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BUSSEY v. GREINER

United States District Court, S.D. New York


December 6, 2004.

KEVIN BUSSEY, Petitioner,
v.
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 that request.

  I. BACKGROUND*fn1

  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.
(short pause)
Tr. at 413. After the first short pause, Calvello again addressed the court.

 

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 summations.
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 testifying?
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.
Id.

  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 to testify.
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 issue.").

  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 testifying.
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 counts.
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. 2003).

  III. DISCUSSION

  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[1][f]) or on a violation of defendant's rights under the State or Federal Constitution (440.10[1][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.

  SO ORDERED.


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