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DeJesus v. Goord


December 9, 2005


The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge.



I. Introduction

Petitioner Danny DeJesus ("DeJesus") brings this habeas corpus proceeding, pursuant to 28 U.S.C. § 2254, to challenge his conviction on one count of Murder in the Second Degree following a jury trial in Supreme Court, New York County. On June 11, 1993, Justice Howard E. Bell, before whom the case was tried, sentenced DeJesus as a second felony offender to an indeterminate term of twenty-three years to life. (Pet. ¶¶ 1-3, 4, 6).

During the four years that this proceeding has been pending, DeJesus has filed an original petition, a supporting memorandum of law, and a motion to amend his petition. Following the granting of that motion, DeJesus also served (but did not file) an amended petition and an amended memorandum of law. His pleadings indicate that these later papers are intended to supplement, rather than to supersede, his original submissions. Although the record is at times confusing, it appears that he now contends that: (a) there was insufficient evidence to establish that he was an accomplice; (b) the court's circumstantial evidence charge was improper; (c) his trial counsel was laboring under a conflict; and (d) his trial and appellate counsel were ineffective.

DeJesus brings his petition pro se, with the exception of his claim that his trial counsel had a serious conflict of interest, which was briefed by Peter Enrique Quijano, Esq., a member of this Court's Criminal Justice Act Panel, who was appointed to represent DeJesus pursuant to 18 U.S.C. 3006A and 28 U.S.C. § 2254(h). (See Docket Nos. 21, 24).

For the reasons that follow, DeJesus' petition should be denied. Additionally, DeJesus should be denied a certificate of appealability because he has failed to make the substantial showing of the denial of a constitutional right required by 28 U.S.C. § 2253(c)(2).

II. Background

A. Trial

1. People's Case

The People's proof at trial would have permitted a reasonable juror to find as follows:

On July 20, 1991, after seeing DeJesus "roll by" in a jeep, Evelyn Morales approached him to ask for drugs that she could sell on Rutgers Street. (A. 58-59, 61/ T. 485-86, 489; Answer Ex. B at 5).*fn1 In response, DeJesus supplied Morales with two "bundles" of crack vials, worth approximately $50 per bundle. (A. 62/T. 490). Morales sold one of the bundles while DeJesus was watching her, but consumed a portion of the second bundle herself after he left. (A. 62-63/T. 490, 493). To make up for the resulting shortfall in revenue, Morales divided her remaining crack into additional vials which she sold "short." She also obtained cash advances for crack to be delivered at a later date. (A. 63-64/T. 493-94).

Subsequently, Morales met with DeJesus in his building to give him the money she had collected. (A. 65-66/T. 495-96). When DeJesus asked why it had taken so long to sell the second bundle, Morales lied, claiming that Robert Gist, a competing drug dealer, was selling crack in the vicinity at a lower price and had taken away her business. (A. 66/T. 496). In response, DeJesus told Morales that Gist was not supposed to be "out there" and had been "warned." (A. 66, 68/T. 496-97). He stated further that he was going to call "Wilbur." (A. 68/T. 497). Previously, DeJesus had told his former girlfriend, Elizabeth Jimenez, that if he caught Gist on the block, "he was going to take him off the block." (Answer Ex. A (Appellant's Br. on Appeal) at 6 (citing T. 696, 697, 735, 738)).

After Morales left DeJesus' building, she walked to "The Lane," a "shrub lined walkway" between Rutgers and Pike Streets, where she met with Gist, Jimenez, and a man named "Gordy." (Id. Ex. B (Resp't's Br. on Appeal) at 6 (citing T. 498-99)). After a while, Morales noticed a black Jeep with a covered top on Madison Street. (A. 83-84/T. 501-02). Wilbur Hernandez, a man named "Bruno," and a third unidentified man were inside the Jeep. (Id.). Morales then left the area because she was afraid that the men were going to "rough [Gist] up and rob him." (A. 84/T. 502).

Jimenez and Gordy subsequently walked to the Madison Street entrance to The Lane. (A. 89/T. 689). From there, Jimenez saw DeJesus walking in the opposite direction before stopping next to a taxicab to speak with the driver. (A. 101/T. 692). Jimenez then saw DeJesus raise his arms over his head in a "stretch[ing]" motion. (Id.).

Moments later, as Hernandez and Bruno walked toward Gist, Hernandez shot him six times. (A. 100/T. 693). Hernandez and Bruno then ran from the scene in the direction of the Jeep. (A. 114-a, 114-b, 115/T. 503-05). After the shooting, Morales walked over to Gist, whose body was "jumping up and down." (A. 116, 122/T. 506-07). She then went to a store across the street to purchase a soda. (Id.). Morales met up with DeJesus soon after buying the soda and asked "why that had to happen to [Gist]." (A. 122/T. 507). DeJesus replied that "he was warned and he knew that he did not have to be there." (Id.).

