United States District Court, S.D. New York
September 14, 2004.
FRANK BROWN a/k/a JAMES WHITE, Petitioner,
THOMAS RICKS, Respondent.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT and RECOMMENDATION
TO THE HONORABLE SIDNEY H. STEIN, UNITED STATES DISTRICT JUDGE
Petitioner Frank Brown ("Brown") has made an application for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. Brown
contends that his confinement by the state of New York is
unlawful based on the following grounds: 1) the trial court
restricted his ability to cross-examine the complaining witness
and to delve into the prosecution's failure to produce a civilian
witness and, thereby, violated Brown's constitutional right to
confrontation; 2) the trial court denied Brown's application that
a mistrial be declared or, in the alternative, that curative
instructions be given to the jury after the prosecutor made
inappropriate comments during her final arguments to the jury; 3)
the trial court allowed the prosecutor to elicit testimony that
the complaining witness had identified Brown to police officers
immediately prior to Brown's arrest when the complaining witness
could not, at the time of the trial, identify Brown as his
robber; 4) the trial court imposed an excessive sentence on
Brown; 5) the trial court impaneled two petit juries to hear
testimony simultaneously concerning Brown and a co-defendant,
although each jury deliberated independently the fate of only one of the defendants;
6) the prosecutor failed to disclose "paperwork" concerning an
item of physical evidence, a beeper, retrieved at the time of
Brown's arrest; 7) Brown's trial counsel rendered ineffective
assistance to him, in part, because he failed to have Brown
testify before the grand jury, although Brown expressed his
desire to appear before that body; 8) Brown's trial counsel
rendered ineffective assistance to him because he did not ensure
that Brown was brought to trial within six months following his
arrest, in violation of his right to a speedy trial; and 9) Brown
received ineffective assistance from his appellate counsel, who
failed, inter alia, to "shepardize cases" and to advance
certain arguments that Brown believes should have been made on
his direct appeal from his conviction.
The respondent opposes Brown's application for a writ of habeas
corpus. He contends that Brown is not entitled to habeas corpus
relief on the claims raised in grounds one, two and three above
because those claims were resolved in the state court on
non-federal, independent and adequate state law grounds. The
respondent also contends that Brown's sentence was not excessive,
because it is within the range prescribed by the applicable state
statute. The respondent maintains that, with respect to grounds
five and six, upon which Brown seeks habeas corpus relief, no
such relief is warranted because those claims were procedurally
forfeited by Brown in the state court proceedings. Furthermore,
the respondent also maintains that Brown's claim that he received
ineffective assistance from his counsel is meritless.
Following a jury trial in the New York State Supreme Court, New
York County, Brown was convicted for robbery in the first degree
(two counts), robbery in the second degree (one count), criminal
possession of a weapon in the second degree (one count), and
criminal possession of a weapon in the third degree (one count). The court
sentenced Brown to 17 years imprisonment on each of the first
degree robbery counts and directed that the sentences run
concurrently with each other. The court also imposed sentences of
15 years imprisonment for Brown's second degree robbery
conviction and his second degree weapons possession conviction.
The court directed that those sentences run concurrently with
each other and with a sentence of seven years imprisonment it
imposed on Brown for his third degree weapons possession
Brown appealed from the judgment of conviction to the New York
State Supreme Court, Appellate Division, First Department. He
urged that court to upset his conviction because the trial court
erred when it restricted the defense's ability to cross-examine
the complaining witness concerning his consumption of alcohol and
the impact, if any, such consumption might have had on his
ability to observe and recall accurately events that pertained to
the robbery. Brown also alleged that the trial court erred when
it prevented the defense from inquiring into the prosecution's
failure to present, as a trial witness, a person who was
identified in police department documents as a witness to the
charged crimes. In addition, Brown argued to the Appellate
Division that the trial court erred when it declined either to
declare a mistrial or to give the jury curative instructions
after the prosecutor made what the defense felt were improper
statements during her closing arguments to the jury.
Specifically, the prosecutor explained the law respecting
circumstantial evidence to the jurors and informed them that a
guilty verdict could be premised upon circumstantial evidence.
