ravello's pro se supplemental brief to the Appellate Division. On October 29, 2001, the Appellate Division denied Ravello's motion for a writ of error coram nobis, holding that petitioner failed to establish that he had been denied effective assistance of appellate counsel. See People v. Ravello, 732 N.Y.S.2d 184 (2d Dep't 2001).

  In the instant petition for habeas relief, Ravello reasserts the claims that he presented on his direct appeal and in his motion for a writ of error coram nobis.


  A. The Standard of Review

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).

  A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).

  Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S.Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 123 S.Ct. at 2535 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Id. (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

  This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:

[f]or the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).

  In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

  B. Ravello's Claims

  1. The Payton Claim

  Ravello asserts that his confessions should have been suppressed because he was unlawfully arrested inside his apartment.

  Federal habeas review of Fourth Amendment claims is governed by the Supreme Court's decision in Stone v. Powell, 428 U.S. 465 (1976), where the Court held: "[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 482. All that is needed is an "opportunity;" the petitioner need not actually have taken advantage of the state's procedure. Graham v. Costello, 299 F.3d 129, 134 (2d Cir. 2002). Moreover, the petitioner is not deprived of a "full and fair litigation" merely because the state court reached the wrong conclusion in resolving the claim. See Capellan v. Riley, 975 F.2d 67, 71 (2d Cir. 1992).

  The Second Circuit has already determined that New York's procedure for litigating Fourth Amendment claims, embodied in N.Y. Crim. Proc. Law § 710.10 et seq., is adequate. See Capellan, 975 F.3d at 70 n. 1; Taylor v. Kuhlmann, 36 F. Supp.2d 534, 549 (E.D.N.Y. 1999). Here, not only did Ravello have the opportunity to have his claim heard in the state, but he litigated it fully. Thus, he cannot obtain relief on this score.

  In any event, Ravello's claim has no merit. After a hearing on this issue and others relating to Ravello's statements, the state court found that Ravello was arrested outside his home after he had agreed to voluntarily accompany the detectives to the precinct. Specifically, the court found as follows:

I accept the first person testimony of both Detective Scarcella and Chmil on the issue, and conclude that the defendant voluntarily exited his apartment with the police, was handcuffed outside his apartment and transported to the precinct from the outside of his apartment, but not from his apartment.
(Hrg. Tr. at 180-81.) Those findings are fully supported by the record and are presumed to be correct. Ravello has made no showing, let alone a clear and convincing one, that the findings were incorrect. Accordingly, even if the Fourth Amendment claim was not barred by Stone v. Powell, I would conclude that the state court's rejection of the claim was neither contrary to nor an unreasonable application of clearly established federal law.

  2. The Voluntariness of the Confessions

  Ravello claims that his inculpatory statements were coerced, and thus his conviction should be set aside as violative of the Fifth Amendment.

  "A confession is admissible under the Constitution only if it is made voluntarily." United States v. Orlandez-Gamboa, 320 F.3d 328, 332 (2d Cir. 2003). "No single criterion controls whether an accused's confession is voluntary: whether a confession was obtained by coercion is determined only after careful evaluation of the totality of the surrounding circumstances." Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997) (citation and quotation omitted). "[F]actors to be considered include: the characteristics of the accused, such as his experience, background, and education; the conditions of the interrogation; and the conduct of law enforcement officials, notably, whether there was physical abuse, the period of restraint in handcuffs, and use of psychologically coercive tactics." Id. (citation and quotation omitted). The voluntariness of a confession is a mixed legal and factual inquiry. As such, the state court findings as to the circumstances surrounding the confession are entitled to deference but not the application of those facts to the controlling legal standard. See Thompson v. Keohane, 516 U.S. 99, 111-12 (1995); Nelson, 121 F.3d at 833-34.

  During the hearing, Detectives Chmil and Scarcella testified that Ravello was properly advised of his Miranda rights and treated well during his interrogation. Ravello was offered lunch and doughnuts by Detective Scarcella, and he was advised of his Miranda rights once again when he gave his videotaped statement to the Assistant District Attorney ("ADA").

  Ravello's assertions in his petition that his statements were coerced by physical beatings were not supported by the evidence at the hearing, and they are undermined by his appearance during the videotaped statement and in his arrest photographs. During the videotaped statement, Ravello repeated his earlier statement almost verbatim, without notes. He was allowed by the ADA to speak uninterrupted, using his own words, during the entire interview. He used hand gestures to describe the knife used to stab Kong. The hearing court did not credit Ravello's claims that his statements were involuntary and coerced. It found as follows:

Now with respect to the oral statement to Detective Scarcella, which was reduced to writing and offered as People's 5, the record demonstrates that the statement was preceded by a knowing and voluntary waiver of Miranda Rights and the defendant was not subject to the kind of persistent or overbearing interrogation which might otherwise cast doubt on the statement's voluntariness.
. . .
Finally, with respect to the video, People's 6, the Court is satisfied this video was preceded — strike that — that the statement contained in the video was preceded by the administration of Miranda warnings. That at the conclusion of each warning the defendant acknowledged and understood and agreed to speak with Detective Scarcella without an attorney being present, and proceeded to give him the statement.
At no time during the course of the statement did the defendant request an attorney or stop until he had completed the statement. This convinces the Court that the video statement was preceded by knowing and voluntary waiver of Miranda Rights and that the defendant was not subject to any kind of persistent, overbearing interrogation which otherwise cast doubts upon the statement's voluntariness.
Moreover, an examination of the video confirms that the statement was voluntarily made; thus, the Court is satisfied that the video statement was voluntarily made and is admissible, as well as the oral statement that was reduced to writing.
(Hrg. Tr. at 183-86.)

