The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE GEORGE B. DANIELS, U.S.D.J.:
Trent Patterson brings this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging his conviction
in New York State Supreme Court, New York County, for Criminal
Sale of a Controlled Substance in the Third Degree, and Criminal
Possession of a Controlled Substance in the Third Degree. In his
petition, Mr. Patterson argues: (1) that he was denied the right
to appear before the grand jury; (2) that he was denied the right
to effective assistance of counsel, in that trial counsel (a)
failed to request a missing witness charge, (b) failed to object
to the jury charge on reasonable doubt, (c) assured the
petitioner that he would not be convicted of a felony, (d) failed
to assist the petitioner with the filing of a motion pursuant to
§ 330.30 of the New York Criminal Procedure Law ("CPL"), (e)
failed to object or to request a hearing or mistrial when the
judge discovered a testifying expert conversing with a detective,
(f) failed to object to certain evidence or to move to have it
suppressed, (g) was unfamiliar with the Rosario rule for the
disclosure of evidence, (h) failed to object to the use of an
officer's memo book at trial, (i) failed to protect the petitioner's right to confront an
alleged accomplice's statement, (j) failed to object to the
introduction into evidence of a photograph of an alleged
accomplice, (k) failed to object or to request a hearing
regarding a juror who was taking psychiatric medication, and (l)
failed to move to have evidence suppressed and the indictment
dismissed; and (3) that appellate counsel was ineffective for
failing to properly investigate the petitioner's claims, for
refusing to present all available issues to the New York Court of
Appeals, and for neglecting to investigate missing witnesses. For
the reasons that follow, I recommend that the petition be denied.
On August 30, 1995, near the corner of 38th Street and Eighth
Avenue in Manhattan, Detectives Dennis Bradley and Erik
Scantlebury, along with other officers, were conducting a "buy
and bust" anti-narcotics operation. (Tr. at 314-15,
319-20).*fn1 At approximately 9:40 p.m., Detective Bradley,
working undercover and equipped with a hidden radio transmitter,
approached Mr. Patterson and James Smith and asked them for two
"dimes," meaning ten-dollar bags of crack cocaine. (Tr. at 312,
323, 326-27). Mr. Patterson and Mr. Smith argued over who was to
sell the drugs. (Tr. at 323, 326-27). Mr. Smith relented, and Mr.
Patterson handed Detective Bradley two bags of crack cocaine in
exchange for twenty dollars of pre-recorded buy money. (Tr. at
321, 324, 327-28). As Detective Bradley walked away, Mr. Patterson called him back and guaranteed
the quality of the crack cocaine. (Tr. at 323, 330). Detective
Bradley then transmitted by radio a description of Mr. Patterson
and of the location of the purchase. (Tr. at 323, 331-33). Mr.
Patterson and Mr. Smith were stopped and arrested moments later
by Detective Scantlebury and other officers. (Tr. at 335-36,
388-92). Two additional bags of crack cocaine and the
pre-recorded buy money were recovered when Mr. Patterson was
searched. (Tr. at 392-94). Detective Bradley positively
identified Mr. Patterson approximately five minutes after the
transaction. (Tr. at 336).
On November 24, 1995, a grand jury charged Mr. Patterson with
Criminal Sale of a Controlled Substance in the Third Degree and
Criminal Possession of a Controlled Substance in the Third
Degree. In motion papers dated January 5, 1996, Mr. Patterson
moved to dismiss the indictment on the ground that he had been
deprived of the opportunity to testify before the grand jury.
(Brief for Defendant-Appellant ("Def. Br."), Attached as Exh. A
to Declaration of Michael P. King in Opposition to Petitioner's
Application for a Writ of Habeas Corpus dated April 11, 2003
("King Decl."), at 2). In an order dated February 20, 1996, the
New York Supreme Court denied Mr. Patterson's motion to dismiss
the indictment. (Def. Br. at 3).
On February 23, 1996, Mr. Patterson moved for inspection of the
grand jury minutes and dismissal of the indictment on the ground
that the evidence before the grand jury was insufficient to sustain the offenses charged. (Def. Br. at 4). In a decision
dated April 4, 1996, the motion to dismiss was denied. (Def. Br
at 4). Mr. Patterson also moved to suppress his statements, the
physical evidence, and identification testimony. (H. at
41).*fn2 On September 17, 1996, the court denied Mr.
Patterson's motion in its entirety. (H. at 44).
On September 18, 1996, Mr. Patterson's jury trial commenced
before Justice John A.K. Bradley. A mistrial was declared on
September 20, 1996, when the jury was unable to reach a verdict.
Mr. Patterson again proceeded to trial on June 2, 1997, before
Justice Budd G. Goodman. On June 9, 1997, Mr. Patterson was
convicted of Criminal Sale of a Controlled Substance in the Third
Degree in violation of New York Penal Law § 220.39 and Criminal
Possession of a Controlled Substance in the Third Degree in
violation of Penal Law § 220.16. (Tr. at 548-49).
