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United States District Court, S.D. New York

August 23, 2005.

BRAD McPHERSON, Petitioner,
CHALRES GREINER, Green Haven Correctional Facility, Respondent.

The opinion of the court was delivered by: DENISE COTE, District Judge


Pro se petitioner Brad McPherson ("McPherson") has applied for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate his conviction following trial on eight counts of criminal possession of stolen property. The petitioner alleges that (1) he was arrested and searched without probable cause; (2) evidence gathered during his arrest was improperly admitted at trial; (3) his sentence was excessive; (4) police altered or destroyed evidence and broke the chain of custody of certain evidence; (5) certain jurors were biased against him; (6) that one juror's seeing him in handcuffs during a recess constituted grounds for a mistrial; (7) the trial court should not have accepted a partial verdict; (8) his sentence enhancement violated Apprendi v. New Jersey, 530 U.S. 466 (2000); and (9) trial counsel rendered ineffective assistance by failing to raise certain arguments and through a failure to investigate.

  The petition was referred to Magistrate Judge Andrew J. Peck for a Report and Recommendation. On October 22, 2003, Judge Peck issued an initial Report and Recommendation ("Report I"), in which he recommended that all claims other than that based on Apprendi be denied. In a second Report and Recommendation issued December 2, 2003 ("Report II"), Judge Peck recommended that McPherson's sentence be vacated as a violation of Apprendi. Pursuant to a December 11, 2003 request from the Attorney General, this action was stayed pending decisions in three Second Circuit appeals, all of which involved claims that New York's persistent felony statute was unconstitutional under Apprendi. After the Second Circuit released its opinion in Brown v. Greiner, 409 F.3d 523 (2d Cir. 2005), which resolved two of the three above-referenced appeals, Judge Peck issued his third and final Report and Recommendation ("Report III") on June 7, 2005, reversing Report II and recommending that McPherson's Apprendi claim be denied. McPherson objects to Reports I and III. For the following reasons, Reports I and III are adopted and the petition is denied. BACKGROUND

  The relevant facts are set forth in Report I and summarized here. On January 16, 1997, three plainclothes officers approached McPherson near the intersection of 79th Street and Riverside Drive in Manhattan after noticing him pushing an expensive mountain bike with two large bags slung around his neck. The bike, as the self-described "bicycle buff" among the officers testified at trial, had two disconnected brake harnesses, rendering the bike inoperable. Upon questioning, McPherson could not identify the brand of the bike he was pushing. McPherson also told the officers that a "mountain bike pass" affixed to the bicycle had been purchased by his cousin two weeks earlier; upon inspection, however, the pass was found to be four months old. Moreover, when asked where he was coming from, McPherson claimed to be headed up to Columbia Presbyterian Hospital, located at 168th Street, from "875 Amsterdam Avenue," an address significantly north of 79th Street.

  One of the officers then asked McPherson if he would accompany them to 875 Amsterdam to verify his story. When the officers drove McPherson back to that address, he could neither identify the correct building nor recall the name of the building manager in order to gain reentry to the apartment. At that point, the officers arrested McPherson on suspicion of possession of stolen property. Among the "ton of property" the arresting officers found in the two bags McPherson was carrying were a laptop computer, jewelry, two passports, seven credit cards, and business cards. The officers also found thirty-three keys in the front pouch of the parka McPherson was wearing. Using the passports, keys, and business cards, the officers determined that the property had been stolen from a nearby apartment while its residents, Laura Dedomenicis ("Dedomenicis") and Scott Whitehouse ("Whitehouse"), were at work. At trial, Dedomenicis and Whitehouse testified that when they arrived at their apartment that afternoon after having been contacted by police, they noticed a number of their possessions were missing, including a mountain bike, jewelry, a laptop computer and printer, and credit cards.

  After McPherson's Miranda rights were read to him, he claimed that he had found the property and that the parka and the keys belonged to him. During their visit to the police station, however, Dedomenicis and Whitehouse identified all of the items seized as their own. In addition, when a police sergeant drove Dedomenicis and Whitehouse back to their home after their viewing of the property, the sergeant successfully used one of the keys seized from McPherson to open the top lock of their apartment.

