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BROWN v. RICKS

United States District Court, S.D. New York


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 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 Dep't 2001).

  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 habeas corpus.

  III. DISCUSSION

  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." Id.

  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 law.

  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 trial court.

  Excessive Sentence

  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 excessive.

  Two Juries

  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 combined trial.

  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 [1988]; Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 [1967]) 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.

  IV. RECOMMENDATION

  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).

20040914

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