United States District Court, S.D. New York
July 29, 2004.
ANTHONY GILLESPIE, Petitioner,
DAVID L. MILLER, Respondent.
The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
REPORT AND RECOMMENDATION
To the Honorable Loretta A. Preska, United States District
Pro se petitioner Anthony Gillespie seeks a writ of habeas
corpus from his September 27, 1999 conviction of second degree
burglary and sentence to fifteen years imprisonment as a
predicate felon. (Dkt. No. 2: Pet. ¶¶ 1-5.) See People v.
Gillespie, 287 A.D.2d 288, 288, 731 N.Y.S.2d 21, 22 (1st Dep't
2001), appeal denied, 97 N.Y.2d 754, 742 N.Y.S.2d 614 (2002).
Gillespie's habeas petition raises four grounds: (1)
prosecutorial misconduct by submitting insufficient evidence to
the grand jury (Pet. ¶ 13(1)); (2) the prosecutor violated the
Brady rule by failing to give defense counsel the police lab
report (Pet. ¶ 13(2)); (3) he was denied his due process right to
a fair trial due to: (i) admitting Molineux evidence even
though the menacing charge had been withdrawn; (ii) failing to
dismiss a juror whose "first husband was killed in a terrorist
bombing"; (iii) failing to issue a supplemental instruction to
the jury; (iv) concealing jury notes from defense counsel; (v)
depriving petitioner of his right to be present during read-back
of the jury's notes (Pet. ¶ 13(3)); and (4) he was denied effective assistance of
appellate counsel (Pet. ¶ 13(4)). (See generally Dkt. No. 10:
Gillespie Br.; Dkt. No. 11: Gillespie 6/28/04 Letter to Court.)
For the reasons set forth below, Gillepsie's habeas petition
should be DENIED.
Petitioner Anthony Gillespie was arrested on Thanksgiving Day,
November 26, 1998, and charged with second degree burglary and
menacing. (State Opening: Trial Transcript ["Tr."] 411-12.) The
charges stemmed from Gillespie's placing a bottle that looked
like a "Molotov cocktail" at the front apartment door of his
former girlfriend, Bridgette Brooks.
Gillespie's Relationship with Former Girlfriend Bridgette
At trial, Gillespie's former girlfriend, Bridgette Brooks,
testified to the events of Thanksgiving Day, 1998, and to
background information concerning Gillespie's violent
relationship with her. (See generally Brooks: Tr. 542-619.) The
prosecutor informed the jury that testimony concerning the
couple's history was to show the "context of [their]
relationship" so the jury could understand Brooks' legitimate
fear on Thanksgiving Day. (State Opening: Tr. 404; State Closing:
Tr. 719.) The evidence was introduced to demonstrate that
Gillespie "was willing to hurt her before and that he would
intend to hurt her again. And he knew that she knew that and
that's why even more that bottle was threatening because she knew
he would do something like this. Because he had hurt her before.
The bottle was placed there to scare her." (State Closing: Tr.
719.) The judge gave the jury a limiting instruction that it
could not be considered as propensity evidence but solely as to
Gillespie's intent in placing the bottle at Brooks' door.
(Charge: Tr. 746-47.) During their four-year tumultuous relationship, Gillespie lived
with Brooks and her two sons, ages nine and sixteen, in Brooks'
426 West 27th Street apartment from 1995 to 1996. (Brooks: Tr.
543, 546, 578.) Brooks asked Gillespie to move out due to the
negative impact of their frequent arguments on her children, but
she continued to date Gillespie despite their ongoing fights.
(Brooks: Tr. 546-47, 551.)
Brooks testified that twice during their fights, Gillespie
threatened to kill or injure her by vowing to "fire bomb," or
"burn [her] out" of, Brooks' apartment. (Brooks: Tr. 552, 588,
617.) Brooks also testified that Gillespie resorted to violence
during arguments, such as in July 1996, when Gillespie shoved
Brooks into a wall, leaving her with a broken shoulder, stitches
for a four-inch wound on her head, and the inability to work for
weeks. (Brooks: Tr. 548-50.) Brooks declined to press charges
against Gillespie for that incident, and she continued dating
Gillespie because he promised he would "never do anything like
that again and that he didn't mean it." (Brooks: Tr. 551.)
Defense counsel did not object to Brooks' testimony regarding
Gillespie's past violence and threats. (Tr. 542-53.) Indeed,
defense counsel followed up on the incident during cross
examination, to show that despite this history, Brooks continued
to date Gillespie and even invited him over for Thanksgiving.
(Brooks: Tr. 606-09.)
In July 1998, Brooks finally ended her relationship with
Gillespie because she could no longer endure the constant
fighting, did not want to continue subjecting her children to it,
and felt they should "just be friends." (Brooks: Tr. 547-48,
553-54, 579.) When Gillespie called Brooks a week before
Thanksgiving in 1998 and informed her that he had nowhere to go
for Thanksgiving, she invited him to Thanksgiving dinner at her
apartment. (Brooks: Tr. 554, 580-81.) Thanksgiving Day, November 26, 1998
On Thanksgiving Day, November 26, 1998, Gillespie came to
Brooks' apartment, but around four o'clock in the afternoon they
started arguing when Gillespie made inappropriate remarks in
front of Brooks' son Lavert. (Brooks: Tr. 556.) Amidst the
yelling, Brooks told Gillespie "this is not working I'm going to
make you a plate [of food] and why don't you just leave."
(Brooks: Tr. 556, 584.) Gillespie was slow to leave so Brooks
told him to "please speed it up" and to "please stay away from
me." (Brooks: Tr. 556, 584.) Before walking out the door,
Gillespie told Brooks, "I'm going to fire bomb you." (Brooks: Tr.
557, 587, 612-13.) Brooks told him to "go now." (Brooks: Tr.
557.) About five to ten minutes after Gillespie left, Brooks and
her children heard a loud bang on the door and discovered that
Gillespie had thrown the plate of food she had given him all over
the door. (Brooks: Tr. 557, 586.) Brooks said she then "g[o]t in
a huge argument" with Gillespie, who was standing down the
hallway, and he "told me I better watch my back and he said my
mother should also watch her back." (Brooks: Tr. 557-58.) Brooks'
sixteen year old son became very upset, and Brooks continued to
tell Gillespie "to leave" as she yelled to her younger son,
Lavert, to call 911. (Brooks: Tr. 558, 590, 614.) Brooks finally
saw Gillespie going down the stairs to leave as she was cleaning
up the food outside her door with her son. (Brooks: Tr. 559,
Police Officers Bibbons and Correa responded to the 4:15 p.m.
911 call and arrived at Brooks' apartment a few minutes later.
(Bibbons: Tr. 434-36; Correa: Tr. 520-21; Brooks: Tr. 595.) The
officers observed the splattered food, and found Brooks to be
"upset." (Bibbons: Tr. 436, 471-72; Correa: Tr. 521-22.) Brooks
told the police that Gillespie had threatened to kill her, her
mother and her son. (Bibbons: Tr. 504-05.) Officers Bibbons and
Correa obtained a description and picture of Gillespie from Brooks, and at approximately 4:40 p.m.,
they performed a vertical search of the building, checking each
of the twelve floors and the two stairwells. (Bibbons: Tr.