  Pre-Trial and Trial Procedures

  McPherson was indicted for second degree burglary, third degree criminal possession of stolen property, seven counts of fourth degree criminal possession of stolen property, third degree grand larceny, and seven counts of fourth degree grand larceny. Prior to trial, McPherson's counsel moved to suppress the mountain bike, laptop computer, jewelry, and credit cards, as well as other personal items, collected during McPherson's arrest. The trial court denied this motion, reasoning that the officers had probable cause to arrest McPherson on the basis of his "increasingly implausible and patently untruthful answers" to the officers' "escalating levels of permissible inquiry."

  At trial, McPherson testified in his own defense, explaining that he was on sick leave from his job as a messenger on the day of his arrest and that he was planning on returning to a movie theater on 84th Street when he was approached by the officers. McPherson denied having possessed any of the property the officers seized from him and entering both the building and the apartment of the residents from whom the property was stolen. Instead, McPherson claimed that the officers had "planted all of the evidence on" him, surmising that the officers may have learned of his three prior burglary convictions when he gave them his identification during questioning. He also denied having told the police that he found the property they seized from him.

  On July 29, 1997, after more than a day of deliberations, the jury announced that it could only agree on eight counts and was at an impasse as to the remaining nine. The trial court explained to the jury the procedure for a partial verdict and then gave them further opportunity to deliberate, to which defense counsel did not object. When these extended deliberations proved ineffective, the jury requested that it be allowed to submit a partial verdict. At this point, McPherson's counsel did object, but the trial court overruled his objection on the ground that by "ask[ing] each juror whether he or she believes that further deliberations will be fruitful," he would be acting pursuant to N.Y.C.P.L. § 310.70 and proceeding appropriately.

  The jury then announced its verdict, convicting McPherson of one count of third degree criminal possession of stolen property and seven counts of fourth degree criminal possession of stolen property. The jury entered no verdict on the burglary charges. The trial court asked each juror individually whether he or she would be likely to reach a verdict on the burglary counts in a reasonable period of time. After each juror replied in the negative, the court accepted the partial verdict and declared a mistrial as to the remaining counts, overruling defense counsel's objections.


  On June 16, 1998, the trial court sentenced McPherson to fifteen years to life in prison, the minimum term under New York's persistent felony offender statute, N.Y. Penal Law § 70.10(2). The trial court approached sentencing in two parts. First, based on McPherson's prior convictions for second degree attempted burglary on February 24, 1986, and second degree burglary on April 4, 1990 and October 10, 1990, the trial court found that McPherson had the requisite two previous felony convictions to classify as a persistent felony offender. See id. at § 70.10(1). McPherson did not challenge the validity of these previous convictions. Second, the trial judge determined, pursuant to Section 70.10(2), that the "history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and lifetime supervision is required." As part of this second evaluation, the trial judge evaluated McPherson's criminal history, not only including the above-described felony convictions, but also listing his three-year probation as a youthful offender for criminal possession of stolen property; his three ninety-day sentences for misdemeanor convictions; and his nine month sentence for third degree assault. In addition, the trial judge recalled McPherson's two parole violations and noted that he was still on parole when the incident leading to the conviction at issue occurred and that he had been indicted for possessing a loaded, semi-automatic assault rifle at the time of his arrest.

  Given his age, family relationships, employment history, and religious beliefs, McPherson's counsel requested that he be sentenced to the minimum term under the persistent felony offender statute. Agreeing that the minimum term would be appropriate, the trial court sentenced McPherson to fifteen years to life imprisonment for the third degree criminal possession of stolen property conviction and concurrent sentences of two to four years imprisonment for each of the seven fourth degree criminal possession of stolen property convictions. Post-Judgment Motions and Appeals

  On June 19, 1998, McPherson, moving pro se, made his first post-judgment motion to vacate his conviction pursuant to N.Y.C.P.L. § 440.10. McPherson alleged that the police tampered with and/or destroyed evidence and were therefore unable to retrieve any fingerprint identification from the property seized that might have served to exculpate McPherson. In addition, McPherson claimed that there was an improper break in the chain of custody when some of the personal property was returned to its owners before being admitted at trial and that the trial court improperly accepted the partial verdict over the defense's objections. Finally, McPherson argued that his defense counsel provided ineffective assistance by failing to object to the admission of evidence and failing to produce Rosario material. See People v. Rosario, 213 N.Y.S.2d 448 (N.Y. 1961) (holding that trial court erred by failing to compel prosecution to turn over witnesses' prior statements relating to their testimony). The trial court denied McPherson's Section 440.10 motion on June 24, 1998.

