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BROWN v. RICKS

September 14, 2004.

FRANK BROWN a/k/a JAMES WHITE, Petitioner,
v.
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

I. INTRODUCTION

  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.

  II. BACKGROUND

  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 conviction.

  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 court.

  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. 1998).

  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 sought.

  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 ...


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