United States District Court, S.D. New York
August 18, 2004.
TRENT PATTERSON, Petitioner,
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.
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." (Petition,
Ground Three). This claim is procedurally barred from habeas
review and without merit.
The claim of counsel's failure to object to the jury charge was
first raised in state court in Mr. Patterson's CPL § 440.10
motion. The New York Supreme Court rejected this claim, citing
CPL 440.10(2)(c). (King Decl., Exh. I).
CPL § 440.10(2)(c) states that a court must deny a motion to
vacate a judgment, when:
Although sufficient facts appear on the record of the
proceeding underlying the judgement to have
permitted, upon appeal from such judgment, adequate
review of the ground or issue raised upon the motion,
no such appellate review or determination occurred
owing to the defendant's unjustifiable failure to
take or perfect an appeal during the prescribed
period or to his unjustifiable failure to raise such
ground or issue upon an appeal actually perfected by
The New York Supreme Court therefore held that the plaintiff's
claim was procedurally defaulted for failure to raise the claim
on direct appeal.
A federal habeas court may not review a prisoner's claim if
that claim was procedurally defaulted in state court "absent a
showing of cause and prejudice to excuse the default" unless "the
habeas applicant can demonstrate that the alleged constitutional
error has resulted in the conviction of one who is actually
innocent of the underlying offense[.]" Dretke v. Haley,
___ U.S. ___, ___, 124 S. Ct. 1847, 1849 (2004) (citing Murray v.
Carrier 477 U.S. 478, 496 (1986)). Cause for procedural default
may be established by "a showing that the factual or legal basis
for a claim was not reasonably available to counsel, . . . or
that some interference by state officials made compliance
impracticable, . . . [or that] the procedural default is the
result of ineffective assistance of counsel." Bossett v.
Walker, 41 F.3d 825, 829 (2d Cir. 1994) (quoting Murray,
477 U.S. at 488) (internal quotation marks omitted). A petitioner
suffers actual prejudice if the outcome of the case would likely
have been different had the alleged constitutional violation not
occurred. See Reed v. Ross, 468 U.S. 1, 12 (1984); Trottie
v. Mantello, No. 98 Civ. 5581, 1999 WL 187202, at *4 (S.D.N.Y.
April 6, 1999).
Alternatively, even if the petitioner is unable to meet the
cause and prejudice standard, his claim may be heard if he can
show that a failure to consider the claim would result in a
fundamental miscarriage of justice. Coleman v. Thompson,
501 U.S. 722, 750 (1991). However, only in an "extraordinary case,
where a constitutional violation has probably resulted in the
conviction of one who is actually innocent," will "a federal habeas court 
grant the writ even in the absence of a showing of cause for the
procedural default." Murray, 477 U.S. at 496; accord
Spence, 219 F.3d at 170. For the claim of innocence to be
credible, it must be based on reliable evidence not produced at
trial, and the petitioner must show that "it is more likely than
not that no reasonable juror would have convicted him in light of
the new evidence" presented in the habeas petition. Calderon v.
Thompson, 523 U.S. 538, 540 (1998) (quoting Schlup v. Delo,
513 U.S. 298, 327 (1995)).
Mr. Patterson has not alleged any facts that would constitute
cause and prejudice for his procedural default, nor has he
asserted that he was actually innocent of his underlying
offenses. In any event, his claim fails on the merits. As the
record indicates, Mr. Patterson is extracting one line from a
much longer jury instruction. When asked by a juror for a
reiteration of the definition of reasonable doubt, the judge
A reasonable doubt means a doubt based upon reason.
It is a doubt for which a juror can give a reason if
he or she were called upon to do so in the jury room
in the course of the deliberations. But as I said
before, no juror has an obligation to give such a
reason to any other juror. A reasonable doubt also
means a doubt based upon the evidence or the lack of
evidence in this particular case. Your first duty as
a juror, each and everyone of you, is to consider and
weigh all of the evidence in the case and then to
determine which evidence you believe to be credible
and worthy of your consideration.