437-42, 485-91; Correa: Tr. 522-25.) The officers prepared a a
report and left the building without having found Gillespie.
(Bibbons: Tr. 443, 473-74, 491; Correa: Tr. 525.)*fn1
Officer Bibbons testified that the building is locked, is not
open to the public, and has signs warning "no trespassing and
violat[o]rs would be prosecuted." (Bibbons: Tr. 444-45.)
Brooks testified that after the police left, she and her
children were very upset, and they were too scared to even take a
plate of food to her disabled and ailing mother who lived four
blocks away. (Brooks: Tr. 561.) At around 6:45 p.m., Brooks and
her children heard a knock at her door, and as Brooks looked
through the peep hole, she saw Gillespie "backing away from the
door with something shiny in his hand which [Brooks] thought
was to be a lighter." (Brooks: Tr. 561-62, 593, 598.) Brooks
smelled smoke and fire, but was afraid to open the door until she
heard her neighbors in the hallway. (Brooks: Tr. 562-63, 598-99.)
When she opened the door, she saw "what [she] thought to be a
[M]olotov cocktail," but upon closer inspection, she realized it
was empty. (Brooks: Tr. 563, 569, 601-02.) Immediately, she
closed and locked the door and called the police. (Brooks: Tr.
564.) Brooks said that even though it was empty, "it didn't make
me feel a whole lot better because I thought he could still do
this at any time . . . and I was afraid . . . for my life." (Brooks: Tr. 569.) She added that she felt it was "like more than
a warning that he's going to try to kill [her] and it's not just
[her], it's [her] children and to [her] nothing that any kind of
argument doesn't warrant that." (Brooks: Tr. 618-19.)
Officers Bibbons and Correa returned at around 7:00 p.m. and
"intersected" Gillespie standing outside behind Brooks' building.
(Bibbons: Tr. 445-49, 492-94; Correa: Tr. 526-27.) After asking
Gillespie to identify himself, the officers handcuffed him;
Officer Correa remained with Gillespie while Officer Bibbons went
upstairs to Brooks' apartment where, directly in front of Brooks'
door, he saw the bottle with "a little smoke coming from the top
of it." (Bibbons: Tr. 451-54; 494-95; Correa: Tr. 527-28.)
Officer Bibbons testified that "the first thing I did think I
thought it was a Molotov cocktail." (Bibbons: Tr. 453-54, 511.)
When Officer Bibbons noticed "the paper . . . wasn't actually
burning," he picked up the bottle and discovered that "it was a
22 ounce [B]allentine beer bottle it had a brown paper bag
stuffed in it and it had a little bit of liquid on the bottom."
(Bibbons: Tr. 454, 458, 512.) The liquid did not smell like
gasoline. (Bibbons: Tr. 497-98.) Officer Correa testified that
when Officer Bibbons later showed him the bottle, "it looked like
a Molotov cocktail." (Correa: Tr. 528.)
At trial, both sides made clear that the "Molotov cocktail" was
a fake that could not explode because the liquid in it was not
ignitable. The prosecutor, in his opening statement, said that it
was simply "a bottle with a piece of paper in it. It wasn't a
real Molotov cocktail. It couldn't have exploded." (State
Opening: Tr. 403.) The prosecutor noted that the evidence about
the bottle was to show the jury that the bottle "looked
frightening. Looked threatening. Looked like a Molotov cocktail."
(State Opening: Tr. 404.) A photograph of the bottle taken at the
precinct and the bottle itself were introduced into evidence. (Tr. 457-60; see also,
Correa: Tr. 532-33.) Brooks testified that the beer bottle did
not come from her apartment, because she kept no alcoholic
beverages around, and she did not see Gillespie drink beer or
bring beer to her apartment that day. (Brooks: Tr. 565-66.)
Due to the incident, Brooks was "very upset" and "much more
visibly shaken th[a]n [when the officers were] there the first
time." (Bibbons: Tr. 455.) Brooks told Officer Bibbons about
smelling the smoke and seeing Gillespie, and that she was "really
frightened . . . scared." (Bibbons: Tr. 513-15.) The prosecutor
argued that Gillespie was angry with and intended to scare
Brooks, and knocked on her door so that she would know what he
did. (State Closing: Tr. 698, 701-02, 718.) "He knocked and he
lit the paper so she could smell the smoke . . . Imagine smelling
smoke after the defendant had told you I'm going to burn you
out." (State Closing: Tr. 718-20.) The prosecutor explained that
the jury should consider Gillespie's "threats and look at the
context of their relationship" to understand that Gillespie
willfully and purposely intended to put Brooks in fear for her
life. (State Closing: Tr. 718-19.)
After Gillespie was arrested, he called Brooks six to ten times
from jail, apologized for "Thanksgiving Day," said that "he
didn't mean it," and tried to convince Brooks not to appear in
court so that he would not have to be in jail. (Brooks: Tr.
570-73, 618.) Verdict and Sentence
The jury found Gillespie guilty of second degree burglary.
(Verdict: Tr. 783-86.)*fn2 On September 27, 1999 Gillespie
was sentenced to fifteen years imprisonment as a predicate felon.
(9/27/99 Sentencing Transcript at 6-7, 19-21.)
Gillespie's Direct Appeal
Gillespie's appointed appellate counsel filed a brief raising
two issues: that the annotated special verdict sheet was improper
and that the trial judge had penalized Gillespie for exercising
his right to trial by significantly increasing his sentence over
the offered plea sentence of five years. (Ex. A: Gillespie 1st
Dep't Br. at 8-12, 13-15.)*fn3
Gillespie filed a supplemental pro se brief to the First
Department, claiming that:
(1) the trial judge erred in submitting jury
instructions on menacing when the menacing claim was withdrawn, and that the evidence of "burglary" was
insufficient (Ex. B: Gillespie Supp. Pro Se 1st Dep't
Br. at 6-7); and (2) he was deprived of a fair trial
and due process by cumulative trial errors including:
(i) admission of prior bad acts evidence, (ii)
introduction of the "Molotov cocktail" to prove
intent to menace when the police lab report was
negative, (iii) refusing to exclude a juror whose
husband had been killed in a terrorist bombing, (iv)
biased remarks by the trial judge, (v) submitting the
unlawfully remained theory to the jury, and (vi)
insufficient evidence of burglary (Ex. B: Gillespie
Supp. Pro Se 1st Dep't Br. at 7-11).
The First Department affirmed Gillespie's conviction. People
v. Gillespie, 287A.D.2d 288, 731 N.Y.S.2d 21
(1st Dep't 2001).
The bulk of its opinion dealt with the annotated verdict sheet,
which the First Department found proper and, in any event, not
prejudicial to Gillespie. Id. at 288-89, 731 N.Y.S.2d at 23. The
First Department also held:
We have reviewed defendant's other points, including
those raised pro se, and find them to be without
Id. at 289-90, 731 N.Y.S.2d at 23.