  McPherson did not seek leave to appeal the denial of his Section 440.10 motion. Instead, with the aid of new counsel, he directly appealed his conviction to the First Department, arguing that the prosecution failed to prove his guilt beyond a reasonable doubt and that the verdict was against the weight of the evidence; that the property seized from him should have been suppressed as the fruit of an unreasonable search; that his sentence was excessive given his non-violent record; and that his conviction violated Apprendi because the jury was not aware that he could be sentenced as a persistent felony offender and because the judge, not the jury, decided whether to sentence him as such. On September 18, 2001, McPherson's conviction was affirmed unanimously, and the New York Court of Appeals denied leave to appeal on December 28, 2001. McPherson did not petition for certiorari to the United States Supreme Court.

  McPherson, acting pro se, filed his initial habeas corpus petition on March 19, 2002, alleging that evidence obtained pursuant to an unreasonable search and seizure was unlawfully admitted; that evidence obtained pursuant to an unlawful arrest was unlawfully admitted; that the trial court's use of "bias evidence" to sentence him violated his due process rights; that he received an excessive sentence given his non-violent history; and that his conviction violated Apprendi for the two reasons explained above. Through an April 30, 2002 letter, McPherson then requested that he be allowed to file a second Section 440.10 motion "to preserve unexhausted claims of constitutional magnitude" and that his habeas petition be "held in abeyance" in the interim. By way of a May 13, 2002 memo endorsement, Magistrate Judge Peck explained that if the unexhausted claims to which McPherson referred in his letter were not already addressed in his habeas petition, he must amend that petition.

  McPherson filed his second Section 440.10 motion on June 10, 2002, alleging that his trial counsel provided ineffective assistance of counsel on several dimensions; that certain pieces of evidence were unlawfully admitted; and that his sentence was excessive and in violation of Apprendi. Pursuant to Magistrate Judge Peck's instructions, McPherson also filed an amended habeas petition on July 11, 2002, asserting that the "jury was improperly impaneled" because of certain jurors' biases, that a mistrial should have been declared on the basis that one juror saw McPherson in handcuffs, that the trial court improperly accepted the partial verdict, that certain evidence was inadmissible based on a break in the chain of custody, and that his trial counsel employed "poor trial tactics" and failed to investigate properly both the State's case and McPherson's alibi. Finding "no overlap between the claims asserted in McPherson's original habeas petition . . . and those in the amended petition," Magistrate Judge Peck treated the second petition as a supplement to, rather than a replacement of, the first petition.

  On July 15, 2002, at the request of the Attorney General, Magistrate Judge Peck agreed to hold the amended habeas petition in abeyance pending the trial court's resolution of McPherson's second Section 440.10 motion. On December 20, 2002, the trial court denied the second Section 440.10 motion, noting that most of the issues raised could have been but were not raised on direct appeal and that McPherson's Apprendi claim was "meritless" in light of People v. Rosen, 96 N.Y.2d 329 (2001), in which the New York Court of Appeals rejected the application of Apprendi to the persistent felony offender statute. Recognizing that "McPherson still needs to appeal [the December 20 decision]" to the Appellate Division, on January 6, 2003, Magistrate Judge Peck ordered the Attorney General to respond to McPherson's amended habeas petition by February 7, 2003. The Appellate Division denied leave to appeal the December 20 decision on March 18, 2003.


  The court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The court shall make a de novo determination of the portions of the report to which petitioner objects. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). "A district court may adopt those portions of the Report to which no objections have been made and which are not facially erroneous." Wilds v. United Parcel Serv., Inc., 262 F.Supp.2d 163, 170 (S.D.N.Y. 2003) (citation omitted).

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, requires that a habeas corpus petition adjudicated on the merits in state court must be denied unless the state court's adjudication


(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 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) (emphasis supplied). AEDPA further mandates that a state court's determination of a factual issue shall be presumed correct and may be rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e) (1).

