United States District Court, W.D. New York
April 6, 2005.
KARL McCALLA, Petitioner,
CHARLES GREINER, Respondent.
The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge
DECISION AND ORDER
Petitioner, Karl McCalla ("McCalla"), filed this pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging his conviction in Monroe County Court. The parties
have consented to disposition of this matter by the undersigned
pursuant to 28 U.S.C. § 636(b).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On September 30, 1995, Officer Frascati of the Rochester Police
Department received a tip at about 8 p.m. from a confidential
informant about a gold-colored minivan that allegedly contained
drugs. Officer Frascati notified Officers Holmsten and Jeroy who
located a vehicle matching that description parked on the corner
of Lakeview Park and Dewey Avenue in the City of Rochester.
Officers Holmsten and Jeroy approached the minivan and activated
the overhead flashing lights on their patrol car. When they were
about ten to fifteen feet away, still in their patrol car, the
gold minivan suddenly started backing up. Officer Holmsten
observed a man whom he later learned was McCalla in the driver's
seat of the minivan. S.29-31, 43-44.*fn1 Officers Holmsten and Jeroy, along with Officer Frascati in a
separate car, gave chase to the minivan, which continued backing
up until it reached the intersection of Lakeview Park and
Pierpont Street. At that point it started traveling in a forward
direction. The officers pursued the minivan as it passed through
several stop signs without stopping or slowing down. When the
minivan was in the vicinity of Raines Park, Officer Holmsten
observed, from a distance of about fifty feet, a fairly small,
semi-reflective, plastic-wrapped object being thrown from the
driver's side of the minivan. However, Officer Holmsten did not
see the object land. S.32-34, 52.
About three hundred feet further, the minivan attempted to
negotiate a left-hand turn and ended up on the curb, at which
point McCalla was apprehended. Approximately ten minutes later,
Officer Holmsten returned to the area around Raines Park where he
had seen the plastic-wrapped object thrown from the vehicle. He
noticed several citizens waving their arms to flag him down. One
of these individuals produced a plastic bag out of a wooden
basket which appeared to be the same object that Officer Holmsten
had seen tossed from the minivan. The witnesses related to
Officer Holmsten that they had seen people in vehicles and on
bicycles driving slowly through the area, looking on the ground.
The witnesses refused to give their names to Officer Holmsten
because they did not want to get involved. S.35, 56-58.
Officer Holmsten retained possession of the plastic bag, which
was field-tested at the scene and found to be positive for the
presence of cocaine. Officer Holmsten brought the bag to the
Public Safety Building and gave it to Officer Feor. It was out of
Officer Holmsten's sight for about a minute, and then he turned
the bag over to the Property Clerk for storage. S.37-39.
Once at the Public Safety Building, McCalla was interviewed by
Officers Feor and Frascati, who showed him the plastic bag
recovered at the scene. McCalla said nothing in response. Officer Feor then read him his Miranda warnings from a rights card.
McCalla agreed to waive his rights and speak to Officer Feor.
Officer Feor testified that he neither threatened McCalla, nor
promised him lenity in return for talking with him. Officer Feor
indicated that McCalla told him that he had a twelfth-grade
education. Officer Feor reduced the information received from
McCalla into a narrative statement, which McCalla read aloud and
then signed. S.7-10, 13-14.
Given the People's failure to call Officer Frascati, defense
counsel challenged the reliability and sufficiency of the
information available concerning the presence of drugs in
McCalla's vehicle. In a ruling issued from the bench, Monroe
County Court Judge Charles T. Maloy rejected defense counsel's
argument that McCalla was stopped without cause and that the
police acted illegally in activating their emergency lights as
they proceeded down the street on which McCalla was parked. Judge
Maloy held that whether Officer Frascati had a confidential
informant was "immaterial," since sufficient probable cause to
stop arose when McCalla took off in reverse at a considerable
rate of speed, committed several traffic infractions, and threw
the bag out the window. S.70-71, 73. Consequently, no
Darden*fn2 hearing was required. Judge Maloy observed,
however, that if the police had stopped McCalla while he was just
sitting parked in his vehicle, "all would have to have been
brought [sic] at a hearing with Frascati." S.72. Judge Maloy held
McCalla's post-arrest statement to be admissible at trial.