Your next duty is to determine whether in fact you
have a reasonable doubt. All right. I caution you
that a doubt of guilt is not reasonable if instead of
being based on the quality and nature or
insufficiency of the evidence, it is based upon a
whim, guess, surmise, a speculation or conjecture. A reasonable doubt means
an actual doubt; a doubt that you, as a juror,
individually, are conscious of having after reviewing
in your mind all of the evidence.
Further, a doubt to be a reasonable doubt should be
one which a reasonable person, acting in a manner of
this importance, would be likely to entertain because
of the evidence or because of the lack or
insufficiency of the evidence in this case. Now, this
does not mean that reasonable doubt may be considered
a kind of fence behind which a juror may hide to
avoid what he or she perceives to be a painful or
disagreeable duty. Again I also caution you, a doubt
of guilt is not reasonable if it is based merely on
sympathy for the defendant.
Now, remember, there is no obligation on the part of
the People to establish the elements of any one of
the crimes I've submitted to you beyond all doubt, to
a mathematical certainty, for that is impossible, but
the People must prove defendant's guilt beyond a
reasonable doubt on any charge in order for you to
return a guilty verdict on that charge.
(Tr. at 546-48). The judge had offered this same charge earlier
in his instructions. (Tr. 513-14).
The sentence to which Mr. Patterson objects is but one phrase
in a much longer explanation. Because "[a] single instruction to
the jury may not be judged in artificial isolation, but must be
viewed in the context of the overall charge[,]" Cupp v.
Naughten, 414 U.S. 141, 146-47 (1973); accord United States
v. Weintraub, 273 F.3d 139, 151 (2d Cir. 2001), Mr. Patterson's
objection to the jury charge is without merit, and his claim that
counsel was ineffective for failure to object to this charge
3. Promise of No Felony Conviction
Mr. Patterson maintains that counsel assured him that a felony
conviction was not possible because the chain of custody of the drugs was broken and the pre-recorded buy money was lost.
(Petition, Ground Four). Mr. Patterson offers no evidentiary
support for this allegation, and this contention is clearly
contradicted by the record.
At the pre-trial hearing on September 17, 1996, in response to
Justice Bradley's inquiry regarding a possible plea agreement,
Mr. Patterson's attorney responded:
Judge[,] Mr. Patterson and I have had numerous
discussions about disposition in this case. The offer
has been to eight since he's been indicted. I did
talk to the D.A. and did get an officer [sic] of
three and a half to seven at one point. I had a
conversation with Mr. Patterson about that. My advice
to him was that that plea was as good an offer as he
would see on this case and that chances of conviction
in this case were substantial.
Given his criminal record, he would certainly get
more than the minimum four and a half to nine if he
were convicted. Told him the maximum is twelve and a
half to twenty five if he gets convicted he's of
course a discretionary persistent felony offender as
I advised him that I thought three and a half to
seven was an appropriate offer for him to accept and
he does not wish to accept that officer [sic].
(H. at 3-4).
At this pre-trial hearing, Mr. Patterson explained to the judge
that he did not anticipate the case would proceed this far, since
he had agreed to provide information regarding an unrelated
murder investigation. Counsel then explained:
[I]t was the defendant's hope that because he had
information on a substantial case in the Bronx that
something might be done, some consideration might be
given him if he were to cooperate in the Bronx. I had
from the outseet [sic] indicated to him that I didn't
think there was any circumstances under which the
Special Narcotics Prosecutor would dismiss the case
against him, but maybe a more favorable, more
attractive offer could have been made.
But based on my conversations with him he never
should have had the expectation that this case would
be dismissed on the basis of his cooperation.
(H. at 12-13).
At Mr. Patterson's second pre-trial hearing on June 2, 1997,
the issue of the possible conviction and sentence was again
discussed. Justice Goodman clarified: "[F]rom this point on,
there will be no plea. All right. And what happens if he changes
his mind during the course of the trial? It's too late. Roll the
dice. If he wins, he walks out; if he loses, he's going to jail
for a long time." (H2. at 10).*fn7 Counsel replied, "Mr.
Patterson is keenly aware of that, Judge." (H2. at 10). Because
the record contradicts Mr. Patterson's assertion, and he offers
no other evidence, this claim cannot be sustained.