  McPherson filed his objections to Report I on November 19, 2003. McPherson does not object to Report I's finding that the trial court acted reasonably in accepting the partial verdict. Recognizing a criminal defendant's entitlement to an "uncoerced verdict" by a jury, Lowenfield v. Phelps, 484 U.S. 231, 241 (1988), Report I determined that no coercion was present, as the trial judge encouraged the jury to seek a complete verdict through final deliberations, and when those efforts failed, polled each juror regarding their ability to reach a verdict on all the counts of the indictment. Report I further explained that only after the jurors unanimously reported that they were unlikely to reach a complete verdict did the trial judge find further deliberations would be "unfruitful" and declare a partial verdict. Report I does not appear to be facially erroneous in its denial of this claim and is therefore accepted.

  McPherson also fails to object to Report I's treatment of his claim that a mistrial should have been declared on the basis that a juror saw him in handcuffs. Report I determined that this claim was unexhausted and therefore procedurally barred, and that McPherson offered no reason as to why the claim was not raised on direct appeal. The Report further concluded that such a claim was "frivolous" on the merits because when questioned by the trial court, the juror denied observing anyone related to the case at the time when he allegedly saw McPherson in handcuffs. Report I also related that the juror was explicitly instructed not to disclose his conversation with the trial court to the other jurors. Report I's assessment of McPherson's mistrial claim also does not appear to be facially erroneous, and therefore is accepted.

  McPherson does object to Report I's treatment of his claims that he was given an excessive sentence; that particular jurors were biased against him; that he was arrested without probable cause and subjected to an unreasonable search and seizure and that the evidence obtained as a result should not have been admitted; that a break in the chain of custody and police tampering rendered certain evidence inadmissible; and that his trial counsel provided ineffective assistance. McPherson has also filed objections to Report III's recommended denial of his Apprendi claim. These objections are evaluated as follows.

  Excessive Sentence

  Report I correctly concludes that McPherson's excessive sentence claim should be denied. As that Report observes, "[n]o federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1382 (2d Cir. 1992). Not only is McPherson's sentence within the range prescribed by New York's persistent felony offender statute, but he was also sentenced to the shortest possible term for a defendant so classified. As a result, Report I "quickly disposed" of this claim.

  McPherson's objection to this aspect of Report I is somewhat cryptic, as he argues without explanation that his "enhanced sentence" claim "falls under Fama v. Comm'r," 235 F.3d 804, 810 (2d Cir. 2000), Glenn v. Barlett, 98 F.3d 721 (2d Cir. 1996), and Velasquez v. Leonardo, 898 F.2d 7 (2d Cir. 1990). All of these cases deal with the circumstances under which a state court's determination that a habeas claim is procedurally barred foreclose federal habeas review. Construing McPherson's objections liberally, his argument seems to be that in dismissing his excessive sentence claim as procedurally barred, the First Department did not provide an adequate and independent state ground for its decision. Specifically, the First Department's opinion stated that McPherson's non-Apprendi-related arguments regarding his sentence "are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them." People v. McPherson, 730 N.Y.S.2d 315, 315 (App.Div. 2001). Even if, however, such language "does not suffice as a plain statement of an adequate and independent state ground," Fama, 235 F.3d at 811, Report I evaluated McPherson's excessive sentence claim on the merits. Consequently, McPherson's reliance on Fama to object to Report I's treatment of his excessive sentence claim is futile, and Report I's having correctly analyzed the claim, its recommendation as to this claim is accepted. Juror Bias

  Report I correctly concludes that McPherson's juror bias claim is unexhausted and therefore procedurally barred from habeas review. A federal court may not grant a habeas petition unless "the applicant has exhausted the remedies available in the courts of the State;" "there is an absence of available State corrective process;" or "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b) (1). A petitioner's state remedies are exhausted when he has "(i) presented the federal constitutional claim asserted in the petition to the highest state court (after preserving it as required by state law in lower courts) and (ii) informed that court (and lower courts) about both factual and legal bases for the federal claim." Ramirez v. Att'y Gen., 280 F.3d 87, 94 (2d Cir. 2001). "[W]hen a `petitioner failed to exhaust state remedies and the court to which petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,' federal habeas courts also must deem the claim procedurally defaulted." Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir. 2003) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1999)).