McCalla was tried before a jury in Monroe County Court. Officer
Frascati did not testify at trial. McCalla did not testify in his
own behalf, and his statement to the police was introduced into evidence.*fn3 A chemist from the Monroe County Public Safety
Laboratory testified that the bag tossed from the minivan window
contained 3.7 ounces of cocaine. T.361. At the close of proofs,
defense counsel requested a missing witness charge regarding
Officer Frascati, and the People opposed on the basis that any
testimony from him would be cumulative. T.396-97. Judge Maloy
declined to charge the jury with a missing witness instruction.
McCalla was convicted on May 28, 1996, of one count of Second
Degree Criminal Possession of a Controlled Substance and one
count of Third Degree Criminal Possession of a Controlled
Substance. He was sentenced on July 10, 1996, to concurrent terms
of imprisonment, with the maximum sentence being 6 years to life.
Represented by the Monroe County Public Defender's Office,
McCalla appealed his conviction to the Appellate Division, Fourth
Department. The sole issue raised was the trial court's alleged
error in failing to give a missing witness charge. The Fourth
Department unanimously affirmed his conviction on May 7, 1999.
People v. McCalla, 261 A.D.2d 967 (App.Div. 4th Dept.
1999). The New York Court of Appeals denied leave to appeal on
November 30, 1999. People v. McCalla, 94 N.Y.2d 826 (N.Y.
On November 24, 2000, McCalla filed a federal habeas petition
(No. 00-CV-6589) pursuant to 28 U.S.C. § 2254 in the Western
District of New York. See Petitioner's Reply to Respondent's
Answer ("Pet'r Reply") at 2 (Docket #13). This petition contained
unexhausted claims and was dismissed without prejudice on January 25, 2001, because it
contained unexhausted claims. See 1/25/01 Order (Docket #3), in
McCalla v. Greiner, No. 00-CV-6589.
McCalla returned to state court to exhaust these claims and
filed an application for a writ of error coram nobis alleging
the ineffective assistance of appellate counsel on March 9, 2001.
This was summarily denied by the Appellate Division, Fourth
Department, on June 8, 2001. People v. McCalla, 284 A.D.2d 1022
(App.Div. 4th Dept. 2001). At the time McCalla's coram
nobis application was in state court, New York's procedural
rules provided that the Court of Appeals could not review a
denial by the Appellate Division of such an application, making
the claim fully exhausted at this juncture.
McCalla filed another federal habeas petition in this Court on
June 11, 2001. See Petition ("Pet.") (Docket #1). Finding that
this habeas petition also appeared to contain unexhausted claims,
the Court directed McCalla to file an amended petition raising
only those grounds for which state court remedies had been
exhausted, or to withdraw the entire petition in order to return
to state court to exhaust all of the claims. See 7/3/01 Order
(Docket #2). McCalla elected to pursue the first course of
action, and filed an amended petition on July 20, 2001. See
Amended Petition ("Amend. Pet.") (Docket #3).
McCalla's proposed amendments to his petition relate back to
the date the original petition was filed since the claims
presently asserted "arose out of the conduct, transaction or
occurrence set forth or attempted to be set forth in the original
pleading." Fed.R.Civ.P. 15(c)(2). Thus, for statute of
limitations purposes, McCalla's amended petition relates back to
the filing date of the original habeas petition pursuant to Rule
15(c) of the Federal Rules of Civil Procedure. See Fama v.
Commissioner of Corr. Servs., 235 F.3d 804, 816 (2d Cir. 2000)
(Rule 15(c) applies to amendments to habeas corpus petitions filed pursuant to 28 U.S.C. § 2254).
Here, McCalla signed his original petition in the presence of a
notary public on June 11, 2001. See Pet. at 7 (Docket #1).
Generally, when a petitioner is proceeding pro se, the "mailbox
rule" applies, and the date of filing is determined from the date
certified by the petitioner that the completed and signed
petition was given to prison officials for mailing. Houston v.
Lack, 487 U.S. 266, 270-71 (1988); accord, e.g., Noble v.
Kelly, 246 F.3d 93, 97 (2d Cir.) ("We conclude that the district
court properly extended the prison mailbox rule to petitions for
writs of habeas corpus.") (& citing cases for other federal
applications of the rule), cert. denied, 534 U.S. 886 (2001).
Therefore, in this case McCalla's petition is deemed filed as of
June 11, 2001.