The following day, after interviewing Morales, the police arrested DeJesus and read him his Miranda rights. (A. 159/T. 601). After DeJesus requested a lawyer, the police stopped interrogating him. (A. 159, 161-a, 168/T. 601-02, 609). Prior to being transported to Central Booking, however, DeJesus requested permission to make a phone call to his wife. (A. 168/T. 602). During the ensuing conversation, Detective Donald Cronin overheard DeJesus instruct his wife to "call Wilbur [and] have him get in touch with [someone whose name Cronin could not hear] because he is my witness." (Id.). Detective Cronin also heard DeJesus tell his wife, "I was talking to him." (Id.). Another detective, Detective Walsh, also was present during the call; he testified that DeJesus told his wife, "[J]ust tell Wilbur. He will take care of it." (A. 167/T. 620).

While he was waiting to be photographed at Central Booking, DeJesus spoke to Detective Cronin about his employment and family. (A. 172/T. 604). In the course of his unsolicited statements, DeJesus mentioned his prior work, stating to Detective Cronin, "[i]f I would have had that [trucking] job I wouldn't be here right now." (Id.). Detective Cronin testified that DeJesus also volunteered information about Gist's murder, commenting, "It was messy. It bothered me. He was warned. It shouldn't have happened." (Id.).

2. Defense Case

The sole defense witness was Gist's first cousin, William Jackson, who testified that he and Gist had been in the drug business together, and that they both knew Hernandez. (A. 202, 207/T. 756-57). On cross-examination, Jackson testified that he also had seen DeJesus and Hernandez together up until a year before the shooting. (Id.).

3. Conviction and Sentence

The jury found DeJesus guilty of Murder in the Second Degree. (Pet. ¶ 2). Thereafter, on June 11, 1993, Justice Bell sentenced DeJesus, as a second felony offender, to an indeterminate prison term of twenty-three years to life. (Id. ¶ 3).

B. Subsequent Procedural History

1. Direct Appeal

In February 1998, the Legal Aid Society filed an appellate brief on behalf of DeJesus, which advanced the sole claim that the trial court had erred by failing to give the jury a circumstantial evidence charge in a case which was entirely circumstantial. (See Answer Ex. A). On December 3, 1998, the Appellate Division unanimously affirmed DeJesus' conviction on the ground that his guilt was proven by both direct and circumstantial evidence, which "eliminate[d] any necessity for a circumstantial evidence charge." People v. DeJesus, 682 N.Y.S.2d 33 (1st Dep't 1998). The court also noted that there was "overwhelming evidence of [DeJesus'] guilt." Id. By letter dated January 25, 1999, DeJesus' appellate counsel sought leave to appeal to the New York Court of Appeals on DeJesus' behalf. (Answer ¶ 8). That application was denied on June 21, 1999. People v. DeJesus, 93 N.Y.2d 969 (1999).

2. Motion to Vacate Judgment

On December 23, 1999, DeJesus filed a pro se motion to vacate his judgment of conviction pursuant to Section 440.10 of the New York Criminal Procedure Law ("C.P.L."). (Resp't's Supplem. Mem. Ex. A). DeJesus raised four grounds for relief: (a) the prosecutor's failure to turn over notes of a witness's prior statement pursuant to Rosario;*fn2 (b) prejudicial comments by the prosecutor during summation; (c) insufficiency of the evidence; and (d) ineffective assistance of trial counsel. (Id. at 1). With respect to the last of these claims, DeJesus contended that his trial counsel had failed to (a) object to the accomplice liability charge; (b) object to the court's refusal to allow further re-cross-examination of Detective Cronin; (c) withdraw despite a clear conflict of interest; (d) seek a severance so that he and Hernandez would be tried separately; or (e) probe the improper conferral of a benefit --various packs of cigarettes -- on Morales, who was a key prosecution witness. (Id. at 19-49). The conflict of interest claim was based on matters which DeJesus accurately characterized as "dehors the record" -- namely, the fact that DeJesus' trial counsel had represented Bruno on unrelated charges in Kings County at the same time that he was representing DeJesus. (Id. at 35).

On February 15, 2000, Justice Dora L. Irizarry denied DeJesus' motion to vacate judgment because "sufficient facts appear[ed] on the record of the trial proceedings to have permitted adequate appellate review of the issues raised in the instant motion." (Resp't's Supplem. Mem. Ex. B).

On or about March 6, 2000, DeJesus filed an application pursuant to Section 460.15 of the C.P.L. seeking leave to appeal to the Appellate Division from the denial of his motion to vacate the judgment of conviction. (Id. Ex. C). In those papers, DeJesus did not cite as a basis for relief his allegation that his trial counsel had a conflict of interest. (Id.).

