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United States District Court, S.D. New York

September 14, 2005.

WILLIAM HOOKS, Petitioner,
GARY GREENE, Superintendent of Great Meadow Correctional Facility, Respondent.

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge



  William Hooks, proceeding pro se, seeks a writ of habeas corpus pursuant to section 2254 of Title 28 of the United States Code ("section 2254"). In his petition, Hooks claims that: (1) it was reversible error for the trial court to admit his Inmate Prison Card into evidence;*fn1 (2) the trial court should have terminated deliberations once the jurors had declared that they were deadlocked;*fn2 and (3) he was deprived of his state and federal rights to effective assistance of counsel.*fn3 For the following reasons, the petition is denied.


  A. Factual Background

  On July 3, 1997, two police officers were canvassing the area of the Sherman Hotel, in New York City, in the course of an investigation into the murder of a prostitute.*fn4 They found Carla Renee Burdette, a prostitute who used the name Kelly Ann Parker, and questioned her about the murder. Burdette began to cry in the course of this questioning and stated that she knew who had killed the other prostitute.*fn5 She claimed that she had been raped and robbed the week before by a man who had used his Inmate Identification Card ("Prisoner ID") to register in the hotel.*fn6

  According to the Police Report, Burdette met Hooks at the Port Authority Bus Terminal on June 20, 1997.*fn7 To allay her concerns that he might be an undercover officer, Hooks showed her his Prisoner ID.*fn8 He paid $50 and they went to the Elk Hotel, on 42nd Street and 9th Avenue, where Burdette administered oral sex to him.*fn9 She left the hotel and went back to 8th Avenue, where he subsequently approached her again. This time he suggested that they split expenses and stay at a hotel together for the night.*fn10

  Burdette took Hooks to the Sherman Hotel and they registered using his Prisoner ID.*fn11 She left the hotel for some time and when she returned to the room he was using crack cocaine.*fn12 She asked him to leave. He stole some money from her and then he left and she went to sleep. Subsequently, he returned to the room where he choked, bound and gagged Burdette before raping and sodomizing her. Then he removed the gag and demanded that she tell him where to find some drugs. At knife-point, he led her out of the room and through the hotel. When a security guard asked if everything was alright, Burdette ran and hid behind the guard and Hooks fled.*fn13 The police obtained Hooks's name and inmate identification number from the hotel registry and then used this information to locate and arrest him.*fn14

  B. Procedural Background

  On February 25, 1998, Hooks was convicted of first degree sodomy and second degree robbery, for which he was sentenced to concurrent terms of twenty-five and fifteen years respectively. Hooks filed a motion to vacate the conviction, which was denied after a hearing. An application to appeal the decision to the Appellate Division, as well as a motion for reconsideration, was denied. Hooks filed a direct appeal and on May 8, 2003, the Appellate Division unanimously affirmed Hooks' conviction. Finally, on May 28, 2003, Hooks requested leave to appeal the Appellate Division's decision; and, on June 26, 2003, the Court of Appeals denied his leave application.

  Hooks now petitions for a writ of habeas corpus pursuant to section 2254 of Title 28 of the United States Code, which provides that a district court may entertain a petition for habeas corpus on "behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."*fn15


  Section 2254 permits a federal court to grant a writ of habeas corpus to a state prisoner only if the state court's denial of relief "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."*fn16

  As explained by the Supreme Court, a state court decision is "contrary to" clearly established federal law if: (1) the state court reaches a different result than that mandated by the Supreme Court when presented with facts that are "materially indistinguishable from a relevant Supreme Court precedent"; or (2) the state court "applies a rule that contradicts the governing law set forth in Supreme Court cases."*fn17 The "unreasonable application" prong of section 2254(d)(1) permits a federal habeas court to grant the writ


if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of petitioner's case. In other words, a federal court may grant relief when a state court has misapplied a governing legal principle to a set of facts different from those of the case in which the principle was announced. In order for a federal court to find a state court's application of our precedent "unreasonable," the state court's decision must have been more than incorrect or erroneous. The state court's application must have been objectively unreasonable.*fn18
  "[A] petitioner must present his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition."*fn19 On a petition for habeas corpus relief, it is the petitioner's burden to prove that he has fully exhausted his state court remedies.*fn20