Gillespie's appellate counsel sought leave to appeal to the New
York Court of Appeals, indicating two issues presented: (1) the
annotated verdict sheet and (2) the sentencing issue. (Ex. E:
11/13/01 Letter to N.Y. Ct. App.) Appellate counsel submitted a
three page single-spaced follow-up letter, dealing with the
annotated verdict sheet issue. (Ex. E: 12/10/01 Letter to N.Y.
Ct. App.) That letter ended by stating:
The need for guidance from this Court is clear.
Appellant thus respectfully requests that this leave
application be granted. The relevant minutes are
enclosed, as is the supplemental pro se brief
appellant filed in the First Department. . . . (Ex. E: 12/10/01 Letter to N.Y. Ct. App. at 3.) The
prosecutor's response letter addressed only the
annotated verdict sheet issue. (Ex. F: State 12/21/01
Letter to N.Y. Ct. App.)
On March 15, 2002, the New York Court of Appeals denied leave
to appeal. People v. Gillespie, 97 N.Y.2d 754, 742 N.Y.S.2d 614
Gillespie's C.P.L. § 440 Motion
Gillespie filed a pro se C.P.L. § 440.10 motion to vacate the
judgment on November 8, 2001 claiming, in relevant part: (1) a
Brady violation for failure to provide the police lab report;
(2) prosecutorial misconduct in submitting the bottle as evidence
to mislead the grand jury and petit jury and improper
prosecutorial instructions to the grand jury; and (3)
insufficient evidence to prove intent to commit the underlying
offense of menacing. (Ex. H: Gillespie C.P.L. § 440 Motion.)
On July 26, 2002, the trial judge denied Gillespie's motion,
noting that every issue raised was "procedurally barred because
it was either previously decided on appeal, could have been
raised on appeal but was not, or was not preserved at trial."
(Ex. I: 7/26/02 Justice Corriero Decision at 2.) In addition,
Justice Corriero held that none of the issues raised in
Gillespie's § 440 motion had substantive merit. (Ex. I: Justice
Corriero Decision at 3-5.)*fn4 On August 26, 2002, Gillespie sought leave to appeal the denial
of his § 440 motion to the First Department. (Ex. J: Gillespie
Notice of Motion to Appeal.) The First Department denied leave to
appeal on October 22, 2002. (Ex. L: 1st Dep't Certificate Denying
Gillespie's Coram Nobis Petition
On September 3, 2002, Gillespie filed an application for a writ
of error coram nobis to the First Department, alleging that his
appellate counsel was ineffective for not arguing on appeal that
Gillespie was denied a fair trial based on: (1) absence of
defendant at trial; (2) trial court concealing jury notes from
defense counsel; and (3) trial court's failure to issue
supplemental jury instructions in response to a jury note. (Ex.
O: Gillespie Coram Nobis Br. at 7-9, 14.)
On July 10, 2003, the First Department denied Gillespie's coram
nobis application, and the New York Court of Appeals denied leave
to appeal. People v. Gillespie, 307 A.D.2d 782, 764 N.Y.S.2d 59
(1st Dep't), appeal denied, 100 N.Y.2d 642, 769 N.Y.S.2d 208
Gillespie's Federal Habeas Corpus Petition
Gillespie filed his present federal habeas corpus petition on
October 27, 2003, alleging: (1) prosecutorial misconduct by
submitting insufficient evidence to the grand jury (Dkt. No. 2:
Pet. ¶ 13(1)); (2) the prosecutor violated the Brady rule by
failing to give defense counsel the police laboratory report
showing that the substance in the bottle was not ignitable (Pet.
¶ 13(2)); (4) he was denied his due process right to a fair trial
due to: (i) admitting Molineux prior bad acts evidence even
though the menacing charge had been withdrawn, (ii) failing to
dismiss a juror whose "first husband was killed in a terrorist
bombing," (iii) failing to issue a supplemental instruction to
the jury, (iv) concealing jury notes from defense counsel, and
(v) depriving petitioner of his right to be present during read-back of the jury's notes (Pet. ¶ 13(3));
and (5) he was denied effective assistance of appellate counsel
(Pet. ¶ 13(4)).
I. THE AEDPA REVIEW STANDARD*fn5
Before the Court can determine whether Gillespie is entitled to
federal habeas relief, the Court must address the proper habeas
corpus review standard under the Antiterrorism and Effective
Death Penalty Act ("AEDPA"). In enacting the AEDPA, Congress significantly "modifie[d] the
role of federal habeas courts in reviewing petitions filed by
state prisoners." Williams v. Taylor, 529 U.S. 362, 403,
120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent
review standard, as follows:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the
merits in State court proceedings unless the
adjudication of the claim
(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) . . . 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)(1)-(2).*fn6
The "contrary to" and "unreasonable application" clauses of §
2254(d)(1) have "independent meaning." Williams v. Taylor,
529 U.S. at 404-05, 120 S.Ct. at 1519.*fn7 Both, however,
"restrict the source of clearly established law to [the
Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at
1523.*fn8 "That federal law, as defined by the Supreme
Court, may either be a generalized standard enunciated in the
[Supreme] Court's case law or a bright-line rule designed to
effectuate such a standard in a particular context." Kennaugh
v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas
relief solely by demonstrating that the state court unreasonably
applied Second Circuit precedent." Yung v. Walker, 296 F.3d
at 135; accord, e.g., DelValle v. Armstrong, 306 F.3d at
As to the "contrary to" clause:
A state-court decision will certainly be contrary to
[Supreme Court] clearly established precedent if the
state court applies a rule that contradicts the
governing law set forth in [Supreme Court]
cases. . . . A state-court decision will also be
contrary to [the Supreme] Court's clearly established
precedent 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
result different from [Supreme Court] precedent.
Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at
In Williams, the Supreme Court explained that "[u]nder the
`unreasonable application' clause, a federal habeas court may
grant the writ 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." Williams v. Taylor, 529 U.S. at 413, 120 So.
Ct. at 1523.*fn10
However, "[t]he term `unreasonable' is
. . . difficult to define." Williams v. Taylor, 529 U.S. at
410, 120 S.Ct. at 1522. The Supreme Court made clear that "an
unreasonable application of federal law is different from an
incorrect application of federal law." Id.*fn11
the issue is "whether the state court's application of clearly
established federal law was objectively unreasonable." Williams
v. Taylor, 529 U.S. at 409, 120 S.Ct. at 1521.*fn12
"Objectively unreasonable" is different from "clear error."
Lockyer v. Andrade, 538 U.S. at 75, 123 S.Ct. at 1175 ("The
gloss of clear error fails to give proper deference to state
courts by conflating error (even clear error) with
unreasonableness."). However, the Second Circuit has explained "that while `[s]ome increment of
incorrectness beyond error is required . . . the increment need
not be great; otherwise, habeas relief would be limited to state
court decisions so far off the mark as to suggest judicial
incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting
Francis S. v. Stone, 221 F.3d 100
, 111 (2d Cir.
