United States District Court, S.D. New York
June 10, 2005.
GIACOMO FRASCONE, Petitioner,
GEORGE DUNCAN, Superintendent, Great Meadow Correctional Facility, Respondent.
The opinion of the court was delivered by: GEORGE DANIELS, District Judge
MEMORANDUM DECISION AND ORDER
Petitioner filed a writ of habeas corpus challenging his
conviction, upon a jury trial, in Supreme Court, Bronx County,
rendered on November 26, 1996, for robbery in the second degree.
Petitioner argues that his trial counsel's concession of
petitioner's guilt to the lesser offense of robbery in the third
degree violated his Sixth Amendment right to the effective
assistance of counsel and his Due Process right to plead not
guilty. The matter was referred to Magistrate Judge Henry Pitman
for a Report and Recommendation ("Report"). The magistrate judge
concluded that, to the extent petitioner is claiming that his
trial counsel deprived him of the right to plead not guilty,
petitioner's claim is exhausted but procedurally barred. The
magistrate judge further found that, to the extent that
petitioner is claiming that his counsel was ineffective for
conceding his guilt to third degree robbery, the petition should
be denied. The Report further recommended that a certificate of
appealability ("COA") not be issued. Petitioner filed objections
to the Report.
The Court may accept, reject or modify, in whole or in part,
the findings and recommendations set forth within the Report.
28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b). The Court must make "a
de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made."
28 U.S.C. § 636(b)(1)(C); see also, Fed.R.Civ.P. 72(b). It is
not required that the Court conduct a de novo hearing on the
matter. United States v. Raddatz, 447 U.S. 667, 676 (1980).
Rather, it is sufficient that the Court "arrive at its own,
independent conclusion" regarding those portions to which the
objections were made. See, Nelson v. Smith, 618 F.Supp. 1186,
1189-90 (S.D.N.Y. 1985) (quoting Hernandez v. Estelle,
711 F.2d 619, 620 (5th Cir. 1983)). Accordingly, the Court, in the
exercise of sound judicial discretion, must determine the extent,
if any, it should rely upon the magistrate judge's proposed
findings and recommendations. Raddatz, 447 U.S. at 676. Where
there are no objections, the Court may accept the Report provided
there is no clear error on the face of the record. See,
Nelson, 618 F.Supp. at 1190; see also, Heisler v. Kralik,
981 F.Supp. 830, 840 (S.D.N.Y. 1997), aff'd sub nom. Heisler
v. Rockland County, 164 F.3d 618 (2d Cir. 1998).
Petitioner's objections are that: (1) the magistrate judge's
relied on the wrong standard for evaluating the effective
assistance of counsel claim; (2) "the Magistrate Judge appears to
suggest, without specifically concluding, that perhaps
[petitioner] did consent to, or have reason to be expecting,
counsel's concession," even though the record clearly indicates
that counsel was acting contrary to petitioner's wishes; and (3)
the magistrate judge erred in recommending that a COA should not
be issued is inappropriate given .
The magistrate judge applied the two-part test set forth in
Strickland v. Washington, 466 U.S. 668 (1984), which requires a
showing that: (1) "counsel's performance was deficient[,]"
i.e., it "fell below an objective standard of reasonableness . . .
under prevailing professional norms[;]" and (2) "that the
deficient performance prejudiced the defense." Strickland,
466 U.S. at 687, 688. Petitioner maintains that the presumptive prejudice
standard, enunciated in United States v. Cronic, 466 U.S. 648
(1984), is the appropriate standard to be applied in this case.
He argues that not only did his trial attorney fail to subject
the prosecution's case, with respect to robbery in the third
degree, to meaningful adversarial testing, but he specifically,
over petitioner's objection, asked the jury to convict petitioner
of that charge. Petitioner contends that such circumstances
plainly warrant a per se finding of prejudice under Cronic.
This Court disagrees.
The Cronic Court found that the per se prejudice standard
was applicable where "counsel entirely fails to subject the
prosecution's case to meaningful adversarial testing . . ."