For the reasons set forth below, McCalla's § 2254 petition is
Respondent asserts that McCalla's petition is untimely and must
be dismissed. Under the Antiterrorism and Effective Death Penalty
Act ("AEDPA"), which became effective on April 24, 1996, McCalla
had one year from the date on which judgment of conviction became
final to file his habeas petition. 28 U.S.C. § 2244(d)(1)(A);
Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001). As McCalla's
leave application to the New York Court of Appeals was denied on
November 30, 1999, he had one year from February 28, 2000, the
date his ninety-day time limit to apply for a writ of
certiorari to the United States Supreme Court ended, in which
to file his petition. See Williams v. Artuz, 237 F.3d 147, 151
(2d Cir.), cert. denied, 534 U.S. 924 (2001) (where petitioner
appeals conviction to highest state court but fails to file for
writ of certiorari to U.S. Supreme Court, petitioner's time
under AEDPA's one-year statute of limitations begins to run at
expiration of ninety-day period during which petitioner may file petition for
writ of certiorari). Thus, keeping in mind that 2000 was a leap
year, McCalla's petition was due by February 27, 2001, in order
to meet the statute of limitations cut-off. McCalla did not file
the present habeas petition until June 11, 2001, some three and a
half months after the statute of limitations expired.
McCalla asserts that he is entitled to the benefit of the
tolling provisions of 28 U.S.C. § 2244(d)(2) for the 63 days that
his 2000 habeas petition was pending in this Court from November
24, 2000, until January 25, 2001. He also asserts that he is
entitled to tolling for the 62 days that his application for a
writ of error coram nobis was pending in state court from March
9, 2001, until June 8, 2001. See Pet'r Reply at 3 (Docket #13).
Title 28 U.S.C. § 2244(d)(2) provides as follows:
The time during which a properly filed application
for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of
limitation under this subsection.
28 U.S.C. § 2244(d)(2) (emphasis supplied). The timeliness of the
present habeas petition depends upon whether McCalla's initial
federal habeas petition counts as a "properly filed application"
for "other collateral review" for purposes of the tolling
provisions of 28 U.S.C. § 2244.
Until relatively recently, federal courts in the Second Circuit
viewed the period during which an initial habeas petition was
pending as one in which AEDPA's statute of limitations was
tolled. See Walker v. Artuz, 208 F.3d 357, 359-60 (2d Cir.
2000) ("Close analysis of the statute language . . . shows that
`State' modifies only the word `post-conviction,' and the phrase
`other collateral' is to be given its naturally broader
meaning."), rev'd sub nom. Duncan v. Walker, 533 U.S.167
(2001). The Supreme Court rejected that view in Duncan, finding
that the "word `State' applies to the entire phrase
`post-conviction or other collateral review.'" 533 U.S. at 172.
The Supreme Court found "no likely explanation for Congress'
omission of the word `Federal' in § 2244(d)(2) other than that Congress did not intend properly filed applications for federal
review to toll the limitation period." Id. at 173. Were the
Court to hold that "other collateral review" includes federal
applications for habeas relief, such a construction would "render
the word `State' insignificant, if not wholly superfluous." Id.
at 174 ("cardinal principle" of statutory construction is to
"`give effect, if possible, to every clause and word of a
statute.'") (quoting Untied States v. Menasche, 348 U.S. 528,
538-39 (1955)). Duncan was decided on June 18, 2001, about ten
days after McCalla filed his federal habeas petition in this
Recently, the Southern District of New York had occasion to
consider a predicament similar to the one faced by McCalla in
this case. See Figueroa v. Fischer, 2003 WL 1701997 (S.D.N.Y.
Mar. 31, 2003). The Figueroa court determined that it should
apply Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001), and
retroactively stay the initial habeas petition. As discussed
below, the Court finds that this course of action is appropriate
In Zarvela, the Second Circuit instructed the district courts
on how to handle "mixed" petitions containing both exhausted and
unexhausted claims in light of AEDPA's statute of limitations and Duncan v. Walker so as to avoid prejudice
resulting from the consumption of the one-year period by the
pendency of the initial federal petition. See Zarvela v. Artuz,
254 F.3d at 376. Ordinarily, a district court may exercise its
discretion to either stay the exhausted claims of a mixed
petition on the condition that the petitioner promptly return to
state court to exhaust, or dismiss the entire petition without
prejudice. If, however, a dismissal would almost certainly
imperil the timeliness of petitioner's re-filing in federal court
after exhaustion, the Second Circuit noted that a stay would be
the only appropriate course. Id. at 380-81; see also id. at
379 ("If [the petitioner] mistakenly comes to federal court too
soon, i.e., with one or more unexhausted claims, and does so
late in the allotted one year, a dismissal of his mixed petition
risks the loss of all of his claims because the one-year
limitations period will likely expire during the time taken to
initiate state court exhaustion and to return to federal court
after exhaustion is completed.").