On April 20, 2000, the Appellate Division denied DeJesus' application for leave to appeal from Judge Irizarry's February 15th order. (Resp't's Supplem. Mem. Ex. E).

3. Writ of Error Coram Nobis

On May 27, 2000, DeJesus submitted a motion to the Appellate Division for a writ of error coram nobis, in which he claimed that he was denied his right to the effective assistance of counsel because his appellate counsel failed to challenge the sufficiency of the proof establishing his guilt and the ineffectiveness of his trial counsel. (Answer Ex. F). This application was denied on May 3, 2001. People v. DeJesus, 726 N.Y.S. 2d 43 (1st Dep't 2001) (table).

4. Habeas Petition

DeJesus' habeas petition was timely received by the Pro Se Office of this Court on October 4, 2001. (See Docket No. 2). The sole ground that he initially raised was that his appellate counsel was ineffective because he failed to raise trial counsel's ineffectiveness as an issue on appeal. (Pet. ¶ 12).

Thereafter, on April 30, 2003, the Court granted DeJesus' motion for leave to file an amended petition. (Docket No. 14). DeJesus subsequently served an amended petition and amended memorandum of law on or about June 16, 2003, although it does not appear that these documents ever were filed.*fn3 In his amended petition and memorandum, DeJesus raises a series of claims concerning the sufficiency of the trial evidence, the correctness of the jury charge, trial counsel's conflict of interest, and the allegedly ineffective assistance that he received from trial and appellate counsel.

Because the conflict of interest question appeared colorable and potentially required a hearing, I directed that Mr. Quijano be appointed to represent DeJesus. On January 5, 2005, Mr. Quijano submitted a memorandum of law, in which he argued that DeJesus' conviction should be set aside because of his trial counsel's conflict of interest.*fn4

II. Discussion

A. Standard of Review

A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 401 (1993). Rather, a state prisoner seeking habeas relief under Section 2254 must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petitioner bears the burden of proving, by a preponderance of the evidence, that his rights have been violated. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).

Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides, in part, that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --

(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. 28 U.S.C. § 2254(d)(1) (emphasis added).

As the Second Circuit noted in Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000), the Supreme Court has "construed the amended statute so as to give independent meaning to 'contrary [to]' and 'unreasonable.'" "Under the 'contrary to' clause, a federal habeas court may grant the writ 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] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under the "unreasonable application" clause, a federal habeas court should "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. This standard does not require that reasonable jurists would all agree that the state court was wrong. Id. at 409-10. Rather, the standard "falls somewhere between 'merely erroneous and unreasonable to all reasonable jurists.'" Stinson, 229 F.3d. at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 109 (2d Cir. 2000)).

Section 2254(d)(2) also authorizes the federal courts to grant a habeas writ when a claim considered on the merits in state court "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

Finally, to the extent that a habeas petition challenges factual findings, Section 2254(e)(1) provides that: "a determination of a factual issue by a State court shall be presumed to be correct" and "[t]he [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."

"If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail." Williams v. Taylor, 529 U.S. at 389.

B. DeJesus' Claims

1. Sufficiency of the Evidence

DeJesus first claims that his conviction was contrary to the weight and sufficiency of the evidence adduced at trial. (See Pet'r's Mem. at 3; Pet'r's Am. Mem. at 5-9). A petitioner's claim that his conviction was contrary to the weight of the evidence is not cognizable on federal habeas review. See Givens v. Burge, No. 02 Civ. 0842 (JSR)(GWG), 2003 WL 1563775, at *10 (S.D.N.Y. Mar. 4, 2003) (collecting cases). On the other hand, the sufficiency of the evidence used to convict a defendant is a matter within a habeas court's jurisdiction. A habeas petitioner challenging the sufficiency of the evidence nevertheless bears a "very heavy burden." Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995) (internal citations omitted). To prevail, the petitioner must show that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

In evaluating an insufficiency claim, a habeas court must weigh the evidence in the light most favorable to the prosecution and draw all permissible inferences in its favor. Jackson, 443 U.S. at 326; Knapp, 46 F.3d at 178. A sufficiency claim, therefore, does not permit the reviewing court to redetermine the credibility or reliability of witnesses or substitute its own view of the evidence for that of the trier of fact. See Marshall v. Lonberger, 459 U.S. 422, 434 (1983); Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996). Rather, insofar as there is evidence from which the jury could have drawn an inference favorable to the accused but chose not to, the court must "defer to . . . the jury's choice of the competing inferences that can be drawn from the evidence." United States v. Kinney, 211 F.3d 13, 18 (2d Cir. 2000) (quoting United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998)). For this reason, "the testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction." United States v. Danzey, 594 F.2d 905, 916 (2d Cir. 1979); see also Edwards v. Jones, 720 F.2d 751, 755 (2d Cir. 1983) (following Danzey even though the testimony and character of the sole witness who directly implicated the petitioner were "less than inspiring"); Means v. Barkley, No. 98 Civ. 7603 (DLC), 2000 WL 5020, at *4 (S.D.N.Y. Jan. 4, 2000) (applying Danzey and noting that a habeas court may set aside conviction only if testimony is "incredible as a matter of law") (internal citations omitted).

