United States District Court, S.D. New York
May 24, 2004.
JERMAINE L. ESTWICK, Petitioner, -v.- HANS G. WALKER, Superintendent, Auburn Correctional Facility, Respondent
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
This Court previously granted the pro se petitioner,
Jermaine L. Estwick, a stay of this petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 to permit him to exhaust certain claims
in state court. He has now returned to this Court for consideration of
the petition. For the following reasons, the petition should be denied.
A. State Court Proceedings
On March 18, 1997, a jury convicted Estwick of the murder of
Christopher Campbell on October 24, 1994. While the testimony at trial is
of limited relevance to the disposition of this petition, the uncontested
evidence as reflected in Estwick's brief on direct appeal,
see Brief for Defendant-Appellant, dated February 1999 ("Pet.
App. Brief) (reproduced as Ex. 1 to Affidavit of Khari P. Prescod, filed
October 22, 2001 (Docket #7) ("Prescod Aff.")), at 6-14 showed
that Campbell was killed on October 24, 1994. That day, Estwick's aunt,
Olivia Gregory, received a phone call from Lucille Estwick, Estwick's
mother, during which Estwick's mother stated that Estwick had killed someone. Estwick himself called Gregory later
that evening and told her that he had shot Campbell in the back, taken
his money, and then shot him in the head. Gregory urged Estwick to turn
himself in but he refused. She then arranged for her daughter, Lorna
Sills, to drive Estwick to Connecticut and contacted the police so that
they could arrest Estwick en route.
At approximately 9:00 p.m. the next day, Sills picked up Estwick to
drive him to Connecticut. While they were driving, Estwick told her that
he had shot Campbell in the back and then shot him in the head because
"he had to kill him." Estwick asked Sills to drop him off at a hotel and
she did so, signing for the room herself. Sills then met her mother and
brother at another location and the police appeared shortly thereafter.
Sills signed a release for the police to search the hotel room.
In the meantime, the police stopped Estwick as he left a
restaurant. Detectives from the New York Police Department drove Estwick
back to the Bronx and then questioned him about the shooting. Estwick
gave a detailed statement confessing to killing Campbell and also gave a
videotaped statement in the presence of an assistant district attorney,
both of which were considered by the jury.
Estwick did not present any evidence and was convicted of Murder in the
Second Degree under New York Penal Law § 125.25(1) and Criminal
Possession of a Weapon in the Second Degree under New York Penal Law
§ 265.03. He was sentenced to 25 years to life for the murder
conviction and five to 15 years for the weapons conviction, the sentences
to be served consecutively. Estwick is currently incarcerated at the
Sullivan Correctional Facility in Fallsburg, New York. 1. Direct Appeal
In February 1999, Estwick appealed his conviction to the Appellate
Division, First Department, through newly-assigned counsel. Estwick
argued on appeal that (1) the trial court had abused its discretion in
refusing to appoint new trial counsel because there had been "a complete
breakdown in communication" between himself and his attorney; and (2) the
trial court erred in imposing consecutive sentences for Murder in the
Second Degree and Criminal Possession of a Weapon in the Second Degree
because both convictions were based on the same acts. See Pet.
App. Brief at 15-25.
On November 23, 1999, the Appellate Division unanimously affirmed
Estwick's conviction on the grounds that (1) the trial court properly
exercised its discretion in denying Estwick's request for a substitution
of counsel because he had not established "good cause" for such
substitution; and (2) the consecutive sentences were "properly imposed."
People v. Estwick, 266 A.D.2d 123, 123-24 (1st Dep't 1999).
In a letter dated December 21, 1999, Estwick, through counsel,
requested leave to appeal to the New York Court of Appeals on the issues
raised in his brief to the Appellate Division. See Prescod Aff.
¶ 8. On March 13, 2000, the Court of Appeals denied Estwick's
application for leave to appeal. See People v. Estwick,
94 N.Y.2d 918 (2000).
2. Motion to Vacate
On November 28, 2000, Estwick moved, pro se, to
vacate his conviction pursuant to N.Y. Crim. Proc. Law ("CPL") §
440.10. In this motion, Estwick claimed that (1) his sentence was illegal
and harsh, see Notice of Motion to Vacate Judgment, dated
November 28, 2000 ("440.10 Motion") (reproduced as Ex. 4 to Prescod Aff);
(2) his trial counsel was ineffective for failing to "put the effort in working with [him]" to suppress his confession,
Affidavit in Support of Motion to Vacate, dated November 28, 2000
("440.10 Aff") (reproduced as Ex. 4 to Prescod Aff.), at 2; and (3) his
confession was illegally obtained, see 440.10 Motion; 440.10
Aff. at 1-2.
On February 21, 2001, the Supreme Court, Bronx County, issued a
decision denying Estwick's CPL § 440.10 motion in its entirety on the
grounds that (1) Estwick's sentencing claim was procedurally barred both
under CPL § 440.20(2) because this claim was raised and decided on
the merits on direct appeal and under CPL § 440.10(2)(d) "since it
involves only a sentencing matter," Decision, dated February 21, 2001
("440.10 Decision") (reproduced as Ex. 6 to Prescod Aff), at 1-2; (2)
Estwick's ineffective assistance of counsel claim was barred under CPL
§ 440.10(2)(c) because sufficient facts appeared on the record to
have permitted appellate review of this claim but Estwick had failed to
raise it in full on direct appeal, Id. at 2; and (3) CPL §
440.10(2)(c) similarly barred Estwick's claim as to the admissibility of
his confession because the claim could have been raised on direct appeal
but was not, id. at 3-4. In addition, the court stated that
even if Estwick's ineffective assistance of counsel claim were to be
decided on the merits, the motion to vacate would still be denied.