4. Failure to Assist with CPL § 330.30 motion
Mr. Patterson asserts that he was denied effective assistance
of counsel since his attorney was unwilling to assist him with
the filing of a motion to set aside the verdict and for a new
trial, pursuant to CPL § 330.30. It is Mr. Patterson's contention
that counsel refused to provide assistance with this motion
unless Mr. Patterson "signed a contract forfeiting $7,500.00 of a
pending civil matter" and allowed counsel's friend to represent
him on appeal. (Petition, Ground Five). According to Mr.
Patterson's petition, this failure to assist resulted in the
denial of Mr. Patterson's pro se CPL § 330.30 motion. This claim lacks
This claim was first raised on Mr. Patterson's CPL § 440.10
motion. In deciding this motion, the state court found that any
such alleged conduct would have occurred after the conclusion of
the trial and therefore could not have affected its outcome, and
that Mr. Patterson had in fact filed the motion pro se. The
court also credited trial counsel's representation that he could
not in good faith file the § 330.30 motion because he did not
believe that there was a basis for it. (King Decl., Exh. I)
Mr. Patterson provides no corroboration for the allegations
regarding his purported conversation with counsel. Furthermore,
his contention that counsel's lack of assistance resulted in the
denial of his pro se motion is unfounded. As the state court
found in making its determination, there was no basis for the §
330.30 motion. (S. at 3). Indeed all of the claims raised in this
pro se motion were raised, in substance, on the petitioner's
direct appeal where Mr. Patterson benefitted from appellate
counsel's assistance. (Def. Br.). Nevertheless, those claims were
denied by the Appellate Division. Patterson, 270 A.D.2d at 120,
706 N.Y.S.2d at 15.
Additionally, with the exception of the claim that the
prosecution failed to prove that Mr. Patterson sold cocaine,
which was previously denied on Mr. Patterson's direct appeal, the
claims that Mr. Patterson brought in his § 330.30 motion are in
essence raised in the instant petition. As these claims have been
found to be without merit, counsel's failure to assist with the
filing of a meritless motion does not constitute deficient performance.
United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999)
("Failure to make a meritless argument does not amount to
ineffective assistance."); see also United States v. Kirsh,
54 F.3d 1062, 1071 (2d Cir. 1995). Mr. Patterson's claim that he
was denied effective assistance of counsel by his attorney's
refusal to assist with a § 330.30 motion consequently fails.
5. Failure to Object to Conversation Between Expert Witness
Mr. Patterson contends that counsel provided ineffective
assistance in failing to object or to request a hearing when the
judge discovered the testifying expert witness conversing with
Detective Scantlebury. It is Mr. Patterson's contention that
during a court recess, the judge saw the two conversing and
inquired as to what they were discussing. According to Mr.
Patterson, he requested that his attorney move for a mistrial or
a hearing to determine the topic of the conversation, but his
attorney refused. (Petition, Ground Seven).
The court record provides no indication of an exchange
occurring between the chemist and the detective, nor between
either of them and the judge. Mr. Patterson's bare assertion
lacks any evidence of wrongdoing, and there is consequently no
basis for an objection or for a request for hearing or mistrial
based on this contention. Mr. Patterson has therefore not shown
that counsel's performance in failing to object "fell below an
objective standard of reasonableness." Strickland,
466 U.S. at 688. Because Mr. Patterson has not satisfied the first prong of
the Strickland test, he has failed to demonstrate that counsel provided ineffective
assistance. See Strickland, 466 U.S. at 697 (stating that a
reviewing court need not address both elements of the test if the
petitioner does not make a sufficient showing as to either one);
Sellan v. Kuhlman, 261 F.3d 303, 317 (2d Cir. 2001).
6. Failure to Object or to Move to Suppress Evidence Based on
Deficient Chain of Custody
Mr. Patterson claims that his attorney provided ineffective
assistance of counsel in failing to object or to move to have the
evidence suppressed once it was discovered that "the evidence was
opened, the drugs lacked the officer's signature . . . and the
marked money could not be produced." (Petition, Ground Eight).