  As the Second Circuit explained in Galdamez v. Keane, 394 F.3d 68 (2d Cir. 2005), "[t]he procedural default doctrine protects the integrity of the exhaustion rule, ensuring that state courts receive a legitimate opportunity to pass on a petitioner's federal claims and that federal courts respect the state courts' ability to correct their own mistakes." Id. at 73. Therefore, where a prisoner has procedurally defaulted, habeas review is barred "unless the prisoner 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 732. With respect to cause and prejudice, a petitioner must show that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule," Amadeo v. Zant, 486 U.S. 214, 222 (1988), and convince the court of a reasonable probability that the trial's outcome would have been different so as to "undermine confidence in the verdict." Strickler v. Greene, 527 U.S. 263, 289 (1999) (citation omitted). A "miscarriage of justice" claim, on the other hand, is a claim that "the petitioner is actually innocent." Sweet, 353 F.3d at 141.

  As Report I indicates, McPherson not only failed to raise a claim of juror bias on direct appeal, but as this claim could have been raised then, he would not be entitled to raise the claim by way of a third Section 440.10 motion. Therefore, Report I concludes that this claim is unexhausted but deemed to be exhausted and procedurally barred. Further, McPherson's failure to exhaust this claim cannot be excused. In his petition, McPherson merely notes various characteristics of certain jurors, such as that one "had a boyfriend who was a police officer of the law," that "some were in contact with [the] D.A. office's" through their work as lawyers, and that others were victims of burglaries in which no one had been apprehended or convicted. Such descriptions fall far short of showing cause for the default and resulting prejudice or demonstrating that failure to consider the claim will result in a fundamental miscarriage of justice.

  In objecting to Report I's treatment of his juror bias claim, McPherson simply cites Fama, 235 F.3d at 804, without explanation and requests that this Court "review this issue for herself." Fama provides that federal habeas review cannot be foreclosed when a state court dispenses of a petitioner's claim by deeming it to be "either unpreserved for appellate review or without merit." Fama, 235 F.3d at 810. As McPherson did not raise his juror bias claim until filing his amended habeas petition,*fn1 however, his reliance on Fama is misplaced. As Report I's recommendation with respect to McPherson's juror bias claim is correct, it is therefore accepted.

  Probable Cause and Improper Evidence Admissions

  Report I properly determines that McPherson's Fourth Amendment claim is barred from habeas review. It is well-settled that where a state has provided an opportunity for the "full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 481-82 (1976). Federal courts may only review such a claim "(a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 972 F.2d 67, 70 (2d Cir. 1992). The Second Circuit has found that New York's procedure for litigating a Fourth Amendment claim, as enumerated in N.Y. Crim. P.L. § 710.10, provides a full and fair opportunity for such claims to be litigated. Id. at 70 n. 1.

  In filing pre-trial, post-judgment, and appellate challenges to the admission of certain evidence, McPherson availed himself of New York's procedure for litigating Fourth Amendment claims. Neither in his petition nor in his objections does McPherson claim that he was precluded from using the state's corrective mechanisms. Instead, McPherson simply contends that he was arrested without probable cause because the dangling bike brake harness that prompted the police to question him did not violate any traffic law or other statutory provision. Consequently, McPherson argues, evidence collected during the search incident to his arrest should have been suppressed at trial. This argument, which he made through his pre-trial and post-judgment motions, as well as on appellate review, was found to be meritless. Because he enjoyed a full and fair opportunity to litigate these Fourth Amendment claims in his state court proceedings, Report I's conclusion that habeas relief may not be granted is accepted.

  Evidence Tampering and Breaking the Chain of Custody

  Report I's recommendation that this Court deny McPherson's claim that certain evidence was unlawfully admitted due to police tampering and a break in the chain of custody is proper. Federal habeas corpus review "does not lie for errors of state law," but is "limited to deciding whether a conviction violated the Constitution." Estelle v. McGuire, 502 U.S. 62, 68 (1991). Erroneous evidentiary rulings "do not automatically rise to the level of constitutional error." Rosario v. Kuhlmann, 839 F.2d 918, 924. (2d Cir. 1988). Rather, "[t]he introduction of improper evidence against a defendant does not amount to a violation of due process unless the evidence is so extremely unfair that its admission violates fundamental conceptions of justice." Dunnigan v. Keane, 137 F.3d 117, 125 (citation omitted).