Id. at 2. In making this determination, the court found that
there was nothing in the record to support Estwick's "self-serving
allegations" that he received "less than meaningful representation" and
also found that his counsel's performance was consistent with that of a
"reasonably competent attorney." Id. at 3.
B. Proceedings Subsequent to the Filing of the Petition
Estwick submitted the instant habeas petition while his motion to
vacate was still pending in the State Supreme Court. See
Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person
in State Custody, filed March 14, 2001 (Docket #1) ("Petition").
Estwick's petition is dated December 18, 2000 and is stamped "received" by the Pro Se
Office of this Court on January 23, 2001. The petition asserts four
grounds for relief: (1) Estwick was denied effective assistance of trial
counsel because his counsel failed to communicate with him in preparation
for trial and did not represent him "to her ability"; (2) the sentence
was "illegal & harsh"; (3) Estwick's confession was illegally
obtained because he was questioned for "about an hour or so with yelling
and threats"; and (4) his confession was the product of a custodial
interrogation without Miranda warnings. Id. ¶ 12;
see also Memorandum of Law, dated December 22, 2000 (annexed to
1. Initial Decision on Petition
On January 29, 2002, the undersigned issued a Report and Recommendation
solely regarding the issue of whether any aspect of this case should be
stayed to permit the exhaustion of remedies. See Report and
Recommendation, filed January 30, 2002 (Docket #9) ("R&R"). Because
it was clear that Estwick had not sought leave to appeal the denial of
his motion to vacate as is required to show exhaustion, see
Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990), this Court
recommended dismissing Grounds One, Three, and Four to allow Estwick to
exhaust these claims and staying Ground Two in the interim, R&R at 9
the procedure contemplated in Zarvela v. Artuz,
254 F.3d 374, 380-82 (2d Cir.), cert. denied, 534 U.S. 1015
On March 5, 2002, United States District Judge Alien G. Schwartz
adopted the Report and Recommendation and required Estwick to file, by
April 5, 2002, an application under CPL §§ 450.15(1), 460.10(4)(a),
and 460.15 seeking leave to appeal the denial of his CPL § 440.10
motion. See Amended Order, filed March 5, 2002 (Docket #12), at
1-2. In addition, the Order required Estwick to file an affidavit or
declaration with the Court once his CPL § 440.10 motion had been disposed of informing the Court that he wished to
terminate the stay of this case. Id. at 2. That affidavit or
declaration was required to be filed within 30 days following either the
denial of leave to appeal or an adverse decision on the merits.
Id. The Order warned Estwick that if he failed either to file
an application for leave to appeal within 30 days or to notify the Court
within 30 days of such application being resolved, he would be barred
from presenting the claims made in his CPL § 440.10 motion as part of
this or any other habeas petition. Id.
2. Estwick's Efforts to Seek Leave to Appeal
Thereafter Estwick did not make the prompt application required by the
Court's Order. The Court will not dwell on that history here the
chronology of which is reflected in numerous orders docketed in the
record except to say that it appears that Estwick did not act
diligently in presenting his motion. Ultimately, Estwick informed the
Court that he had received a decision from the Appellate Division denying
leave to appeal. The decision, which is a summary order, states only that
permission to appeal was denied. See Certificate Denying Leave,
dated October 28, 2003 ("Leave Denial") (reproduced as Ex. 3 to
Supplemental Affidavit of Nancy D. Killian, filed December 19, 2003
(Docket #28) ("Killian Aff.")).
Thereafter, the Court directed the respondent to file a new response to
the petition and Estwick to file a reply 30 days thereafter.
See Order, filed November 17, 2003 (Docket #24). Both parties
have submitted supplemental affidavits and accompanying memoranda of law.
See Respondent's Memorandum of Law, dated December 2003 ("Resp.
Mem.") (annexed to Killian Aff); Petitioner's Memorandum of Law, undated
("Pet. Supp. Mem.") (annexed to Response to Supplemental Affidavit, dated
January 14, 2004). The petition is thus ready for adjudication. II. DISCUSSION
As noted, Estwick's habeas petition asserts four grounds for relief:
(1) Estwick was denied effective assistance of trial counsel because his
counsel failed to communicate with him in preparation for trial and did
not represent him "to her ability"; (2) the sentence was "illegal &
harsh"; (3) Estwick's confession was illegally obtained because he was
questioned for "about an hour or so with yelling and threats"; and (4)
his confession was the product of a custodial interrogation without
Miranda warnings. Petition ¶ 12.