The prosecutor did this notwithstanding the fact that: (a)
neither party had requested that the trial court instruct the
jurors on the law respecting circumstantial evidence; (b) the
court had not intended to instruct the jurors on that issue since
it had not been requested to do so by either party; and (c) the
defense had already presented its final arguments to the jury
and, thus, it had no opportunity to explore the issue of
circumstantial evidence with the jurors. Brown alleged that the
prosecutor, through her final arguments to the jury, had
speculated improperly about matters dehors the record and had, in
effect, become an unsworn trial witness.
Brown also requested that the Appellate Division reverse his
conviction because the trial court erred when it permitted the
prosecution to "bolster its case" by eliciting testimony that
Brown's arrest was effected shortly after the complaining witness
identified him to the arresting police officers as one of two
robbers who had taken the complaining witness' property at
gunpoint. Brown maintained that the identification testimony
elicited was improper because the complaining witness was unable
to identify Brown as one of the robbers at the time of Brown's
trial. In addition, Brown argued to the Appellate Division that
his sentence was excessive and that it should be modified by that
The Appellate Division declined to entertain any of Brown's
claims save one, that the trial court had abused its discretion
and imposed an excessive sentence on him a claim that the
Appellate Division rejected. The Appellate Division explained
that Brown's claims, except with respect to the length of his
sentence, had not been preserved for appellate review through
timely and specific objections in the trial court, as required by
New York Criminal Procedure Law ("CPL") § 470.05(2).
Nevertheless, the court noted that had it entertained Brown's
unpreserved claims, its review of the trial record would have led
it to conclude that those claims either were not supported by the
record evidence, or were matters that constituted harmless error.
The Appellate Division affirmed Brown's conviction unanimously. See People v.
Brown, 254 A.D.2d 75, 678 N.Y.S.2d 889 (App. Div. 1st Dept.
Brown made an application for leave to appeal to the New York
Court of Appeals from the Appellate Division's determination.
That application was denied by an associate judge of that court.
See People v. Brown, 92 N.Y.2d 980, 683 N.Y.S.2d 761 (1998).
Brown requested that the denial of his application for leave to
appeal to the New York Court of Appeals be reconsidered. That
request was also denied. See People v. Brown, 92 N.Y.2d 1047,
685 N.Y.S.2d 425 (1999).
Thereafter, Brown made a motion in the trial court, pursuant to
CPL § 440.10, that the judgment of conviction entered against him
be vacated. Brown contended that the trial court had acted
improperly when it instructed the jury on the law respecting
circumstantial evidence in response to a request made by the
deliberating jury, some time after the prosecutor had raised the
issue in her closing arguments to the jury. The trial court
denied Brown's motion. It explained that, inasmuch as the
petitioner had previously presented this claim to the Appellate
Division, through his direct appeal, the trial court was
constrained by CPL § 440.10(2)(a) to deny Brown the relief he
Brown also sought relief, through his CPL § 440.10 motion,
premised upon a claim that the prosecutor had adduced material
evidence at the trial which was false and which the prosecutor
knew to be false. The trial court determined that it was
constrained to deny Brown relief, based upon this claim, because
of CPL § 440.10(2)(c). Under that provision of New York law,
where sufficient facts appear in the trial record from which the
movant could have presented the subject claim to the Appellate
Division but failed to do so, a motion later made before the trial court to vacate the judgment of conviction must be denied.
The remaining theory upon which Brown sought to have the trial
court vacate his judgment of conviction was that he received
ineffective assistance from his trial counsel. Brown alleged that
his trial counsel failed: (a) to have Brown testify before the
grand jury; (b) to object to certain statements made by the
prosecutor during summation; (c) to discuss the case with Brown;
and (d) to develop a trial strategy. The trial court found that
the record established that counsel's representation of Brown
comported with applicable state and federal law requirements and
with professional standards. Moreover, relying upon CPL §
440.30(4)(d), the trial court determined to deny Brown's request
for relief, as it pertained to matters outside the trial record
respecting trial counsel's deficiencies in representing Brown,
because those allegations were not supported by any affidavit or
evidence beyond Brown's own accusations.