"[T]he range of reasonable judgment can depend
in part on the nature of the relevant rule." Yarborough v.
Alvarado, 124 S.Ct. at 2149.*fn14
Moreover, the Second Circuit has held "that a state court
determination is reviewable under AEDPA if the state decision
unreasonably failed to extend a clearly established, Supreme
Court defined, legal principle to situations which that principle
should have, in reason, governed." Kennaugh v. Miller, 289
F.3d at 45.*fn15 Under the AEDPA, in short, the federal courts "must give the
state court's adjudication a high degree of deference." Yung v.
Walker, 296 F.3d at 134.
Even where the state court decision does not specifically refer
to either the federal claim or to relevant federal case law, the
deferential AEDPA review standard applies:
For the purposes of AEDPA deference, a state court
"adjudicate[s]" a state prisoner's federal claim on
the merits when it (1) disposes of the claim "on the
merits," and (2) reduces its disposition to judgment.
When a state court does so, a federal habeas court
must defer in the manner prescribed by
28 U.S.C. § 2254(d)(1) to the state court's decision on the
federal claim even if the state court does not
explicitly refer to either the federal claim or to
relevant federal case law.
Sellan v. Kuhlman, 261 F.3d at 312; accord Early v.
Packer, 537 U.S. 3
, 8, 123 S.Ct. 362
, 365 (2002) (State court
not required to cite Supreme Court cases, or even be aware of
them, to be entitled to AEDPA deference, "so long as neither the
reasoning nor the result of the state-court decision contradicts
them."); Francolino v. Kuhlman, 365 F.3d 137
, 141 (2d Cir.
Apr. 20, 2004) (Where "the Appellate Division concluded its
opinion by stating that it had `considered and rejected
defendants' remaining claims,'" AEDPA deference applies.);
Jenkins v. Artuz, 294 F.3d 284
, 291 (2d Cir. 2002) ("In
Sellan, we found that an even more concise Appellate Division
disposition the word `denied' triggered AEDPA
"By its terms, § 2254(d) requires such
deference only with respect to a state-court `adjudication on the merits,' not to a
disposition `on a procedural, or other, ground.' Where it is
`impossible to discern the Appellate Division's conclusion on
[the relevant] issue,' a federal court should not give AEDPA
deference to the state appellate court's ruling." Miranda v.
Bennett, 322 F.3d 171
, 177-78 (2d Cir. 2003) (citations
Of course, "[i]f there is no [state court] adjudication on the merits, then the
pre-AEDPA, de novo standard of review applies." Cotto v.
Herbert, 331 F.3d at 230.
In addition to the standard of review of legal issues, the
AEDPA provides a deferential review standard for state court
factual determinations: "a determination of a factual issue made
by a State court shall be presumed to be correct."
28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of `rebutting the
presumption of correctness by clear and convincing evidence.'"
Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)).
Gillespie's ineffective assistance of appellate counsel claim,
raised in his coram nobis petition, was denied by the First
Department without opinion. People v. Gillespie, 307 A.D.2d 782,
2003 N.Y. App. Div. LEXIS 8136 (1st Dep't), appeal denied,
100 N.Y.2d 642, 769 N.Y.S.2d 208 (2003). Thus, AEDPA deference
applies. See, e.g., Sellan v. Kuhlman, 261 F.3d at 312;
Jenkins v. Artuz, 294 F.3d at 291.
As to Gillespie's other claims, as discussed below, since the
claims are procedurally barred, the Court will not review the
merits of the claims, and thus the merits AEDPA review standard
does not come into play.
II. GILLESPIE'SHABEAS CLAIMS, OTHER THAN HIS INEFFECTIVE
APPELLATE COUNSEL CLAIM, ARE PROCEDURALLY BARRED FROM HABEAS
Gillespie's first three habeas claims prosecutorial
misconduct, Brady violation, and denial of a fair trial (Dkt
No. 2: Pet. ¶¶ 13(1)-(3)) are procedurally barred from habeas
review because: (a) the claims he raised in his supplemental pro
se brief to the First Department were not presented to the New
York Court of Appeals, and (b) the claims he raised in his C.P.L.
§ 440 motion were denied on an adequate and independent state
procedural ground. A. The Exhaustion Doctrine: Background*fn18
Section 2254 codifies the exhaustion requirement, providing
that "[a]n application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted unless it appears that (A) the applicant has
exhausted the remedies available in the courts of the
State. . . ." 28 U.S.C. § 2254(b)(1)(A).*fn19 As the Supreme
Court has made clear, "[t]he exhaustion doctrine is principally
designed to protect the state courts' role in the enforcement of
federal law and prevent disruption of state judicial
proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at
1203; accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at
845, 119 S.Ct. at 1732. The Second Circuit determines whether a claim has been
exhausted by applying a two-step analysis:
First, the petitioner must have fairly presented to
an appropriate state court the same federal
constitutional claim that he now urges upon the
federal courts. . . . Second, having presented his
federal constitutional claim to an appropriate state
court, and having been denied relief, the petitioner
must have utilized all available mechanisms to secure
[state] appellate review of the denial of that claim.
Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y.
June 12, 1997) (Mukasey, D.J. & Peck, M.J.) (quoting Klein v.
Harris, 667 F.2d 274
, 282 (2d Cir. 1981)); accord, e.g.,
O'Sullivan v. Boerckel, 526 U.S. at 843-48, 119 S.Ct. at
"The exhaustion requirement is not satisfied unless the federal
claim has been `fairly presented' to the state courts." Daye v.
Attorney Gen., 696 F.2d at 191.*fn20 The Second Circuit
has held that a federal habeas petitioner must have alerted the
state appellate court that a federal constitutional claim is at
issue. E.g., Cox v. Miller, 296 F.3d at 99; Jones v.
Vacco, 126 F.3d at 413-14; Grady v. LeFevre, 846 F.2d 862,
864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F.2d 684,
688-89 (2d Cir. 1984); Daye v. Attorney Gen., 696 F.2d at
191. In Daye, the Second Circuit en banc stated:
[T]he ways in which a state defendant may fairly
present to the state courts the constitutional nature
of his claim, even without citing chapter and verse
of the Constitution, include (a) reliance on
pertinent federal cases employing constitutional
analysis, (b) reliance on state cases employing
constitutional analysis in like fact situations, (c)
assertion of the claim in terms so particular as to
call to mind a specific right protected by the Constitution, and (d)
allegation of a pattern of facts that is well within
the mainstream of constitutional litigation.
Daye v. Attorney Gen., 696 F.2d at 194.*fn21
B. Gillespie's Claims Raised In His Supplemental Pro Se Brief
To The First Department Are All Unexhausted and Procedurally
1. Gillespie's Claims Are Unexhausted Because Gillespie Failed
to Present Them to the New York Court of Appeals
On direct appeal, Gillespie's appellate counsel raised two
claims before the First Department, and Gillespie raised
additional claims in his supplemental pro se brief. (See pages
8-9 above.) The First Department denied the claims in Gillespie's
pro se brief as "without merit." People v. Gillespie,
287 A.D.2d 288, 289-90, 731 N.Y.S.2d 21, 23 (1st Dep't 2001); see
page 9 above. Gillespie's appellate counsel's letter to the New
York Court of Appeals seeking leave to appeal presented two
issues for appeal: (a) the annotated verdict sheet, and (b) a
sentencing issue. (Ex. E: 11/13/01 Letter to N.Y. Ct. App.; see
page 9 above.)*fn22 Defense counsel's follow-up letter to the New York Court of Appeals spent three single spaced pages
talking about the annotated verdict sheet issue, then ended with
The need for guidance from this Court is clear.