Respondent now argues that Grounds One, Three, and Four should be
dismissed as time-barred because Estwick failed to promptly exhaust
these claims as directed. See Resp. Mem. at 3-5. As an
alternative argument, respondent argues that habeas relief is nonetheless
unavailable because Estwick procedurally defaulted these three claims in
state court. Id. at 6-12. Finally, respondent argues that
Ground Two is unexhausted because Estwick did not present the federal
nature of his claim to the state courts. See Id. at
In his supplemental response, Estwick has now combined the ineffective
assistance of counsel claim raised in his petition (based on his
attorney's failure to communicate) with an argument that the trial court
abused its discretion in refusing to appoint new counsel where there was
a complete breakdown of communication. See Pet. Supp. Mem. at
3-7. This abuse of discretion argument is essentially the same argument
raised on Estwick's direct appeal, except that on direct appeal Estwick
did not assert ineffective assistance of counsel. Compare
Id. with Pet. App. Brief at 15-21. Given the
applicability of the liberal amendment policy reflected in Fed.R. Civ.
P. 15(a), see, e.g., Littleiohn v. Artuz, 271 F.3d 360, 363-64
(2d Cir. 2001), the Court will construe Estwick's petition as raising a
fifth ground for relief: the trial court's failure to appoint him a new attorney. This claim, denominated herein as
"Ground Five," will be addressed separately from the ineffective
assistance of counsel claim.
A. Grounds One. Three, and Four
Estwick's claim of ineffective assistance (Ground One) and his two
claims regarding his confession (Grounds Three and Four) are now properly
exhausted. All three were raised in Estwick's motion to vacate his
sentence under CPL § 440.10 and leave to appeal the decision denying
this motion has now been denied. See Leave Denial. The
Appellate Division stated that Estwick's application for leave to appeal
was "timely." Id. While the respondent has a strong argument
that Estwick did not make reasonable efforts to comply with the Order
requiring that he present these claims by April 5, 2002, the Court will
instead address the respondent's alternative argument relating to the
procedural bar, as the claims are easily disposed of on that basis.
In addressing Estwick's ineffective assistance and coerced confession
arguments, the state trial court expressly held that the claims were
barred by a state procedural rule. 440.10 Decision at 2-4. Specifically,
the court held that the claims were barred under CPL § 440.10(2)(c),
id., which prohibits collateral review of a claim if sufficient
facts appear on the record to have permitted adequate appellate review of
the issue and there was an unjustifiable failure to raise the claim on
direct appeal, see CPL § 440.10(2)(c). Federal habeas
review of a claim is prohibited if a state court rests its judgment "`on
a state law ground that is independent of the federal question and
adequate to support the judgment.'" Lambrix v. Singletary,
520 U.S. 518, 522-23 (1997) (quoting Coleman v. Thompson,
501 U.S. 722, 729 (1991)). Where a state court rejects a petitioner's claim
because the petitioner failed to comply with a state procedural rule, the
procedural default constitutes an adequate and independent ground for the state court decision.
See, e.g., Coleman, 501 U.S. at 729-30, 749-50. A procedural
default will "bar federal habeas review of the federal claim, unless the
habeas petitioner can show `cause' for the default and `prejudice
attributable thereto,' or demonstrate that failure to consider the
federal claim will result in a `fundamental miscarriage of justice.'"
Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted):
accord Coleman. 501 U.S. at 749-50; Fama v. Comm'r of Corr.
Servs., 235 F.3d 804, 809 (2d Cir. 2000); Bossett v.
Walker, 41 F.3d 825, 829 (2d Cir. 1994). cert. denied,
514 U.S. 1054 (1995); see also Hams, 489 U.S. at 264 n. 10 ("[A]s long as the
state court explicitly invokes a state procedural bar rule as a separate
basis for decision," the adequate and independent state ground doctrine
"curtails reconsideration of the federal issue on federal habeas."). The
bar on habeas review resulting from a procedural default applies even
where, as here, the state court issues an alternative holding addressing
a procedurally defaulted claim on the merits. See, e.g.,
Harris, 489 U.S. at 264 n.10; Velasquez v. Leonardo,
898 F.2d 7, 9 (2d Cir. 1990) (per curiam).
As noted, a procedural bar applies only where it constitutes both an
"independent" and "adequate" state law ground. It is clear from the State
Supreme Court's decision that the court was relying on an "independent"
state procedural rule and not on any rule of federal law in denying the
motion to vacate with respect to these claims. See 440.10
Decision at 2-4. That the Appellate Division issued a summary denial of
leave to appeal is of no moment because where "the last reasoned opinion
on the claim explicitly imposes a procedural default" as is true
of the State Supreme Court's decision in this case a federal
habeas court "will presume that a later decision rejecting the claim did
not silently disregard that bar and consider the merits." Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991); cf Levine v. Comm'r of
Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995) (federal habeas court looks to Appellate Division's
reliance on procedural bar where Court of Appeals issues summary denial
of leave to appeal). Thus, it only remains to be determined whether the
rule relied upon is "adequate" to support the decision.
A procedural bar is "adequate" if it is based on a rule that is
"`firmly established and regularly followed' by the state in question."
Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting
Ford v. Georgia, 498 U.S. 411, 423-24 (1991)). Whether
application of the procedural rule is "firmly established and regularly
followed" must be judged in the context of "the specific circumstances
presented in the case, an inquiry that includes an evaluation of the
asserted state interest in applying the procedural rule in such
circumstances." Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir.
