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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


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 Petition).

  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 (2001).

  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 13-17.

  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 determination:

(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 proceeding.").

  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 were unexhausted).

  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 noted:

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. 4, 2000).

  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 follows:

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 for me.
(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 personal experience.
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 strong.
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 communication.
(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 indicate.
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. 135-36).

  With regard to Estwick's claim that the trial court abused its discretion in not appointing him a new attorney, the Appellate Division held:

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 (1978)]).
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 RECOMMENDATION
  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 (1985).

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