Cronic, 466 U.S. at 659. In order to presume prejudice under
Cronic, defense counsel's failure to test the prosecution's
case requires that counsel's failure be complete. Bell v. Cone,
535 U.S. 685, 696-97 (2002). "[T]he whole point of the Chronic
presumption is to presume ineffectiveness without inquiring on
a case-by-case, error-by-error basis into the wisdom of counsel's
actual performance (and any resulting prejudice) under
Strickland." Bell v. Quintero, ___ S.Ct. ___, 2005 WL 637120,
*3 (U.S. Mar. 21, 2005).
In Florida v. Nixon, ___ U.S. ___, 125 S.Ct. 551 (2004), the
United States Supreme Court held that in a capital case, where
counsel must consider both the guilt and penalty phase in
determining trial strategy, counsel's failure to obtain his
client's express consent to a strategy of conceding guilt did not
automatically render counsel's performance deficient. The Supreme
Court found that the attorney's concession of guilt did not
constitute a "fail[ure] to function in any meaningful sense as
the Government's adversary," and hence the standard prescribed in
Strickland, not Cronic, applied. Nixon, 125 S.Ct. at 562.
The Nixon Court restricted its holding to capital cases given
the gravity of the potential sentence and the two-phase trial
structure. Nixon, 125 S.Ct. at 562. The Supreme Court observed that a
concession of guilt "in a run-of-the-mine trial might present a
closer question . . ." Id. The Supreme Court did not, however,
hold that a concession of guilt in a non-capital case would
necessarily warrant a finding of per se prejudice under
Cronic, or that defense counsel may not concede his client's
guilt, with regard to a lesser included offense, without first
obtaining his client's expressed consent.
In the case at bar, the record demonstrates that the concession
of guilt as to the lesser included offense, in defense counsel's
closing argument, was not done over the expressed and unequivocal
objections of petitioner. Petitioner "bears the burden of showing
that he in fact objected," and "a petitioner who does not state
an objection on the record must show not only that he disagreed
with counsel, but that his will was overborne by his counsel."
See, Dean v. Superintendent, Clinton Corr. Facility,
93 F.3d 58, 62 (2d Cir. 1996) (internal quotation marks and citation
omitted). "Disagreement colored by acquiescence is not
Petitioner was informed of his counsel's strategy, "a tactical
decision . . . to proceed in a certain manner, robbery in the
third degree would be an appropriate lesser included offense."
Petitioner had initially voiced an objection to submitting the
lesser included offense to the jury. This resulted in a lengthy
conversation among petitioner, his attorney, and the trial judge.
During their discussions, the trial judge specifically asked
petitioner, "[I]t is true that your strategy was to admit theft
and the taking by force," to which petitioner directly responded,
"It is the truth of my case. It is not just the strategy of my
case." After further discussions, the trial judge asked
petitioner, "Do you want the robbery three charge?" and
petitioner responded, "Yes, I do . . ." Petitioner's remarks
convey his approval of defense counsel's strategy, and the record
does not demonstrate that petitioner had expressly indicated an
objection to counsel's strategy or his intended closing argument. Under such circumstances, there is no
basis to find that counsel conceded guilt despite petitioner's
continued and unabated objection to counsel doing so. See,
Utenyshev v. Portuondo, 2003 WL 21499841, *8 (E.D.N.Y. June 11,
2003). Any belated objection by petitioner, after summation and
the jury had been charged, was untimely.
The strategy employed by counsel did not constitute a complete
failure to challenge the prosecution's case in a meaningful
adversarial manner. Counsel did not concede petitioner's guilt
with regard to the charges in the indictment or to the top count
thereof. Rather, faced with overwhelming evidence of petitioner's
guilt, defense counsel made a rational strategic decision to
concede and argue petitioner's guilt of a lesser included crime
only, in order to acquit defendant of the more serious charges
and expose petitioner to a significantly lower sentencing range
than if he were found guilty of robbery in the first or second
In light of the foregoing, Magistrate Judge Pitman properly
found that the Strickland standard applied. See, Farrington
v. Senkowski, 214 F.3d 237, 244 (2d Cir. 2000) (applying
Strickland where defense counsel, in summation, conceded his
client's guilt to attempted grand larceny in an effort to
persuade the jury to acquit on the more serious charges of
attempted robbery and felony murder.); Nunez v. Miller, 2001 WL
1773731, *5-6 (E.D.N.Y. July 12, 2001) (finding Chronic
standard inapplicable where defense counsel conceded petitioner's
guilt to lesser included offense.). In applying Strickland, the
magistrate judge correctly determined that petitioner was not
denied effective assistance of counsel.
