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VAUGHN v. GIAMBRUNO

United States District Court, S.D. New York


August 19, 2005.

PATRICK VAUGHN, Petitioner,
v.
MICHAEL GIAMBRUNO, Respondent.

The opinion of the court was delivered by: WILLIAM PAULEY, District Judge

MEMORANDUM AND ORDER

Petitioner Patrick Vaughn filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking an Order vacating his conviction for criminal sale of a controlled substance in the third degree in the Supreme Court of the State of New York, New York County. On July 12, 2005, Magistrate Judge Theodore H. Katz issued the annexed report and recommendation recommending that this petition be denied in its entirety. This Court conducted a de novo review of petitioner's objections and the full record herein. After a complete review, this Court finds the objections to be without merit. Accordingly, it is

ORDERED that this Court adopts the well-reasoned report of Magistrate Judge Theodore H. Katz, dated July 12, 2005, recommending that this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied. It is

  FURTHER ORDERED that this petition for a writ of habeas corpus is denied in its entirety. It is

  FURTHER ORDERED that because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c), as amended by the Antiterrorism and Effective Death Penalty Act of 1996. In addition, this Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).

  The Clerk is directed to close this case.

  SO ORDERED. REPORT AND RECOMMENDATION

  TO: HON. WILLIAM H. PAULEY, United States District Judge. FROM: THEODORE H. KATZ, United States Magistrate Judge.

  This habeas corpus proceeding was referred to this Court for a Report and Recommendation, pursuant to 28 U.S.C. § 636 (b) (1) (B) and (C) and Rule 72.1 (a) of the Local Civil Rules of the Southern District of New York.

  Petitioner Patrick Vaughn*fn1 ("Petitioner") was convicted in New York Supreme Court, New York County, of Criminal Sale of a Controlled Substance in the Third Degree (New York Penal Law § 220.39(1)), and was sentenced to an indeterminate prison term of three to nine years. Petitioner is presently incarcerated at Attica Correctional Facility in Attica, New York.

  Petitioner seeks habeas relief under 28 U.S.C. § 2254, claiming that (1) his sentence is unduly harsh and should be reduced in the interest of justice; (2) he was denied due process of law because of a fourteen-month delay between his indictment and trial; (3) he was denied effective assistance of trial counsel; and (4) he was denied due process of law when the trial court failed to give the jury an "agency" charge. Respondent contends that Petitioner's harsh sentence claim is not cognizable on federal habeas review; Petitioner's claim of ineffective assistance of trial counsel is without merit; and Petitioner's due process claims are procedurally barred and without merit.

  For the reasons that follow, this Court concludes that Petitioner is not entitled to habeas relief and respectfully recommends that the Petition be dismissed with prejudice.

  BACKGROUND

  Petitioner was charged with Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Third Degree (New York Penal Law §§ 220.39, 220.16).

  I. Evidence Adduced At Trial

  In the early morning of August 18, 1998, Detective John DiMare ("DiMare") approached Petitioner on the corner of 41st Street and Eighth Avenue in midtown Manhattan. (See Trial Transcript, dated October 26, 1999 ("Tr."), at 38-39.) DiMare was working on an undercover "buy and bust"*fn2 operation and had altered his appearance to resemble that of a drug user.*fn3 He asked Petitioner if "anybody [was] out." (Id. at 51.) Petitioner responded by asking "what are you looking for, rock?" (Id. at 52.) DiMare responded that he wanted "dimes," meaning ten dollar bags of crack cocaine. (Id. at 53.) Petitioner and DiMare then walked south on Eighth Avenue. (See id. at 96.)

  Petitioner and DiMare arrived at the corner of 39th street and Eighth Avenue where three men were waiting, later identified as Matthew Singleton, Christopher Ethridge, and Calvin Washington.*fn4 (See id. at 14.) Petitioner and Singleton spoke for a moment, and then Singleton handed Petitioner two clear bags with chocolate chip markings containing crack cocaine. (See id. at 59, 67.) Petitioner handed the bags to DiMare, who gave Petitioner twenty dollars in pre-recorded buy money. Petitioner handed the money to Ethridge, who in turn handed it to Singleton. (See id. at 56.)