In his papers, DeJesus rather myopically contends that the evidence showed only that he was present at the scene of the crime. (See Pet'r's Am. Mem. at 8) ("No one heard DeJesus say anything, no one saw him with a gun, no one saw him shoot a gun. He was just present."). DeJesus also alleges that there was no proof that he possessed the mental state necessary to convict him of participation in an intentional murder. (Id. at 10).

Contrary to these assertions, DeJesus was not convicted on mere presence alone. Indeed, there was evidence that he had a motive to kill Gist, that he expressed an intent to contact Hernandez shortly before the murder took place, that he was not only present at the scene, but gave a signal to Hernandez immediately before the shooting, and that he subsequently provided a justification of sorts for Gist's death to both Morales and Detective Cronin, noting, in substance, that Gist had been warned not to encroach on DeJesus' territory.

From these facts, a jury clearly could have concluded that DeJesus arranged for Hernandez to kill Gist and aided and abetted that crime. While that was not the only conclusion the jury could have drawn, it is one which is supported by the evidence. For this reason, there is no basis for DeJesus' sufficiency claim.

2. Circumstantial Evidence Charge

DeJesus also contends that the trial court deprived him of a fair trial by refusing to give the jury a circumstantial evidence instruction that he had requested. (See Pet'r's Am. Mem. at 12-20). In Holland v. United States, 348 U.S. 121, 139-140 (1954), the Supreme Court held that a circumstantial evidence instruction is unnecessary so long as the jury is adequately advised that the defendant's guilt must be proved beyond a reasonable doubt. As the Court explained:

Circumstantial evidence . . . is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.

Id. at 140.

New York law imposes a higher burden on the prosecution. In New York, the "oft-stated rule with respect to convictions based exclusively upon circumstantial evidence is that for guilt to be proven beyond a reasonable doubt the hypothesis of guilt should flow naturally from the facts proved, and be consistent with them; and the facts proved must exclude 'to a moral certainty' every reasonable hypothesis of innocence."

Franza v. Stinson, 58 F. Supp. 2d 124, 141 (S.D.N.Y. 1999) (quoting People v. Ford, 66 N.Y.2d 428, 441 (1985)) (internal quotation marks deleted).

Prior to closing arguments, Justice Bell indicated to counsel that he would give a "general circumstantial evidence charge." (A. 218/T. 763). In keeping with that representation, his instructions to the jury contained a detailed explanation of the difference between direct and circumstantial evidence. (A. 262-67/T. 854-59). The Justice then went on to state:

Where the evidence is wholly circumstantial, and we have had here not wholly circumstantial, we have some circumstantial. But, where the evidence is wholly circumstantial, for guilt to be proven beyond a reasonable doubt the hypothesis of guilt should flow natural[ly] from the facts proved and be consistent with them. And the facts proved must exclude to a moral certainty every reasonable hypothesis of innocence. But, as I said before, we do not have wholly circumstantial evidence. We have direct and circumstantial evidence. And I gave you the charge on circumstantial evidence so you could understand the circumstantial evidence.

(A. 269/T. 861) (emphasis added). DeJesus' trial counsel objected to this aspect of the court's instructions, arguing that the court had explained the principles applicable to a wholly circumstantial case to the jurors, but then "basically said to them, they cannot apply that principle." (A. 291/T. 883).

In this case, contrary to DeJesus' assertions, the evidence of his guilt was not entirely circumstantial. For example, there was proof that Hernandez shot Gist immediately after DeJesus engaged in a hand movement that the jury reasonably could have concluded was a signal. See People v. Roldan, 627 N.Y.S.2d 1014, 1016-17 (1st Dep't 1995), aff'd, 88 N.Y.2d 826 (1996) (case not based entirely on circumstantial evidence where victim's testimony that defendant and another person were "signaling" to each other "although derived from directly observed circumstances, was not circumstantial evidence"). There also was direct testimony that DeJesus admitted in a post-arrest statement that Gist's death need not have happened since he had been warned. See Ramos v. Costello, No. 96 Civ. 3659 (LLS), 1997 WL 231129, at *3 (S.D.N.Y. May 7, 1997) ("New York law does not require [moral certainty] instruction where there is some 'direct evidence,' which includes eyewitness testimony.").

