United States District Court, S.D. New York
August 19, 2005.
PATRICK VAUGHN, Petitioner,
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.
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 §§
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.
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.
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
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
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
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.
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.
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
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.
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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