Mr. Patterson appears to be challenging the chain of custody of
the drugs seized from him upon arrest and used as evidence at
trial. Because the evidence presented at trial was for the jury
to evaluate, this claim lacks merit.
At trial, the prosecutor presented evidence to establish a
chain of custody by showing that the drugs Officer Bradley bought
from Mr. Patterson were the same drugs tested by the chemist and
offered into evidence. Officer Bradley testified that after
purchasing two bags of crack cocaine from Mr. Patterson, he
placed the two bags in an evidence envelope on which he wrote the
time and date of the purchase, his shield number, and a "J.D.
name" for the defendant, i.e., a name to help him remember the
transaction. (Tr. at 334). Officer Bradley further recounted that
he sealed the envelope and had it in his possession until he
returned to the police precinct. (Tr. at 335). He also explained
that upon returning to the precinct, he field-tested the drugs to confirm
that they were in fact narcotics, and he then "vouchered" the
drugs, that is, placed them in an envelope marked with his
signature, the time, the date, and his shield number, and then
glued shut the envelope. (Tr. 340-42, 371-72). Officer Bradley
then testified that the drugs introduced into evidence were in
fact the drugs that he had vouchered and that they bore his
handwriting. (Tr. 344, 346-47).
Detective Scantlebury testified at trial that he recovered both
the pre-recorded buy money and two additional bags of crack
cocaine from Mr. Patterson upon arrest. (Tr. at 392-96, 401-02,
438-39). The detective described that he placed the two bags of
crack cocaine in an envelope that was sealed and marked with
information such as Mr. Patterson's name, description, date of
birth, address, height, and weight. (Tr. at 397-98, 406, 438-40).
Detective Scantlebury also explained that he vouchered the drugs
and a portion of the money as evidence. (Tr. at 396, 402-03,
407). At trial, the prosecution introduced into evidence the
envelopes containing crack cocaine that Officer Scantlebury had
vouchered. (Tr. at 409).
Mr. Patterson claims that because the envelope containing the
drugs was opened and because the bags of drugs themselves did not
bear Officer Bradley's signature, the chain of custody was not
proven. The underlying contention is that because of deficiencies
in the chain of custody, the evidence was inadmissible. However,
deficiencies in the chain of custody only affect the weight of
the evidence, not its admissibility. United States v. Jackson,
345 F.3d 59, 65 (2d Cir. 2003) (citing United States v. Morrison,
153 F.3d 34, 57 (2d Cir. 1998)). Thus, contrary to Mr.
Patterson's belief, an objection would not have resulted in the
evidence being precluded.
Evidence relating to the chain of custody is to be evaluated by
the jury. United States v. Hon, 904 F.2d 803, 810 (2d Cir.
1990) ("Once the exhibits were admitted into evidence, any
alleged defects in the government's chain of custody proof were
for the jury to evaluate in its consideration of the weight to be
given to the evidence."). In the instant case, whether the four
bags of crack cocaine produced at trial were in fact the two bags
Mr. Patterson sold to Detective Bradley and the two bags seized
from Mr. Patterson was an issue appropriately decided by the jury
based on all the evidence. Since counsel's failure to object did
not constitute deficient performance, Mr. Patterson has not
satisfied the first prong of the Strickland test.
Furthermore, the record amply demonstrates that counsel pursued
his defense of Mr. Patterson vigorously and diligently. Defense
counsel elicited from Detective Bradley that the detective did
not write his initials on the bags of drugs, despite having
testified at a prior proceeding that he had done so. (Tr. at
348-50, 356). Counsel also questioned Detective Bradley regarding
the fact that both envelopes containing the drugs had been
opened. (Tr. at 368-70). Counsel interrogated Detective
Scantlebury about the chain of custody and emphasized a potential
deficiency in the first link of the chain by pointing out that the prisoner property
envelope cover sheet was not filled out by Detective Scantlebury.
(Tr. at 425). Additionally, counsel underscored the discrepancies
in the detective's testimony regarding who had transcribed the
information on the envelope cover sheet. (Tr. 425-27, 430-31).