  In his petition, Hooks makes three claims: first, that his Inmate Identification Card should not have been admitted into evidence; second, that jury deliberations should not have continued after the delivery of a partial verdict; and third, that he did not received effective assistance of counsel during his trial. The State of New York opposes his petition, arguing first, that even if the prison ID was improperly admitted, the admission does not constitute a violation of federal law; second, that his claim regarding the jury deliberations is unexhausted and therefore barred; and third, that Hooks received meaningful and effective assistance of counsel during his trial.*fn21

  A. Prison Identification Card

  Section 2254 requires that a habeas petitioner show that the state court's decision to deny relief was "contrary to, or involved an unreasonable application of, federal law." Hooks cannot show that the state court unreasonably applied federal law in admitting evidence of his past crime because the admissibility of Hooks's prison identification card is governed by New York state law.

  Under New York law, "[i]f the evidence of prior crimes is probative of a legally relevant and material issue before the court, and for that reason not automatically barred under the general rule, admissibility turns on the discretionary balancing of the probative value and the need for the evidence against the potential for delay, surprise and prejudice."*fn22 The Appellate Division affirmed the trial court's decision to admit the identification card, despite its possible prejudicial effect, because the identification card was "clearly relevant to explain why [Burdette] was able to identify [Hooks] by name" and was "inextricably interwoven with the narrative of the events." Hooks argues that the state court incorrectly applied New York law in admitting the ID; however, even if the admission was an error, "`federal habeas corpus relief does not lie for errors of state law.'"*fn23

  Hooks further argues that the admission of evidence of his past conviction rendered his trial fundamentally unfair, thereby depriving him of his due process rights. However, "[w]here the prejudicial evidence is `probative of [an] essential element' in the case, its admission does not violate the defendant's right to due process."*fn24 In Dunnigan v. Keane, the Second Circuit held that testimony from the defendant's parole officer was admissible because its probative value in identifying the defendant outweighed the prejudicial effect of informing the jury of the defendant's prior conviction. The court denied the defendant's habeas petition despite the fact that the trial court had omitted to give a limiting instruction to caution the jury that evidence of the defendant's prior conviction could not be taken as evidence of a propensity toward crime.*fn25 In Hooks's case, the state court held that the probative value of the prison ID for proving Hooks's identity outweighed the prejudicial effect of his prior conviction. Moreover, unlike in Dunnigan, the court instructed the jury that the ID was to be considered only for the purposes of determining whether or not the identification of Hooks by Burdette was credible; Hooks's past conviction was not to be taken as evidence of a propensity toward crime.

  The probative value of Hooks's prison ID in establishing his identity, "an essential element of the case," outweighs its prejudicial effect, particularly in light of the limiting instruction given by the trial judge. Because Hooks has failed to show that the admission of his ID deprived him of his due process right to a fair trial, his petition must be denied on this ground.

  B. Jury Deliberations

  Hooks claims that the trial court impermissibly allowed the jury to continue deliberating, first after the jury declared that it was deadlocked and again after the jury delivered a partial verdict. Respondent asserts that the Court cannot consider this claim because Hooks did not present it "in federal constitutional terms" to the Appellate Division and because he did not raise the issue at all in his application for leave to appeal to the Court of Appeals. Before this Court can consider a claim in a petition for habeas corpus, the petitioner must prove that he has exhausted his state remedies for the claim.*fn26 Hooks offers no proof, nor does he assert, that he exhausted his state remedies with respect to his jury deliberation claim.