Under the Strickland standard, "a court must indulge a
`strong presumption' that counsel's conduct falls within the wide
range of reasonable professional assistance because it is too
easy to conclude that a particular act or omission of counsel was
unreasonable in the harsh light of hindsight." Bell, 535 U.S. at 702 (quoting
Strickland, 466 U.S. at 689). "Actions or omissions by counsel
that `might be considered sound trial strategy' do not constitute
ineffective assistance of counsel." Henry v. Poole,
___ F.3d ___, 2005 WL 1220468, *12 (2d Cir. May 24, 2005) (quoting
Strickland, 466 U.S. at 689). "[A] strategic decision is a
`conscious, reasonably informed decision made by an attorney with
an eye to benefitting his client.'" Cox v. Donnelly,
387 F.3d 193, 198 (2d Cir. 2004) (quoting Pavel v. Hollins,
261 F.3d 210, 218 (2d Cir. 2001)). Petitioner has the burden to overcome
the presumption that, given the particular circumstances, the
challenged acts of defense counsel might be deemed sound trial
strategy. Dean, 93 F.3d at 60-61 (quoting Strickland,
466 U.S. at 689). Although the right to effective assistance of
counsel extends to summations, "counsel has wide latitude in
deciding how best to represent a client, and deference to
counsel's tactical decisions in his closing presentation is
particularly important because of the broad range of legitimate
defense strategy at that stage." Yarborough v. Gentry,
540 U.S. 1, 5-6 (2003). "Judicial review of a defense attorney's summation
is ? highly deferential and doubly deferential when it is
conducted through the lens of federal habeas." Id. at 6.
Despite petitioner's complaint about the trial strategy
utilized by his attorney, he fails to proffer any alternative
strategy which would lead one to conclude that counsel's chosen
strategy was not objectively reasonable under the circumstances
or that the employed strategy caused prejudice to the defense.
Given the overwhelming incriminating evidence against petitioner,
counsel's argument that petitioner was not guilty of either
robbery in the first or second degree, but was only guilty of
robbery in the third degree, constituted sound trial strategy.
Moreover, there is no reasonable probability that, absent the
concession of guilt to the lesser included offense, the jury would have had a reasonable doubt as to
petitioner's guilt of robbery in the second degree, the higher
offense of which petitioner was found guilty. Therefore,
petitioner cannot demonstrate that he was prejudice as a result
of counsel's summation remarks. In light of the exceptional
strength of the prosecution's case, there was little hope that
petitioner would be acquitted on all charges and, therefore, the
concession of guilt did not deprive petitioner of effective
assistance of counsel. Farrington, 214 F.3d at 244; Brown v.
Rick, 2003 WL 22801397, *5-6 (S.D.N.Y. Nov. 25, 2003); Nunez,
2001 WL 1773731, at *4-5; see also, United States v. Arena,
180 F.3d 380, 397 (2d Cir. 1999); United States v. Arnold,
126 F.3d 82, 89 (2d Cir. 1997), aff'd sub nom. Holloway v. United
States, 526 U.S. 1 (1999).
Magistrate Judge Pitman's determination that a COA should not
be issued was proper. To obtain a COA, petitioner must make a
"substantial showing of the denial of a constitutional right."
28 U.S.C. § 2253(c). "Where a district court has rejected the
constitutional claims on the merits, the showing required to
satisfy § 2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or
wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner
has failed to make the requisite showing necessary for the
issuance of a COA.
The Court has also examined the remaining portions of the
Report, to which there are no objections, and find that they are
not facially erroneous.
Accordingly, the Court hereby adopts the Report and
Recommendation. For the reasons stated therein, the writ is
denied and the petition is dismissed.
As the petitioner has not made a substantial showing of the
denial of a federal right, a certificate of appealability will
not issue. 28 U.S.C. § 2253; Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); United States v. Perez, 129 F.3d 255,
259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011
(2d Cir. 1997). Additionally, the Court certifies, pursuant to
28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be
taken in good faith. Coppedge v. United States, 369 U.S. 438
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