Furthermore, even if New York state law would have required the trial court to give a circumstantial evidence instruction incorporating "moral certainty" language on the facts of this case, this does not give rise to a federal habeas claim, as long as the jury is properly instructed as to reasonable doubt. See Soltero v. Kuhlman, No. 99 Civ. 10765 (GEL), 2000 WL 1781657, at *6 (S.D.N.Y. Dec. 4, 2000); Reyes v. New York, No. 99 Civ. 3628 (SAS), 1999 WL 1059961, at *4 (S.D.N.Y. Nov. 22, 1999). Here, Justice Bell properly instructed the jury with respect to reasonable doubt. (See A. 301-02/T. 897-98). Accordingly, the failure to give the jury the circumstantial evidence charge that DeJesus wanted -- even if incorrect as a matter of state law -- does not give rise to a federal constitutional claim.

3. Trial Counsel's Alleged Conflict

As noted earlier, DeJesus has been represented by court-appointed counsel in connection with his claim that his Sixth Amendment rights were violated because his trial lawyer was laboring under a conflict of interest during the trial by virtue of his concurrent representation of Bruno in another matter. After conferring with DeJesus, however, appointed counsel has withdrawn DeJesus' claim that his appellate counsel was ineffective because he failed to raise trial counsel's conflict of interest as part of DeJesus' direct appeal. (See letter from Mr. Quijano to the Court dated Jan 5, 2005). This decision is not surprising since appellate counsel clearly could not have raised that issue in his brief unless the facts upon which it was based were part of the trial record. Although Justice Irizarry denied DeJesus' Section 440.10 motion on the theory that the trial record was sufficient to have permitted review of all of his issues as part of his direct appeal, the Respondent's submissions to this Court all but concede that this was not the case with respect to DeJesus' conflict of interest claim. (See Resp't's Second Supp. Mem. in Opp. to Pet. at 2) ("[I]t would appear that petitioner's view -- that [C.P.L.] Section 440.10(2)(c) was improperly applied here to reject petitioner's conflict claim -- is not without merit."). Obviously, if the trial record was insufficient to permit the conflict of interest claim to be advanced, DeJesus did not forfeit it by first raising it later in a collateral proceeding.

Accordingly, DeJesus properly raised his conflict of interest claim as part of his Section 440.10 motion. Thereafter, however, DeJesus clearly failed to raise either his conflict of interest claim or its improper denial as part of his application for leave to appeal to the Appellate Division from Justice Irizarry's order denying his Section 440.10 motion. (See Resp't's Supplem. Mem. Ex. C (Pet'r's Applic. for Leave to Appeal to the App. Div.)). His claim is therefore unexhausted.*fn5

A federal habeas court presented with an unexhausted constitutional claim may either stay the petition or dismiss it without prejudice so that the petitioner can return to state court to pursue exhaustion. See Duncan v. Walker, 533 U.S. 167, 182-83 (2001) (Souter, J., concurring); cf. Zarvela v. Artuz, 254 F.3d 374, 380-81 (2d Cir. 2001) (discussing procedures applicable to "mixed" petitions containing both exhausted and unexhausted claims). In this case, however, this would be a futile exercise inasmuch as DeJesus' time to seek leave to appeal the denial of his Section 440.10 motion expired several years ago.

In these circumstances, because there has been a procedural default which bars further consideration of DeJesus' conflict of interest claim in state court, federal habeas review is precluded unless DeJesus can demonstrate either "cause for the default and actual prejudice as a result of the alleged violation of federal law" or "that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). Accord Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996). To make the latter showing, DeJesus must demonstrate that he is actually innocent. Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001).

In his petition, DeJesus has not made either of the required alternative showings, nor is there any reason to believe that such a showing could be made. Accordingly, the Court lacks jurisdiction to grant DeJesus any relief based upon his claim that his trial counsel had a conflict of interest.*fn6

In any event, even if this Court were to reach the merits of DeJesus' conflict of interest claim, it would have to be denied. "In order to establish a violation of the Sixth Amendment [arising out of concurrent multiple representation], a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). This, in turn, requires a showing that the conflict "affected counsel's performance -- as opposed to a mere theoretical division of loyalties." Mickens v. Taylor, 535 U.S. 162, 171 (2002) (emphasis deleted).

DeJesus contends that Bruno should have been called as a defense witness, but was not because his trial counsel was then representing Bruno in an unrelated attempted homicide case in Kings County. (See Quijano Mem. in Supp. at 23). DeJesus also argues that he "had an obvious strategic interest in implicating another with a possible motive or reason to murder Gist and to actually participate in Gist's murder," while his trial counsel had a conflicting "[un]alloyed duty" "to refrain from any conduct injurious to Bruno's interest." (Id. at 24).

