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WADE v. FISCHER

United States District Court, S.D. New York


August 8, 2005.

AL WADE, Petitioner,
v.
BRIAN FISCHER, Superintendent, Sing Sing Correctional Facility Respondent.

The opinion of the court was delivered by: RICHARD CASEY, District Judge

MEMORANDUM & ORDER ADOPTING REPORT & RECOMMENDATION

Petitioner Al Wade ("Petitioner"), proceeding pro se, filed the instant habeas corpus petition pursuant to 28 U.S.C. § 2254. Petitioner seeks to vacate his convictions of murder in the second degree and criminal possession of a weapon in the fourth degree. The matter was referred to Magistrate Judge Debra C. Freeman, who, on April 26, 2005, recommended that habeas relief be denied. See Report & Recommendation at 27 ("Report"). Petitioner filed timely objections to the Report. For the reasons set forth below, the Court adopts the Report in its entirety, and orders that the petition be DENIED.

I. BACKGROUND

  The Court briefly recounts the relevant facts here. According to the trial record, in 1995 Petitioner lived with his then-girlfriend, Sabrina Galloway ("Galloway"), and two of her children in the Bronx. Report at 2. One-year-old Bria was Petitioner's daughter with Galloway, and nine-year-old Kenneth was Galloway's son from a prior relationship. Id. On June 23, 1995, Galloway ran into Theodore Middleton ("Middleton") on the street and invited him to come home with her. Id. When Petitioner returned that evening with two acquaintances, Connie Merced ("Merced") and a man named Tyrone, he saw Middleton and asked him to leave. Id. Merced accompanied Galloway into her bedroom for a few minutes, and when they returned to the living room, they saw Petitioner and Middleton "pushing and shoving." Id. at 3. Galloway asked that everyone leave the apartment because she did not want to disturb Bria, who was sleeping. Id.

  Middleton was the first to leave, and fifteen to twenty minutes later, Petitioner, Merced, and Tyrone also left the premises. Id. According to Merced, as she, Petitioner, and Tyrone left the apartment, they walked past Middleton, who was leaning against a mailbox, but continued walking around the corner and up to the Grand Concourse. Id. Kenneth, however, testified that the group did not pass Middleton without further incident. Id. According to Kenneth, while Middleton was near the mailbox, Petitioner punched him in the chest, "three, four, five times." Id. Kenneth could not confirm if Petitioner had anything in his hands at the time, nor did he observe any blood. Id. Kenneth did see Petitioner run around the corner, and he also saw Middleton walk across the street and eventually collapse. Id. Galloway testified that a few minutes after everyone left the apartment she opened the door to look outside and observed only Middleton leaning against the mailbox. Id. She then witnessed Middleton walk across the street and eventually collapse before he reached the opposite sidewalk. Id. By the time Galloway ran across the street to a pay phone to call for an ambulance, an ambulance had already arrived on the scene. Id.

  Police Officers Brian Larkin and Patrick Kenneally arrived on the scene after they received a call that a man had been stabbed. Id. at 4. Officer Larkin witnessed Middleton "bleeding [a]ll over his shirt" in the back of the ambulance. Id. According to Officer Larkin, he found no weapons when he searched the area, but Kenneth approached him and told him that Petitioner had stabbed Middleton. Id. An autopsy performed on June, 24, 1995 by Dr. Zoya Schmuter, a medical examiner with the Office of the Chief Medical Examiner in New York City, revealed that Middleton sustained five stab wounds to the left side of his chest. Id.

  On July 20, 1995, Petitioner telephoned Detective Joseph Nealon of the 52nd Police Precinct and asked to surrender to the authorities. Id. Detective Nealon and his partner picked up Petitioner at his mother's house, placed him under arrest, and drove him back to the police station. Id. After he was advised of his Miranda rights, Petitioner answered questions and made an oral statement that he later unsuccessfully moved to suppress at trial. Id. at 5. According to Detective Nealon, Petitioner stated that he and Middleton "punched" one another while Middleton was standing by the mailbox. Id. Petitioner maintained that he dropped Merced off at the Grand Concourse after the incident and then went to his mother's residence. Id.

  A. Petitioner's State Court Proceedings

  Petitioner waived his right to a jury trial, and retained counsel to represent him during the bench trial held from July 14, 1997 through July 23, 1997. Id. Connie Merced was the only witness to testify on behalf of the defense. The court found Petitioner guilty of murder in the second degree and criminal possession of a weapon in the fourth degree and sentenced him to concurrent prison terms of 15 years to life for the second degree murder conviction and one year for criminal possession of a weapon in the fourth degree. Id.