On June 25, 1997, Mr. Patterson moved pro se to set aside
the verdict pursuant to CPL §§ 330.30, 330.40, and 330.50, on the
grounds that: (1) the court erred in admitting evidence that had
been tampered with; (2) he was denied the right to testify before
the grand jury; (3) there were deficiencies in the chain of
custody of the drugs; (4) the prosecution failed to prove that he
had sold cocaine; and (5) one of the jurors was taking
prescription psychiatric medication and should have been
replaced. (Notice of Motion to Set Aside Verdict and for New
Trial on Grounds Which, if Raised on Appeal, Would Require Reversal as Matter of Law,
attached as Exh. F to King Decl.). This motion was denied by
Justice Goodman prior to Mr. Patterson's sentencing on November
19, 1997, and the petitioner was then sentenced as a second
felony offender to concurrent indeterminate prison terms of five
to ten years. (S. at 3, 5, 13).*fn3
Mr. Patterson appealed his conviction to the Appellate
Division, First Department, on December 1, 1997. The petitioner
argued: (1) that the prosecution failed to prove his guilt beyond
a reasonable doubt; (2) that he was denied the right to testify
before the grand jury; (3) that the evidence presented to the
grand jury was not sufficient to sustain the count of criminal
sale of a controlled substance; and (4) that he was denied a fair
trial by the court's instruction on reasonable doubt. (Def. Br.).
The Appellate Division unanimously affirmed the convictions by
order dated March 16, 2000. The court found that the verdict was
based on legally sufficient evidence and was not against the
weight of the evidence, that Mr. Patterson was not deprived of
his right to testify before the grand jury, and that the
challenge to the evidence presented before the grand jury was
foreclosed by statute pursuant to CPL § 210.30(6). People v.
Patterson, 270 A.D.2d 120, 120, 706 N.Y.S.2d 14, 15 (1st Dep't
2000). The Appellate Division declined to review the challenge to
the jury charge since this claim was unpreserved, though it noted
that were it to review the claim, it would have rejected it. Id. at 121,
706 N.Y.S.2d at 15. Mr. Patterson sought leave to appeal to the New
York Court of Appeals by letter dated April 4, 2000, maintaining
that his right to testify before the grand jury had been denied.
(Letter in Application for Permission to Appeal from the Appellate
Division, attached as Exh. E to King Decl.). On May 19, 2000, The
New York Court of Appeals denied Mr. Patterson's application for leave
to appeal. People v. Patterson, 95 N.Y.2d 801,
711 N.Y.S.2d 169 (2000) (Table).
On January 5, 2001, Mr. Patterson moved pro se to vacate
the judgment against him pursuant to CPL § 440.10, on the grounds
that: (1) counsel provided ineffective assistance in fourteen
different respects; (2) material evidence was obtained "contrary
to constitutional provisions"; and (3) improper and prejudicial
conduct occurred outside the record that would be reversible
error. (Notice of Motion to Vacate Judgment, attached as Exh. G
to King Decl.). This motion was denied by written decision on May
11, 2001. (Order of New York Supreme Court, attached as Exh. I to
King Decl.). Mr. Patterson applied to the Appellate Division for
leave to appeal the denial of this motion, but leave was denied
by order dated November 20, 2001. People v. Patterson, 2001
N.Y. App. Div. LEXIS 11593 (1st Dep't 2001).
On December 4, 2001, Mr. Patterson moved for a writ of error
coram nobis, alleging ineffective assistance of appellate
counsel. This claim was based on appellate counsel's refusal to
raise the issues Mr. Patterson requested on direct appeal,
including claims of ineffective assistance of trial counsel. Mr. Patterson also
complained that appellate counsel did not return "legal material"
that Mr. Patterson had sent to him, and that he failed to
interview the missing witnesses whom Mr. Patterson believed would
provide exculpatory information. Further, Mr. Patterson
complained that appellate counsel failed to present all four
claims from his direct appeal in his application for leave to
appeal to the Court of Appeals. (Petition for Writ of Error
Coram Nobis, attached as Exh. K to King Decl.). The Appellate
Division denied this application on June 25, 2002. People v.
Patterson, 295 A.D.2d 1021, 746 N.Y.S.2d 272 (1st Dep't 2002)
(Table). Mr. Patterson then filed the instant petition for a writ
of habeas corpus.
Discussion*fn4 A. Right to Testify Before the Grand Jury
Mr. Patterson's petition asserts that he was denied the right
to appear before the grand jury. (Petition for Writ of Habeas
Corpus ("Petition"), Ground One). Because the right to testify
before the grand jury is a right granted exclusively by state
law, this claim is not cognizable on federal habeas review.