  DiMare made a non-verbal signal to the "buy and bust" team that he had made a purchase, and then left the area. Petitioner also left the area, walking north on Eighth Avenue. Once out of sight, DiMare radioed Detective Alvarez ("Alvarez"), another member of the "buy and bust" team, giving him a description and location of the four suspects. Alvarez arrested Singleton, Ethridge, and Washington at the corner of 39th Street and Eighth Avenue where the transaction occurred. Petitioner had walked a block away by this time, and was arrested on the corner of 40th Street and Eighth Avenue. (See id. at 59-63, 155.)

  A plastic bag containing a small amount of crack cocaine was found on Petitioner, but the bag lacked the distinctive chocolate chip markings found on the bags purchased by DiMare. (See id. at 160.) Police found no money on Petitioner. (See id. at 166.) Six bags containing crack cocaine were found on Singleton, along with $298 in cash, including the $20 of pre-recorded buy money DiMare used to pay for the drugs. $157 in cash was found on Ethridge. (See id. at 163-66.)

  Petitioner did not testify or present witnesses in his defense. On October 26, 1999, the jury found Petitioner guilty on the controlled substance sales count, but acquitted on the possession count. On November 15, 1999, Petitioner was sentenced to an indeterminate prison terms of three to nine years. (See Sentencing Transcript, dated November 15, 1999, at 8.)

  II. Post-Trial Proceedings

  Petitioner, represented by counsel, appealed his conviction, arguing that (1) his due process right to a fair trial was violated by the trial court's failure to give the jury an "agency" charge; and (2) his sentence was unduly harsh given certain mitigating factors. Additionally, Petitioner argued in a pro se brief that (3) he should not have been convicted on the sales count because he was acting as an agent of the buyer; (4) his due process rights were violated because he did not receive a speedy trial; and (5) he received ineffective assistance of counsel at trial.

  On December 12, 2002, the Appellate Division, First Department, unanimously affirmed Petitioner's conviction and sentence, finding that: (1) Petitioner failed to preserve his claim regarding an "agency" charge, and, were the court to review the claim, it would be found without merit as "there was no reasonable view of the evidence that [Petitioner] agreed to participate in this crime only because he wished to serve as an agent for the buyer;" (2) trial counsel was not ineffective; (3) the "speedy trial" claim was unreviewable because Petitioner failed to provide an adequate record on appeal, but from the record presented, no constitutional violations were evident; and (4) there was no basis for reducing Petitioner's sentence. The remaining claims were rejected without further explanation. People v. Vaughan, 300 A.D.2d 104, 750 N.Y.S.2d 846 (1st Dept. 2002).

  Still represented by counsel, Petitioner sought leave to appeal to the New York Court of Appeals. (See Petitioner's Request for Leave to Appeal, dated January 7, 2003.) Leave was denied on March 4, 2003. See People v. Vaughan, 99 N.Y.2d 633, 760 N.Y.S.2d 115 (2003). Petitioner then filed the instant habeas Petition pro se.

  DISCUSSION

  I. Standard of Review

  Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a state court conviction "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," 28 U.S.C. § 2254 (d) (1), or if it "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) (2).

  A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S. Ct. 1495, 1523 (2000); accord Leslie v. Artuz, 230 F.3d 25, 32 (2d Cir. 2000); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state court decision. See Williams, 529 U.S. at 412, 120 S. Ct. at 1523; Leslie, 230 F.3d at 32.

  A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413, 120 S. Ct. at 1523. The inquiry for a federal habeas court is not whether the state court's application of the governing law was erroneous or incorrect, but, rather, whether it was "objectively unreasonable." See id. at 408-10, 120 S. Ct. at 1521-22; see also Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001) ("[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently. The state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable."); Lurie v. Wittner, 228 F.3d 113, 128-29 (2d Cir. 2000) (same).

  Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254 (e) (1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir.) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility.") cert. denied sub nom Parsad v. Fischer, 540 U.S. 1091, 124 S. Ct. 962 (2003). A state court's findings of fact "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041 (2003).

  II. Sentence Claim

  Petitioner contends that the trial court's imposition of an indeterminate sentence of three to nine years was "excessive," taking into account the small amount of drugs involved and Petitioner's "minimal" criminal record, "psychiatric history," and family ties. (Pet'r App. Br. at 15-17). Petitioner raised this claim on his direct appeal and his request for leave to appeal to the Court of Appeals, so the claim has been exhausted at the state level. However, it is not a federally cognizable claim on which Petitioner can secure habeas relief.

  It is well-established that, as a general matter, no cognizable federal claim exists when a sentencing judge imposes a sentence that falls within the appropriate range under state law. See Hutto v. Davis, 454 U.S. 370, 383, 102 S. Ct. 703, 710 (1982); Rummel v. Estelle, 445 U.S. 263, 274, 100 S. Ct. 1133, 1139 (1980); Dorsey v. Irvin, 56 F.3d 425, 427 (2d Cir. 1995); White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam). The Supreme Court has held that "for crimes . . . classified as felonies, . . . the length of the sentence actually imposed is purely a matter of legislative prerogative." Rummel, 445 U.S. at 274, 100 S. Ct. at 1139. Petitioner's indeterminate sentence of three to nine years' imprisonment was within the range established by New York law, which, at the time of Petitioner's sentencing, provided for sentences ranging from one to twenty-five years for class B felonies, including Criminal Sale of a Controlled Substance in the Third Degree. See N.Y. Penal Law § 70.00(1), (2) (b), (3) (b) (McKinney 1999). Therefore, Petitioner's claim is not subject to federal habeas review.

  III. Speedy Trial Claim

  Petitioner claims his due process and Sixth Amendment rights were violated when he was denied the right to a speedy trial. (See Petitioner's Habeas Corpus Supplemental Brief ("Pet'r Supp. Br.") at 11.) Petitioner contends that the fourteen-month delay between his indictment and trial prevented him from calling favorable defense witnesses, who left the country during the period of delay. (See id. at 13.) Respondent argues that this claim is procedurally barred and is otherwise without merit. The Court agrees. A state court adjudication that rests upon an adequate and independent state procedural ground will bar federal habeas review of the issue. See Lee v. Kemma, 534 U.S. 362, 375, 122 S. Ct. 877, 885 (2002); Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553-54 (1991). The Appellate Division concluded that Petitioner failed to provide a record sufficient for review of his trial delay claim, see Vaughan, 300 A.D.2d at 105, 750 N.Y.S.2d at 847, and this is an adequate and independent state procedural ground which bars review of Petitioner's claim. See Bodie v. Edwards, No. 97 Civ. 7821, 2005 WL 914381, at **3-4 (S.D.N.Y. Apr. 20, 2005); cf. Panezo v. Portuondo, No. 02 Civ. 1522 (JBW), 2003 WL 23198781, at **16-17 (E.D.N.Y. Nov. 6, 2003) (Appellate Division's holding that habeas petitioner's "right to be present at trial" claim was unreviewable because of an insufficient record on appeal procedurally barred federal habeas review).

