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September 20, 2004.

BRIAN FISCHER, Respondent.

The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


Joey Riddick, a New York State prisoner, seeks a writ of habeas corpus, challenging his conviction in New York County Supreme Court on two counts of weapons possession. The petition will be denied.

  At petitioner's trial, the jury heard two versions of the events of the early morning of August 28, 2000. The complaining witnesses testified that Riddick and another man robbed them at gunpoint. Riddick testified that he was arguing with the complainants over a gambling debt when one of them pulled a gun; in response, Riddick instinctively grabbed the weapon and fled the scene. There is no dispute that the complainants immediately called the police, and that following a car chase, police officers recovered two guns from within or near a van in which Riddick and his companion fled the scene. Riddick essentially raises three claims in this petition, all of which were properly presented to the state courts on appeal, all of which were rejected by the state courts, and none of which warrants habeas relief.

  (1) Riddick argues that his Sixth Amendment right to counsel was violated when the trial court ordered him not to consult with counsel during a weekend recess amidst his ongoing cross-examination.*fn1 The Appellate Division rejected this claim, noting first that the issue was "unpreserved," because Riddick failed to object to the instruction at the time. People v. Riddick, 763 N.Y.S.2d 319, 320 (1st Dep't 2003). The court went on to hold, however, that if it were to reach the merits, it would reject Riddick's claim:
Were we to review the claim, we would find that the court never specified that its instruction applied to consultations with counsel. Instead, when the prosecutor raised the issue, Riddick's counsel volunteered that he did not intend to engage in such consultations. Riddick has failed on this appeal to articulate any specific claim of prejudice. . . . It was evident that counsel, in his professional judgment, had decided that further consultation with his client was unnecessary. That Riddick's trial counsel did not consider such consultation significant is evidenced by the absence of even a belated objection when trial resumed.

  Thus, the state court's rejection of petitioner's argument was based on the independent and adequate state ground of procedural default. This precludes federal habeas review unless petitioner can demonstrate both cause for the procedural default and prejudice resulting therefrom. Coleman v. Thompson, 501 U.S. 722 (1991); Murray v. Carrier, 477 U.S. 478 (1986); Wainwright v. Sykes, 433 U.S. 72 (1977). Assuming arguendo that Riddick's claim of ineffective assistance of counsel could constitute cause, there is no prejudice from the default, let alone a miscarriage of justice, because ultimately the claim would be denied on the merits.

  Riddick's claim is based on Geders v. United States, 425 U.S. 80 (1976), in which the Supreme Court held that a trial judge's prohibition of any consultation between a criminal defendant and his attorney during an overnight recess violated the Sixth Amendment. But the facts of this case are easily distinguishable from Geders. In that case, the Court prohibited the defendant from consulting with his attorney "about anything" during the overnight break, id. at 83 n. 1, and the Court specifically held that the breadth of the prohibition rendered the order excessive in relation to the goal of preventing coaching of the defendant's testimony on cross-examination: "[A]n order preventing petitioner from consulting his counsel `about anything' during a 17-hour overnight recess between his direct- and cross-examination impinged upon his right to the assistance of counsel guaranteed by the Sixth Amendment." Id. at 91. As the Second Circuit has noted, where there is "no blanket prohibition against communication" between defendant and counsel, and "no restriction on their ability to discuss any . . . facet of the case" other than the subject of a limited order designed to protect some interest weighing against the defendant's ability to consult with counsel, Geders does not compel a finding of a constitutional violation. Morgan v. Bennett, 204 F.3d 360, 366, 368 (2d Cir. 2000). Rather, the court must balance the interests at stake on a case-by-case basis.

  In this case, the trial court did not prohibit all consultation with counsel; indeed, the court's actual order was not clear about whether it even applied to counsel. The transcript discloses that when the trial day ended amidst Riddick's cross-examination, the judge directed him "not to discuss your testimony during the [weekend] recess." Because the court had not clearly specified whether conversation with counsel was included in the ban, the prosecutor rose to inquire whether "his lawyer is included" in the prohibition. Before the court could respond, defense counsel volunteered that he had not "discussed his testimony with him, and [did not] intend to." The court accepted that representation without further discussion. (Tr. 1394-95.)

  The facts here are far from those of Geders. The trial court did not prohibit petitioner from consulting counsel; at most, it merely directed him not to discuss "[his] testimony." Unlike the overbroad order in Geders, this order (assuming arguendo it was intended to apply to counsel at all) was narrowly tailored to accomplish the specific purpose of preventing coaching of the testimony of a witness in the midst of cross-examination. In any event, the order had no effect on counsel's behavior. Before the trial court had the opportunity to clarify whether there was any restriction on conversations between petitioner and his lawyer, the lawyer specifically stated that he had no intention of discussing petitioner's ongoing testimony with him during the recess. The trial court accepted this representation without clarifying whether its order obliged the lawyer to refrain from such discussions, and certainly without indicating in any way that the lawyer could not consult with his client about any matter other than "his testimony," the specific subject both of the court's order and of counsel's representation.