2003) (citing Lee v. Kemna, 534 U.S. 362, 386-87 (2002)). The
Second Circuit has set forth the following "guideposts" for making this
(1) whether the alleged procedural violation was
actually relied on in the trial court, and whether
perfect compliance with the state rule would have
changed the trial court's decision; (2) whether
state caselaw indicated that compliance with the
rule was demanded in the specific circumstances
presented; and (3) whether petitioner had
"substantially complied" with the rule given "the
realities of trial," and, therefore, whether
demanding perfect compliance with the rule would
serve a legitimate governmental interest.
Id. (citing Lee, 534 U.S. at 381-85).
Applying the Cotto guideposts demonstrates that the
procedural bar relied on by the state court is one that is "firmly
established and regularly followed." With respect to the first guidepost,
Estwick's failure to raise any of these issues in his direct appeal was
"actually relied on" by the state court, as is evidenced by the decision
issued on his motion to vacate. See 440.10 Decision at 2-4.
As for the second guidepost, it is well-settled under New York law that
where the record is sufficient to allow appellate review of a claim, the failure to
raise that claim on appeal precludes subsequent collateral review of the
claim. See, e.g., People v. Cooks, 67 N.Y.2d 100, 103-04
(1986); People v. Jossiah, 2 A.D.3d 877, 877 (2d Dep't 2003);
People v. Skinner, 154 A.D.2d 216, 221 (1st Dep't 1990). The
same rule applies to bar collateral review where the facts underlying an
ineffective assistance claim appear on the record. See, e.g.,
Jossiah, 2 A.D.3d at 877; People v. Smith, 269 A.D.2d 769,
770 (4th Dep't 2000); People v. Orr, 240 A.D.2d 213, 214 (1st
Dep't 1997). Accordingly, where an ineffective assistance of counsel
claim is record-based, federal habeas courts have found the rule of CPL
§ 440.10(2)(c) to be "firmly established and regularly followed" and
thus "adequate." See, e.g., Sweet v. Bennett, 353 F.3d 135,
139-40 (2d Cir. 2003); Lee v. Senkowski, 2003 WL 22890405, at
*9 (S.D.N.Y. Dec. 2, 2003) (Report and Recommendation adopted on April
30, 2004); Ryan v. Mann, 73 F. Supp.2d 241, 248 (E.D.N.Y.
1998), affd, 201 F.3d 432 (2d Cir. 1999).*fn1
Here, Estwick's entire claim with respect to the ineffective assistance
of counsel consisted of the mere allegations that his attorney "did not
care as to the matter of facts" and that "had [his attorney] put the
effort in working with me, then the decision [at the pretrial suppression
hearing regarding his] statement would have been tossed out." 440.10 Aff.
at 2. The trial court properly concluded that this claim was record-based
because, as the District Attorney pointed out in opposing Estwick's
motion to vacate, see Affirmation in Opposition, dated February 8, 2001 (reproduced as Ex. 5 to Prescod Aff.), ¶ 9,
Estwick made essentially the identical allegations on the record when he
addressed the trial judge at the suppression hearing (see Hr'g:
Tr. 67, 71, 129-30). In fact, the hearing contained an extended colloquy
during which Estwick's attorney explained the history of her involvement
in the case and her efforts to communicate with Estwick and his family.
(Hr'g: Tr. 130-33). Accordingly, the state court properly concluded that
Estwick's ineffective assistance claim was record-based and had to be
raised on direct appeal.
Because Estwick's claims regarding the in admissibility of his
confession are similarly based entirely on the record adduced at the
suppression hearing, and because state case law indicates that
"compliance with [CPL § 440.10(2)(c)] was demanded in the specific
circumstances presented," Cotto, 331 F.3d at 240, New York law
required these claims to be raised on direct appeal as well.
The third guidepost likewise fails to help Estwick for there is no
argument that he "substantially complied" with the state procedural rule.
Estwick had new counsel on appeal who did not in any way alert the
appellate court that there was any appealable issue as to the
effectiveness of Estwick's trial counsel or the admissibility of his
confession. In fact, with respect to Estwick's complaints about his trial
counsel, Estwick's appeal eschewed any argument regarding ineffective
assistance and instead argued only that there was "good cause" for the
trial court to have appointed new counsel. See Pet. App. Brief
at 15-21. Counsel also explicitly stated that the hearing decision
regarding the admissibility of the confession was not being challenged.
See Id. at 3 n.1 ("The decision of the
Huntley hearing is not being challenged on appeal").
Accordingly, the state procedural rule is "adequate" to preclude federal
habeas review of these three claims.
In sum, the state court's reliance on the state procedural rule in this
situation constitutes both an "independent" and an "adequate" ground for
its decision. Estwick's ineffective assistance and coerced confession
claims are thus procedurally defaulted. Estwick has made no effort to
demonstrate "cause" that would excuse his failure to raise these three
issues in his direct appeal. In addition, he has not shown that absent
review there would be a "fundamental miscarriage of justice," which
requires a demonstration of "actual innocence." See, e.g.,
Calderon v. Thompson, 523 U.S. 538, 559 (1998): accord
Murray v. Carrier, 477 U.S. 478, 496-97 (1986); Dunham v.
Travis, 313 F.3d 724, 730 (2d Cir. 2002). Accordingly, the
procedural default bars federal habeas review of his claims that he was
denied effective assistance of counsel, coerced into confessing, and
interrogated without being read his Miranda rights.