In Zarvela, the Second Circuit determined that the
petitioner, who could not have anticipated the Supreme Court's
holding in Duncan, and who had only two days left in the
one-year period when his first petition was filed, was "entitled
to have his petition treated as if it had been stayed, provided
his entry to the state courts and his return [to federal court]
occurred promptly." Id. at 382-83. The Second Circuit found
that "[a]lthough a district court would generally have discretion
whether to stay the exhausted claims of a mixed petition or
dismiss the entire petition, outright dismissal was not
appropriate for Zarvela because, with so little time remaining on
his statutory one-year limitations period, a complete dismissal
`jeopardize[d] the timeliness of a collateral attack.'" Id. at
382 (quoting Freeman v. Page, 208 F.3d 572, 577 (7th Cir.
2001)). Finding that petitioner had been diligent in his further
actions, the Second Circuit concluded that "[b]ecause Zarvela's
initially filed petition was timely when filed and should have
been stayed, subject to appropriate conditions, and because his prompt trip to and from the state courts satisfied the conditions
that should have been included in a stay, the initial petition
may be considered on its merits." Id. at 382-83.
In the present case, the Court concludes that it would be
appropriate to retroactively consider McCalla's initial petition
stayed, so as to toll the period during which it was pending.
Although McCalla's initial petition was timely, it was filed
fairly late in the one-year limitations period. It was highly
unlikely that McCalla would have been able to return to state
court, exhaust his claims, and re-file in federal court in the
one month he had left on the limitations period following the
Court's dismissal. Thus, under the new rule of Duncan, if
applied, the instant petition essentially would have been
time-barred as of the district court's January 25, 2001 order
dismissing the prior petition.
Furthermore, the Court finds that McCalla acted diligently in
returning to state court to exhaust his ineffective assistance of
appellate counsel claims: He filed his application for a writ of
error coram nobis on March 9, 2001, and upon receiving a state
court denial on June 8, 2001, he promptly filed his federal
petition on June 11, 2001. Moreover, McCalla had reason to
believe that he still had time to file his petition since the
then-prevailing law in this Circuit, pursuant to Walker v.
Artuz, supra, was that the time in which the initial federal
petition was pending would not count against the statute of
Therefore, because McCalla had almost no time remaining to
exhaust his state court remedies after the initial habeas
petition was dismissed, and because he has been reasonably
diligent in pursuing his post-conviction remedies, the original
habeas petition should be deemed stayed nunc pro tunc. See,
e.g., Figueroa v. Fischer, 2003 WL 1701997, at *5-6 (tolling
statute of limitations where petitioner filed his initial habeas
petition before the statute of limitations began to run, filed
his C.P.L. § 440.10 motion less than three weeks after the court
dismissed his initial habeas petition without prejudice and filed his second habeas petition seven
months after he exhausted his state court remedies); Leake v.
Senkowski, 274 F. Supp.2d 588, 591 (S.D.N.Y. 2003) (tolling
limitations period where petitioner promptly returned to federal
court after exhausting his state claims only seven weeks after
the New York Appellate Division denied leave to appeal his C.P.L.
§ 440.10 motion; although petitioner waited nearly 10 months to
file initial habeas corpus petition, his overall diligence must
be viewed in light of fact that he was still within one-year
limitations period, had pendency of initial federal petition not
been counted); compare, e.g., Baity v. Mazzuca, 2002 WL 87664,
at *4 (S.D.N.Y. Jan. 23, 2002) (declining to find equitable
tolling or to apply Zarvela, where initial petition was
dismissed with only 10 days remaining in one-year limitations
period, because petitioner did not act diligently in exhausting
state court remedies, waiting 11½ months to file motion to vacate
pursuant to N.Y. Crim. Proc. Law § 440.10 and 16 months to return
to state court), with Devino v. Duncan, 215 F. Supp.2d 414, 418
(S.D.N.Y. 2002) (granting relief under equitable tolling
principles, and reinstating petition, where petitioner sought to
exhaust state court remedies within 33 days after dismissal of
initial habeas petition, and returned to federal court 13 days
after conclusion of those proceedings).