  Because Petitioner's speedy trial claim is procedurally barred, this Court cannot hear the claim unless Petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S. Ct. at 2565; accord Dretke v. Haley, 541 U.S. 386, 392-93, 124 S. Ct. 1847, 1852 (2004); Edwards v. Carpenter, 529 U.S. 446, 451, 120 S. Ct. 1587, 1591 (2000); Dixon v. Miller, 293 F.3d 74, 80-81 (2d Cir. 2002); Ramirez v. Att'y Gen., 280 F.3d 87, 94 (2d Cir. 2001); Reyes v. Keane, 118 F.3d 136, 138 (2d Cir. 1997). "[T]he cause standard requires the petitioner to show that `some objective factor external to the defense impeded counsel's efforts' to raise the claim in state court." McClesky v. Zant, 499 U.S. 467, 493, 111 S. Ct. 1454, 1470 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645 (1986)); accord Bloomer v. United States, 162 F.3d 187, 191 (2d Cir. 1998). In this case, Petitioner fails to meet the Coleman standard, as he has shown no cause for presenting an inadequate record to the Appellate Division. Where a "petitioner has failed to establish `cause,' in other words why he did not raise these claims at the appropriate time and in the appropriate forum, it is unnecessary to make an inquiry into the question of `prejudice.'" Bentley v. Scully, 851 F. Supp. 586, 604 (S.D.N.Y.), vacated on other grounds, 41 F.3d 818 (2d Cir. 1994); accord Engle v. Isaac, 456 U.S. 107, 134 n. 43, 102 S. Ct. 1558, 1575 (1982); Richter v. Artuz, 77 F. Supp. 2d 385, 395 (S.D.N.Y. 1998) (Report and Recommendation, adopted on Nov. 18, 1999); Meachem v. Keane, 899 F. Supp. 1130, 1139 (S.D.N.Y. 1995) (Report and Recommendation, adopted on Sept. 13, 1995).

  Although an exception to the cause and prejudice requirement may be made if necessary to avoid a fundamental miscarriage of justice, see Murray, 477 U.S. at 495-96, 106 S. Ct. at 2649, there is nothing in the record to suggest that such exceptional circumstances can be demonstrated here. A fundamental miscarriage of justice occurs only in the extraordinary case "where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Dixon, 293 F.3d at 81 (quoting Murray, 477 U.S. at 496, 106 S. Ct. at 2649). "To establish actual innocence, [a] petitioner must demonstrate that in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Id. (quoting Bousley v. United States, 523 U.S. 614, 623, 118 S. Ct. 1604, 1611 (1998)) (internal quotation marks omitted).

  Petitioner's trial delay claim does not implicate actual innocence, nor does Petitioner offer any new evidence of innocence. Without offering new evidence, this Court cannot find that a miscarriage of justice occurred without "asserting that none of the jurors acted reasonably." Lucidore v. N.Y. State Div. of Parole, No. 99 Civ. 2936 (AJP), 1999 WL 566362, at *8 (S.D.N.Y. Aug. 3, 1999), aff'd, 209 F.3d 107 (2d Cir. 2000); see also Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) ("[Petitioner] presented no new evidence of his innocence and did not make the necessary showing required . . . to bypass the procedural bars."). Because Petitioner cannot demonstrate that a miscarriage of justice will result if his claim is not heard, his claim is barred from further review.

  Moreover, even if Petitioner's speedy trial claim were not procedurally barred, it clearly would not merit habeas relief. A constitutional speedy trial analysis employs a balancing test comprised of four factors: "(i) the length of the delay; (ii) the reason for the delay; (iii) the defendant's assertion of his right; and (iv) the prejudice to the defendant resulting from the delay." Delvalle v. Sabourin, No. 00 Civ. 3302 (HB) (FM), 2002 WL 1000968, at *4 (S.D.N.Y. May 16, 2002) (quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972)); see also Doggett v. United States, 505 U.S. 647, 651, 112 S. Ct. 2686, 2690 (1992) (discussing the Barker factors and their application). In Barker, the Court also noted that "[t]he length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Barker, 407 U.S. at 530, 92 S. Ct. at 2192; accord Rayborn v. Scully, 858 F.2d 84, 89 (2d Cir. 1988); Howard v. Lacy, 58 F. Supp. 2d 157, 166-67 (S.D.N.Y. 1999) ("To determine whether a defendant's Sixth Amendment right to a speedy trial has been violated, the court must engage in a two-step inquiry. First, the court must determine whether the interval between the indictment and trial is `presumptively prejudicial.' Second, the court must employ the Barker v. Wingo balancing test. . . .") (quoting United States v. Teyibo, 877 F. Supp. 846, 858 (S.D.N.Y. 1995)).