  When a claim has never been presented to a state court, i.e., an unexhausted claim, a federal court may deem it exhausted where presentation to the state court would be futile due to a state law procedural bar.*fn27 "Because [petitioner] failed to raise his claim in the ordinary appellate process and can now no longer do so, it is procedurally defaulted."*fn28 To excuse a procedural default, petitioner must show cause for the default and prejudice, or demonstrate that failure to consider the claim will result in a miscarriage of justice (i.e., actual innocence).*fn29 Because petitioner has not established either cause and prejudice or actual innocence, the unexhausted claim remains procedurally defaulted and must be dismissed.

  In addition, petitioner's jury deliberation claim must be dismissed based on an independent and adequate state ground. At trial, petitioner's attorney never objected to the trial court's decision to accept the jury's partial verdict and then allow it to continue deliberating. Accordingly, the Appellate Division held that petitioner had failed to preserve his challenge to the court's acceptance of a partial verdict followed by further deliberations.*fn30

  Where a state court denies a claim based on an independent and adequate state ground, habeas review is generally prohibited.*fn31 Only a "firmly established and regularly followed state practice" may be interposed to prevent subsequent habeas review.*fn32 However, the relevant New York procedural rule — that a party must preserve an issue with a contemporaneous objection — has been recognized as a firmly established and regularly followed rule.*fn33 Accordingly, further review of this claim is foreclosed by the independent and adequate state ground rule.

  C. Ineffective Assistance of Counsel

  The Sixth Amendment guarantees a fair trial and competent counsel in all criminal prosecutions.*fn34 In judging any claim of ineffectiveness, a reviewing court must begin with a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," taking a "highly deferential" view of counsel's performance without the benefit of hindsight.*fn35

  To prove that counsel was constitutionally ineffective, a petitioner must satisfy the two-part test established in Strickland v. Washington. A petitioner must first show that his counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms."*fn36 To fall below this standard, counsel must have made "errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment."*fn37 The second prong requires a petitioner to show that he was prejudiced by his counsel's conduct. To show prejudice, a 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."*fn38 Hooks bases his ineffective assistance of counsel claim on three contentions: first, that Bennet, his attorney, failed to advise him of the consequences of a conviction for a sex offense, thereby preventing him from making an informed decision when he refused the government's plea offer; second, that Bennet failed to use Hooks's medical records to demonstrate that Hooks was physically incapable of the actions alleged by Burdette; and third, that Bennet's cross-examination of Burdette was inadequate. Hooks's ineffective assistance of counsel claim was rejected by the state court. Hooks now argues that the state court unreasonably applied the federal standard for ineffective assistance of counsel.

  1. Plea Offer

  Hooks alleges that the government offered him the opportunity to plead guilty to a non-sex offense rather than risk a sodomy conviction and that, if his lawyer had advised him fully as to the consequences of a sex offense conviction, he would have accepted the plea.*fn39 In its oral opinion denying petitioner's § 440.10 motion, the trial court rejected his claim because "the question of whether the plea would be to a sex offense or a non-sex offense was never reached, because the defendant rejected the [plea] offer and refused to discuss it further."*fn40 The court further stated that Hooks "made it abundantly clear that he was maintaining his innocence and was not interested in the offer."*fn41

  Hooks has failed to show that the state court's denial of relief on this ground represents an "objectively unreasonable" application of federal law. Given Hooks's insistence on his innocence and refusal to discuss the plea offer, it cannot be said that Bennett's action in not providing a more detailed explanation of the offer was objectively unreasonable or fell below prevailing professional standards. The state court correctly applied the Strickland standard and Hooks's claim of ineffective assistance of counsel during plea negotiations must be rejected.