  In his objections, McPherson does not contest Report I's finding that the admission of certain pieces of evidence, including the mountain bike, bike pass, laptop, and jewelry, following their return to Dedomenicis and Whitehouse did not constitute a evidentiary error, let alone one of constitutional dimension. As Report I notes, New York law provides that evidence can be admitted, despite a break in the chain of custody, where "the circumstances provide reasonable assurances of the identity and unchanged condition of the evidence." People v. Thompson, 751 N.Y.S.2d 921 (App.Div. 2002) (citation omitted). The admission of stolen property following its return to its owner, who can testify to its identity and unchanged condition, constitutes one such circumstance, id., and Dedomenicis and Whitehouse both testified as to the condition of the property admitted at trial. Moreover, New York courts repeatedly have held that "any deficiencies in the chain of custody affect only the weight of the evidence and not its admissibility." E.g., People v. Watkins, 793 N.Y.S.2d 657 (App.Div. 2005) (citation omitted). Therefore, Report I's finding on this issue cannot be said to be facially erroneous and is accepted.

  McPherson does appear to object, however, to the Report's determination that his evidence tampering claim is "meritless," contending, as he did in his first Section 440.10 motion, that the property seized from him and returned to Dedomenicis and Whitehouse was not dusted for fingerprints. According to McPherson, such fingerprinting would have established that either a maid or a superintendent, both of whom had keys to Dedomenicis and Whitehouse's apartment and both of whom had either "been fired or quit working for" them at the time of trial "because of the incident," actually stole the property. In a related vein, McPherson repeats his argument that when the mountain bike was admitted, the bike pass that prompted the police officers to further question him was "gone, lost, missing." McPherson has failed to show, however, that the admission of the mountain bike without the pass and the admission of the non-finger-printed property was erroneous, especially in light of Dedomenicis and Whitehouse's testimony. Nor has he shown that such admissions amounted to violations of fundamental conceptions of justice. Consequently, Report I's resolution of McPherson's evidence tampering claim is adopted.

  Ineffective Assistance of Counsel

  Report I correctly concludes that McPherson's ineffective assistance of counsel claims should be denied. Under the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), a petitioner must show that his counsel's performance was deficient, and that the deficiency prejudiced the defense. Id. at 687. To establish that counsel's performance was deficient, the petitioner must show that "counsel's representation fell below an objective standard of reasonableness under prevailing professional norms." United States v. Monzon, 359 F.3d 110, 119 (2d Cir. 2004) (citation omitted). To establish prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Larrea v. Bennett, 368 F.3d 179, 183 (2d Cir. 2004) (citation omitted).

  In his amended habeas petition, McPherson alleges ineffective assistance of counsel based on his trial attorney's "poor trial tactics" and "lack of investigation to prepare [a] proper defense at trial," particularly noting his failure to investigate McPherson's alibi, the "mode of arrest," and the communication devices used by police. Report I also understands McPherson to have incorporated his second Section 440.10 motion by reference in his amended habeas petition, and it therefore also reviews the ineffective assistance claims McPherson raises there. Specifically, McPherson's second Section 440.10 motion alleges that his trial attorney failed to challenge certain allegedly biased jurors; move for a mistrial after a juror allegedly saw McPherson in handcuffs; and object to the State's evidence tampering, the trial court's acceptance of the partial verdict, and the enhancement of his sentence under the persistent felony offender statute on the basis of Apprendi. Report I concludes that McPherson cannot succeed with ineffective assistance claims premised on his trial attorney's failure to object to the alleged evidence tampering and such attorney's failure to request a mistrial on the basis of a juror allegedly seeing McPherson in handcuffs. In both circumstances, Report I declares, citing United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999), inter alia, the underlying claims are "meritless" and counsel cannot be ineffective in failing to make a meritless argument or request. Report I also determines that given that McPherson's trial counsel did object to the entry of a partial verdict, his related ineffective assistance claim is "frivolous." Report I is even more dismissive of McPherson's claim of ineffective assistance on the basis of his trial counsel's failure to investigate, noting that McPherson's conclusory speculation that such an investigation would be exculpatory cannot satisfy either the performance or prejudice prongs of Strickland. Finally, Report I concludes that McPherson's claim that his trial counsel failed to challenge the allegedly biased jurors was not raised on direct appeal and is therefore procedurally barred.