  Even assuming that the totality of the delay before Petitioner's trial was attributable to the prosecution, the roughly fourteen months that Petitioner awaited trial does not come close to triggering a presumption of excessive delay. Cf. Barker, 407 U.S. at 533-34, 92 S. Ct. at 2193-94 (no violation despite delay of over 5 years); United States v. Vasquez, 918 F.2d 329, 338 (2d Cir. 1990) ("The [twenty-six month] delay here was less extensive than that tolerated in other cases."); Rayborn, 858 F.2d at 89 (over seven years); United States v. McGrath, 622 F.2d 36, 41 (2d Cir. 1980) (twenty-four months); United States v. Lane, 561 F.2d 1075, 1078 (2d Cir. 1977) ("The delay here was quite lengthy — approximately 58 months or just under five years — but nevertheless was shorter than that in other cases in which no Sixth Amendment violation has been found."); United States v. Infanti, 474 F.2d 522, 527 (2d Cir. 1973) ("[T]he length of time from arrest to indictment was 21 months and from arrest to trial 28 months, neither extraordinary."); Teyibo, 877 F. Supp. at 858-59 ("[A]n eighteen-month delay is considerably shorter than the delays in other cases in which courts have found no Sixth Amendment violation."); Howard, 58 F. Supp. 2d at 167 (nineteen months); Holmes v. Bartlett, 810 F. Supp. 550, 562 (S.D.N.Y. 1993) ("In this case, the length of delay, eighteen months, was considerably shorter than the delays in other cases where courts found no Sixth Amendment violation.").

  Even if the delay were found to be presumptively excessive, the Barker factors weigh against Petitioner. As discussed, the fourteen-month delay between Petitioner's indictment and trial was "considerably shorter" than the delays in numerous cases where the Second Circuit has denied speedy trial claims. Thus, the length of delay does not weigh in Petitioner's favor.

  Furthermore, Petitioner himself was responsible for part of the delay. Prior to trial, Petitioner moved for dismissal of the indictment on speedy trial grounds, see N.Y. Crim. Proc. Law 30.30 (1) (a), or release from custody, see N.Y. Crim. Proc. Law 30.30 (2) (a). (See Declaration in Opposition to Petition for a Writ of Habeas Corpus, Ex. A at 1-11.) The New York Supreme Court found that of the 184-day delay Petitioner complained of, the People were responsible for 131 days, while Petitioner was responsible for the remaining fifty-three days. (See Decision and Order, dated April 28, 1999, Ex. A at 22.) The court found that a roughly four-week delay was caused by Petitioner's successive firing of two court-appointed attorneys. (See id. at 23.) A further one-week delay was caused by defense counsel's conflicting trial schedule. (See id.) Petitioner's motion to dismiss was therefore denied, and the motion for release was granted. (See id. at 24.) Furthermore, there is no evidence that the prosecution intentionally caused the delay complained of, or used the delay to disadvantage Petitioner. See Flowers v. Warden, 853 F.2d 131, 134 (2d Cir. 1988) (no speedy trial violation where, among other things, no evidence that prosecution was guilty of "deliberate procrastination" or "negligent inaction," or that delay was an attempt to gain "tactical advantage"). Thus, the reasons for the delay do not weigh in Petitioner's favor.

  Because there is no dispute that Petitioner asserted his right to a speedy trial, the third Barker factor clearly weighs in his favor. (See Respondent's Brief at 20.) However, Petitioner has not established the he suffered any prejudice as a result of the delay, other than his conclusory assertion of harm. Petitioner presents no evidence indicating who the witnesses were who left the country, what testimony they would have offered, or how it would have benefitted Petitioner. Thus, the prejudice factor, as well, weighs against Petitioner.

