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PATTERSON v. POOL

United States District Court, S.D. New York


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." (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 him[.]
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 replied:

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 consequently fails.

  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 well.
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 merit.

  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 and Detective

  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 unwarranted.

  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 unsupported.

  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 426).

  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 fails.

  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 323, 326-27).

  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 without merit.

  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 Test

  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.

  Conclusion

  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.


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