Brown sought leave to appeal to the Appellate Division from the
determination made by the trial court on his CPL § 440.10 motion.
That request was denied by a justice of the Appellate Division,
First Department, on June 22, 2000.
In July 2000, Brown petitioned the Appellate Division for a
writ of error coram nobis. Through that petition, Brown contended
that his appellate counsel provided ineffective assistance to him
by, inter alia, citing "cases that were not researched, were
not shepardized." On May 8, 2001, the Appellate Division denied
Brown's petition for a writ of error coram nobis. See People
v. Brown, ___ A.D.2d ___, 726 N.Y.S.2d 42 (App. Div. 1st
Brown sought leave to appeal to the New York Court of Appeals
from the determination of the Appellate Division on his petition
for a writ of error coram nobis. Brown's application for leave to
appeal to that court was denied by an associate judge of the New
York Court of Appeals because the determination reached by the Appellate Division on
Brown's petition was not appealable under New York law. See
People v. Brown, 96 N.Y.2d 860, 730 N.Y.S.2d 34 (2001).
Thereafter, Brown made the instant application for a writ of
Procedurally Barred Claims
A federal court may not review a question of federal law
decided by a state court if the state court's decision rested on
a state law ground, be it substantive or procedural, that is
independent of the federal question and adequate to support the
judgment. See Coleman v. Thompson, 501 U.S. 722, 729,
111 S. Ct. 2546, 2553-54 (1991). The Second Circuit has advised that
federal habeas review is foreclosed when a state court has
expressly relied on a procedural default as an independent and
adequate state ground, even where, as in the instant case, the
state court has also ruled in the alternative on the merits of
the federal claim. See Velasquez v. Leonardo, 898 F.2d 7, 9
(2d Cir. 1990). However, the Supreme Court has held that in a
circumstance where a habeas corpus petitioner can show cause for
the default and prejudice attributable thereto or demonstrate
that the failure to consider his federal claim will result in a
fundamental miscarriage of justice, a federal court can entertain
the petitioner's federal claim that was procedurally defaulted in
the state court. See Harris v. Reed, 489 U.S. 255, 262,
109 S.Ct. 1038, 1043 (1989).
The Second Circuit Court of Appeals has stated that a
procedural bar is adequate to support a state court judgment only
if it is based on a rule that is "firmly established and
regularly followed" by the state in question. Cotto v. Herbert,
331 F.3d 217, 239-41 (2d Cir. 2003). Thus, the parties to an
action must have notice of the state procedural rule and the rule
must be applied consistently in similar circumstances. See Bell v. Poole, 00
CV 5214, 2003 WL 21244625, at *9 (E.D.N.Y. April 10, 2003)
Furthermore, a state procedural rule must serve a legitimate
state interest. See Rosa v. Herbert, 277 F. Supp. 2d 342, 351
(S.D.N.Y. 2003); Smart v. Scully, 787 F.2d 816, 820 (2d Cir.
1986). However, "the adequacy of a state procedural bar is
determined with reference to the particular application of the
rule; it is not enough that the rule generally serves a
legitimate state interest." Cotto, 331 F.3d at 240 (quoting
Lee v. Kemna, 534 U.S. 362, 387, 122 S. Ct. 877, 891) (2002)
(internal quotation marks omitted). Therefore, an inquiry into
whether the application of a procedural rule is "firmly
established and regularly followed" in the specific circumstances
presented in a case includes "an evaluation of the asserted state
interest in applying the procedural rule in such circumstances."
CPL § 470.05, in its most pertinent part, provides that:
* * *
For purposes of appeal, a question of law with
respect to a ruling or instruction of a criminal
court during a trial or proceeding is presented when
a protest thereto was registered, by the party
claiming error, at the time of such ruling or
instruction or at any subsequent time when the court
had an opportunity of effectively changing the same.