  On direct appeal, Petitioner asserted that the evidence presented at trial was legally insufficient to support the conviction for second degree murder and that the conviction was against the weight of the evidence. Id. at 6. On October 24, 2000, the Appellate Division, First Department, unanimously affirmed Petitioner's conviction. People v. Wade, 276 A.D.2d 406 (1st Dep't 2000). The Appellate Division ruled that the verdict "was based on legally sufficient evidence and was not against the weight of the evidence," and that "[t]here is no basis upon which to disturb the court's determinations concerning credibility." Id. at 406. In letters dated January 26, 2001 and February 7, 2001, Petitioner sought leave to appeal the affirmance of his conviction to the New York Court of Appeals. Report at 6. On March 13, 2001, leave to appeal to the Court of Appeals was denied. People v. Wade, 96 N.Y.2d 788, 788 (2001). On February 20, 2002, Petitioner moved the Appellate Division for a writ of error coram nobis. Report at 7. Petitioner's motion asserted that he was denied the right to a direct appeal because the State had misled and deceived the Appellate Division through deliberate and continuous misrepresentations of material facts. Id. Petitioner further alleged that his appellate counsel was ineffective for "failing to apprise the court" of the State's alleged misrepresentations. Id. By Order dated August 15, 2002, the Appellate Division denied Petitioner's coram nobis petition. People v. Wade, 297 A.D.2d 468, 468 (1st Dep't 2002).

  B. Petitioner's Habeas Corpus Petition

  Petitioner challenges his conviction on the grounds that (1) he was denied the right to appeal; (2) he was denied effective assistance of appellate counsel; (3) the evidence was insufficient to sustain his conviction; and (4) his conviction was against the weight of the evidence. Report at 1. The State argues that the petition should be dismissed because Petitioner's claims are either not cognizable on habeas review, or the state court's determinations were neither contrary to, nor unreasonable applications of, federal law. Id. at 2. In his objections to the Report, Petitioner objects to Magistrate Judge Freeman's finding that he was not denied the right of appeal and that his appellate counsel's representation did not meet the threshold for ineffective assistance under the Sixth Amendment. Objections at 1.

  II. DISCUSSION

  A. Standard of Review

  The court reviews de novo all portions of the magistrate's report to which there are objections. 28 U.S.C. § 636(b)(1)(C)(2000). Section 2254 of title 28, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court 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 —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) 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)(1)-(2).

  A state court decision is barred from habeas review when it has been adjudicated on the merits in state court, with res judicata effect, and is neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court. Medellin v. Dretke, 125 S.Ct. 2088, 2091 (2005) (citing 28 U.S.C. § 2254(d)(1)). It is the state court's ultimate decision, and not its reasoning, which determines whether the decision is on the merits. Sellen v. Kuhlman, 261 F.3d 303, 311-12 (2d Cir. 2001). Therefore, "even if the state court does not explicitly refer to either the federal claim or to relevant federal case law," the deferential review standard applies." Id. at 312; see also Bell v. Cone, 125 S.Ct. 847, 85 (2005) ("Federal courts are not free to presume that a state court did not comply with constitutional dictates on the basis of nothing more than a citation."); Early v. Packer, 537 U.S. 3, 8 (2002) (holding that a state court is not required to cite Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, "so long as neither the reasoning nor the result of the state court decision contradicts them.").

  B. Petitioner's Coram Nobis Petition was Rejected on the Merits

  Petitioner argues that the AEDPA's deferential standard of review should not apply his habeas petition because the Appellate Division did not reject his coram nobis petition on the merits. A state court does not need to explain its reasoning, or provide an "explanation of its rejection" to render a decision "on the merits." Sellan, 261 F.3d at 311-12. The Appellate Division did not state its rationale for rejecting Petitioner's coram nobis petition, it simply held that "said application is denied in its entirety." The court did, however, support its denial with a cite to People v. De La Hoz, 131 A.D.2d 154, 158 (1st Dep't 1987), in which the First Department rejected an ineffective assistance of appellate counsel challenge on the merits. When a state court considers and rejects a petition, it is considered a decision "on the merits" for purposes of 28 U.S.C. § 2254. Jones v. Spitzer, No. 01 Civ. 9754 (HB), 2005 WL 167605 at *6 (S.D.N.Y. Jan. 25, 2005) (concluding that the First Department's ruling that the remaining challenges set out in the petitioner's pro se appellate brief were "considered and rejected" represented a "decision on the merits") (quoting People v. Jones, 722 N.Y.S. 2d 138, 139 (1st Dep't 2001)). Accordingly, because there is no indication that the Petitioner's claim was rejected on non-substantive grounds, Petitioner's instant habeas claims are subject to the AEDPA's deferential standard of review.

  C. Petitioner Was Not Denied the Right to Appeal

  Petitioner alleges that he was denied a meaningful right to appeal because the State's brief relied on "misleading material facts and statements." Objections at 2. Petitioner also claims that the State made "statements and conclusions that were not part of the trial record." Id. at 3. Petitioner does not offer any specific demonstration that the State prejudiced his case by making misleading statements or by relying on statements that were not part of the trial record.