Appellant thus respectfully requests that his leave
application be granted. The relevant minutes are
enclosed, as is the supplemental pro se brief
appellant filed in the First Department. . . .
(Ex. E: 12/10/01 Letter to N.Y. Ct. App.; see pages 9-10
The Second Circuit has long held, and the Supreme Court
confirmed, that "a state prisoner must present his claims to a
state supreme [i.e., highest] court in a petition for
discretionary review in order to satisfy the exhaustion
requirement." O'Sullivan v. Boerckel, 526 U.S. 838, 839-40,
119 S.Ct. 1728, 173 (1999); accord, e.g., Jordan v.
LeFevre, 206 F.3d 196, 198 (2d Cir. 2000); Morgan v.
Bennett, 204 F.3d 360, 369 (2d Cir.), cert. denied,
531 U.S. 819, 121 S.Ct. 59 (2000); Bossett v. Walker, 41 F.3d 825,
828 (2d Cir. 1994) ("To fulfill the exhaustion requirement, a
petitioner must have presented the substance of his federal
claims `to the highest court of the pertinent state.'"), cert.
denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995); Grey v. Hoke,
933 F.2d 117, 119 (2d Cir. 1991) ("a petitioner must present his
federal constitutional claims to the highest court of the state
before a federal court may consider the merits of the petition");
Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990) ("We have
held that the exhaustion requirement mandates that federal claims
be presented to the highest court of the pertinent state before a
federal court may consider the petition," citing Daye); Daye
v. Attorney Gen., 696 F.2d 186, 191 n. 3 (1982) ("Exhaustion of available state remedies requires presentation of the claim to
the highest state court from which a decision can be had.");
Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *12
(S.D.N.Y. Oct. 18, 2002) (Peck, M.J.); Jamison v. Berbary, 01
Civ. 5547, 2002 WL 1000283 at *16 (S.D.N.Y. May 15, 2002) (Peck,
A mere reference to Gillespie's supplemental pro se First
Department brief is not sufficient to have exhausted the claims
in the New York Court of Appeals, especially in light of the
lengthy discussion of the two separate claims by his appellate
counsel. In Grey v. Hoke, the petitioner argued one claim in
his leave to appeal letter to the New York Court of Appeals, and
also attached his Appellate Division briefs, which had raised
that issue plus two others. 933 F.2d at 120. The Second Circuit
held that the claims referred to only in his attached briefs were
Petitioner argues that by attaching his Appellate
Division brief to his letter application to the Court
of Appeals, he presented that court with an
opportunity to rule on his sentencing and
prosecutorial misconduct claims. He concedes,
however, that his letter application requested that
the Court of Appeals review only the search and
seizure claim. The letter made no mention of the
sentencing and prosecutorial misconduct claims. Under
these circumstances, we disagree with petitioner's
assertion that the Court of Appeals was presented
with his sentencing and prosecutorial misconduct
The fair import of petitioner's submission to the
Court of Appeals, consisting of his brief to the
Appellate Division that raised three claims and a
letter to the Court of Appeals arguing only one of
them, was that the other two had been abandoned. The
only possible indication that the other two claims
were being pressed was the inclusion of a lengthy
brief originally submitted to another court. This did
not fairly apprise the court of the two claims. We
decline to presume that the New York Court of Appeals
has "a duty to look for a needle in a paper
haystack." For a federal court to hold that a state
court had the opportunity to rule on a constitutional
claim as to which no ruling was requested, and then
to rule on the merits of the claim itself, would
undermine the very considerations of comity that the
rules of exhaustion were designed to protect.
Grey v. Hoke, 933 F.2d at 120 (emphasis added & citations
omitted). Subsequent cases have extended Grey to situations
where, as here, the defendant discussed one or more issues at
length and also referred to enclosed Appellate Division briefs, without
specifically asking that the Court of Appeals review the other
issues in the enclosed briefs.*fn23
In 2000, the Second Circuit revisited Grey in two cases. In
Jordan v. LeFevre, 22 F. Supp.2d at 267, the petitioner
clearly raised his Batson claim in his letter seeking leave to
appeal to the New York Court of Appeals, but "[a]fter discussing
the Batson issue at length, Jordan's counsel asked for leave to
appeal `[f]or all of these reasons and the reasons set forth in
his Appellate Division briefs,' and noted that `[i]n support of
his application, Mr. Jordan relies on this letter and on the
briefs he filed in the Appellate Division.'" Jordan v.
LeFevre, 22 F. Supp.2d at 267. This Court held the
non-Batson claims to be unexhausted, and the Second Circuit
affirmed that view, explaining that "arguing one claim in his
letter while attaching an appellate brief without explicitly
alerting the state court to each claim raised does not fairly
present such claims for purposes of the exhaustion requirement
underlying federal habeas jurisdiction. . . . Counsel may not
transfer to the state courts the duty to comb through an
applicant's appellate brief to seek and find arguments not
expressly pointed out in the application for leave." Jordan v.
LeFevre, 206 F.3d at 199 (emphasis added). The Second Circuit
affirmed the exhaustion issue "substantially for the reasons set
out in [this Court's] thorough opinion and order. . . . Jordan
v. LeFevre, 22 F. Supp.2d 259, 266-69 (S.D.N.Y. 1998)."
Jordan v. LeFevre, 206 F.3d at 199.*fn24
Here, as in Jordan, Gillespie's counsel merely made a passing
reference to his pro se First Department brief in his leave
application that discussed the verdict sheet claim in great
detail. Such an indirect reference is insufficient under Grey
and Jordan to put the New York Court of Appeals on notice that
it should review the claims in Gillespie's pro se brief as well,
and would require state courts to look for a "needle in a hay
stack" while a petitioner argues "one claim in his letter while
attaching an appellate brief without explicitly alerting the
state court to each claim." Jordan v. LeFevre, 206 F.3d at
198-99. Thus, Gillespie did not fairly present the claims in his
supplemental pro se First Department brief, and, as such, they
are unexhausted for purposes of habeas review.
2. Gillespie's Claims Are Unexhausted But Deemed Exhausted
and Procedurally Barred
Gillespie is now procedurally barred from raising these claims
in the New York Court of Appeals. As the Second Circuit explained
in Grey v. Hoke:
Here, New York procedural rules plainly bar
petitioner from attempting to raise [the claims he
raised before the Appellate Division but not in his
application for leave to appeal] before the New York
Court of Appeals. Petitioner cannot again seek leave
to appeal these claims in the Court of Appeals
because he has already made the one request for leave
to appeal to which he is entitled. See N.Y. Court
Rules § 500.10(a). Collateral review of these claims
is also barred because the issues were previously
determined on the merits on direct appeal. See N.Y.