B. Ground Two
The second ground for relief raised in Estwick's habeas petition is
his claim that he was subjected to illegal and harsh sentencing. Petition
¶ 12(B). He states, "This was my first felony and [since] `I did'
confess to the crime the judge acted upon emotions" in sentencing him to
25 years to life for murder and five to 15 years for gun possession.
Id. Although Estwick raised a similar sentencing claim in his
direct appeal, see Pet. App. Brief at 22-25, and in his motion
to vacate, see 440.10 Motion, the respondent contends that the
claim is unexhausted because Estwick did not alert the state courts to
the federal nature of the claim, Resp. Mem. at 13-17.
Under 28 U.S.C. § 2254(a), federal habeas review is available for a
state prisoner "only on the ground that he is in custody in violation of
the Constitution or laws or treaties of the United States." Errors of
state law are not subject to federal habeas review. See,
e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). To be entitled to
habeas relief a petitioner must demonstrate that the conviction resulted
from a state court decision that violated federal law. See,
e.g., id. at 68.
In addition, "[t]he exhaustion requirement is not satisfied unless the
federal claim has been fairly presented to the state courts." Daye
v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982) (en banc)
(internal quotation marks and citations omitted), cert. denied.
464 U.S. 1048 (1984). Without explicitly citing federal law, a habeas
petitioner can alert the state court to a claim's federal nature by doing
one of the following: (1) relying on federal cases employing
constitutional analysis; (2) relying on state cases employing a federal
constitutional analysis; (3) asserting a claim in terms so particular as
to call to mind a specific right protected by the Constitution; or (4)
alleging a pattern of facts that is well within the mainstream of federal
constitutional litigation. Id. at 194.
The only argument Estwick raised in the state courts with regard to his
sentence was that, as a matter of state statutory construction, his two
sentences should run concurrently rather than consecutively because the
two crimes arose from the same "act." See Pet. App. Brief at
22-25 (arguing that under N.Y. Penal Law § 70.25(2) his sentences
should have been concurrent rather than consecutive); see also
440.10 Motion (listing "Illegal and Harsh Sentence" as a ground for
vacating the sentence without any elaboration). Federal habeas courts
have squarely held that such claims are purely a matter of state law and
are not cognizable on habeas review. See, e.g., Davis v.
Herbert, 2003 WL 23185747, at *15 (E.D.N.Y. Oct. 24, 2003) ("Whether
the sentence could be consecutive was a matter of state law and raises no
Constitutional issue."); Heath v. Hoke, 1989 WL 153759, at *3
(S.D.N.Y. Dec. 7, 1989) ("[A] state court's interpretation of state law on concurrent and consecutive sentences is not a question of
federal constitutional dimension cognizable in a federal habeas corpus
To the extent Estwick is now attempting to make a federal
constitutional argument challenging his sentence, such a claim has not
been presented to the state courts and is unexhausted. See,
e.g., Levine, 44 F.3d at 125 (constitutional
challenge to sentencing dismissed as unexhausted because direct appeal
only raised state statutory challenge); Carrasco v. David, 2002
WL 1205750, at *5 (S.D.N.Y. June 4, 2002) (because petitioner's federal
claims that his sentence was either grossly excessive or outside the
range permitted by state law were not alleged in state court, his claims
Furthermore, Estwick cannot return to state court to argue that his
sentence violated the federal Constitution. See CPL §§
440.10(2)(d), 440.20(2). Thus, even if the claim were deemed exhausted,
the procedural default would bar federal habeas review. See,
e.g., Gray v. Netherland, 518 U.S. 152, 161-62 (1996)
(while claims are deemed exhausted if there are no longer any available
remedies in state court, the same procedural default bars a federal
habeas court from addressing the claim on the merits); Bossett,
41 F.3d at 828-29 (same). As Estwick has not demonstrated either cause
for his default or actual innocence, Ground Two of his petition should be
dismissed based on the procedural default.
C. Ground Five
Estwick's final ground for relief is that the trial court abused its
discretion in refusing to appoint new counsel where there was a complete
breakdown of communication between Estwick and his attorney.
See Pet. Supp. Mem. at 3-7. This claim was raised as a
violation of the Sixth and Fourteenth Amendments on direct appeal, Pet.
App. Brief at 15-21, and the Appellate Division adjudicated it on the merits, Estwick, 266
A.D.2d at 123-24. As Estwick sought leave to appeal to the New York Court
of Appeals on all of the issues raised in his brief to the Appellate
Division, this claim is properly exhausted.
1. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), a petition for writ of habeas corpus may not be granted with
respect to any claim that has been "adjudicated on the merits" in the
state courts unless the state court's adjudication: "(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). The
Second Circuit has held that an "adjudication on the merits" requires
only that the state court base its decision on "the substance of the
claim advanced, rather than on a procedural, or other, ground."
Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). It is not
necessary for the state court to refer to any federal claim or to any
federal law for AEDPA's deferential standard to apply. Id. at
312. Moreover, a state court's determination of a factual issue is
"presumed to be correct" and that presumption may be rebutted only "by
clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
In Williams v. Taylor, the Supreme Court held that a state
court decision is "contrary to" clearly established federal law only "if
the state court applies a rule that contradicts the governing law set
forth" in Supreme Court precedent or "if the state court confronts a set
of facts that are materially indistinguishable from a decision [of the
Supreme Court] and nevertheless arrives" at a different result.
