United States District Court, S.D. New York
December 6, 2004.
KEVIN BUSSEY, Petitioner,
CHARLES GREINER, Superintendent, Green Haven Correctional Facility, Respondent.
The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner, assisted by counsel, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 challenging his 1997 conviction in
New York State Supreme Court on seven counts of Robbery in the
First Degree. In his petition, Bussey argues that: (1) he was
denied his right to testify; (2) he was denied the effective
assistance of trial counsel; (3) he was denied the effective
assistance of appellate counsel; (4) he was denied a fair trial
by the trial judge; and (5) the lengthy sentence he received was
retaliatory in nature. I referred the petition to Magistrate
Judge Michael H. Dolinger for a Report and Recommendation
("R&R"), which I have reviewed and familiarity with which is
assumed. In his June 9, 2004 R&R, Judge Dolinger found
plaintiff's claims to be without merit and recommended that the
petition be denied. See R&R at 3. With the assistance of
counsel, Bussey filed the following objections to the R&R: (1) that he was denied his
right to testify; and (2) there was a lapse in representation by
his trial attorney resulting from an actual conflict of interest.
See Statement of Objections to Report and Recommendation, dated
July 9, 2004 ("Objections"). I held an evidentiary hearing on
September 15, 2004, to explore the circumstances surrounding
Bussey's request to testify and his trial attorney's response to
A. Trial Proceedings
The issue concerning Bussey's right to testify surfaced on May
5, 1997, after both sides rested but before their closing
arguments. At the start of the proceedings, Bussey addressed the
trial judge directly and complained at length about various
aspects of his attorney's performance. See Trial Transcript
("Tr.") at 407-10. He also complained that his trial attorney had
prevented him from testifying. The following colloquy between
Bussey and the trial judge ensued:
THE DEFENDANT: So I ask that, you know, can I speak
on my own behalf? She [trial counsel] said, no, you
can't do that. You know, what is it that I can do? I
mean, I'm willing to testify. I mean just get up
there and testify on my own behalf, you know? I mean
how much more can I lose?
THE COURT: Well, that's a decision you have to make
after talking to your lawyer. . . . And now, whether
or not you want to testify, that's something that you
have to discuss with [trial counsel] Ms. Calvello.
And you make that decision. I'll let you make the
record to put your feelings on the record so that's
part of the record for appeal. So we have that. But
if you want to discuss testifying with Ms. Calvello
THE DEFENDANT: She just told me it was too late. She
said it's closed.
THE COURT: Well, discuss it again with your client.
Tr. at 410-11. Susan Calvello, petitioner's trial attorney, gave
the following response:
THE COURT: Well, you discuss it with Ms. Calvello.
See whether or not you want to testify.
MS. CALVELLO: Mr. Bussey and I already had discussion
prior to the time that I rested. Obviously, I put on
a witness prior to that. We had a discussion and at
that point of our discussion, Mr. Bussey agreed that
he would not testify and we would just allow that one
witness to testify on his behalf.
So we did have discussions at various points and
before I rested, we had that discussion. And it was
something that we decided not to testify.
THE COURT: Well, he is saying now that he wants to
testify; is that right, Mr. Bussey? THE DEFENDANT: Yes.
THE COURT: Well, I suggest you have another
conversation with him now.
Tr. at 413. After the first short pause, Calvello again addressed
MS. CALVELLO: If we are going to start to re-open the
case, Judge, then take Mr. Bussey in the back. It's
going to take a long time. It's not something that we
were prepared to do right now. And again, as far as I
was concerned, the defense had rested. We already
discussed the fact that Mr. Bussey was not going to
testify in this case. We were ready to proceed to
summation. If after summation and whatever the
verdict is going to be, Mr. Bussey has an appeal
issue. I can only state for the record that during
the twelve months this case has been pending, we have
discussed trial issues more than once. We have
discussed the fact that Mr. Bussey would or would not
testify and his decision on the day we rested was he
would not testify.
So I ask the Court that we just continue and proceed.