Regarding the pre-recorded money, the prosecutor elicited from
Detective Scantlebury that pre-recorded buy money is photocopied
to record the serial numbers on the bills in order to identify
those bills that are recovered upon arrest. (Tr. at 381-83).
Detective Scantlebury testified that the buy money used to
purchase the drugs was recovered from Mr. Patterson at the time
of his arrest, as identified from the photocopies of the money
used during the operation. (Tr. at 392-96, 401-03). The detective
also explained that because the police department cannot afford
to take all prerecorded buy money out of circulation, he
vouchered five dollars of the money recovered and returned
fifteen dollars to the police fund. (Tr. at 396, 402-03).
There is nothing in the record to suggest that there was a
basis for an objection or a motion to suppress the evidence.
Counsel's performance was not insufficient according to the
Strickland standard, and thus habeas relief on this claim is
7. Unfamiliarity with the Rosario Rule
Mr. Patterson maintains that counsel was unfamiliar with the
Rosario rule, which requires that the state provide a criminal
defendant with a pretrial statement of any witness who will be called to testify on behalf of the prosecution. People v.
Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448 (1961). Mr. Patterson
complains that counsel did not obtain a statement from the
testifying chemist, and that counsel therefore should have moved
for a dismissal of the evidence. (Petition, Ground Nine).
This claim lacks evidentiary support and is belied by the
record. Mr. Patterson offers nothing but conclusory statements
regarding this allegation. In fact, the record indicates that
defense counsel did in fact obtain a copy of the chemist's
report. At trial, the court specifically asked if the Rosario
material had been given to the defense attorney. (Tr. at 301).
The prosecutor answered, "Yes. I handed him another copy of the
I'm sorry the chemist's report." (Tr. at 301). Since the record
indicates that counsel did obtain the pertinent Rosario
information, and Mr. Patterson does not specify another document
that should have been disclosed prior to trial, this claim is
8. Failure to Object to Officer's Memo Book
Mr. Patterson next maintains that counsel provided ineffective
assistance in failing to object to the introduction at trial of
the officer's memo book. Given the supporting facts supplied in
the petition, Mr. Patterson seems to be referring to the prisoner
property envelope cover sheet. Mr. Patterson complains that the
document was used to "paint a picture of `validity' concerning
the evidence" even though the officer who allegedly wrote the
document did not testify at trial. (Petition, Ground Ten).
Counsel's failure to object to this document was a tactical trial
decision, and as such, there is no basis for this claim.
Detective Scantlebury testified that he dictated the
information on the prisoner property envelope cover sheet to
another officer. (Tr. at 397). At a prior proceeding Detective
Scantlebury had stated that the other officer was his partner,
Officer Tollerson; it was later discovered that it was not in
fact Officer Tollerson. (Tr. at 424-27). At trial, Detective
Scantlebury testified that he dictated the cover sheet
information to Detective Simmons, who did not testify. (Tr. at
The envelope cover sheet, though marked for identification at
trial, was not in fact introduced into evidence, but was merely
used to refresh Detective Scantlebury's memory concerning Mr.
Patterson's statement at the time of arrest. (Tr. at 394-95,
440). After referring to the envelope cover sheet, Detective
Scantlebury testified that Mr. Patterson stated "I just bought
it" in reference to the drugs found on him. (Tr. at 395, 440).
Counsel presumably did not object to this statement since it
bolstered Mr. Patterson's defense. In fact, counsel twice
referred to this statement in his summation, using this remark to
posit the defense that Mr. Patterson was merely in possession of
drugs for his own personal use and did not sell crack cocaine to
Detective Bradley. (Tr. at 480, 486-87). Counsel's decision not
to object to this statement was a strategic trial decision. Since
"[a]ctions or omissions by counsel that `might be considered
sound trial strategy' do not constitute ineffective
assistance[,]" United States v. Javino, 960 F.2d 1137, 1145 (2d
Cir. 1992) (quoting Strickland, 466 U.S. at 689), Mr. Patterson's claim that counsel was deficient in failing
to object to the use of the envelope cover sheet consequently
9. Failure to Protect Petitioner's Confrontation Rights
Mr. Patterson next asserts that counsel was ineffective in
failing to protect his right to confront the statement of his
alleged accomplice. Mr. Patterson complains that there was
testimony at trial, presented by Detective Bradley, regarding a
statement made by the alleged accomplice in the case, yet this
person was not indicted and did not testify at trial. (Petition,
Ground Eleven). This claim is procedurally barred.