DeJesus has failed to show, however, that Bruno would have testified had he been called as a witness and that his testimony would have been exculpatory. Indeed, as an unindicted accomplice facing serious charges in another county, Bruno had a substantial incentive to assert his Fifth Amendment rights. In addition, the prosecution's proof clearly suggested that Bruno knowingly had acted as an accomplice since he arrived at the scene of the shooting with Hernandez and the two of them fled together after the shots were fired. In his papers, DeJesus does not explain how a greater emphasis on Bruno's role in the crime during defense counsel's cross-examination of the People's witnesses would have served to exculpate DeJesus, nor does that seem likely since Bruno's active participation in the homicide did not preclude DeJesus' knowing involvement as well.

Additionally, as the Respondent correctly observes, the record that defense counsel developed at trial was more than sufficient to enable DeJesus to argue to the jury that Bruno -- rather than DeJesus -- was Hernandez's accomplice. In fact, in his summation, despite his alleged conflict, defense counsel advanced precisely the argument that DeJesus now suggests should have been made, stating:

Wilbur Hernandez murdered somebody. And somebody was running with Wilbur Hernandez. And somebody was in the car driving the get away. They weren't indicted. Danny DeJesus was. But, that doesn't mean they proved he did something. There is more proof the other [p]eople did something. But, they weren't apprehended. They weren't caught. They weren't indicted, whatever. It just says Danny DeJesus and Wilbur Hernandez.*fn7 (Resp't's Supp. Mem. at 13-14 (quoting T. 773-74)) (emphasis in original).

Consequently, even if DeJesus' conflict of interest claim were not procedurally barred, he would not be entitled to any relief on that ground because he has failed to show that the conflict adversely affected his trial counsel's performance.*fn8

4. Ineffective Assistance of Appellate Counsel

DeJesus' final claim is that his appellate counsel was constitutionally ineffective because he failed to incorporate into his brief on appeal a claim that DeJesus' trial lawyer was ineffective because of several shortcomings in his performance. (See Pet. ¶ 12.A; Pet'r's Mem. at 9-15; Pet'r's Am. Mem. at 12). This claim must be judged by the standard set forth in Strickland v. Washington, 466 U.S. 668, 688, 694 (1984), which applies to both trial and appellate counsel. See Evitts v. Lucey, 469 U.S. 387, 392 (1985). DeJesus therefore must demonstrate that his appellate counsel's performance (a) "fell below an objective standard of reasonableness" and (b) 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 688, 694.

In preparing a brief, appellate counsel is not required to raise every claim arising out of a trial and has the discretion to eliminate weaker ones. Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) ("[C]counsel does not have a duty to advance every non-frivolous argument that could be made."). Furthermore, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. In order to satisfy the first prong of the Strickland standard, DeJesus therefore must show that his appellate counsel did something more than omit from his brief a non-frivolous argument that DeJesus wished to pursue. See Evitts, 469 U.S. at 394; Aparicio, 269 F.3d at 95. He must establish that counsel opted not to raise "significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo, 13 F.3d at 533; Bragg v. Kuhlman, No. 97 Civ. 3025 (SHS), 1998 WL 867245, at *3 (S.D.N.Y. Dec. 14, 1998).

Here, as detailed below, DeJesus' objections to his trial counsel's performance are, without exception, meritless.*fn9 Obviously, if trial counsel was not ineffective, appellate counsel can scarcely be faulted for failing to present trial counsel's alleged ineffectiveness to a higher court as a basis for setting aside his conviction. See Feliciano v. United States, No. 01 Civ. 9398 (PKL), 2004 WL 1781005, at *8 (S.D.N.Y. Aug. 10, 2004) (since "petitioner's ineffective assistance [of trial counsel] claim is without merit, counsel's decision not to pursue the claim on appeal was certainly not an omission of a significant issue"); see also Smalls v. McGinnis, No. 04 Civ. 0301 (AJP), 2004 WL 1774578, at *32 (S.D.N.Y. Aug. 10, 2004) (appellate counsel was not ineffective for failing to allege that trial counsel was ineffective where there was no basis for claim).

a. Cross-examination of Det. Cronin

DeJesus' first contention is that his trial counsel was ineffective for "failing . . . to object to the trial court's refusal to allow him to continue cross-examination of Detective Cronin." (Pet'r's Mem. at 4-5, 12). The slender reed upon which he bases this allegation is an excerpt from the trial transcript which reads as follows:

Q Detective, had you told this defendant that Wilbur Hernandez was a suspect in the case?

A No, I didn't.

THE COURT: All right, step down before someone else thinks of something else.

Step down. Thank you.

[Defense counsel]: Judge, give me a chance.

THE COURT: Call your next witness. (Answer Ex. E (Aff. in Supp. of Coram Nobis Pet.) at 9 (quoting T. 612) (emphasis added)).

This exchange clearly is insufficient to establish that DeJesus' trial counsel was ineffective. Indeed, although DeJesus has failed to provide this Court with the relevant portion of the trial transcript, the Respondent's papers in opposition to DeJesus' coram nobis petition quote the very next line of the transcript, which indicates that defense counsel "smile[d]" after his remark. (Id. Ex. F (Mem. of Law in Opp. to Applic. for Writ of Error Coram Nobis) at 19-20). This parenthetical notation by the court reporter is entirely understandable in context because counsel's mock "objection" was made after Detective Cronin had been questioned extensively by both sides.

