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PATTERSON v. POOL

August 18, 2004.

TRENT PATTERSON, Petitioner,
v.
THOMAS POOL, Respondent.



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.

  Background

  A. Facts

  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).

  B. Procedural History

  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." ...


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