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United States District Court, S.D. New York

July 21, 2004.

MYRON WARRICK, Petitioner,

The opinion of the court was delivered by: DENISE COTE, District Judge


In a timely filed petition, Myron Warrick ("Warrick") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his December 1999 conviction of the criminal sale and possession of a controlled substance following a jury trial.*fn1 The petition was referred to Magistrate Judge Kevin N. Fox for a Report and Recommendation ("Report"), which was issued on February 5, 2004. The Report recommends that the petition be denied. Warrick has filed objections to the Report. This Opinion addresses those objections and adopts the Report.


  The facts established at trial are set forth in the Report and summarized here. On September 2, 1998, undercover police officer Anthony Ortiz ("Ortiz") purchased heroin from Warrick in a transaction observed by a second officer. After completing the heroin purchase, Ortiz communicated a description of Warrick's race and clothing to other officers involved in the operation. Upon seeing an officer approach, Warrick began to run, stumbled, and was apprehended. Twenty-four glassine envelopes of heroin were found on the ground underneath Warrick's body. The envelopes bore the same "Mr. Fieldgood" legend as the packet of heroin purchased by Ortiz. Also recovered from Warrick was $10 of the pre-recorded buy money that Ortiz had used to purchase the heroin. Approximately five minutes after the sale and once Warrick was in police custody, Ortiz identified Warrick as the person who had sold him the heroin.

  Following Warrick's arrest, his attorney notified the prosecutor that Warrick wished to testify before the grand jury. Warrick failed to appear on his scheduled testimony date, and his lawyer informed the prosecutor that Warrick's prior notice to give testimony before the grand jury was being withdrawn. Warrick maintains that he did not authorize his lawyer to withdraw his notice to testify before the grand jury.

  After his indictment, Warrick was assigned new counsel ("second counsel"). Warrick's second counsel moved to dismiss the indictment on the grounds that Warrick had not been given the opportunity to testify before the grand jury, and that the indictment was time-barred. The trial court denied the motion, finding that Warrick had forfeited his right to testify when he failed to appear on the date scheduled for his testimony. The trial court also found that Warrick's right to a speedy trial had not been violated, since only 109 of 180 allowable days of delay were attributable to the prosecution.

  Warrick's second counsel next challenged the probable cause of Warrick's arrest, and moved to suppress Ortiz's identification of him and physical evidence seized from him. The trial court denied the motion.

  At trial, Ortiz and the arresting detective testified, as well as two NYPD chemists. Warwick testified that he was a Vietnam veteran and the heroin in his possession at the time of his arrest was for his personal use. He asserted that he had been given the $10 pre-recorded buy money as change by the drug dealer from whom he had purchased the twenty-four glassine envelopes of heroin.

  The jury returned a guilty verdict against Warrick for the criminal sale and possession of a controlled substance. After Warrick's conviction, but before his sentencing, the judge who had presided over Warrick's trial retired. A second judge sentenced Warrick to concurrent terms of five to ten years' imprisonment. The Report sets out Warrick's post-trial attacks on his conviction, which included a direct appeal and two Section 440.10 motions.


  The court shall make a de novo determination of those portions of the Report to which objection is made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). In reviewing the Report, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1).

  As the Report observes, not all of Warrick's claims have been exhausted. Because an unexhausted claim may be dismissed if it lacks merit, the Report appropriately reached the merits of Warrick's claims. See 28 U.S.C. § 2254(b)(2).

  Habeas petitions are subject to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132. With respect to any claim that was adjudicated on the merits in state court, the petition must be denied unless the state court arrived at 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." 28 U.S.C. § 2254(d)(1). See Williams v. Taylor, 529 U.S. 362, 412-413 (2000); Sevencan v. Herbert, 342 F.3d 69, 73-75 (2d Cir. 2002). The federal court must presume a determination of a factual issue made by a state court to be correct. 28 U.S.C. § 2254 (e)(1). The petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. Id.

  1. Law of the Case

  The petition asserts that one judge's determination of how many days of pre-indictment delay were attributable to the prosecution was not followed by a second judge. Without analyzing whether this claim asserts a violation of a federal right, the Report rejects the claim because the record reflects that there is no factual basis for the claim. In his objection to the Report, Warrick reiterates the law of the case claim advanced in the petition, namely, that the second judge impermissibly "reversed the order" of the first judge in finding that the prosecution did not violate Warrick's statutory right to a speedy trial. Under the law of the case doctrine, "when a court has ruled on an issue, that decision should generally be adhered to by that court in subsequent stages in the same case." United States v. Quintieri, 306 F.3d 1217, 1230 (2d Cir. 2002) (citation omitted). As noted in the Report, however, the first judge presiding over Warrick's prosecution never entered a ruling on the speedy trial issue. Instead, the second judge fully considered and ruled against Warrick's speedy trial motion. Since there was only one ruling on Warrick's speedy trial claim, the Report correctly concludes that his law of the case claim is without merit. A law of the case claim does not, in any event, raise a constitutional issue.

  2. Right to a Speedy Trial

  The petition asserts that an eight month delay before Warrick's indictment violated his Sixth Amendment right to a speedy trial. The Report concluded that this claim was procedurally barred since it had not been presented on direct appeal and Warrick had not shown cause for the default and prejudice or a fundamental miscarriage of justice. The Report also reached the merits and concluded that Warrick had not shown that the trial judge's rejection of his speedy trial motion was erroneous. In particular, the Report noted that the state court judge found that only 109 days of delay were attributable to the prosecution and Warrick had not shown by clear and convincing evidence that that determination was incorrect.