This claim arises out of Detective Bradley's testimony
regarding a statement made by James Smith, the alleged
accomplice. Detective Bradley stated that prior to Mr.
Patterson's sale of the crack cocaine, Mr. Patterson and Mr.
Smith argued briefly over who was going to sell the drugs, and
that Mr. Smith then stated, "Go ahead, you give him two." (Tr. at
Mr. Patterson first raised this claim in his motion to vacate
the judgment pursuant to CPL § 440.10. (King Decl., Exh. G) In
denying this motion, the court found that the record showed that
counsel properly cross-examined Detective Bradley about Mr.
Smith's statement, and that the petitioner's claim was
unsubstantiated by the facts. (King Decl., as Exh. I).
The respondent argues that this claim is procedurally barred,
relying on the court's general statement that the petitioner's
claims regarding his counsel's alleged failure to make objections should have been raised on direct appeal. (Resp. Memo. at 13-14).
However, as noted above, the section of the court's determination
concerning Mr. Smith's statement reached the merits of the claim.
Therefore, the merits must be addressed on habeas review as well.
As discussed above, there was substantial independent evidence
of Mr. Patterson's guilt because Detective Bradley observed him
sell the drugs and later positively identified him. The comment
of his alleged accomplice, Mr. Smith, was therefore of little
significance. Thus, the petitioner's counsel was not remiss in
failing to object to the admission of the testimony.
10. Failure to Object to Photograph of Alleged Accomplice
Mr. Patterson contends that counsel was ineffective for failing
to object to the introduction into evidence of a photograph of
James Smith, the alleged codefendant in the case. (Petition,
Ground Twelve). This claim is both procedurally barred and
This claim was first raised in Mr. Patterson's § 440.10 motion.
(King Decl., Exh. G). In deciding this motion, the court held
that based on the record, counsel properly cross-examined each
witness and made appropriate objections. The court also found
that Mr. Patterson could have raised this claim on direct appeal
but failed to do so, citing to CPL § 440.10(2)(c). (King Decl.,
Exh. I). Because this claim could have been raised on direct
appeal but was not, it was procedurally defaulted and is
consequently barred from habeas review.
The claim is also without merit. Counsel's failure to challenge the introduction into evidence of the photograph was
not an unreasonable decision. Mr. Patterson's defense was founded
on the premise that the police arrested the wrong man. Counsel in
fact referred to the photograph of James Smith, pointing out that
the description dispatched by Officer Bradley more closely
resembled the photograph of James Smith than the photograph of
Mr. Patterson. (Tr. at 482-83). In his summation, counsel posited
that Mr. Smith may have been the person that sold drugs to
Detective Bradley. (Tr. at 483). The decision to allow the
photograph to be introduced into evidence without objection was a
strategic determination, and, as such, it does not constitute
ineffective assistance. Javino, 960 F.2d at 1145. Habeas relief
on this claim is thus unwarranted.
11. Failure to Object or to Request a Hearing Regarding
Juror's use of Prescription Medication
Mr. Patterson contends that counsel's performance was deficient
because he did not object or request a hearing when it was
discovered that one of the jurors was taking psychiatric
medication. Mr. Patterson asserts that the medication was
prescribed for depression and mood swings, and that counsel's
failure to request a hearing to determine the effects of the
medication resulted in Mr. Patterson's conviction. (Petition,
Ground Thirteen). This claim is unexhausted and procedurally
defaulted. Additionally, this claim is without merit.