  2. Medical Records

  Because of an injury sustained in 1994, Hooks is unable to turn his left wrist from side to side. Hooks asserts that his lawyer should have used this fact to impeach Burdette's statement that, at one point during the assault, Hooks grabbed her crotch with his left hand and twisted. After reviewing the testimony of Dr. Rafiy, a physician who examined Hooks while he was incarcerated at Riker's Island, the trial court held that Bennett's decision not to impeach Burdette on this point was reasonable because "Dr. Rafiy's testimony does not establish that pursuing this line of defense would have been particularly helpful to the defense and certainly does not preclude the finding made by the jury. . . . Dr. Rafiy acknowledged that if the defendant were facing the victim's crotch and not reaching behind him [a scenario consistent with Burdette's testimony], he could have grabbed the crotch and that there could have been sufficient rotation from his shoulder to create a twisting effect. . . . [Furthermore], the doctor's testimony in many ways supports the victim's version of what happened."*fn42 The court took particular note of the fact that the victim's description of Hooks's movement when he grabbed her neck with his left arm — "`[h]e doesn't press with his fingers or his thumb. He presses in the center.'"*fn43 This was "precisely the affect that Dr. Rafiy testified to concerning the defendant's injury, what he could not do well, which was to press together the thumb and the fingers."*fn44

  Because Dr. Rafiy's testimony would have corroborated parts of the testimony against Hooks, it was not unreasonable of Bennett to forgo use of this evidence at trial. Hooks has failed to show that the state court's denial of his ineffective assistance of counsel claim on this ground was unreasonable. 3. Cross Examination

  Hooks's final claim is that Bennett failed to cross-examine Burdette on several issues. First, Hooks asserts that Bennet failed to question Burdette on alleged inconsistencies between her testimony at trial and before the grand jury. However, the trial court flatly rejected this claim, stating "according to my reading of the transcript . . . [Bennett] clearly cross-examined the victim concerning this prior inconsistent statement."*fn45

  Second, Hooks argues that Bennett should have cross-examined Burdette regarding the fact that in her initial statement to the police, Burdette said that Hooks gagged her. Hooks claims that a gag would have made oral sodomy impossible and therefore argues that Bennett should have used Burdette's pre-trial statement to impeach her testimony at trial and disprove the allegation of oral sodomy. The trial court rejected this argument, holding that "defense counsel's decision not to cross-examine the victim on a prior statement that she was gagged by the petitioner was a reasonable strategic decision, since introducing that element might have done more harm than good."*fn46 The fact that Hooks may have gagged Burdette during part of the attack does not disprove the allegation of oral sodomy. However, evidence that Hooks used a gag could have increased the jury's perception of him as a violent criminal and might have made his situation worse; therefore, it was reasonable of Bennett to avoid mentioning the gag. The trial court's denial of Hooks's claim cannot be characterized as an unreasonable application of federal law and will not be disturbed.

  Finally, Hooks asserts that Bennett should have brought out the fact that Burdette herself had a prostitution charge pending when she testified against Hooks and that around the time of the trial she received substantial benefits from the Witness Aid Services Unit of the District Attorney's Office in the form of assistance in obtaining emergency food stamps, emergency funds, housing and welfare benefits.*fn47 Hooks argues that this information would have affected the jury's perception of Burdette's credibility, thereby weakening the case against him. However, this argument is unconvincing because, in fact, Bennett questioned Burdette extensively about her prior arrests, her drug use, and the fact that in the past she had lied to police officers about her name, address, and social security number.*fn48 The first prong of the Strickland test "looks to whether counsel's performance was deficient under the totality of the circumstances."*fn49 Even if Bennett did not question Burdette about the benefits she received from the Witness Aid Services Unit, his overall cross-examination of Burdette cannot be characterized as objectively unreasonable under prevailing professional norms.

  Hooks's ineffective assistance of counsel claim must be denied because, as to his first two arguments, Hooks has not shown that the state court's denial of relief was an unreasonable application of federal law. Although his third argument does not appear to have been considered by the state court, I have reviewed the claim and find that it lacks merit because Hooks has failed to show that Bennett's actions fell below prevailing professional standards.


  For the foregoing reasons, Hooks's petition is denied. The Clerk of the Court is directed to dismiss the petition and close this case.


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