  In his objection to the Report, Warrick conflates his right to appear before a grand jury with his right to a speedy trial. A criminal defendant's right to testify before a grand jury is not a constitutional right, but one that is statutorily created. Claims grounded solely on state law cannot form the basis for habeas corpus relief. See Estelle v. McGuire, 502 U.S. 62, 67 (1991).

  3. Chain of Evidence

  The petition asserts that the prosecutor failed to establish properly a chain of evidence for the heroin introduced at trial. As indicated in the Report, the record reflects evidence establishing a complete chain of evidence with respect to the heroin that was the subject of Warrick's trial. The Report concludes that Warrick had not shown a violation of his Due Process rights.

  Warrick objects to the Report's conclusion by reasserting that the heroin was inadmissible and questioning the reliability of the police chemists' testimony. State court evidentiary rulings do not raise constitutional issues unless the evidence is "so extremely unfair that its admission violates fundamental conceptions of justice." Dowling v. United States, 493 U.S. 342, 352 (1990) (citation omitted). Warrick has not shown that the issue of the heroin's chain of custody presents a constitutional question.

  4. Grand Jury

  The petition asserts that hearsay was admitted before the Grand Jury in violation of state law. The Report correctly points out that claims of error in Grand Jury proceedings may not serve as the basis for a federal habeas petition, and Warrick does not object to this conclusion.

  5. Brady Violation

  The petition asserts that police reports concerning the seized drugs were not given to him prior to the suppression hearing in violation of Brady v. Maryland, 373 U.S. 83 (1963). The Report concludes, inter alia, that the documents were provided to Warrick before the hearing and Warrick does not object to this finding.

  6. Ineffective Assistance of Counsel

  The petition asserts that Warrick's second counsel failed to submit proper pretrial motions, challenge a purportedly biased prospective juror, object to the prosecution's improper summation, and effectively argue his case before the jury. The Report properly denies each of these claims.

  The Sixth Amendment guarantees a defendant's "right to effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686 (1984) (citation omitted). To establish ineffective assistance, a defendant must show that counsel's performance fell below an "objective standard of reasonableness" measured by "prevailing professional norms." Id. at 686-688. The defendant must also affirmatively demonstrate prejudice by showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

  Failure to File Proper Pretrial Motions

  The petition asserts that Warrick's second counsel did not "file the proper motions" regarding his right to testify before the Grand Jury, his right to a speedy trial, and the inadmissibility of certain evidence against him. As noted in the Report, however, Warrick's second counsel made pretrial motions that raised all of these issues.

  Warrick objects to the Report's finding, asserting that his second counsel "failed to reargue or appeal the ruling during the nine months that this case was pending prior to the case going to trial." Warrick's second counsel was appointed on May 27, 1999, approximately six weeks before Warrick's trial. During this time, his second counsel made pretrial motions seeking to dismiss Warrick's indictment, challenging the existence of probable cause for Warrick's arrest, and requesting the suppression of testimony and physical evidence. As the Report correctly concludes, Warrick's counsel acted "well within professional norms" and filed pretrial motions that were "reasonable and appropriate" in Warrick's defense.

  Failure to Challenge a Purportedly Biased Prospective Juror

  The petition asserts that Warrick's second counsel failed to challenge a prospective juror who indicated that those who sell drugs "should be shot." As described in the Report, the transcript does not support Warrick's recollection of the voir dire proceedings. The Report notes that a prospective juror did express sympathy for those who used drugs and disdain for those who sell them, but assured the court that he could be an impartial juror at Warrick's trial. The Report goes on to note that, given Warrick's defense that he was a drug addict, his second counsel's decision not to challenge this prospective juror was a strategic one, which does not form the basis of an ineffective assistance claim.

  Warrick objects to the Report, restating that the prospective juror said that he believed that those charged with possession or sale of drugs "should be shot." A review of the entire transcript of the voir dire does not lead to the discovery of any support for this claim. Moreover, the record reflects that defense counsel was actively engaged in the voir dire process. An attorney's determination to "accept or strike" a prospective juror is a strategic or tactical decision. Alvord v. Wainwright, 469 U.S. 956, 959 n. 4 (1984) (citation omitted). Actions or omissions by counsel that "might be considered sound trial strategy" do not constitute ineffective assistance. Michel v. Louisiana, 350 U.S. 91, 101 (1955). Thus, since Warrick's objection has no basis in fact, it is properly rejected.

  Failure to Object to the Prosecution's Improper Summation

  The petition asserts that Warrick's second counsel did not object to the prosecution's references during summation that a school was close to the scene of the crime. As described in the Report, Warrick's second counsel did, in fact, object to the comments and the court gave a curative instruction.

  Warrick objects, revisiting the claim raised in his petition. As described in the Report, the objection by defense counsel during the prosecution's summation was reasonable as measured by "prevailing professional norms" and does not demonstrate an unprofessional error. This claim is rightly denied.

  Failure to Argue Warrick's Case Effectively

  The petition asserts that Warrick's second counsel did not argue his case effectively and, as a result, prejudiced Warrick. The Report concludes that Warrick's second counsel made certain strategic decisions during trial that were reasonable under the circumstances.

  Warrick objects to the Report's findings, asserting that if his second counsel had argued the case "effectively" the outcome of Warrick's trial "would have been different." Actions undertaken or omitted by counsel that reflect sound trial strategy do not constitute ineffective assistance. Strickland, 466 U.S. at 689. Further, "[j]udicial scrutiny of counsel's performance must be highly deferential" since it is "all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence." Id. Warrick's second counsel made a strategic decision to forego making an opening statement. Further, as the Report finds, the content of the second counsel's closing argument was reasonable given the defense's theory of the case. Warrick has not shown that his counsel's performance constituted ineffective assistance of counsel.


  The Report is adopted and the petition for a writ of habeas corpus is denied. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). Further, I find, pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this petition and close the case.


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