Thus, applying the reasoning of Zarvela, the period during
which McCalla's initial habeas petition was pending in this Court
should serve to toll AEDPA's statute of limitations. As noted
above, the one-year period began to run on February 28, 2000, and
ran for 269 days, at which time McCalla filed his first federal
habeas petition on November 24, 2000. This filing tolled the
limitations period for 63 days, until the petition was dismissed
on January 25, 2001. Forty-one (41) days passed from that time
until March 9, 2001, the date on which McCalla filed his
application for a writ of error coram nobis. The limitations
period then was tolled for 92 days, beginning March 9, until the Appellate Division denied the coram nobis motion
on June 8, 2001. Two (2) days accrued to the limitations period
between that denial and June 11, 2001, when McCalla filed the
present habeas petition, thereby stopping the clock. Taking into
account the equitable tolling for the initial habeas petition, a
total of 312 days are counted against the one-year statute of
limitations, making McCalla's petition timely.
II. The Standard of Review
To prevail under 28 U.S.C. § 2254, as amended in 1996, a
petitioner seeking federal review of his conviction must
demonstrate that the state court's adjudication of his federal
constitutional claim resulted in a decision that was contrary to
or involved an unreasonable application of clearly established
Supreme Court precedent, or resulted in a decision that was based
on an unreasonable factual determination in light of the evidence
presented in state court. See 28 U.S.C. § 2254(d)(1), (2);
Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
III. Merits of the Petition
McCalla asserts three grounds for entitlement to habeas relief,
all of which stem from his appellate counsel's alleged
A. Ineffective Assistance of Appellate Counsel
1. Legal Standard
A claim for ineffective assistance of appellate counsel is
evaluated upon the same standard as is a claim of ineffective
assistance of trial counsel. Mayo v. Henderson, 13 F.3d 528,
533 (2d Cir.), cert. denied, 513 U.S. 820 (1994) (citing
Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert.
denied, 508 U.S. 912 (1993)). A petitioner alleging ineffective
assistance of appellate counsel must prove both that appellate
counsel was objectively unreasonable in failing to raise a
particular issue on appeal, and that absent counsel's deficient performance,
there was a reasonable probability that defendant's appeal would
have been successful. Mayo, 13 F.3d at 533-34; see also Smith
v. Robbins, 528 U.S. 259, 285 (2000); Aparicio v. Artuz,
269 F.3d at 95. A habeas petitioner may ground an ineffective
assistance claim on an omission of either federal or state law.
Mayo, 13 F.3d at 533-36; Sellan v. Kuhlman, 261 F.3d 303,
309-10 (2d Cir. 2001).
Appellate counsel "need not (and should not) raise every
nonfrivolous claim, but rather may select from among them in
order to maximize the likelihood of success on appeal." Smith v.
Robbins, 528 U.S. at 288 (citing Jones v. Barnes,
463 U.S. 745, 750-54 (1983)); accord, e.g., Sellan v. Kuhlman,
261 F.3d at 317 ("This process of `winnowing out weaker arguments on
appeal and focusing on' those more likely to prevail, far from
being evidence of incompetence, is the hallmark of effective
appellate advocacy.") (citations omitted). The habeas court
should not second-guess the reasonable professional judgments of
appellate counsel as to the most promising appeal issues.
Jones, 463 U.S. at 754; see also Jackson v. Leonardo,
162 F.3d 81, 85 (2d Cir. 1998). Thus, a petitioner may establish
constitutionally inadequate performance only by showing that
appellate counsel "omitted significant and obvious issues while
pursuing issues that were clearly and significantly weaker."
Mayo, 13 F.3d at 533.
When preparing McCalla's brief on direct appeal, the assistant
public defender, acting as appellate counsel, informed him that
only one issue would be raised therein: whether the trial court
erred in refusing to give a missing witness charge based upon the
People's failure to call one of the officers present at the time
of McCalla's apprehension. See Letter from D. Dubrin to
Petitioner, Exhibit ("Ex.") G to Pet'r Reply (Docket #13).
Appellate counsel advised McCalla that he could seek permission
from the Appellate Division to file a pro se supplemental brief
and explained the procedure for doing so.