In fact, as the Respondent's papers in opposition to the coram nobis petition make clear, DeJesus' counsel had conducted a very thorough cross and recross examination. (Id. at 17-19). During those examinations, counsel sought to demonstrate that Detective Cronin's testimony concerning DeJesus' alleged post-arrest admissions was untrustworthy because, among other things, he lacked contemporaneous notes, had not obtained a signed confession, and allegedly had violated DeJesus' request for counsel. (Id.). In addition, after Detective Cronin indicated on redirect that he had not questioned DeJesus once he had requested counsel, defense counsel suggested during recross that he should have afforded DeJesus privacy when DeJesus called his wife. (Id. at 19).

Through his questions on recross, counsel also questioned the likelihood that Detective Cronin would not have said anything to DeJesus after he allegedly mentioned "Wilbur." (Id. at 18). The colloquy that DeJesus relies upon apparently took place at an even later stage, after the prosecutor had conducted a brief re-redirect and defense counsel a rerecross examination. (Id. at 18-19).

Tellingly, in his papers, DeJesus does not suggest any areas of inquiry that his counsel could usefully have pursued had he been permitted to continue his questioning. In the absence of any such showing, even if counsel's objection were intended to be serious, there is no basis for DeJesus' claim that his trial counsel's failure to ask to conduct a further cross-examination deprived him of a fair trial.

b. Prosecutor's Summation

DeJesus also objects to several statements made by the prosecutor during closing argument. The first of these is the prosecutor's assertion that DeJesus had "expressed his intent to kill." (Resp't's Supplem. Mem. Ex. A at 41 (quoting T. 831); Pet'r's Mem. at 12). Notwithstanding DeJesus' objection that there was no evidence to support this argument, the People's proof included testimony that DeJesus had made statements before the shooting that Gist had been "warned," that he was not supposed to be "out there," and that DeJesus was going to call "Wilbur." (A. 66, 68/T. 496-97). Based upon these statements, and the shooting that followed soon thereafter, a finder of fact reasonably could infer that DeJesus had expressed an intention to have Gist killed. The prosecutor's statement therefore was fair comment.

DeJesus also argues that the prosecutor improperly commented on his assertion of his Fifth Amendment rights by asking, "How does the defendant know [Gist] was warned unless it is the defendant who is telling him, who is conveying the warning?" (See Resp't's Supplem. Mem. Ex. A at 41 (quoting T. 834); Pet'r's Mem. at 12). However, if someone other than DeJesus had conveyed the warning, DeJesus could have called that person as part of his defense case. Accordingly, the prosecutor's remarks, in context, clearly focus on the lack of evidence that anyone else warned Gist, rather than DeJesus' failure to take the stand. For this reason, DeJesus' attempt to characterize the prosecutor's query as improper is misplaced. See, e.g., United States v. Salameh, 152 F.3d 88, 136 (2d Cir. 1998) (quoting United States v. Coven, 662 F.2d 162, 171 (2d Cir. 1981)) ("A constitutional violation occurs only if either the defendant alone has the information to contradict the government evidence referred to or the jury naturally and necessarily would interpret the summation as comment on the failure of the accused to testify.") (internal quotation marks omitted).

Next, DeJesus objects to the prosecutor's alleged comment in summation that Morales and Jimenez "certainly had a reason to fear the defendant." (See Resp't's Supplem. Mem. Ex. A at 41-42 (quoting T. 817); Pet'r's Mem. at 12). DeJesus contends that this was improper because there was no evidence to that effect. (See Pet'r's Mem. at 12). While it is difficult to understand the precise manner in which this issue arose without reviewing the full transcript, it seems obvious that these two eyewitnesses to Gist's shooting might legitimately fear testifying against a man they knew and believed had played a role.

A similar issue arose recently in Ramirez v. Poole, No. 03 Civ. 5202 (NGG), 2005 WL 1123775, at *10 (E.D.N.Y. May 9, 2005). There, the prosecutor argued in summation that a witness was "filled with fear" and "scared to death" when she saw the defendant as she entered the courtroom. Id. The petitioner argued that these statements were improperly intended to elicit sympathy for the witnesses and anger against him. Id. On habeas review, Judge Garaufis concluded that it was proper for the prosecutor to comment about the witness' demeanor, but not to suggest what she was thinking. Id. Unlike this case, however, defense counsel had objected to the prosecutor's comments during the course of the trial, which led the trial court to admonish the prosecutor that she could ask the jury to infer what a witness was thinking but could not comment directly on that issue. Id. Based on that admonition, and an earlier similar one, Judge Garaufis found that it was not unreasonable for the Appellate Division to conclude that the judge's instructions had ameliorated any potential prejudice. Id.