I am ready to sum up in this case and we continue on
course. He made a record; has the appeal issue and
that is something that is preserved for Mr. Bussey.
[ADA] BOGDANOS: People join in the defense's request.
THE COURT: Okay. Before we have any further
discussion, would you just bring the jury in and ask
them to sit in the juryroom please.
(short pause) MS. CALVELLO: We are ready to proceed with
THE COURT: All right. So you have discussed it
MS. CALVELLO: We have.
THE COURT: With your client and you're ready to
proceed to summation? The defendant will not be
MS. CALVELLO: That's correct.
Tr. at 414-15 (emphasis added). Bussey remained silent after
Calvello informed the court that he would not be testifying.
See R&R at 24.
B. Bussey's Appeal
On appeal to the Supreme Court, Appellate Division, First
Department, Bussey argued, inter alia, that he had been denied
the right to testify and that his trial counsel had been
ineffective in: (1) failing to inform him of his right to
testify; and (2) in taking a position adverse to his with regard
to his testifying. The First Department affirmed petitioner's
conviction and sentence on October 17, 2000. See People v.
Bussey, 714 N.Y.S.2d 673 (1st Dep't 2000). In rejecting
petitioner's right to testify claim, the First Department stated:
Defendant's claim that his attorney's conduct
deprived him of his right to testify, and that he
received ineffective assistance of counsel in that
regard, is procedurally defective in that it rests
largely on matters dehors the record, to wit, conversations between defendant and
counsel (People v. Bagarozy, 182 A.D.2d 565, 566,
582 N.Y.S.2d 424, lv. denied 80 N.Y.2d 901,
588 N.Y.S.2d 826, 602 N.E.2d 234). To the extent that the
existing record permits review, it indicates, when
read as a whole, that counsel dissuaded, rather than
foreclosed, defendant from testifying (compare,
People v. Perry, 266 A.D.2d 151, 700 N.Y.S.2d 107,
with People v. Mason, 263 A.D.2d 73,
706 N.Y.S.2d 1). Counsel properly discharged her responsibility to
advise defendant relative to his right to testify and
defendant was not prevented by the court or counsel
from testifying. In any event, regardless of what
counsel may have told defendant previously, the court
specifically advised defendant, on more than one
occasion, that the decision was ultimately his to
make. After counsel discussed the matter with
defendant, she represented that defendant would not
be testifying and he did not object.
C. The Hearing
To supplement the record before this Court, I conducted a
hearing on September 15, 2004. In attendance were Bussey, his
present attorneys Robert J. Boyle and Elizabeth M. Fink,
Assistant Attorney Generals Luke Martland and Kimberly Morgan,
and his former attorney Susan Calvello. Bussey first took the
stand and testified that he told Calvello that if his case went
to trial, he wanted to testify. See 9/15/04 Hearing Transcript
("Hr. Tr.") at 11. In response, Calvello allegedly informed
Bussey that it would "be like suicide" for him to testify. Id.
at 12. When asked to describe the tone of his conversations with
Calvello, Bussey testified as follows:
A. Every time we spoke, it was very it was a[n]
argument. We argued consistently . . . Every time I
would tell her that I wanted to testify, she would
tell me that she is not going to let me take the
stand. And there is no more to talk about. And I
would say, you know, you can't do that. And she said,
well, that's how I feel about it, you are not going
Q. Were the discussions heated?
A. Yes, at times. She just said, listen, you are not
going to testify, and walked away. Quite a few times,
you know, she just said, you are not going to do it,
and walked away. A few times she told me, don't even
start, you know, Mr. Bussey, don't even start, I am
not putting you on the stand.