The doctrine of exhaustion generally requires a petitioner to
exhaust all state court remedies prior to filing a claim for
federal habeas review. See 28 U.S.C. § 2254 (b), (c);
Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Lurie v. Wittner,
228 F.3d 113, 123-24 (2d Cir. 2000). To satisfy the exhaustion
requirement, a petitioner must have "fairly presented" his
federal constitutional claims to the appropriate state courts,
giving those courts the "opportunity to pass upon and correct
alleged violations of its prisoners' federal rights." Picard v.
Connor, 404 U.S. 270, 275 (1971) (internal quotation marks and
citations omitted); see also Levine v. Commissioner of
Correctional Services, 44 F.3d 121, 124 (2d Cir. 1995).
Nevertheless, a claim will be deemed exhausted if it is clear
that the state court would find it procedurally barred. Gray v.
Netherland, 518 U.S. 152, 161-62 (1996); Spence,
219 F.3d at 170; Bossett, 41 F.3d at 828-29). That same procedural bar,
however, precludes the habeas corpus court in most instances from
reviewing the defaulted claims on the merits. Spence,
219 F.3d at 170. Substantive review is only available if the petitioner is
able to either demonstrate cause for the default and resulting
prejudice, or show that the alleged error has led to the
conviction of an innocent person. Dretke, ___ U.S. at ___,
124 S. Ct. at 1849; see also Gray, 518 U.S. at 162; Spence,
219 F.3d at 170; Bossett, 41 F.3d at 829.
While Mr. Patterson previously raised this claim at the state
level in his motion to set aside the verdict pursuant to CPL §§
330.30, 330.40, and 330.50, he failed to appeal the denial of
that motion. Accordingly, this claim is unexhausted and
procedurally defaulted. Since Mr. Patterson has demonstrated neither cause and prejudice for this default nor that he is
innocent of the underlying offense for which he was convicted,
this claim remains barred from federal review.
This claim also fails on the merits. While Mr. Patterson
maintains that the juror was taking prescription medication for
depression and mood swings, he offers no evidentiary support for
this assertion. Further, this allegation is belied by the record.
During voir dire, Juror 12 stated that she took sleeping
pills and that she was under psychiatric care twice a week; the
record has no mention of either depression or mood swings. (Tr.
at 151). This juror also stated that there was no mental or
physical condition that would prevent her from performing her
duties as a juror. (Tr. at 176-77).
"[P]ossible internal abnormalities in a jury will not be
inquired into except in the gravest and most important cases."
Tanner v. United States, 483 U.S. 107, 119 (1987) (internal
quotation marks, alteration, and citation omitted). When
confronting allegations of a juror's mental incompetence, "courts
have refused to set aside a verdict, or even to make further
inquiry, unless there be proof of an adjudication of insanity or
mental incompetence closely in advance . . . of jury service, or
proof of a closely contemporaneous and independent post-trial
adjudication of incompetency." Id. (internal quotation marks
and citation omitted).
In the instant case, there is no indication of insanity or
mental incompetence in relation to the juror in question. There
is thus nothing to suggest that there was a basis to object to this
juror. Consequently, counsel's failure to object does not
constitute performance that can be considered to be below an
objective standard of reasonableness. Moreover, the failure to
object did not affect the outcome of the case, since an objection
to this juror would have been unsuccessful. Mr. Patterson has
therefore failed to meet the Strickland standard with this
claim, and consequently it must be denied.
12. Failure to Move for Suppression of Evidence of Laboratory
Mr. Patterson contends that counsel should have moved for
suppression of the evidence and dismissal of the indictment when
it was discovered that the drugs were not tested for eleven
months. Mr. Patterson argues that this fact is significant since
it indicates that the evidence presented to the grand jury was
not laboratory tested. (Petition, Ground Fourteen). Since
counsel's performance was not deficient for failing to file these
motions, this claim is meritless.
Detective Bradley testified at trial that upon returning to the
precinct after the arrest, he tested the drugs he had just
purchased. This field test revealed a positive result for
controlled substances. (Tr. at 344, 371-72). This finding was
sufficient to satisfy the probable cause standard necessary for
an indictment. On the record there is no reasonable probability
that the hearing court would have suppressed the evidence or
dismissed the indictment based on the delay in drug testing. This
is especially the case since the discovery of the delay was not
made until the second trial, by which time the laboratory test, which
corroborated the field test result, had been completed. The claim
that counsel was ineffective for not filing motions to suppress
the evidence and dismiss the indictment is thus without merit and
should be denied.