Such protest need not be in the form of an
"exception" but is sufficient if the party made his
position with respect to the ruling or instruction
known to the court. . . .
CPL § 470.05(2).
The purpose of the rule is "to fairly apprise the court and the
opposing party of the nature and scope of the matter contested."
People v. Jones, 81 A.D.2d 22, 41-42, 440 N.Y.S.2d 248, 261
(App. Div. 2d Dep't 1981). New York's contemporaneous objection rule is firmly established
and has, for many years, been applied to claims of error
involving federal constitutional rights. See People v.
Iannelli, 69 N.Y.2d 684, 512 N.Y.S.2d 16 (1986); People v.
Thomas, 50 N.Y.2d 467, 429 N.Y.S.2d 584 (1980). It has been
applied in circumstances where a criminal defendant has not made
a timely challenge to a trial court's limitation on the scope of
cross-examination. See, e.g., People v. Jackson,
124 A.D.2d 823, 509 N.Y.S.2d 43 (App. Div. 2d Dep't 1986). The rule is also
routinely applied when a criminal defendant has made an untimely
objection to a prosecutor's summation. See, e.g., Jackson,
supra; People v. Oglesby, 7 A.D.3d 736, 776 N.Y.S.2d 838
(App. Div. 2d Dep't 2004); People v. Bruen, 136 A.D.2d 648,
649, 523 N.Y.S.2d 883, 884 (App. Div. 2d Dep't 1988). The same is
true when a criminal defendant fails to object timely to trial
testimony concerning a complainant's pretrial identification of
the defendant, as the perpetrator of the charged crime, when the
complainant can no longer recognize the defendant so as to make
an in-court identification during the trial. See, e.g.,
People v. Walters, 299 A.D.2d 377, 749 N.Y.S.2d 156 (App. Div.
2d Dep't 2002); People v. Morton, 189 A.D.2d 488, 495,
596 N.Y.S.2d 783, 788-789 (App. Div. 1st Dep't 1993). Therefore,
in order to obtain habeas corpus review of those claims made in
grounds one, two and three described above, which the Appellate
Division found were unpreserved for its review, Brown must show
cause for his default and prejudice attributable thereto or
demonstrate that the failure to consider his federal claims will
result in a fundamental miscarriage of justice.
In the case at bar, Brown contends that the cause for his
procedural default in the state court was ineffective assistance
rendered to him by his trial counsel. Brown presented his ineffective assistance of trial counsel
claim to the trial court through a CPL § 440.10 motion that was
denied. The court adjudicated the motion on the merits with
respect to those allegations of ineffective assistance of counsel
that were premised upon matters found in the trial record. As to
those deficiencies ascribed to counsel by Brown that did not
pertain to matters appearing upon the trial record, the court
declined to entertain them. The court explained that Brown had
not complied with the applicable provision of the CPL which
requires that competent evidence be submitted in support of
claims of ineffective assistance of counsel based on matters
outside the trial record. See CPL § 440.30(4)(d).
In reaching its determination that Brown's trial counsel had
not rendered ineffective assistance to him, the trial court
relied upon and made citation to both New York law, People v.
Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893 (1981), and federal law,
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).
The Appellate Division, as noted earlier in this writing,
declined to grant Brown leave to appeal from the trial court's
determination on his CPL § 440.10 motion.
Where a state court has adjudicated the merits of a claim
raised in a federal habeas corpus petition, 28 U.S.C. § 2254
informs that a writ of habeas corpus may issue only if the state
court's adjudication resulted in a decision that: 1) was contrary
to, or involved an unreasonable application of, Federal law, as
determined by the Supreme Court of the United States; or 2) was
based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceedings. See
28 U.S.C. § 2254(d); see also Williams v. Taylor,
529 U.S. 362, 120 S. Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100
(2d Cir. 2000). In addition, when considering an application for
a writ of habeas corpus by a state prisoner, a federal court must
be mindful that any determination of a factual issue made by a state
court is to be presumed correct and the habeas corpus applicant
has the burden of rebutting the presumption of correctness by
clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
Here, the state court adjudicated Brown's ineffective
assistance of trial counsel claim, as it pertained to matters
appearing on the record, on the merits and found it wanting.
