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BODDIE v. EDWARDS

April 20, 2005.

Terence Boddie, Petitioner,
v.
Ernest Edwards, Superintendent, Otisville Correctional Facility, Respondent.



The opinion of the court was delivered by: MIRIAM CEDARBAUM, Senior District Judge

OPINION

Terence Boddie, a state prisoner, petitions pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. For the following reasons, the petition is denied.

BACKGROUND

  On April 21, 1991, a criminal complaint was filed against Boddie and two co-defendants, Matthew Randall and Ronald Austin, for the rape of Jacqueline Fisher. The evidence at trial showed that early in the morning of April 20, 1991, Fisher and a friend encountered Randall outside Boddie's apartment. He suggested they return with him to the apartment, where all three could smoke crack cocaine. They did so, and some time later Fisher's friend left to purchase more drugs. Shortly thereafter, Randall forced Fisher to remove her clothes by threatening her with a shotgun. Boddie and Austin (who subsequently pleaded guilty) entered the room, and all three raped her. Eventually the defendants permitted Fisher to leave. Outside the apartment, Fisher saw a police car drive by and followed it to a station house a few blocks away, where she made her complaint.

  On February 26, 1993, Boddie and Randall were convicted of four counts of first degree rape, five counts of first degree sodomy, and two counts of first degree sexual abuse. Boddie was sentenced to concurrent prison terms of six to eighteen years for the rape and sodomy counts and two to six years for the sexual abuse counts.

  Boddie appealed his conviction to the Appellate Division, First Department, on August 30, 1995. He asserted five grounds for reversal: (1) he was unfairly prejudiced by a denial of severance; (2) the prosecution relied on improper bolstering and hearsay; (3) comments made by the prosecutor during summation deprived him of his right to a fair trial; (4) he was not present for the reading of his co-defendant's verdict and for a request from the jury for the reading back of testimony; and (5) his sentence was unduly severe. The appellate division affirmed Boddie's conviction on April 2, 1996. See People v. Boddie, 226 A.D.2d 120 (1st Dep't 1996). With the exception of the fourth claim, the court denied Boddie's claims on the merits. The court found the fourth claim unreviewable because Boddie had failed to record his absences from court. The Court of Appeals denied Boddie leave to appeal on August 13, 1996. See People v. Boddie, 88 N.Y.2d 980 (1996).

  Boddie submitted four motions for postconviction relief pursuant to N.Y. Crim. Proc. Law § 440.10. His first motion asserted two claims: (1) his due process rights were violated when he was absent for the reading back of testimony to the deliberating jury; and (2) the court abused its discretion when it read the co-defendant's verdict without having Boddie present. The trial court denied this motion on June 15, 1995 because Boddie's arguments fell within the scope of his then-pending appeal before the appellate division. See id. § 440.10(2)(b) (requiring the court to deny a motion to vacate a judgment when "[t]he judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal."). The appellate division and the Court of Appeals denied leave to appeal on October 16, 1995, and December 7, 1995, respectively.

  Boddie's second motion to vacate advanced three claims: (1) his warrantless arrest was not based on probable cause, and therefore the trial court erred in refusing to suppress all evidence stemming from it; (2) the trial court erred in admitting the complainant's in-court identification; and (3) Boddie's right to a speedy trial was violated. The trial court denied this motion on January 30, 1996 on the same ground as the first motion. The appellate division denied leave to appeal on May 2, 1996.

  Boddie's third motion to vacate raised one argument: that the state had violated People v. Rosario, 9 N.Y.2d 286 (1961), by failing to turn over an allegedly exculpatory audiotape. According to Boddie, this audiotape memorializes a conversation between Officer Smith, one of the arresting officers, and a police dispatcher. Boddie argues that this tape establishes the existence of a two-hour time lag between the report of the crime and the arrest and contradicts the prosecution's claim that exigent circumstances supported the warrantless arrest of Boddie in his home. The trial court denied this motion on June 5, 1996, pursuant to N.Y. Crim. Proc. Law § 440.10(2)(c) and (3)(c).*fn1 The appellate division denied leave to appeal on July 29, 1996. Boddie's fourth motion to vacate raised two claims: (1) Boddie was deprived of effective assistance of trial counsel when his lawyer failed to advise him of his right to testify before the grand jury, failed to move for a speedy trial, and failed to demand production of the abovementioned audiotape; and (2) the court erred by letting the state impeach him with recorded telephonic statements obtained in alleged violation of his Miranda rights. The latter claim refers to an audiotape of a conversation between Boddie and Officer Ward of the Civilian Complaint Review Board (CCRB) with respect to a complaint Boddie filed against the officers who had arrested him. In the tape, Boddie made several statements inconsistent with his later trial testimony. The tape was not played during the trial, but the prosecutor used statements of Boddie from the tape in crossexamination. On November 22, 1996, the trial court denied Boddie's motion, again pursuant to N.Y. Crim. Proc. Law § 440.10(2)(c) and (3)(c). The appellate division denied leave to appeal on May 8, 1997.