529 U.S. 362, 405-06 (2000). Williams also held that habeas relief is
available under the "unreasonable application" clause only "if the state
court identifies the correct governing legal principle from [the Supreme
Court's] decisions but unreasonably applies that principle to the facts
of the prisoner's case." Id. at 413. A federal court may not
grant relief "simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly." Id. at
411. Rather, the state court's application must have been "objectively
unreasonable." Id. at 409.
2. Merits of Estwick's Claim
Unlike the right to counsel, the right to counsel of one's choice is
not absolute. See, e.g., Caplin & Drysdale, Chartered
v. United States, 491 U.S. 617, 624 (1989) ("The [Sixth] Amendment
guarantees defendants in criminal cases the right to adequate
representation, but those who do not have the means to hire their own
lawyers have no cognizable complaint so long as they are adequately
represented by attorneys appointed by the courts."). As one court has
Although the Sixth Amendment guarantees assistance
of counsel, the Supreme Court has held that it
does not guarantee an absolute right to the
counsel of one's choosing even for those with
retained counsel, see [Wheat v. United
States, 486 U.S. 153, 160 (1988)], a
"meaningful" attorney-client relationship,
see Morris v. Slappy, 461 U.S. 1, 12-15
(1983), or complete satisfaction with counsel's
performance, see United States v.
Cronic, 466 U.S. 648, 657 n.21 (1984) ("[T]he
appropriate inquiry focuses on the adversarial
process, not on the accused's relationship with
his lawyer as such[.]").
Soltero v. Kuhlman, 2000 WL 1781657, at *3 (S.D.N.Y. Dec.
Rather, belated substitution of counsel is warranted only by "good
cause, such as a conflict of interest, a complete breakdown of
communication or an irreconcilable conflict which leads to an apparently
unjust verdict." McKee v. Harris, 649 F.2d 927, 931 (2d Cir.
1981) (internal quotation marks and citations omitted), cert.
denied, 456 U.S. 917 (1982); accord Monegro v. Greiner,
2004 WL 187129, at *4 (S.D.N.Y. Jan. 28, 2004). "While loss of trust is
certainly a factor in assessing good cause, a defendant seeking
substitution of assigned counsel must nevertheless afford the court with
legitimate reasons for the lack of confidence." McKee, 649 F.2d
at 932. If the trial judge receives a "seemingly substantial" complaint
from a defendant about his counsel, the court has a duty to inquire into
the reasons for dissatisfaction. Id. at 933. Estwick moved for
substitution of counsel on the second day of his suppression hearing,
just a few days before his trial began, by informing the court as
I would like a lawyer who's going to fight. At
least I know what that lawyer if I get
convicted he fought, he fought for something that
was right. I don't want a lawyer who's going to
sit here and tell me no, take this otherwise you
going to lose because you not putting up no fight
(Hr'g: Tr. 67). The court responded:
Mr. Estwick, let me say two things. First Miss
Calvacca [Estwick's trial counsel] tried a case
with me once before, a murder case. Miss Calvacca
is a fighter. Just hear me out. She's not a lay
down person. She fights for her clients. That's
her job and she does it very well. I speak from
Now, from what I've seen of the evidence, I'm
not going to reach a decision as to guilt or
innocence here, but what I've seen so far on the
statement [referring to Estwick's confession to
the police], the statement is very powerful
evidence against you if it comes into evidence. We
haven't completed the hearing yet so it's not
determined, but if that statement comes into
evidence against you, the case against you is very
Now, from [what I] gather of what you're saying
to me, Miss Calvacca has given you her opinion as
to what the outcome of the case would be, and
given to you her recommendation of what you should
do. That's her job. That's why you have a lawyer,
somebody who is familiar with what goes on in the
courtroom and can give you advice. I'm not going
to permit you to make the mistake of killing the
messenger who brings bad news. She's a fighter,
she can represent you. We're going to go to trial on this case, and
it's going to be completed.
(Hr'g: Tr. 67-69).
Estwick again stated that he preferred "somebody who is going to fight"
(Hr'g: Tr. 69) and interjected that this was only the third time he had
seen his attorney in the two months she had represented him (Hr'g: Tr.
71). Estwick then stated that he was not going to take the plea offered
and the hearing continued. (Hr'g: Tr. 72).
The next day, Estwick renewed his request:
Well, I prefer my old lawyer back, Mr. William
Bowling because, like I said yesterday, this
lawyer here ain't helping me. I seen her only four
times. How can I communicate with somebody and
with Mr. Bowling at least I know he's
going to come in the back and talk with me about
the case even [Miss Calvacca] ain't in the
office, not only that, she don't even come in the
back to talk with me, and I've been with her two
months and I've had nine or ten court cases.
That's why I got rid of [Mr. Bowling], because I
felt he was trying to get a conviction. If he
trying to get a conviction, let me deal with him.
At least he'll come in the back and chat with me
about the case and communicate. I ain't getting no
(Hr'g: Tr. 129).
Estwick's attorney, Calvacca, responded:
May I . . . make one response, because I
don't think the record is clear with a few things.