  Viewed collectively, the Barker factors do not come close to establishing a due process or Sixth Amendment violation. Because Petitioner's delay claim is both procedurally barred and meritless, it should be dismissed.

  IV. Ineffective Assistance of Counsel Claim

  Petitioner claims that his counsels'*fn5 assistance at trial was ineffective because all three of his court appointed attorneys were "discouraging towards [Petitioner's] case" and "did nothing but try to convince [Petitioner] not to go to trial."*fn6 (Pet'r Supp. Br. at 15.) Petitioner further claims that his counsel was ineffective for failing to request or object to the absence of an "agency" jury charge. (See Pet. App. Br. at 11; Petitioner's Memorandum in Support of Appeal, dated Dec. 4, 2003, ("Pet'r App. Mem.") at 2-3.) Respondent argues that Petitioner's representation was effective and that the claim is otherwise without merit. The Court agrees.

  Ineffective assistance of counsel claims are "squarely governed by the Supreme Court's holding in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)." Williams, 529 U.S. at 390, 120 S. Ct. at 1511; accord Eze v. Senkowski, 321 F.3d 110, 124 (2d Cir., 2003). In order to prevail on a claim of ineffective assistance of counsel, a petitioner must satisfy a two-part test. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064-65; Lanfranco v. Murray, 313 F.3d 112, 118 (2d Cir. 2002).

  First, a petitioner must establish that his attorney's performance was so deficient that it "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. It is well-settled that "[a]ctions or omissions [by counsel] that might be considered sound trial strategy do not constitute ineffective assistance." United States v. Best, 219 F.3d 192, 201 (2d Cir. 2001) (internal quotation marks and citations omitted); see also United States v. Bayless, 201 F.3d 116, 130-31 (2d Cir. 2000). 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); accord Pavel v. Hollins, 261 F.3d 210, 218 (2001). A court may not use hindsight to second guess counsel's tactical choices, see Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Cox, 387 F.3d at 198, "simply because the chosen strategy has failed." United States v. Helgesen, 669 F.2d 69, 72 (2d Cir. 1982); accord United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987). In applying this first prong of the Strickland test, a court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (citation and internal quotation marks omitted). "The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight." Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 6 (2003) (per curiam).

  To satisfy the second part of the Strickland test, a habeas petitioner must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. "Reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome" of the trial. Id. "The level of prejudice that [a petitioner] need demonstrate lies between prejudice that had some conceivable effect and prejudice that more likely than not altered the outcome in the case." Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir. 2001) (internal quotation marks omitted). Counsel's errors must be considered in the "aggregate," in order to determine their cumulative effect. See id. at 199 (citing Strickland, 466 U.S. at 695-96, 104 S. Ct. at 2069). "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Strickland, 466 U.S. at 700, 104 S. Ct. 2071.

  Finally, "[f]or [Petitioner] to succeed . . ., he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254 (d) (1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. Rather, he must show that [the court] applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v. Cone, 535 U.S. 685, 698-99, 122 S. Ct. 1843, 1852 (2002).

  The Appellate Division found that Petitioner's "counsel was not ineffective" and that "the record established that [Petitioner] received meaningful representation." Vaughan, 300 A.D.2d at 104, 750 N.Y.S.2d at 846. The Appellate Division's application of Strickland was not unreasonable. Petitioner asserts a general disagreement with his attorney over Petitioner's chances at trial and whether he should have taken a plea deal. (See Pet. App. Mem. at 2-3.) Such a disagreement does not render counsel ineffective. Ultimately, counsel acceded to Petitioner's wishes and proceeded to trial.