Crim. Proc. Law § 440.10(2)(a); see also N.Y. Crim.
Proc. Law § 440.10(2)(c) (barring review if a claim
could have been raised on direct review). . . .
We agree with the state, however, that petitioner's
forfeiture in state court of [the claims not
adequately raised before the N.Y. Court of Appeals]
bars him from litigating the merits of those claims
in federal habeas proceedings, absent a showing of
cause for the procedural default and prejudice
resulting therefrom. Murray v. Carrier,
477 U.S. 478, 492, 106 S.Ct. 2639, 2647, 91 L.Ed.2d 397
(1986); Wainwright v. Sykes, 433 U.S. 72, 87-91,
97 S.Ct. 2497, 2506-2509, 53 L.Ed.2d 594 (1977).
Petitioner makes no showing of cause or of prejudice.
The [claims not raised before the Court of Appeals]
must therefore be dismissed without reaching the
Grey v. Hoke, 933 F.2d 117
, 120-21 (2d Cir. 1991).*fn25
Thus, because Gillespie can no longer appeal the claims in his
pro se appellate brief to the New York Court of Appeals, those
claims are unexhausted but deemed exhausted and procedurally
barred. Nor has Gillespie even argued "cause" (for the cause and
prejudice exception), nor a showing of "actual innocence." Thus,
his habeas claims raised in his pro se supplemental First
Department brief are barred from habeas review.
C. Gillespie's Habeas Claims Raised in His C.P.L. § 440 Motion
Were Denied on Adequate and Independent State Grounds and Thus
Are Not Cognizable on Habeas Review*fn26
The remaining claims (again, aside from the ineffective
assistance claim) that Gillespie raises in his habeas petition
were raised by him in his C.P.L. § 440 motion. (See page 10
above.) Because the trial judge denied Gillespie's § 440 motion
on the ground that every issue raised was "procedurally barred
because it was either previously decided on appeal, could have
been raised on appeal but was not, or was not preserved at
trial." (Ex. I: 7/26/02 Justice Corriero Decision at 2.) Those
grounds present an adequate and independent procedural bar to
habeas review of the claims raised in Gillespie's C.P.L. § 440
The Supreme Court has made clear that the "adequate and
independent state ground doctrine applies on federal habeas,"
such that "an adequate and independent finding of 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, 109 S.Ct. 1038, 1043 (1989)
(citations & internal quotations omitted).*fn27
"[I]n order to preclude federal review [under the adequate and
independent doctrine], the last state court to render judgment
must `clearly and expressly state  that its judgment rest[ed]
on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415
(quoting Glenn v. Bartlett, 98 F.3d at 724). The Second
Circuit has made clear that "federal habeas review is foreclosed
when a state court has expressly relied on a procedural default
as an independent and adequate state ground, even where the state
court has also ruled in the alternative on the merits of the
federal claim." Velasquez v. Leonardo, 898 F.2d at 9;
accord, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109
S.Ct. at 1044 n. 10 ("[A] state court need not fear reaching the
merits of a federal claim in an alternative holding. By its very
definition, the adequate and independent state ground doctrine
requires the federal court to honor a state holding that is a
sufficient basis for the state court's judgment, even when the
state court also relies on federal law."); Garcia v. Lewis,
188 F.3d at 77-82; Glenn v. Bartlett, 98 F.3d at 724-25; see
also, e.g., Santiago v. People, 97 Civ. 5076, 1998 WL
803414 at *4 (S.D.N.Y. Oct. 13, 1998) ("When the state court
rejects a claim both on the merits and because it was waived
under the state's procedural law, review of the claim on a
federal habeas corpus petition is barred."). Thus, "as long as the state court explicitly invokes a state procedural bar rule
as a separate basis for decision," the adequate and independent
doctrine "curtails reconsideration of the federal issue on
federal habeas." Harris v. Reed, 489 U.S. at 264 n. 10, 109
S.Ct. at 1044 n. 10.
The trial judge denied Gillespie's § 440 motion on the grounds,
inter alia, that the claims were raised on direct appeal or
could have been raised on direct appeal, citing C.P.L. §
440(10)(2)(a), (c) & 3(a).*fn28 (See page 10 above.) The cases in this Circuit hold that C.P.L. § 440.10(2) is an
"adequate and independent" state procedural ground barring
federal habeas review. See, e.g., Reyes v. Keane,
118 F.3d 136, 139 (2d Cir. 1997); Dorsey v. Irvin, 56 F.3d 425,
426 (2d Cir. 1995); Levine v. Commissioner of Corr. Servs.,
44 F.3d 121, 126 (2d Cir. 1995) (§ 440.10(2)(c) is adequate and
independent state ground); Ramos v. Costello, 96 Civ. 3659,
1997 WL 231129 at *2 (S.D.N.Y. May 7, 1997) ("The procedural
ground on which the state court denied his § 440.10 motion"
"namely, that they were barred by a New York rule precluding
claims that could have been raised on direct appeal but were not"
"is an independent and adequate state ground that prevents him
from asserting those claims in a federal habeas corpus proceeding
absent cause and prejudice."); Wells v. LaFavre, 96 Civ.
3417, 1996 WL 692003 at *3 (S.D.N.Y. Dec. 2, 1996) ("C.P.L. §
440.10(2) presents an adequate and independent state ground for
denying Petitioner relief.").*fn29
Because there is an adequate and independent finding by the
state § 440 court that Gillespie had procedurally defaulted on
all of the claims in his § 440 motion, Gillespie would have to
show in his habeas petition "cause for the default and actual
prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501
U.S. at 750, 111 S.Ct. at 2565. Gillespie does not allege cause,
prejudice or a fundamental miscarriage of justice.
* * * * *
Thus, all of Gillespie's habeas claims, except his ineffective
assistance of appellate counsel claim, are procedurally barred,
and this Court need not, and will not, reach the merits of those
IV. GILLESPIE'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
SHOULD BE DENIED
A. The Strickland v. Washington Standard On Ineffective
Assistance of Counsel*fn30
1. The Strickland Standard
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052
(1984), the Supreme Court announced a two-part test to determine
if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient.
This requires showing that counsel made errors so serious that
counsel was not functioning as the `counsel' guaranteed the
defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at
2064; accord, e.g., Wiggins v. Smith, 539 U.S. 510,
123 S.Ct. 2527, 2535 (2003). This performance is to be judged by an
objective standard of reasonableness. Strickland v.
Washington, 466 U.S. at 688, 104 S.Ct. at 2064.*fn31
Judicial scrutiny of counsel's performance must be
highly deferential. It is all too tempting for a
defendant to second-guess counsel's assistance after
conviction. . . . A fair assessment of attorney
performance requires that every effort be made to
eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's
perspective at the time. . . . [A] court must indulge
a strong presumption that counsel's conduct falls
within the wide range of reasonable professional
assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the
challenged action "might be considered sound trial
Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065
Second, the defendant must show prejudice from counsel's
performance. Strickland v. Washington, 466 U.S. at 687, 104
S.Ct. at 2064. The "question is whether there is a reasonable
probability that, absent the errors, the fact finder would have
had a reasonable doubt respecting guilt." Id. at 695, 104 So.