I know you got this very late. I don't know if
your Honor is aware of the fact that Mr. Estwick
and his mother, Lucille Estwick, made a
disciplinary complaint against Bill Bowling in
which I was called to speak and make a statement
as a witness because of his incompetency, and
because Mr. Estwick and his family didn't believe
that he was fighting for him.
Mrs. Estwick went to Westchester [Attorneys']
Complaint Bisciplinary Department, who then, in
turn, turned to me to speak . . . concerning
whether I believed that Mr. Bowling . . . was
improperly conducting, number one, his
investigation of this case, and number two, his
representation of this case. That's why I was
called by the appellate division to represent Mr.
Estwick, because Mr. Bowling was the subject of a
disciplinary proceeding. Of course I spoke to the disciplinary committee
about Mr. Dowling. I advised them that he did
investigate, he supplied pictures for me, I didn't
think, from looking at the file, that he did
anything egregious that would inure to
disciplinary action against him, and I think he
was cleared of that, however, I do take umbrage
with the fact that now [Estwick] wants Mr. Dowling
back after he was instrumental in making a
disciplinary proceeding against one of my
colleagues, and again he may well do that against
me, I don't know. But I think because your Honor
is not aware of that, I believe that's something
you should be aware of, and the record should
With respect to not seeing me, I see [Estwick]
as often as I can. He's a red tag.*fn2 They don't
let me in there. He's really bonded through chest,
waist, and legs, and they don't let the attorneys
in as often as I would like, and I don't
I'm not able to do that, but we've spoken on the
phone numerous times, I'm in constant
communication with his family. I have family
members here today in Court because I talked to
his mother and said that there is there is
a problem and I think everyone should bond
together to see if we could try to rectify this in
the best interests of Mr. Estwick who's present in
Court. She's asked Mr. Estwick to at least look
into the plea that your Honor has suggested. His
mother has begged me to have Mr. Estwick take a
plea to this particular case. She's begged me on
the phone. We've been in constant communication
concerning this case. I'm ready, willing, and able
to try this case, and yes I'm not in my office
because I'm here. And I would hate to have a trial
lawyer that is always in their office because I
wouldn't want one of those. I'm always in Court
and that's why I'm not in my office.
I thank your Honor for at least allowing me to
make the record clear. I'm willing to try this
case and do the best that I can with what I
seemingly feel there is no defense here, but I
will try the best that I can.
(Hr'g: Tr. 130-33).
The trial court then denied Estwick's request for a new attorney.
(Hr'g: Tr. 133). The court assured Estwick that if his attorney, the
district attorney, or the court did anything inappropriate at any point, it would be on the record for appellate
review. (Hr'g: Tr. 134-35). The court stated, "The case has proceeded too
far for me to insert another attorney into the case." (Hr'g: Tr. 135).
The court also stated again that Calvacca was a fighter and found that
there was no "evidence that Miss Calvacca is doing anything less than
what the best attorney should do for her or his client." (Hr'g: Tr.
With regard to Estwick's claim that the trial court abused its
discretion in not appointing him a new attorney, the Appellate Division
After sufficient inquiry and ample opportunity
for defendant to be heard, the court properly
exercised its discretion in denying defendant's
requests for substitution of assigned counsel,
made shortly before and during the
Huntley hearing, since defendant did not
establish good cause for such substitution ([see
People v. Sides, 75 N.Y.2d 822 (1990);
People v. Garcia, 250 A.D.2d 421 (1st
Dep't 1998)]). Other than defendant's disagreement
with his counsel's sound advice to plead guilty,
defendant's complaints about his counsel consisted
of conclusory allegations of inadequate
communication ([see People v.
Square, 262 A.D.2d 154 (1st Dep't 1999)]).
Counsel's comment to the court, outside the
presence of the jury, concerning the absence of a
valid defense, was not contrary to defendant's
interests given the context in which the comments
were made ([see People v. Rowe,
258 A.D.2d 378 (1st Dep't 1999)]). In sum, defendant's
groundless lack of confidence in, and hostility
toward, his attorney, who went on to zealously
defend him at trial without further complaint, did
not require substitution ([see
People v. Medina, 44 N.Y.2d 199, 208-09
Estwick, 266 A.D.2d at 123-24. Habeas relief is
available only if this decision is "contrary to" or "an unreasonable
application of clearly established federal law.
The record in this case shows that the trial court's refusal to appoint
new counsel was entirely proper and that the Appellate Division did not
unreasonably conclude that Estwick's application failed to show "good
cause, such as a conflict of interest, a complete breakdown of
communication or an irreconcilable conflict which leads to an apparently
unjust verdict," McKee, 649 F.2d at 931. First, the timing of
Estwick's application to substitute counsel weighs against the finding of a Sixth Amendment violation. Estwick did not make
his request until the second day of the suppression hearing, which was
only four days prior to the start of trial. Whether a defendant made a
timely request for new counsel is one of the central factors used to
evaluate a trial court's exercise of discretion in denying such a request
and thus courts have frequently denied claims of constitutional violation
where the request for new counsel came too late. See, e.g.,
Soltero, 2000 WL 1781657, at *3-*4 (application for substitute
counsel made on third day of suppression hearing): Stephens v.