  Thus, counsel was never ordered not to consult with petitioner over the weekend recess, and to the extent that the court's limited directive against discussion of the ongoing testimony was intended to apply to counsel, it did not prejudice petitioner, since counsel indicated in advance that he had no intention of engaging in such discussions in any event. Moreover, as the Appellate Division noted, Riddick, 763 N.Y.S.2d at 320, counsel failed to suggest when trial resumed that anything had come up over the weekend that indicated a need for any consultation. In other words, the record makes clear that the trial court was never called upon to rule whether counsel and client could confer over the weekend, since counsel announced he had no plans to discuss the cross-examination, and the court at no time showed any interest in limiting consultation in any other way. Accordingly, petitioner was not prejudiced either by the court's order or by counsel's failure to object. In short, petitioner's argument is both procedurally defaulted and meritless.

  (2) Riddick next argues that he was denied the right to counsel of his choice when the trial court denied his application for a change in court-appointed counsel. This argument was presented to the Appellate Division in a supplemental pro se brief, and considered and summarily rejected by that court. Id. Since such a summary resolution of the issue constitutes an adjudication on the merits, Dallio v. Spitzer, 343 F.3d 553, 560 (2d Cir. 2003), habeas is available only if the rejection of petitioner's claim was an unreasonable application of Supreme Court precedent. 28 U.S.C. § 2254(d). Supreme Court precedent, however, counsels that petitioner cannot "defensibly . . . assert that impecunious defendants have a Sixth Amendment right to choose their counsel. The Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts." Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989); see also United States v. Mills, 895 F.2d 897, 904 (2d Cir. 1990).*fn2 Riddick's discontent with counsel raises a constitutional question only insofar as he claims that he was denied effective assistance.

  (3) Finally, Riddick does indeed claim that his appointed lawyer failed to provide effective assistance. This claim too was presented on direct appeal in petitioner's pro se brief, and encompassed in the Appellate Division's summary rejection of the arguments in that brief. Accordingly, to prevail on habeas Riddick must demonstrate that the rejection of his claim was an unreasonable application of the standard for effective assistance set forth in Strickland v. Washington, 466 U.S. 668, 687-88 (1984): whether the lawyer's representation "fell below an objective standard of reasonableness," and, if it did, whether petitioner was prejudiced.

  Riddick's argument relies on three isolated instances of alleged attorney error: failing to discuss his testimony with him during the recess in his cross-examination; failing to object to the recall of a prosecution witness on rebuttal; and opening the door to details of one of Riddick's prior felony convictions. Considered in isolation or together, these alleged errors do not fall below an objective standard of reasonable performance.

  With respect to the failure to object to the court's instruction not to discuss the defendant's testimony during the weekend recess, counsel stated that the instruction was unnecessary because he did not intend to discuss Riddick's testimony with him while he was on cross-examination. Riddick makes no showing that such consultation would have been necessary or desirable; he suggests no topic on which he was confused or on which he sought or could have benefitted from counsel's advice. He makes no claim that counsel failed to prepare him for his testimony, and the competent presentation of that testimony at trial would belie any claim to that effect. Even assuming arguendo that counsel would or should have been allowed to discuss Riddick's testimony during cross-examination, but see Geders, 425 U.S. at 87 (discussing propriety of sequestration during cross-examination to "prevent[] improper attempts to influence the testimony in light of the testimony already given"), a defense lawyer would be well within the reasonable exercise of professional judgment to decide that such discussion would be tactically inadvisable in view of the risk that "[s]killful cross-examination could develop a record which the prosecutor in closing argument might well exploit" by questioning the defendant about the extent and scope of such discussions, and thereby undermining the defendant's credibility. Id. at 89-90.

  Counsel's other alleged errors require little discussion. There was no valid basis for an objection to the rebuttal testimony. Riddick was charged with robbery; he testified that he was holding the alleged victim's jewelry at the time of his arrest as security for a gambling debt; the arresting officer was called on rebuttal to testify that Riddick had told a different exculpatory story at the time. The testimony was thus properly offered, and any objection would have been futile. Nor did counsel open the door to otherwise inadmissible testimony about Riddick's prior crimes. In response to a pre-trial motion by defense counsel, the trial court had decided which of Riddick's prior convictions would be permissible subjects of cross-examination. Counsel's decision to elicit testimony about those crimes on direct examination ...

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