Thereafter, McCalla sent the assistant public defender four
letters in which he expressed concern that there were other
meritorious arguments that should be raised on appeal, and
requested that counsel hold his brief "in abeyance" while they
continued to research these additional issues. See Letters from
Petitioner to D. Dubrin, Ex. C, D, E & F to Pet'r Reply (Docket
#13). The last of these letters is dated October 19, 1998. That
day, the assistant public defender filed McCalla's appellate
brief in the Fourth Department raising only the missing witness
charge. McCalla did not seek permission to file a supplemental
pro se brief setting forth any additional bases for overturning
his conviction. The Appellate Division rejected the missing
witness argument. See People v. McCalla, 261 A.D.2d at 967.
2. Alleged Grounds for Counsel's Ineffectiveness
In his habeas petition, McCalla asserts that appellate counsel
was ineffective in failing to challenge (1) the trial court's
refusal to hold a Darden hearing; (2) the allegedly improper
chain of custody for the drugs seized incident to the defendant's
arrest; and (3) the trial court's refusal to provide the jury
with an exemplar of the defendant's handwriting. See Amend.
Pet. at 7, and attached Memorandum of Law ("Pet'r Mem.") at 1-11
(Docket #3). None of these alleged omissions by appellate
counsel, either singly or collectively, amount to
constitutionally deficient representation.
a. Failure to hold a Darden hearing
McCalla argues that the trial court erred in declining to hold
a Darden hearing in light of the People's failure to produce
Officer Frascati or the confidential informant. He faults his
appellate counsel for not broaching this issue on direct appeal.*fn5
This argument likely would not have succeed on direct appeal,
since the intervening reckless and illegal driving by McCalla,
resulting in several traffic violations, gave the police adequate
cause to stop him. Furthermore, after the officers retrieved the
drugs which they saw being thrown from the driver's side of the
vehicle, they had probable cause to arrest McCalla. Thus, there
was no need for a Darden hearing. See People v. Farrow,
98 N.Y.2d 629, 631 (2002) (Darden hearing regarding informant's
identity unnecessary where police officer's observations of
defendant engaging in apparent drug transaction independently
could establish probable cause to arrest defendant).
b. Improper chain of custody
McCalla argues that there are deficiencies in the chain of
custody based on alleged discrepancies in the officers' testimony
about the appearance of the drugs, and that his appellate counsel
was ineffective in not raising this issue on appeal.
Officer Holmsten testified at trial that the substance
retrieved from the witnesses at the crime scene was "the same
color" as the drugs introduced at trial, but the contents of the
bag "were in more of a solid shape when [he] took possession of
them." T.311. He noted that they "had been pretty much pulverized" by the time he saw them at trial. T.311-12.
Officer Feor, to whom Officer Holmsten provided the bag thrown
from McCalla's minivan, testified that the contents were in "like
a brick or rock, hard, solid form." T.270. The analyzing chemist,
William Anderson ("Anderson"), testified that when he first
obtained the seized bag, it contained a "caked material" which
was "white and moist." T.360. Because the material contained
moisture, Anderson allowed it to air-dry before continuing with
his testing. T.361. He then ground it up using a mortar and
pestle, resulting in the material's granular condition at trial.
Both federal and New York state law clearly hold that a defect
in the chain of custody goes to the weight of the evidence, not
its admissibility. Cassell v. Ricks, 2001 WL 1010977, at *7
(S.D.N.Y. July 21, 2000) (citing, e.g., United States v. Hon,
904 F.2d 803, 810 (2d Cir. 1990); People v. Tirado,
267 A.D.2d 95, 95 (App.Div. 1st Dept. 1999) (citing People v. Julian,
41 N.Y.2d 340, 344 (N.Y. 1977) . According to McCalla, there is
"no testimony concerning how the drugs got to be a semi-liquid
substance described by Officer Anderson." Pet'r Mem. at 8 (Docket
#3). However, Anderson never testified that the contents of the
bag were in a "semi-liquid" form; this statement by McCalla
mischaracterizes Anderson's testimony. Moreover, there is no
inconsistency between Officer Feor's observations and those of
Anderson; it is certainly possible for a substance to be caked or
hard, and yet still contain some moisture.