Therefore, it is incumbent upon Brown to establish that the
decision rendered by the state court was either: (a) contrary to
or involved an unreasonable application of federal law as
enunciated by the Supreme Court of the United States; or (b)
grounded on an unreasonable determination of the facts in light
of the evidence presented in the state court proceedings. This he
has not done. Rather, Brown has attempted to address the trial
court's decision to deny him relief because of his failure to
comply with CPL § 440.30(4)(d).
In that effort, Brown alleges that correction officers
destroyed property contained in his cell, including Brown's
"legal motions." Brown contends that the destruction of his
property prevented him from complying with New York's procedural
rule, CPL § 440.30(4)(d). However, Brown has not identified
specifically what property was destroyed, or when it was
destroyed. Moreover, he has not described what, if any, competent
evidence he had, that was lost due to the conduct he ascribes to
the corrections officers, which would have accompanied his CPL §
440.10 motion and supported his allegations of extra-record
ineffective assistance of counsel. Therefore, the Court finds
that, because Brown has not established that the trial court's
denial of his CPL § 440.10 motion for failure to comply with CPL
§ 440.30(4)(d) was error, his effort to show cause for his
procedural default by this means is unavailing. Moreover, under the circumstances, there is no basis for
finding that the state-court determination on Brown's ineffective
assistance of trial counsel claim did not comport with federal
Consequently, the Court finds that Brown has not established
cause for his procedural default in the state court which would
permit him to obtain habeas corpus review of those claims made in
grounds one, two and three noted above, that were resolved by the
Appellate Division on an independent and adequate state law
basis, to wit, Brown's failure to preserve those claims for
appellate review by making specific and timely objections in the
Brown alleges that the sentence imposed upon him was excessive
and, therefore, he is entitled to habeas corpus relief. However,
"[n]o federal constitutional issue is presented where . . . the
sentence [imposed] is within the range prescribed by state law."
White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); see
also Dorsey v. Irvin, 56 F.3d 425, 427 (2d Cir. 1995);
Alvarez v. Scully, 833 F. Supp. 1000, 1009 (S.D.N.Y. 1993).
Upon his conviction for robbery in the first degree, having been
adjudicated a second violent felony offender, Brown could have
been sentenced to a minimum of 10 years imprisonment and a
maximum of 25 years imprisonment. He received a sentence of 17
years in prison. Upon his conviction for robbery in the second
degree, Brown faced a minimum sentence of 5 years incarceration
and a maximum sentence of 15 years incarceration. He received the
maximum sentence. In addition, Brown's conviction for criminal
possession of a weapon in the third degree exposed him to a
minimum sentence of 5 years imprisonment and a maximum sentence
of 7 years imprisonment. He received the maximum sentence.
Inasmuch as the sentences imposed upon Brown, for the various offenses the jury found he had committed, were within the
ranges prescribed by state statute, Brown is not entitled to
habeas corpus relief based upon his claim that his sentence was
Shortly before his trial was scheduled to commence, Brown moved
for a trial separate from his co-defendant. Brown alleged that
his co-defendant would testify at a joint trial in such a way as
to exculpate himself and inculpate Brown in the charged crimes.
Rather than schedule two trials, the court impaneled two juries.
The court directed one jury to consider the evidence related
solely to Brown and directed the other jury to consider the
evidence directed only to the co-defendant. As the trial
unfolded, the co-defendant decided not to testify. Therefore,
although a joint trial could well have been conducted, each
defendant received a trial by a separate jury, albeit at a
Brown contends that the impanelment of two juries by the trial
court deprived him of his right to a fair trial. Brown did not
raise this claim on his direct appeal following the entry of the
judgment of conviction. Under New York law, he would not be able
to raise the claim through a post-judgment motion pursuant to CPL
§ 440.10 since sufficient facts appeared on the trial record
which would have permitted Brown to raise this claim on his
direct appeal. See CPL § 440.10(2)(c). As a result, the Court
finds that Brown failed to exhaust his state remedies with
respect to his claim that his right to a fair trial was violated
when the trial court determined to impanel two juries to hear the
evidence concerning Brown and his co-defendant simultaneously,
while directing that Brown's fate be determined separately and
independently by one of the two juries and that his
co-defendant's fate be determined by the other jury. Inasmuch as it appears that Brown can no longer present this
claim in state court, the claim has been procedurally forfeited.