Ct. at 2068-69. Put another way, the "defendant must show 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, 104 S.Ct. at 2068.*fn33 The Supreme Court has counseled that these principles "do not
establish mechanical rules." Strickland v. Washington, 466
U.S. at 696, 104 S.Ct. at 2069. The focus of the inquiry should
be on the fundamental fairness of the trial and whether, despite
the strong presumption of reliability, the result is unreliable
because of a breakdown of the adversarial process. Id.
Any counsel errors must be considered in the "aggregate" rather
than in isolation, as the Supreme Court has directed courts "to
look at the `totality of the evidence before the judge or jury.'"
Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quoting
Strickland v. Washington, 466 U.S. at 695-96, 104 S.Ct. at
2069); accord, e.g., Rodriguez v. Hoke, 928 F.2d 534, 538
(2d Cir. 1991). The Supreme Court also made clear that "there is no reason for
a court deciding an ineffective assistance claim . . . to address
both components of the inquiry if the defendant makes an
insufficient showing on one." Strickland v. Washington, 466
U.S. at 697, 104 S.Ct. at 2069.*fn34
In addition, the Supreme Court has counseled that "strategic
choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation. . . . In any
ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel's
judgments." Strickland v. Washington, 466 U.S. at 690-91, 104
S.Ct. at 2066.*fn35
As the Second Circuit noted: "The Strickland standard is
rigorous, and the great majority of habeas petitions that allege
constitutionally ineffective counsel founder on that standard."
Lindstadt v. Keane, 239 F.3d at 199. 2. Strickland and Appellate Counsel
The Strickland test applies to appellate as well as trial
counsel. See, e.g., Smith v. Robbins, 528 U.S. 259, 285,
120 S.Ct. 746, 764 (2000).*fn36 A petitioner alleging
ineffective assistance of appellate counsel must prove both that
(1) appellate counsel acted objectively unreasonably in failing
to raise a particular issue on appeal, and (2) absent counsel's
deficient performance, there was a reasonable probability that
defendant's appeal would have been successful before the state's
highest court. E.g., Smith v. Robbins, 528 U.S. at 285, 120
S.Ct. at 764; Aparicio v. Artuz, 269 F.3d at 95; Mayo v.
Henderson, 13 F.3d at 533-34; see also Larrea v. Bennett,
01 Civ. 5813, 2002 WL 1173564 at *18 n. 30 (S.D.N.Y. May 31,
2002) (Peck, M.J.) (discussing the issue of whether a federal or
state standard should apply), report & rec. adopted, 2002 WL
1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.), aff'd, No.
02-2540, 368 F.3d 179 (table), 2004 WL 1094269 (2d Cir. May 18,
Appellate counsel "need not (and should not) raise every
nonfrivolous claim, but rather may select from among them in
order to maximize the likelihood of success on appeal." Smith
v. Robbins, 528 U.S. at 288, 120 S.Ct. at 765 (citing Jones
v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 3312-14 (1983)).*fn37 Reviewing courts
should not second guess the reasonable professional judgments of
appellate counsel as to the most promising appeal issues. Lugo
v. Kuhlmann, 68 F. Supp.2d 347, 371-72 (S.D.N.Y. 1999)
(Patterson, D.J. & Peck, M.J.).*fn38 Thus, a petitioner may
establish constitutionally inadequate performance only by showing
that appellate counsel "omitted significant and obvious issues
while pursuing issues that were clearly and significantly
weaker." Mayo v. Henderson, 13 F.3d at 533; see also,
e.g., Jackson v. Leonardo, 162 F.3d at 85.
3. Strickland and the AEDPA Review Standard
For purposes of this Court's AEDPA analysis, "the Strickland
standard . . . is the relevant `clearly established Federal law,
as determined by the Supreme Court of the United States.'"
Aparicio v. Artuz, 269 F.3d 78, 95 & n. 8 (2d Cir. 2001)
(quoting 28 U.S.C. § 2254(d)(1)).*fn39 "For AEDPA purposes,
a petitioner is not required to further demonstrate that his
particular theory of ineffective assistance of counsel is also
`clearly established.'" Aparicio v. Artuz, 269 F.3d at 95 n.
8. "For [petitioner] to succeed, however, he must do more than
show that he would have satisfied Strickland's test if his
claim were being analyzed in the first instance, because under §
2254(d)(1), it is not enough to convince a federal habeas court that, in its
independent judgment, the state-court decision applied
Strickland incorrectly. . . . Rather, he must show that the
[First Department] applied Strickland to the facts of his case
in an objectively unreasonable manner." Bell v. Cone, 535
U.S. at 698-99, 122 S.Ct. at 1852; see also Yarborough v.
Gentry, 540 U.S. 1, 124 S.Ct. 1, 4 (2003).
B. Gillespie's Claims of Ineffective Appellate Counsel
Should Be Denied
Gillespie alleges that his appellate counsel was ineffective
for failing to assert well reasoned arguments and, instead,
asserting weak claims. (Dkt. No. 2: Pet. ¶ 13(4); e.g., Ex. O:
Gillespie Coram Nobis Br. at 11.) Gillespie claims that the two
issues raised for appellate review by his counsel were a "[d]ead
bang argument with [no] merit," and that "had counsel challenged
the colorable issue . . . the result of appellate direct appeal
would  have been different." (Ex. O: Gillespie Coram Nobis Aff.
at 3.) Specifically, Gillespie's habeas petition claims appellate
counsel failed to argue that he was denied a fair trial because
of: (1) his absence at trial when the jury submitted notes; (2)
the trial court's withholding jury notes from defense counsel;
and (3) the trial court's failure to issue supplemental jury
instructions. (Ex. O: Gillespie Coram Nobis Br. at 7-9, 14; Dkt.
No. 2: Pet. ¶ 13(4).) While Gillespie criticizes appellate
counsel for raising weak arguments, the claims Gillespie asserts
his appellate counsel should have raised are totally without
1. Counsel's Failure to Object to Gillespie's Absence at
Gillespie asserts that appellate counsel should have raised on
appeal his absence at the conclusion of trial. After the jury was
given instructions and excused to deliberate (Tr. 769-77),
defense counsel went back on the record in Gillespie's absence to
record his objection to the jury instructions to claim that
menacing should have been submitted to the jury as a "lesser
included offense" (Tr. 779-82). Under both federal and state law, a defendant in a state
criminal trial "has a right to be present at all stages of the
trial where his absence might frustrate the fairness of the
proceedings." Faretta v. California, 422 U.S. 806, 819 n. 15,
95 S.Ct. 2533 n. 15 (1975); accord, e.g., Bryant v.
Bennett, 00 Civ. 5692, 2001 WL 286776 at *3 (S.D.N.Y. Mar. 2,
2001) (Peck,M.J.); Benitez v. Senkowski, 97 Civ. 7819, 1998
WL 668079 at *8 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. & Peck,
M.J.); see also, e.g., People v. Roman, 88 N.Y.2d 18,
25-26, 643 N.Y.S.2d 10, 14 (1996) (defendants have a right to be
present at every "material stage" of trial where he "`can
potentially contribute to the proceeding.'"; "[W]hen the
proceeding involves a question of law or procedure, hearings on
those matters do not involve any potential for meaningful input
by a defendant, and presence is not required."); People v.