  Furthermore, there is no indication of ineffective assistance during Petitioner's trial. Petitioner challenges defense counsel's failure to seek an "agency" charge. Defense counsel's failure to request such a charge did not render his assistance constitutionally ineffective, because the charge was unsupported by the evidence. Under New York law, an agency charge is warranted only when "some reasonable view of the evidence supports the theory that defendant was acting only on behalf of the buyer." People v. Herring, 83 N.Y.2d 780, 782, 610 N.Y.S.2d 949, 950 (1994). "[T]he evidence must be indicative of a relationship with the buyer and not merely raise ambiguities about the defendant's connection to the seller." Id. at 783, 610 N.Y.S.2d at 950; accord Williams v. McCoy, No. 00 Civ. 6683 (MBM), 2002 WL 31415696, at *2 (S.D.N.Y. Oct. 28, 2002); Thomas v. Garvin, No. 97 Civ. 1136 (MGC), 2001 WL 1131992, at *3 (S.D.N.Y. Sept. 21, 2001).

  In the instant case, as in Herring, which has strikingly similar facts, there was no evidence of a relationship between Petitioner and the buyer, or indication that Petitioner was acting solely on the buyer's behalf. On the contrary, as the Appellate Division found, Petitioner's actions indicated a relationship with Singleton, Ethridge, and Washington. Petitioner brought DiMare to them to buy drugs, and he alone spoke to Singleton. (See Tr. at 59.) Petitioner handed DiMare's money to Ethridge, received the drugs from Singleton, and handed them to DiMare. (See id. at 56, 67.) As the New York Court of Appeals observed, the fact that a defendant does not receive consideration for the transaction, or does not solicit the transaction, does not itself raise an issue of agency. Because there was no evidence of a relationship between Petitioner and the buyer, or evidence that Petitioner agreed to participate in the crime "only because he wished to serve as an agent of the buyer, a complete stranger," Herring, 83 N.Y.2d at 782, 610 N.Y.S.2d at 949, there is no reasonable view of the evidence that would have supported an agency charge. Accordingly, Petitioner's agency claim clearly is meritless, and counsel was not ineffective for failing to request a jury charge unsupported by the evidence. See Williams, 2002 WL 31415696, at *3 (on similar facts, counsel was not ineffective for failing to request an agency jury charge unsupported by the evidence).

  The Court has reviewed the trial record and perceives no unprofessional failures on defense counsel's part. Defense counsel engaged in lengthy cross and re-cross examinations of both prosecution witnesses (see Tr. at 75, 133, 184, 239, 242); noticed a juror taking notes and asked the court to give an appropriate instruction (see id. at 139); made several timely objections sustained by the court (See id. at 157); and argued vigorously for a favorable jury charge. (See id. at 257-68.) Petitioner's claim that his counsel was constitutionally ineffective is without merit and should be dismissed.

  V. Agency Charge Claim

  Petitioner argues that he was denied due process when the trial court failed to give the jury an agency charge. Petitioner asserts that he was only helping DiMare, who Petitioner thought was a drug user, purchase drugs, and that he did not benefit in any way from the transaction. (See Pet'r Supp. Br. at 2-3.) Because he was acting solely on behalf of the purchaser, Petitioner asserts that he could not be guilty of a criminal sale. Respondent argues that Petitioner's claim is procedurally barred and is otherwise without merit.

  Because the Appellate Division held that Petitioner's claim was unpreserved, the claim is procedurally barred and cannot serve as grounds for habeas relief. Under New York law, an alleged error at trial is preserved for appellate review where "a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same." N.Y. Crim. Proc. Law § 470.05(2). This rule "require[s], at the very least, that any matter which a party wishes the appellate court to decide have been brought to the attention of the trial court at a time and in a way that gave the latter the opportunity to remedy the problem and thereby avert reversible error." People v. Luperon, 85 N.Y.2d 71, 78, 623 N.Y.S.2d 735, 737-38 (1995).