Therefore, the claim may be deemed exhausted by the court for the
purpose of habeas corpus review. See Harris, 489 U.S. at 263 n.
9, 109 S. Ct. at 1043 n. 9 (1989); Grey v. Hoke, 933 F.2d 117,
120 (2d Cir. 1991). In such a circumstance, Brown's claim
concerning the impanelment of two juries and its affect on his
right to a fair trial may be entertained by the court if Brown
can show cause for his default and actual prejudice resulting
therefrom, or that he is actually innocent. See Harris,
489 U.S. at 262, 109 S. Ct. at 1043; DiGuglielmo v. Smith,
366 F.3d 130, 135 (2d Cir. 2004).
Brown maintains that the cause for his failure to exhaust this
claim in state court was ineffective assistance he received from
his appellate counsel who, according to Brown, raised certain
claims on appeal but "failed to submit other points on appeal"
and failed to undertake appropriate research before preparing
Brown's appellate brief.
Brown raised his ineffective assistance of appellate counsel
claim previously through a petition for a writ of error coram
nobis in the Appellate Division. As indicated earlier in this
writing, that court denied the petition on the merits. Therefore,
before Brown would be permitted to assert ineffective assistance
of appellate counsel as cause for procedurally forfeiting his
claim concerning the impanelment of two juries, Brown must
establish that the action taken by the Appellate Division on his
petition for a writ of error coram nobis, resulted in a decision
that was contrary to or involved an unreasonable application of
clearly established federal law as determined by the United
States Supreme Court or resulted in a decision that was based on
an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. The Sixth Amendment guarantees a criminal defendant the "right
to effective assistance of counsel." Strickland,
466 U.S. at 686, 104 S. Ct. at 2063. This right to counsel also extends to
the prosecution of a direct appeal from a judgment of conviction.
See Evitts v. Lucey, 469 U.S. 387, 395-96, 105 S. Ct. 830,
836 (1985). To determine whether counsel's assistance was
effective, the Supreme Court devised a two-part test. See
Strickland, 466 U.S. at 687-696, 104 S. Ct. at 2064-2069.
First, a criminal defendant must show that counsel's performance
was deficient; that is, that it fell below an "objective standard
of reasonableness" measured under "prevailing professional
norms." Id. at 687-688, 2064-2065. Second, the criminal
defendant must affirmatively demonstrate prejudice, by showing
that "there is a reasonable probability that but for counsel's
[error], the result of the proceeding would have been different."
Id. at 694, 2068. See also United States v. Javino,
960 F.2d 1137, 1145 (2d Cir.), cert. denied, 506 U.S. 979,
113 S. Ct. 477 (1992). A reasonable probability has been defined as "a
probability sufficient to undermine confidence in the outcome."
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Considerable
deference is accorded counsel's performance as counsel is
"strongly presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable
professional judgment." Id. at 690, at 2066.
Failure to present every nonfrivolous argument to the appellate
court does not constitute ineffective assistance of counsel,
since appellate counsel is permitted to exercise professional
judgment when determining which issue(s) to pursue on appeal.
See Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312
(1983). Indeed, the Supreme Court has recognized that effective
appellate advocacy entails "winnowing out weaker arguments on
appeal and focusing on one central issue if possible, or at most
on a few key issues." Id. at 751-52, 3312-3313. The determination reached by the Appellate Division on Brown's
petition for a writ of error coram nobis makes citation to an
earlier decision rendered by that court in People v. De La Hoz,
131 A.D.2d 154, 520 N.Y.S.2d 386 (App.Div. 1st Dep't 1987).
In De La Hoz, the Appellate Division discussed Evitts, and
also analyzed Strickland as it relates to a claim of
ineffective assistance of appellate counsel raised through an
application for a writ of error coram nobis. By making citation
to De La Hoz, when it decided Brown's petition, the Appellate
Division signaled its consideration of the relevant federal law
standards that have been articulated by the Supreme Court.