Rolle, 4 A.D.3d 542, 543, 771 N.Y.S.2d 704, 705 (2d Dep't Feb.
23, 2004); People v. Russo, 4 A.D.3d 777, 777-78,
771 N.Y.S.2d 768, 768-69 (4th Dep't Feb. 11, 2004), appeal
denied, ___ N.Y.S.2d ___ (May 14, 2004).
Gillespie was present during trial through the jury charge and
had the opportunity to contribute and consult with his attorney,
and was only absent when his attorney made an additional
objection to the jury instructions to place it on the record for
later appeal. Thus, Gillespie was not absent during a "material"
stage of his trial. See, e.g., Rushen v. Spain,
464 U.S. 114, 119 n. 2, 104 S.Ct. 453, 456 n. 2 (1983) (the right to be
present at all critical stages of the proceedings is subject to
harmless error analysis), cert. denied, 495 U.S. 910, 110 So.
Ct. 1937 (1990); Diaz v. Herbert, 317 F. Supp.2d 462,
475(S.D.N.Y. 2004). A defendant's presence is not required at
discussions involving matters of law held simply to preserve the
issue for appellate review. See, e.g., DePallo v. Burge,
296 F. Supp.2d 282, 289 (E.D.N.Y. 2003) (Weinstein, D.J.)
(defendant's presence is not required in "circumstances involving
matters of law or procedure that have no potential for meaningful input from a defendant." Specifically, it is not
mandated at an ancillary proceeding where the purpose is "simply
to place on the record matters which had already occurred," and
to memorialize the matter for appellate review.); Key v.
Artuz, No. 99-CV-161, 2002 WL 31102627 at *7 (E.D.N.Y. Sept.
16, 2002) ("A jury charge conference and sidebar discussions
where only questions of law were addressed are not `material'
under this definition."); People v. Roman, 88 N.Y.2d at
25-26, 643 N.Y.S.2d at 14 ("[B]ecause only defense counsel (and
not the defendant personally) may argue or choose a strategem
when the proceeding involves a question of law or procedure,
hearings on those matters do not involve any potential for
meaningful input by a defendant, and presence is not required.").
2. Appellate Counsel's Failure to Object as to the Jury Notes
and the Court's Lack of Supplemental Jury Instructions
After the jury began to deliberate, at 2:15 p.m., the jury
submitted a note requesting to see the People's exhibit of the
bottle. (Ex. U: Court Ex. 5, 2:15 p.m. note.) At 3:20 p.m., the
jury's second note requested clarification on the use of
circumstantial evidence and further explanation of the two
addresses associated with Brooks' building's entrances. (Ex. U:
Court Ex. 6, 3:20 p.m. note.) Shortly thereafter, at 4:00 pm, the
judge received a note that the jury had reached a verdict. (Ex.
U: Court Ex. 7, 4:00 p.m. note.) The minutes of the trial reflect
no discussion or response to the first two notes. (See Tr.
782-83.) Gillespie was returned to court and the verdict
received. (Tr. 783-86.)
Gillespie's appellate counsel thoroughly explained to Gillespie
her decision not to appeal about the judge's failure to respond
to the jury notes. (Ex. O: Gillespie Coram Nobis Pet., Att. Ex.
A: 5/17/02 letter.) Appellate counsel legitimately reasoned that
the forty minutes between the jury's second note and their reaching a verdict demonstrated that
the jury solved the question for themselves, and Gillespie was
not prejudiced by the court's failure to further instruct the
jury. (Id.) Appellate counsel further advised Gillespie that
the jury's findings rested on their believing Brooks' testimony,
rather than any problem with the "very good and very detailed"
jury instructions. (Ex. O: Gillespie Coram Nobis Pet., Att. Ex.
A: 6/7/02 letter.)
Appellate counsel made a reasonable professional judgment that
the better course was to pursue the stronger issue on appeal
(i.e., the annotated verdict form), rather than Gillespie's minor
arguments about the jury notes (which are meritless). The
decision to respond to a jury note turns on the precise
circumstances of each case and is within the sound discretion of
the trial judge. See, e.g., United States v. Young,
140 F.3d 453, 456-57 & n. 2 (2d Cir. 1998) (where judge failed to
respond to a jury note before taking the verdict when no further
request for instruction from the jury was received, it was not
plain error); see also, e.g., United States v. Shomorin,
No. 03-16606, 97 Fed.Appx. 753, 754, 2004 WL 1161447 at *1 (9th
Cir. May 19, 2004) (District Court's failure to respond to a jury
note seeking clarification of jury instruction was harmless error
because it did not have a "substantial and injurious effect or
influence in determining the jury's verdict," quoting Brecht v.
Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 1714 (1993));
Franza v. Stinson, 58 F. Supp.2d 124, 146 (S.D.N.Y. 1999)
(Kaplan, D.J. & Peck, M.J.) (the jury, not the petitioner, is the
best judge of whether the jury received a meaningful response to
its jury notes and whether it needed further instruction). It is
well-settled that appellate counsel cannot be faulted for failing
to raise a meritless claim. E.g., Rodriguez v. Goord, 02
Civ. 6318, 2004 WL 540531 at *23 (S.D.N.Y. Mar. 19, 2004) (Peck,
M.J.); see, e.g., Gomez v. Duncan, 02 Civ. 0846, 2004 WL
119360 at *34 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.); Montalvo
v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *28 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Maldonado v.
Greiner, 01 Civ. 799, 2003 WL 22435713 at *41 (S.D.N.Y. Oct.
28, 2003) (Peck, M.J.) (& cases cited therein.)
In any event, the Court cannot say that the First Department
unreasonably applied Strickland to these facts. Accordingly,
under the deferential AEDPA review standard, Gillespie's claim of
ineffective appellate counsel should be denied.
For the reasons discussed above, Gillespie's habeas petition
should be DENIED, and a certificate of appealability should not
FILING OF 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 shall have ten (10) days
from receipt of this Report to file written objections. See
also Fed.R.Civ.P. 6. Such objections (and any responses to
objections) shall be filed with the Clerk of the Court, with
courtesy copies delivered to the chambers of the Honorable
Loretta A. Preska, 500 Pearl Street, Room 1320, and to my
chambers, 500 Pearl Street, Room 1370. Any requests for an
extension of time for filing objections must be directed to Judge
Preska. Failure to file objections will result in a waiver of
those objections for purposes of appeal. Thomas v. Arn,
474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v.
Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied,
513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300
(2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992);
Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16
(2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy
v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983);
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).