  New York's codified contemporaneous objection rule is a procedural bar which qualifies as an independent and adequate state basis for denying a claim in a federal habeas corpus proceeding. See Garcia v. Lewis, 188 F.3d 71, 78-79 (2d Cir. 1999) (reaffirming the propriety of New York's contemporaneous objection rule, and recognizing that it may constitute an adequate and independent state procedural ground); Bossett v. Walker, 41 F.3d 825, 829 n. 2 (2d Cir. 1994) (supporting conclusion that where Petitioner failed to object to jury charge, his claim was procedurally barred) (citing N.Y. Crim. Proc. Law § 470.05(2)); Fernandez v. Leonardo, 931 F.2d 214, 216 (2d Cir. 1991) ("It is undisputed that [a petitioner's] failure to note [a contemporaneous] objection constituted procedural default under New York law.").

  At trial, Petitioner's counsel requested that the jury be given a "facilitation" charge. (See Tr. at 257.) The court and defense counsel proceeded to debate whether a "facilitation" charge was supported by the evidence, and in so doing, debated whether the evidence supported a view that Petitioner was merely "helping [DiMare] out." (Id. at 257-68.) The court eventually denied defense counsel's request, holding that the evidence could not reasonably be viewed as supporting any theory other than that Petitioner was an active participant in the sale of drugs. At no point did defense counsel request an "agency" charge or object to its omission. See Vaughan, 300 A.D.2d at 104-05, 750 N.Y.S.2d at 846-47. Represented by counsel on appeal, Petitioner argued that defense counsel's colloquy with the court about "helping [DiMare] out" related sufficiently to the theory of an agency defense that it preserved the issue for appeal. (See Pet'r App. Br. at 13-14.) While creative, Petitioner's argument did not sway the Appellate Division, which held that Petitioner failed to preserve the claim. See Vaughan, 300 A.D.2d at 104, 750 N.Y.S.2d at 847.

  Because the Appellate Division held that the claim was not preserved, this Court is barred from considering the claim unless Petitioner can meet the cause and prejudice standard, or establish that a fundamental miscarriage of justice would result if the Court does not consider his claim.*fn7 See supra, Section III. Construing Petitioner's brief liberally, Petitioner contends that ineffective assistance of counsel was the cause of his procedural default. (See Pet'r App. Br. at 11; Pet'r App. Mem. at 2-4.) In order to employ ineffective assistance as cause for a procedural default, the claim of ineffective assistance must itself be exhausted. See Edwards, 529 U.S. at 452, 120 S. Ct. at 1591 ("`[A] claim of ineffective assistance' . . . generally must `be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.'") (quoting Murray, 477 U.S. at 489, 106 S. Ct. at 2646). Since Petitioner made the same claim to the Appellate Division, and requested leave to appeal all claims to the Court of Appeals, the claim is exhausted. The Appellate Division decided the issue on the merits, holding that Petitioner's trial counsel "was not ineffective for failing to request an agency charge." Vaughan, 300 A.D.2d at 104, 750 N.Y.S.2d at 847. As discussed supra in Section IV, this Court agrees, and, therefore, counsel's actions do not serve as cause for Petitioner's defaulted claim. Furthermore, Petitioner does not offer any evidence in support of a claim of actual innocence, and thus fails to satisfy the miscarriage of justice exception for failing to preserve his claim. Because Petitioner's agency claim is procedurally defaulted and meritless, it should be dismissed.

  CONCLUSION

  For the reasons set forth above, this Court respectfully recommends that the Petition be dismissed with prejudice. Further, because Petitioner has not made a substantial showing of a denial of a federal right, this Court recommends that no certificate of appealability be issued. See 28 U.S.C. § 2253 (c) (2); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). This Court further recommends certification, pursuant to 28 U.S.C. § 1915 (a) (3), that any appeal from the Court's order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 445-46, 82 S. Ct. 917, 921 (1962).

  Pursuant to 28 U.S.C. § 636(b) (1) (C) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this report to file written objections. See also Fed.R.Civ.P. 6(a), (e). Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable William H. Pauley, United States District Judge, and to the chambers of the undersigned, Room 1660. Any requests for an extension of time for filing objections must be directed to Judge Pauley. Failure to file objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 155, 106 S. Ct. 466, 475 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam).

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