Brown has not shown that the determination reached by the
Appellate Division on his petition for a writ of error coram
nobis was contrary to or involved an unreasonable application of
clearly established federal law as determined by the Supreme
Court or that the decision was based on an unreasonable
determination of the facts in light of the evidence presented to
that court by Brown.
Rather, Brown has directed the Court's attention to two Supreme
Court cases (Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346
; Anders v. California, 386 U.S. 738, 87 S. Ct. 1396
) that discuss the appropriate safeguards that appellate
courts should employ when appointed appellate counsel seeks to
withdraw from a case because no nonfrivolous issues exist in the
record that warrant appellate review. These cases address a
situation that is not pertinent to the instant matter, as Brown's
appellate counsel did not seek to be released from the obligation
of representing him. Moreover, appellate counsel submitted a
brief to the Appellate Division that contained several
nonfrivolous issues for that court's review. Under these circumstances, the Court finds that Brown has not
established cause for his failure to raise, in the state court,
his claim respecting the trial court's impanelment of two juries.
Accordingly, habeas corpus review of Brown's procedurally
forfeited claim is not warranted.
Ineffective Assistance of Appellate Counsel
Brown alleges, as an independent ground for habeas corpus
relief, that he received ineffective assistance from his
appellate counsel. For the reasons stated immediately above,
which will not be repeated here, Brown is not entitled to habeas
corpus relief on this claim.
Beeper Paperwork/False Testimony
Brown concedes that his claims respecting the prosecutor's
failure to disclose "paperwork" regarding an item of physical
evidence, a beeper, and his claim that the prosecutor knowingly
elicited false testimony concerning the number of beepers
involved in this case, were addressed in his CPL § 440.10 motion.
As has been discussed earlier in this writing, the trial court
was required by New York law, CPL § 440.10(2)(c), to deny Brown
relief on these claims due to his failure to raise them on direct
appeal from the judgment of conviction. Since the trial court
relied on a state procedural rule that is independent of federal
law when denying these claims, the court must determine whether
the rule was firmly established and regularly followed in the
state court, such that it would be appropriate to conclude that
the rule was adequate to support the state court's decision.
The Court finds that CPL § 440.10(2)(c) is firmly established
and regularly relied upon by New York trial courts when they are
presented with claims that were evident in the record but not
raised by a criminal defendant on direct appeal. See, e.g.,
People v. Jossiah, 2 A.D.3d 877, 769 N.Y.S.2d 743 (App. Div. 2d
Dep't 2003); People v. La Mountain, 288 A.D.2d 503, 731 N.Y.S.2d 900 (App. Div. 3d Dep't 2001); People v. Skinner,
154 A.D.2d 216, 221, 552 N.Y.S.2d 932, 935 (App. Div. 1st Dep't
1990). Therefore, CPL § 440.10(2)(c) provided an adequate basis
upon which the state court could rely in denying Brown relief on
the instant claims. Consequently, federal habeas review of
Brown's claims regarding the beeper, and the false testimony he
contends was elicited concerning it, is foreclosed.
For the reasons noted above, Brown's application for a writ of
habeas corpus should be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days
from service of this Report to file written objections. See
also Fed.R. Civ. P. 6. Such objections, and any responses to
objections, shall be filed with the Clerk of Court, with courtesy
copies delivered to the chambers of the Honorable Sidney H.
Stein, United States District Judge, 500 Pearl Street, Room 1010,
New York, New York 10007, and to the chambers of the undersigned,
40 Foley Square, Room 540, New York, New York, 10007. Any
requests for an extension of time for filing objections must be
directed to Judge Stein. FAILURE TO FILE OBJECTIONS WITHIN TEN
(10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE
APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985);
IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d
Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);
Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988);
McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
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