United States District Court, S.D. New York
August 8, 2005.
AL WADE, Petitioner,
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.
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
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
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
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")
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
(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
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
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.
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).
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