Id. at 13. When asked if Calvello ever told him that the
decision whether to take the stand was his and his alone, Bussey
responded "Never." See id. at 16. Nor did Bussey understand
that he could overrule his attorney's decision about taking the
stand. See id. ("I had no idea that it was my decision whether
I testified or not, no. She never said that. And she never
explained that to me. She always said that she wasn't going to
let me take the stand. And she went as far as telling me that if
I didn't like the decision that she made, then I had a[n] appeal
Bussey also explained what happened during the short pauses in
the trial proceedings. During the first short pause, Calvello
allegedly told Bussey that she did not prepare for him to
testify, that she was not going to let him testify, and that if he didn't like her decision, he had an appeal issue. See
id. at 19. Bussey understood the reference to an "appeal issue"
to mean that Calvello wasn't going to let him testify and that if
he didn't like her decision, he would have to "appeal it or fight
it in court." Id. at 20. During the second short pause, Bussey
claims that he again informed Calvello that he wanted to testify
and she again denied his request, telling him that it was too
late for him to testify. See id. at 20-21. After the second
short pause, Bussey remained silent when the judge confirmed that
he would not be testifying. Bussey offered the following
explanation for his silence:
Q. And then Ms. Calvello says this, the Court asks:
The defendant will not be testifying, Ms. Calvello?
Ms. Calvello says: That's correct. And summations
begin. Why didn't you get up at that point and say,
no, I want to testify, or something to that effect?
A. For one, I had no idea that I can just jump up and
erupt the court like that. I also thought that being
that she said that I couldn't testify, and she wasn't
going to let me, I thought that that was it. The
judge never said, you know, asked me if I still
wanted to testify, or was a decision made by me and
her. Nobody said anything. She just said, we [are]
going to proceed, and that was it. I had no idea I
could just jump up in the court and say that I still
wanted to testify.
Id. at 22.
On the stand, Calvello completely contradicted Bussey's
testimony. She testified that, before trial, Bussey never
expressed an interest in testifying. See id. at 33, 34 ("So if he wanted to testify, he could have
done that at any point. And he never, ever asked me or requested
during the pendency of the case to testify."). See also id. at
41 ("Again, the only thing I can tell you is that my recollection
is, he never wanted to testify. He never said anything to me
during voir dire to when we left before summing up, that he
wanted to testify."). The first time Calvello learned of Bussey's
desire to testify was when Bussey addressed the judge directly,
shortly before closing arguments. See id. at 35. During one of
the two short pauses, Calvello claims she asked Bussey if he
wanted to testify and the answer was no. See id. at 37, 58
("Again, the only thing I can tell you is that during the, one of
the pauses, I don't know which one, I was directed by Judge
Sudolnik to ask Mr. Bussey if he wanted to testify. And he said,
no. Which allowed me to proceed to summation."). I then asked
Calvello what she meant by an "appeal issue." Calvello provided
the following response:
THE WITNESS: again, the fact that he had said that,
I was sitting there, I think, as I was sitting there
not doing anything, any problems he had with me
during the pendency of the trial, the fact that he
didn't like the way the witnesses were crossed, he
could take up on appeal. Because he does talk about
that during the minutes.
THE COURT: I just wanted you to look at the context
in which you said it. It does come [after] we
discussed the fact Mr. Bussey would or would not
testify. And you say: He made a record and has the
appeal issue. So I just wondered if you thought that had to do with
THE WITNESS: No.
Id. at 39.
During cross-examination, the topic of Calvello's omnibus
motion to sever the counts of the indictment came up. Calvello
was asked whether one of the grounds in the motion to sever was
that Bussey would exercise his right to testify as to some of the
robberies if there was a severance. See id. at 48. At this
point, Calvello initially appeared evasive but eventually stated
that this ground was included as boilerplate language, used in
every motion to sever, and was not based on a conversation she
had with Bussey. See id. at 49. The Notice of Motion and
Attorney's Affirmation were sent to the Court after the hearing.
In her Affirmation, Calvello states:
8. The defense requests that the [sic] each count of
the indictment should be tried individually. The
prejudice to Mr. Bussey if all counts are tried
together would be overwhelming. The jury could not
reach a fair and impartial verdict on any one of the
Mr. Bussey will have to testify concerning some of
the counts but not all of the counts. If all the
counts are tried together, Mr. Bussey would probably
be forced not to testify at all.
Attorney's Affirmation ¶ 8, attached to the 9/22/04 Letter from
AAG Morgan. II. LEGAL STANDARD
"An application for a writ of habeas corpus . . . shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim . . . 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." 28 U.S.C. § 2254(d)(2).