Since the prosecution established a chain of custody sufficient
to provide reasonable assurances, see, e.g., People v. Julian,
267 A.D.2d at 95, that the package of cocaine found on the night
of the incident was the same package introduced into evidence at
trial and that its condition essentially was unchanged, such an
argument would not have been successful on appeal. Thus, McCalla
was not prejudiced by appellate counsel's failure to raise this
non-meritorious claim. c. Refusal to provide jury with handwriting exemplar
McCalla complains that his appellate counsel did not contest
the trial court's refusal to allow him to sign his name several
times pursuant to a request from the jury.
Defense counsel argued on summation to the jury that McCalla
did not sign the confession admitted into evidence. He pointed
out that Officer Feor, who read the statement into the record,
omitted the part indicating that the person giving statement was
named "Carl McCall" and lived at 702 Seward Street. T.399.
Defense counsel referred to McCalla's New York State driver's
license, which indicated that McCalla lived on Midvale Street in
Uniondale, New York. T.399. He noted that the signature at the
bottom of the statement read "Karl McCalla," or possibly
"Macalloa." Defense counsel argued that this proved that whoever
forged defendant's signature "got it wrong." T.400. During
deliberations, the jury sent a note to the judge asking, "Can we
have the defendant sign his name a few times?" Judge Maloy denied
the request without comment. Defense counsel took no exception to
the judge's ruling on this issue. T.441.
McCalla asserts that his appellate counsel was ineffective in
not arguing that the trial judge erred in precluding him from
introducing a sample of his signature to the jury. However, the
court was well within its discretion in refusing to allow McCalla
to introduce an exemplar of his signature. See People v. Aska,
91 N.Y.2d 979, 981 (N.Y. 1999) ("As a general rule, the trial
court is granted broad discretion in making evidentiary rulings
precluding or admitting such evidence and, absent an abuse of
discretion, a trial court's decision should not be disturbed on
appeal."); see also United States v. Lam Muk Chiu,
522 F.2d 330, 331-32 (2d Cir. 1975); accord United States v. Pastore,
537 F.2d 675, 678 (2d Cir. 1976). The Second Circuit in Lam Muk
Chiu upheld the district court's refusal to allow defendant to introduce handwriting samples into
evidence of the basis that they were "objectionable as
self-serving exemplars prepared specially for trial."
522 F.2d at 331. The Second Circuit noted that "[u]nquestionably, a defendant
has a strong motive to alter his writing so as to render it
dissimilar to an incriminating document alleged by the
prosecution to be in his hand." Id. at 332.
Here, the Court cannot say that the trial judge unreasonably
declined to have the defendant sign his name for the sole purpose
of allow the jury to compare the signature with the one on his
statement. First, McCalla had a strong motive to attempt to
disguise his signature by any means necessary. Moreover, jurors
are not presumed experts in the field of forensic handwriting
analysis. Because the trial judge was well within his discretion
in refusing to admit a handwriting sample by McCalla, the
appellate court would have been unlikely to reverse that decision
on appeal. Again, McCalla was not prejudiced by appellate
counsel's failure to raise this non-meritorious argument.
2. Analysis of Counsel's Performance
Because all three of the foregoing arguments probably would not
have succeeded on appeal, appellate counsel was not deficient in
omitting them. In light of the fact that McCalla has failed to
prove that his appellate counsel's performance was deficient
the first prong of the test for ineffective assistance of counsel
it is unnecessary to address the second "prejudice" prong of
this standard. See Strickland v. Washington, 466 U.S. 668, 694,
697 (1984) ("[T]here is no reason for a court deciding an
ineffective assistance claim to . . . address both components of
the inquiry if the defendant makes an insufficient showing on
one."). Moreover, because the arguments McCalla faults counsel
for omitting on appeal are without merit, he is unable to prove
prejudice as well. See Mayo v. Henderson, 13 F.3d at 534 ("To establish prejudice in the
appellate context, a petitioner must demonstrate that "there was
a `reasonable probability' that [his] claim would have been
successful. . . .'" (alteration in original) (quoting Claudio v.
Scully, 982 F.2d at 803)). Therefore, McCalla has failed to
prove either that his appellate counsel provided deficient
assistance, or that this performance resulted in prejudice
For the reasons stated above, Karl McCalla's petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied.
Because McCalla has failed to make a substantial showing of a
denial of a constitutional right, no certificate of appealability
shall issue. See 28 U.S.C. § 2253.
IT IS SO ORDERED