Costello, 55 F. Supp.2d 163, 170 (W.D.N.Y. 1999) (application made
on date trial scheduled to begin); see also United States v. John
Doe No. 1, 272 F.3d 116, 122 (2d Cir. 2001) ("This Court, following
its sister circuits, applies a three factor test in evaluating whether a
district court abused its discretion in denying a motion to substitute
counsel: (1) whether defendant made a timely motion requesting new
counsel; (2) whether the trial court adequately inquired into the matter;
and (3) whether the conflict between the defendant and his attorney was
so great that it resulted in a `total lack of communication preventing an
adequate defense.'" (citing cases)), cert. denied, 537 U.S. 851
(2002). The belatedness of Estwick's request thus weighs in favor of
deferring to the trial court's decision to deny his motion.
Second, Estwick's reason for requesting new counsel that he
was dissatisfied with his attorney's advice that he plead guilty
(see Hr'g: Tr. 69) certainly does not constitute good
cause for substitution of counsel. "The starting point for effective
representation is a realistic assessment of the prospects of success in
light of the risks of failure. It is precisely this balancing process
which leads many defense lawyers to advise their clients to enter plea
negotiations." McKee, 649 F.2d at 932. Thus, the statement
Estwick's attorney made that "there is no defense here" (Hr'g: Tr. 133), does not amount to good cause for
substitution. See, e.g., Rowe v. New York,
2002 WL 31499005, at *3 (S.D.N.Y. Nov. 7, 2002) (counsel did not act
against petitioner's interests or cause an irrevocable breakdown in
communication by telling the trial judge that the evidence against
petitioner was overwhelming and by suggesting that petitioner plead
guilty): see also Byas v. Keane, 1999 WL
608787, at *7-*10 (S.D.N.Y. Aug. 12, 1999) (petitioner failed to show any
legitimate reason for dissatisfaction despite asserting that counsel had
"set no defense" and had not properly consulted with him). As the Second
Circuit has noted, if such pessimistic forecasts of the case rose to the
level of good cause entitling a defendant to a new attorney, "appointed
counsel could be replaced for doing little more than giving their clients
honest advice." McKee, 649 F.2d at 932 (internal quotation
marks and citation omitted). In this case, where Estwick had made at
least three separate confessions, the Court cannot fault his attorney's
assessment of the strength of the case against him and her advice to
accept a plea.
Estwick also argues that his attorney's concern that he would file a
disciplinary complaint regarding her representation, as he had done with
respect to his prior counsel's representation, required appointment of
new counsel. See Pet. Supp. Mem. at 6-7. The Sixth Amendment
right to effective assistance of counsel does provide a right to
conflict-free representation. E.g., John Doe No. 1, 272 F.3d at
122. However, a defendant claiming a conflict of interest must establish
an "actual lapse in representation that resulted from the conflict."
United States v. Moree, 220 F.3d 65, 69 (2d Cir. 2000)
(internal quotation marks and citation omitted). Estwick has not
identified any "actual lapse in representation" and his attorney's
statement that there was no good defense would not so qualify as it was
merely an honest assessment of Estwick's case. As observed in John
Doe No. 1, "defining conduct [by a defendant] of a threatening or
violent nature as creating an actual conflict of interest would potentially
encourage defendants to take such action in the hopes of having an avenue
to later seek reversal of a conviction." 272 F.3d at 126 (finding no
conflict of interest where attorney expressed fear that his personal
safety would be threatened if defendant were convicted); see also
Stephens, 55 F. Supp.2d at 170 ("A court can properly refuse a
request for substitution of counsel when the defendant's own behavior
creates the problem." (internal quotation marks and citations omitted)).
In sum, that Estwick's trial counsel may have expressed concern regarding
a disciplinary complaint filed by Estwick (or his family) did not require
the court to appoint new counsel.
Finally, there was no suggestion of a "complete breakdown in
communication" between Estwick and his attorney so as to require that the
trial court assign new counsel. See, e.g.,
Byas, 1999 WL 608787, at *9 (no breakdown in communication
where petitioner met with assigned counsel before trial on at least two
occasions). Indeed, Estwick's attorney offered a valid explanation
apparently occasioned by Estwick's behavior in custody
for Estwick's complaint that he had come to court several times but had
not been able to meet with her. (See Hr'g: Tr. 131-33). And she
emphasized that although they had only met in person two times prior to
the hearing, she had spoken to him on the phone "numerous times." (Hr'g:
Tr. 132). Under such circumstances, the Appellate Division reasonably
found that there was no such breakdown and that the trial court
appropriately exercised its discretion in denying Estwick's request for a
new attorney, Estwick, 266 A.D.2d at 123.
For the foregoing reasons, Estwick's petition should be denied. PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties have ten (10) days from service of
this Report and Recommendation to file any objections. See also
Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to
objections) shall be filed with the Clerk of the Court, with copies sent
to the Hon. William H. Pauley, III, 500 Pearl Street, New York, New York
10007, and to the undersigned at 40 Centre Street, New York, New York
10007. Any request for an extension of time to file objections must be
directed to Judge Pauley. If a party fails to file timely objections,
that party will not be permitted to raise any objections to this Report
and Recommendation on appeal. See Thomas v. Am, 474 U.S. 140