Furthermore, factual findings made by a State court, such as
whether a defendant was denied his constitutionally guaranteed
right to testify, are entitled to a presumption of correctness.
See 28 U.S.C. § 2254(e)(1). To be entitled to relief, a habeas
petitioner is required to rebut this presumption by clear and
convincing evidence. See id.
However, "[a] federal court may not grant a writ of habeas
corpus to a state prisoner `unless it appears that the applicant
has exhausted the remedies available in the courts of the State,
or that there is either an absence of available State corrective
process or the existence of circumstances regarding such process
ineffective to protect the rights of the prisoner.'" Bossett v.
Walker, 41 F.3d 825, 828 (2d Cir. 1994) (quoting
28 U.S.C. § 2254(b)). To fulfill this exhaustion requirement, a habeas
petitioner must "fairly present federal claims to the state
courts in order to give the State the opportunity to pass upon
and correct alleged violations of its prisoners' federal rights." Duncan v. Henry,
513 U.S. 364, 365 (1995) (internal quotation marks and alteration
omitted). Thus, habeas review is unavailable unless a petitioner
has presented the substance of his federal claims to the highest
available state court, either on appeal or by collateral
challenge. See Cotto v. Herbert, 331 F.3d 217, 237 (2d Cir.
Bussey's claims that he was denied the right to testify and
that his trial counsel was ineffective for not properly advising
him of that right were not fully exhausted for federal habeas
purposes. As noted by the Appellate Division, First Department,
the court was unable to properly review these claims because they
rested on facts outside the record, namely, conversations between
Bussey and his trial attorney. Without the necessary factual
predicate upon which to make a fully informed ruling, it was
impossible for the court to determine whether trial counsel
waived Bussey's right to testify against his wishes or if Bussey
ultimately adopted counsel's position that he should not testify.
Therefore, given the present posture of the state proceedings,
the decision on appeal should not be accorded the usual
presumption of correctness as it is based on an admittedly
incomplete record. However, Bussey can further pursue these claims in state court
by bringing a motion pursuant to section 410.10 of New York's
Criminal Procedure Law (a "§ 440.10 motion"). A § 440.10 motion
to vacate judgment is available when there are insufficient facts
on the record to enable adequate review of the petitioner's
claims on direct appeal. See People v. Cooks, 500 N.Y.S.2d 503,
505 n. 2 (1986) ("A CPL 440.10 motion can be based on improper
conduct not appearing in the record (440.10[f]) or on a
violation of defendant's rights under the State or Federal
Constitution (440.10[h])."). That is precisely the case here.
And while a state court must deny a motion to vacate judgment
when the "ground or issue raised upon the motion was previously
determined on the merits upon an appeal from the judgment," N.Y.
Crim. Proc. L. § 440.10(2)(a), it is questionable whether the
state court will deny the motion on this ground given that
Bussey's appellate claims were "procedurally defective." Of
course, Bussey should supplement his § 440.10 motion with the
transcript of the hearing before this Court. Should the state
trial court invoke section 440.10(2)(a) and deny petitioner's §
440.10 motion, then the claims made therein will be considered
procedurally barred from federal habeas review unless there is a
proper showing of cause for the default and prejudice to
petitioner. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977). IV. CONCLUSION
Because petitioner's right to testify claim and his ineffective
assistance of trial counsel claim are not fully exhausted, the
instant petition is stayed pending exhaustion of state remedies
as to those claims only. Petitioner's remaining claims are
dismissed in accordance with the findings and recommendations of
Magistrate Judge Dolinger. Petitioner is directed to file a §
440.10 motion with the state court forthwith. If Bussey's §
440.10 motion is denied, he must appeal that denial to the
Appellate Division before renewing his claims before this Court.
Petitioner's counsel is directed to inform this Court of the
filing of the § 440.10 motion as well as its disposition, both
initially and on appeal. The Clerk of the Court is directed to
transfer this case to the Court's Suspense Docket.