Cates v. Senkowski, No. 02 Civ. 5957, 2003 WL 1563777, at *2
(S.D.N.Y. March 17, 2003).*fn5 It is also without merit.
The duty of the grand jury is limited to determining whether there is adequate evidence to sustain a criminal charge; there
exists no requirement for the prosecution to present, or the
grand jury to hear, any additional evidence beyond that needed to
convince the investigating body that an indictment should issue.
United States v. Williams, 504 U.S. 36, 51-55 (1992).
Exculpatory evidence need not be presented, and the suspect
himself has no federal constitutional right to testify before the
grand jury. Lemons v. Parrott, No. 01 Civ. 9366, 2002 WL
850028, at *5 (S.D.N.Y. May 2, 2002) (citing Williams,
504 U.S. at 52). Because Mr. Patterson had no constitutionally granted
right to appear, there is no cognizable habeas claim.
Furthermore, Mr. Patterson's claim fails because errors in
grand jury proceedings are deemed harmless once a petit jury
returns a guilty verdict. United States v. Mechanik,
475 U.S. 66, 73 (1986). This reasoning applies with even greater force
when, as here, the petitioner is mounting a collateral attack on
his conviction. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir.
1989). Mr. Patterson was convicted after a jury trial, and this
conviction thereby cures any alleged defect in the indictment.
B. Ineffective Assistance of Counsel
Mr. Patterson claims that his attorney provided ineffective
assistance of counsel in a variety of respects. To prevail on a
reversal on a claim of ineffective assistance, the petitioner
must demonstrate that (1) counsel's performance was deficient,
and (2) the deficient performance was prejudicial to the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). In assessing
whether the attorney's performance was deficient, a reviewing
court must determine whether his conduct "fell below an objective
standard of reasonableness" given the facts and circumstances of
the particular case. Strickland, 466 U.S. at 688. On habeas
review, a federal court must be "highly deferential" and "indulge
a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance." Id. at 689. The
"prejudice" prong of the Strickland test requires "a showing
that counsel's errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable," and that "but
for" the claimed errors of counsel, the trial result would have
been different. Id. at 687, 694.
Mr. Patterson's claims do not meet the Strickland standard.
Additionally, three of these claims are barred from habeas
review. All twelve claims will be addressed individually.
1. Failure to Request a Missing Witness Charge
Mr. Patterson argues that counsel failed to request a missing
witness charge with respect to an arresting officer and an
alleged accomplice. (Petition, Ground Two). Under New York law, a
missing witness charge is required only where the party
requesting the charge can demonstrate that "the uncalled witness
is knowledgeable about a material issue upon which evidence is
already in the case; that the witness would naturally be expected
to provide noncumulative testimony favorable to the party who has
not called him, and that the witness is available to such party."
People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 799 (1986)
(citations omitted). Mr. Patterson does not meet this burden.
Mr. Patterson maintains that counsel was deficient for failing
to have Police Officer Simmons testify.*fn6 Mr. Patterson
argues that Officer Simmons would have verified that she did not
recover drugs or marked money at the time of his arrest. This
assertion is pure speculation, however. The record shows that
Officer Simmons merely assisted in transcribing the list of the
petitioner's property at the time of the arrest. (Tr. at 397,
426). She did not have any noncumulative testimony to add, and
therefore a missing witness charge was not required.
Mr. Patterson also maintains that counsel was ineffective for
failing to contact the alleged accomplice, James Smith. Mr.
Patterson asserts that Mr. Smith would have testified that he did
not know Mr. Patterson and that he did not tell Mr. Patterson to
sell drugs. However, there is no evidentiary support for this
assertion, and such a statement is in fact contrary to the
testimony given at trial. Detective Bradley testified that Mr.
Patterson and Mr. Smith argued about who would sell the drugs to
him, and that Mr. Smith eventually "said, like, `Go ahead, you
give him two'" (Tr. at 323). Furthermore, whether or not Mr.
Smith instructed the petitioner to sell the drugs was immaterial,
since it was the petitioner's actual sale along with Detective
Bradley's positive identification that provided the basis for Mr.
Patterson's conviction. Because of the lack of evidence to suggest that either witness
would have provided noncumulative testimony favorable to Mr.
Patterson's position, Mr. Patterson was not entitled to a missing
witness charge. The assertion that counsel was ineffective for
neglecting to request such a charge is therefore meritless.
2. Failure to Object to Jury Charge on Reasonable Doubt
Mr. Patterson maintains that counsel was ineffective in failing
to object to the judge's response to an inquiry from the jury
regarding reasonable doubt. Specifically, Mr. Patterson argues
that the judge replied that "reasonable doubt [is] not a fence to
hide behind to avoid performing a disagreeable duty." ...