  In conducting habeas review, "a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991) (re-emphasizing "that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). The Petitioner must establish that the allegedly misleading statements the State relied upon in its brief violated an identifiable constitutional right and that the constitutional violation actually deprived him of a fundamentally fair trial. See Brecht v. Abrahamson, 507 U.S. 619, 638 (1993) (holding that even a constitutional error does not require the granting of a habeas petition unless the error had a "substantial and injurious effect or influence" on the verdict). Petitioner's allegations that the State influenced the outcome of his case through its misleading statements and use of information outside of the trial record, liberally construed, represent a due process claim. See, e.g., Middlebrooks v. United States, 500 F.2d 1355, 1358 (5th Cir. 1974) (stating in § 2255 decision that "[i]f it were true that . . . inaccuracies affected this Court's determinations of the legal issues raised on that appeal, the defendant would have been denied due process in pursuing the appeal he was guaranteed as a matter of right") (citing Coppedge v. United States, 369 U.S. 438 (1961)).

  Petitioner claims that "[t]he record does not support the fact that Kenneth and Galloway witnessed the stabbing, nor did the medical [sic] or police linked [sic] petitioner to the crime, yet the State misled the Court in asserting that they did witnessed [sic] the stabbing . . ." Objections at 3. He further asserts that, during appellate review, "even if the state was permitted to draw inferences from the testimony of all witnesses, the State should only have drawn inference [sic] from what was stated on [sic] the trial record and not bolster [sic] and make up their own testimony. . . ." Id.

  A prosecutor is entitled to "marshal all of the inferences which the evidence supported." See United States v. Wilner, 523 F.2d 68, 73 (2d Cir. 1975). Contrary to Petitioner's assertions, there is no evidence that the State fabricated testimony or made impermissible suggestions regarding the evidence. The trial record in this case supported the inference that Kenneth witnessed the crime. Report at 13-14. The trial court, as fact finder, was permitted to credit Kenneth's testimony, and to draw inferences from his testimony. The Appellate Division was presented with all of the transcript citations relevant to both Galloway and Kenneth's testimony, and the Petitioner was able to fully brief his version of the facts on appeal. Id. at 15. Petitioner's due process claim is meritless because there is no evidence that the Appellate Division was ever misled by the State, or that the court consequently failed to address the proper issues on appeal. Petitioner's case was not prejudiced by the State, therefore his claim is without merit. See Blount v. Keane, No. 91 Civ. 1005 (CPS), 1992 WL 210982, at *12-13 (E.D.N.Y. Aug 6, 1992) (holding habeas petitioner's denial of right to appeal claim was meritless where petitioner was unable to show any prejudice from prosecution's alleged failure to produce trial exhibits for the appellate record).

  C. Petitioner's Ineffective Counsel Claim is Meritless

  Petitioner asserts that his appellate counsel failed to bring to the court's attention the alleged misrepresentations in the State's brief and, as a result, the court did not consider the issues being raised by Petitioner. Objections at 4. To succeed on a Sixth Amendment ineffective assistance of counsel claim, Petitioner must be able to show that his counsel's performance fell below an objective standard of reasonableness, and that there was reasonable a possibility that, but for counsel's errors, the result of the case would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). There is a strong presumption that counsel's performance was within the wide range of reasonable professional assistance. See Dunham v. Travis, 313 F. 3d 724, 730 (2d Cir. 2002) (affording counsel a presumption of competence). "A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." Strickland, 466 U.S. at 689. Finally, "there 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." Id. at 697. As discussed above, there is no evidence that the State "misrepresented" the facts of the case beyond its responsibility to suggest all reasonable inferences from the evidence it presented. Further, Petitioner's appellate reply brief did question the State's characterization of numerous facts, including virtually all of the statements challenged by Petitioner as misleading. See Report at 19 (detailing factual disputes raised in Petitioner's reply brief). That Petitioner's counsel's strategy was not successful does not create a constitutional violation. See Elgabrowny v. United States, No. 01 Civ. 162 (MBM), 2003 WL 22416167, at *7 (stating that "decisions as to which arguments to stress, which witnesses to call, which motions to make, and which lines of inquiry to pursue, fall squarely within the ambit of trial strategy and, if reasonably made, cannot support an ineffective assistance claim") (quoting United States v. Smith, 198 F. 3d 377, 386 (2d Cir. 1999)). Accordingly, Petitioner does not have a claim for ineffective assistance of counsel.

  III. CONCLUSION

  For the foregoing reasons, Petitioner's 28 U.S.C. § 2254 petition is DENIED. As Petitioner has not made "a substantial showing of the denial of a constitutional right," a certificate of appealability will not issue, 28 U.S.C. § 2253(c).

  So Ordered.

20050808

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