  McPherson does not object to Report I's conclusions on any of these grounds.*fn2 Given that Report I's treatment of such claims does not appear to be facially erroneous, its recommendations as to McPherson's ineffective assistance of counsel claims are therefore accepted.*fn3


  Lastly, Report III correctly recommends that McPherson's Apprendi claim be denied. In its 2000 decision in Apprendi, 530 U.S. at 466, the Supreme Court established that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. Until recently, it was unclear whether New York's persistent felony offender statute, N.Y. Penal Law § 70.10, satisfied the Apprendi standard. Specifically, New York's persistent felony offender statute provides that where a person "stands convicted of a felony after having previously been convicted of two or more felonies," N.Y. Penal Law § 70.10(1)(a), such person may receive a heightened sentence if in the sentencing court's opinion "the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest." N.Y. Penal Law § 70.10(2).

  The Second Circuit recently resolved this question, however, in Brown v. Greiner, 409 F.3d 523 (2d Cir. 2005), holding that it was "not unreasonable, in light of then-existing Supreme Court precedent, for the state courts to conclude that a sentencing's judge's `opinion' as to what type of sentence would `best serve the public interest' is not a factual finding within the meaning of Apprendi." Brown, 409 F.3d at 526. More concretely, the Brown court concluded that the New York Court of Appeals did not act unreasonably in distinguishing the "vague, amorphous assessment of whether in the court's `opinion,' `extended incarceration and life-time supervision of the defendant will best serve the public interest,'" id. at 534 (quoting N.Y. Penal Law § 70.10(2)), from the "precise finding of a specific fact, as in the cases culminating in Apprendi." Brown, 409 F.3d at 534. While the Brown court acknowledged that New York's persistent felony offender statute compels sentencing courts to make findings related to the defendant's "history and character" and "the nature and circumstances of his criminal conduct," N.Y. Penal Law § 70.10(2), it nonetheless concluded that the statute "does not enumerate any specific facts that must be found" and as such, the determinations it requires "fall into a different category from the essential statutory elements of heightened sentencing, or functional equivalents thereof" encompassed by Apprendi. Brown, 409 F.3d at 535. Report III does not provide a detailed analysis of McPherson's Apprendi claim. Rather, it simply declares that in light of Brown, McPherson's Apprendi claim should be denied unless the Supreme Court reverses that decision. McPherson objects to Report III on two grounds. First, he contends that the Second Circuit has not released its decisions in two cases that prompted the Attorney General to seek a stay in this case, Rosen v. Walsh, No. 03-2480, and Kearse v. Spitzer, No. 03-2481. Second, McPherson argues that this Court is required to resentence him "in full accordance" with the Supreme Court's decisions in Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 125 S. Ct. 738 (2005).*fn4

  McPherson's objections cannot be sustained. Contrary to McPherson's assertions, neither Rosen v. Walsh nor Kearse v. Spitzer are awaiting decision by the Second Circuit. Rosen was consolidated for appeal with and resolved by the opinion in Brown, 409 F.3d at 523. The appeal in Kearse v. Spitzer, on the other hand, was dismissed in January 2004. More significantly, as the Brown court itself noted, later Supreme Court decisions, such as Blakely, 542 U.S. at 296, and Booker, 125 S. Ct. at 738, cannot play any role in assessing the reasonableness of state court decisions that predate these later opinions. Brown, 409 F.3d at 534. Although there is some disagreement, even within the Supreme Court case law, as to "the precise time to which a federal court should look to assess what was clearly established Federal law, as determined by the Supreme Court," Brown, 409 F.3d at 534 n. 3, both the initial denial of McPherson's Apprendi claim and the date on which his conviction became final on direct review came well before the Supreme Court decided either Blakely, 542 U.S. at 296, or Booker, 125 S. Ct. at 738. Therefore, in determining whether the application of New York's persistent felony offender statute to McPherson violated "any clearly established Federal law, as determined by the Supreme Court of the United States," this Court may not look beyond Apprendi itself. For the reasons explained above, Report III's recommendation that McPherson's Apprendi claim be denied is accepted. CONCLUSION

  The Report is adopted and the petition for a writ of habeas corpus is denied. In addition, I decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right, and appellate review is therefore not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). I also find pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this petition.



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