  Ravello has failed to establish that the state court's factual findings were incorrect. Indeed, the hearing testimony fully supports the state court's determination that Ravello's confession was voluntary. Thus, he is not entitled to habeas relief on this ground.*fn3

  3. Ineffective Assistance of Trial Counsel

  Ravello claims that he did not receive effective assistance of counsel at trial. This claim was explicitly rejected by the Appellate Division, which held that "the record shows that he received meaningful representation." People v. Ravello, 716 N.Y.S.2d 898 (2d Dep't 2000).

  The Supreme Court has established the following standard for ineffective assistance claims:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, to make out this type of claim, the petitioner must demonstrate both (1) that his attorney's performance "fell below an objective standard of reasonableness," id. at 688, and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. In assessing the reasonableness of counsel's performance, "judicial scrutiny of counsel's performance must be highly deferential," and the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (internal quotation marks omitted); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998); see also Yarborough v. Gentry, 124 S.Ct. 1, 4 (2003) (per curiam) ("[C]ounsel has wide latitude in deciding how best to represent a client. . . .").

  In assessing counsel's performance, I "must conduct an objective review . . . measured for `reasonableness under prevailing professional norms,' which includes a context dependent consideration of the challenged conduct as seen `from counsel's perspective at the time.'" Wiggins v. Smith, 123 So. Ct. 2527, 2535 (2003) (citations omitted) (quoting Strickland, 466 U.S. at 688-89)). The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct" and has instead emphasized that "`the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Id. at 2535 (quoting Strickland, 466 U.S. at 688).

  To establish the requisite effect of counsel's performance on the outcome of the proceeding, it is not sufficient if the petitioner shows merely that counsel's errors had "some conceivable effect" on the outcome. Strickland, 466 U.S. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. This determination, unlike the determination whether counsel's performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).

  Borrowing from the argument that was rejected by the Appellate Division, Ravello argues that his trial counsel was ineffective because he conceded the truthfulness of Ravello's confession and "utterly failed to provide the jury with a defense theory." (Pet. at 6, see also Ravello's App. Div. Br. at 16.)

  The record of the case reveals that, after losing the motion to suppress Ravello's statements, trial counsel made a strategic decision to abandon the claim that was rejected by the hearing court, i.e., that the confession was coerced and false. Rather, counsel's strategy at trial was to advance the theory that Ravello went to Kong's apartment to have sex with her, and that he lacked the intent either to kill or to rob the victim. Though unsuccessful, this strategy was a reasonable adaptation to the trial court's ruling on the motion to suppress and to the presence of Ravello's fingerprint on a glass in Kong's trash.

  In short, trial counsel vigorously represented Ravello in both the pre-trial and trial phases. The state court's rejection of the ineffective assistance claim cannot reasonably be characterized as an unreasonable application of Strickland.

  4. Ineffective Assistance of Appellate Counsel

  Although the Supreme Court formulated the Strickland test in the context of examining a claim of ineffective assistance of trial counsel, the same test applies to claims regarding the performance of appellate counsel. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel need not present every nonfrivolous argument that could be made. See Mayo, 13 F.3d at 533; see also Evitts v. Lucey, 469 U.S. 387, 394 (1985) (emphasizing that appellate counsel "need not advance every argument, regardless of merit, urged by the appellant"). Moreover, reviewing courts should not employ hindsight to second-guess an appellate attorney's strategy choices. See Mayo, 13 F.3d at 533. A petitioner, however, may establish constitutionally inadequate performance if he shows that his appellate counsel omitted material and obvious issues while pursuing matters that were patently and significantly weaker. Cf. Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("[R]elief may be warranted when a decision by counsel cannot be justified as a result of some kind of plausible trial strategy.").

  Ravello claims that appellate counsel was ineffective when she failed to include in her application for leave to appeal to the Court of Appeals the claims Ravello had raised in his pro se supplemental submission to the Appellate Division. A claim of ineffective assistance of appellate counsel may only succeed, however, if there is a constitutional right to counsel in the proceeding in which counsel was alleged to be ineffective. A criminal defendant is afforded the constitutional right to the effective assistance of counsel on any appeal granted him as a matter of right, Douglas v. California, 372 U.S. 353, 357-58 (1963), but not on discretionary appeals, Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) ("[W]e have rejected suggestions that we establish a right to counsel on discretionary appeals."); Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (Since "a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals . . ., he could not be deprived of the effective assistance of counsel by his retained counsel's failure to file the application [for leave to appeal to the highest state court] timely."). Because the constitutional right to counsel does not attach to applications for discretionary review (i.e., a motion for leave to appeal to the New York Court of Appeals),*fn4 there can be no ineffective assistance of counsel claim here. See Chalik v. Kuhlmann, 311 F.3d 525, 528-29 (2d Cir. 2002) (ineffective assistance based on application for discretionary review by the New York Court of Appeals not cognizable because no right to counsel on discretionary appeal).

  In any event, these claims in Ravello's supplemental brief to the Appellate Division had no merit (as discussed above), so it was not ineffective assistance when appellate counsel failed to seek review of them by the Court of Appeals.


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

  So Ordered.

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