  Boddie also petitioned the appellate division twice for a writ of error coram nobis. The first petition argued that Boddie was deprived of his right to effective assistance of appellate counsel when his counsel failed to raise the following four issues: (1) that the warrantless arrest violated Boddie's Fourth Amendment rights because the police lacked probable cause, exigent circumstances, and consent to enter the apartment; (2) that the complainant's in-court identification of Boddie was tainted by an unduly suggestive out-of-court identification; (3) that excessive delay between arrest and trial violated Boddie's right to a speedy trial under the United States Constitution and under N.Y. Crim. Proc. Law § 30.30; and (4) that the trial court's failure to impose Rosario sanctions on the prosecution violated Boddie's Fourteenth Amendment rights. The appellate division denied the writ without opinion on September 5, 1996, citing People v. Bienvenido De La Hoz, 131 A.D.2d 154, 158 (1st Dep't 1987). De La Hoz holds, on the page cited by the appellate division, that "[t]he burden lies with those raising the issue [of ineffective assistance of counsel] to rebut the presumption that counsel has been effective. The mere existence of an unraised issue will not suffice. A defendant must show that had the issue been raised a greater likelihood would exist that the judgment would have been reversed, or at least, modified." Id.

  Boddie's second petition for a writ of error coram nobis claimed that he was denied effective assistance of appellate counsel because his lawyer did not argue that the trial judge erred when he allowed the prosecution to use his statements on the audiotape to impeach Boddie on cross-examination. The appellate division denied the writ without opinion on August 21, 1997, again citing De La Hoz. Boddie also filed in the appellate division a "Petition Pursuant to the First Amendment" based on three claims he had previously raised: (1) that the trial court should have suppressed statements and physical evidence stemming from the arrest because the arrest violated his Fourth Amendment rights; (2) that the prosecution's use of the CCRB audiotape to impeach him violated his Miranda rights and his constitutional right to counsel; and (3) that the complainant's in-court identification was tainted by an unduly suggestive show-up and therefore violated his Sixth Amendment rights. The appellate division denied the petition on November 21, 1996.

  On October 22, 1997, Boddie filed a petition for a writ of habeas corpus in the Southern District of New York. After respondent submitted opposition papers which responded to five of Boddie's claims, Boddie submitted a "traverse" to his original petition, clarifying that he intended to raise all of the claims advanced in his direct appeal and state postconviction motions and petitions. Those claims, omitting repetition, total twelve: (1) Boddie was unfairly prejudiced by a denial of severance from his co-defendant; (2) the prosecution's case relied on improper bolstering and hearsay; (3) comments made by the prosecution in summation deprived Boddie of his right to a fair trial; (4) he was not present at all stages of his trial; (5) Boddie's sentence was unduly severe; (6) his warrantless arrest violated the Fourth Amendment; (7) his Sixth Amendment rights were violated when the trial court allowed an in-court identification tainted by an unduly suggestive show-up; (8) Boddie was denied a speedy trial; (9) his Fourteenth Amendment rights were violated when the prosecution failed to turn over evidence to the defense; (10) his rights were violated when the court allowed the prosecution to impeach him through statements obtained in violation of his Miranda rights; (11) Boddie was denied effective assistance of trial counsel; and (12) he was denied effective assistance of appellate counsel.

  DISCUSSION

  I. Procedural Default

  When a state court decision rests on a state procedural ground which is independent of federal law and adequate to support the judgment, a federal court is barred from habeas corpus review of that decision unless the petitioner can demonstrate either cause for the default and actual prejudice or that failure to consider his claim will result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).

  State courts decided Boddie's fourth, sixth, seventh, eighth, ninth, tenth, and eleventh claims on state procedural grounds. Claim four was part of Boddie's direct appeal. The appellate division determined that Boddie had waived this claim by not preserving an adequate record for review. Claims six through eleven were raised in Boddie's motions to vacate. As described above, the trial court determined in each case that Boddie should have raised the issue either in his direct appeal or in an earlier motion to vacate. The appellate division and Court of Appeals denied leave to appeal in each case. It is presumed that those courts rejected the claims on the same grounds as the trial court. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.").*fn2 Boddie offers several potential causes for his default. With respect to the ineffective assistance of trial counsel claim, he argues that he could not have raised the issue on direct review because there was no record for such review. He relies on a number of state court decisions which hold that motions to vacate are the appropriate vehicle for bringing ineffective assistance of counsel claims when the record does not provide an ...


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