C. Ineffective Assistance of Appellate Counsel
Mr. Patterson also claims that his appellate counsel was
ineffective because counsel failed to investigate all pertinent
claims and did not raise all claims on appeal. Specifically, Mr.
Patterson asserts that appellate counsel did not contact or
interview Mr. Patterson's alleged co-defendant and Police Officer
Simmons, both of whom Mr. Patterson believes would have provided
exculpatory testimony. Additionally, Mr. Patterson claims that
appellate counsel was ineffective for not including in the
application for leave to appeal to the Court of Appeals all four
issues which were raised on appeal to the Appellate Division.
(Petition, Ground Six).
In order to prevail on a claim of ineffective assistance of
counsel, Mr. Patterson must demonstrate that (1) counsel's
performance fell below an objective standard of reasonableness,
and (2) there existed a reasonable probability of a different
result in the proceedings, but for the errors of counsel.
Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) (applying
Strickland standard to evaluate appellate counsel's
effectiveness); see also Mayo v. Henderson, 13 F.3d 528, 533
(2d Cir. 1994); Lawrence v. Artuz, 91 F. Supp. 2d. 528, 539
(E.D.N.Y. 2000). An appellate attorney "need not advance every argument,
regardless of merit, urged by the appellant." Jameson v.
Coughlin, 22 F.3d 427, 429 (2d Cir. 1994) (quoting Evitts v.
Lucey, 469 U.S. 387, 394 (1985)). In fact, winnowing out the
weaker claims and focusing on the stronger ones "is the hallmark
of effective appellate advocacy." Smith v. Murray,
477 U.S. 527, 536 (1986) (citing Jones v. Barnes, 463 U.S. 745, 751-52
(1983)). For an appellate attorney to be found ineffective for
failing to raise certain issues, the court must determine that
"significant and obvious" issues were abandoned while "clearly
and significantly weaker" issues were pursued. Mayo,
13 F.3d at 533.
There was nothing deficient in appellate counsel's decision to
raise only one issue in the application seeking leave to appeal.
Mr. Patterson had not demonstrated that counsel abandoned a
stronger issue in pursuit of a weaker one. Furthermore, as stated
above, the contention that James Smith and Officer Simmons, if
called to testify, would have provided exculpatory testimony is
unsubstantiated. Additionally, it is not appellate counsel's
function to investigate the facts of the case, but rather to
raise claims evident on the court record. The assertion that
appellate counsel was ineffective in failing to interview these
persons therefore does not warrant habeas relief.
Finally, there is no constitutional right to counsel after the
first appeal. Chalk v. Kuhlmann, 311 F.3d 525, 528 (2d Cir.
2002) (citing Evitts, 469 U.S. at 394); see also Ross v.
Moffitt, 417 U.S. 600, 610-11 (1974) (stating that there is no constitutional right to counsel for discretionary appeals). Thus,
absent a right to counsel, a petitioner cannot be deprived of
effective assistance of counsel. Wainwright v. Torna,
455 U.S. 586, 587-88 (1982). Since Mr. Patterson had no federal right to
appellate counsel in seeking leave to appeal to the Court of
Appeals, the claim that appellate counsel was ineffective in
advancing Mr. Patterson's application cannot be sustained.
Accordingly, Mr. Patterson's claim of ineffective assistance of
appellate counsel must be rejected.
For the reasons set forth above, I recommend that Mr.
Patterson's application for a writ of habeas corpus be denied and
the petition be dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and
Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure,
the parties shall have ten (10) days from this date to file
written objections to this Report and Recommendation. Such
objections shall be filed with the Clerk of the Court, with extra
copies delivered to the chambers of the Honorable George B.
Daniels, Room 410, 40 Foley Square, New York, New York 10007, and
to the chambers of the undersigned, Room 1960, 500 Pearl Street,
New York, New York 10007. Failure to file timely objections will
preclude appellate review.