One of the questions that a juror reasonably may ask in assessing the credibility of a prosecution witness is, of course, did the witness have a motive to lie or withhold information? See, e.g., 1 L. B. Sand, et al., Modern Fed. Jury Instructions ¶ 7.01 (2003).*fn10 If a witness' motivation is an issue that the jury properly may consider, it is far from clear that the criticism of the prosecutor's comments in Ramirez was warranted. More importantly, however, even if the remark made by the prosecutor in this case was objectionable, as Ramirez suggests, it by no means follows that defense counsel's failure to object would give rise to a meritorious ineffective assistance of counsel claim. Indeed, to have objected and requested a curative instruction would likely have drawn the jury's attention to an issue which apparently had been raised only fleetingly in summation. Since counsel's failure to object could well have been the result of an informed tactical decision on his part, DeJesus cannot show that his trial counsel's failure to object was unreasonable. See United States v. Javino, 960 F.2d 1137, 1145 (2d Cir. 1992) (quoting Strickland, 466 U.S. at 689) ("Actions or omissions by counsel that 'might be considered sound trial strategy' do not constitute ineffective assistance."); United States v. Grunberger, 431 F.2d 1062, 1069 (2d Cir. 1970) ("it is understandable that a defense counsel may wish to avoid underscoring a prejudicial remark in the minds of the jury by drawing attention to it" through an objection).

DeJesus also objects to the prosecutor's remark that, "if you want to speculate that she is going to get something, then you can base your verdict on speculation." (See Resp't's Supplem. Mem. Ex. A at 44 (quoting T. 813); Pet'r's Mem. at 12). The context in which this statement was made has not been explained in DeJesus' papers. The transcript also is unavailable. Nevertheless, it seems evident that the prosecutor must have been referring to Morales since the papers in support of DeJesus' Section 440.10 motion suggest that she was improperly given compensation in the form of "various packs of cigarettes." (See Resp't's Supplem. Mem. Ex. A at 38-40). In those papers, DeJesus suggests that Morales may have lied to show her gratitude. (Id. at 40). It is, however, understandable that defense counsel failed to object since the prosecutor appeared to be disparaging his case, rather than seeking to bolster it, by telling the jury that if it wished to assume, without basis, that Morales had received some benefit, it could. This somewhat facetious comment plainly was not intended to encourage the jury to convict DeJesus on the basis of speculation and, consequently, was not prejudicial.

Finally, DeJesus complains about several instances in which the prosecutor asked the jurors to use their "common sense." (See Resp't's Supplem. Mem. Ex. B at 43-44; Pet'r's Mem. at 12). Three of these comments were directed to the evidence and, consequently, were not objectionable. See United States v. Eltayib, 88 F.3d 157, 173 (2d Cir. 1996) (not improper for prosecutor to ask jurors to draw inferences "based on their common sense" leading to the conclusion that a government witness had no motive to lie); United States v. Hines, 256 F.2d 561, 564 (2d Cir. 1958) ("We have reiterated many times that the jury may make common-sense inferences from the proven facts in both civil and criminal cases.").

The prosecutor's last statement regarding common sense was as follows: Now, Judge Bell will instruct you on the law of reasonable doubt. I am sure that when you hear those instructions you will find them to be quite clear and you will see that reasonable doubt is a common sense standard. And 'I' ask you to apply that standard. (Resp't's Supplem. Mem. Ex. B at 44 (quoting T. 800)) (emphasis deleted).

To the extent that this comment sought to equate the concept of reasonable doubt with common sense it arguably was misleading. Nonetheless, even if DeJesus' counsel failed to object, the prosecutor himself reminded the jurors that the court would instruct them as to the applicable law. Any possible prejudice plainly was subsequently cured by the judge's instructions, which properly defined the term "reasonable doubt" and stated that the jurors had to accept the principles of law given to them by the court and could not substitute their own judgment. (See A. 252/T. 844; A. 279-81/T. 871-73; see also A. 254/T. 846).

Ultimately, to prevail on any of his claims of alleged prosecutorial misconduct in summation, DeJesus must show "that he suffered actual prejudice because the prosecutor's comments had . . . a substantial and injurious effect or influence in determining the jury's verdict." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994). This requires the Court to consider "(1) the severity of the prosecutor's conduct; (2) what steps, if any, the trial court may have taken to remedy any prejudice; and (3) whether the conviction was certain absent the prejudicial conduct." Id.

Here, the only summation arguments that potentially should have been the subject of an objection related to the witnesses' alleged fear of DeJesus and the suggestion that reasonable doubt was simply a common-sense standard. As to the first of these comments, Justice Bell instructed the jury that it was free to disregard the arguments of counsel. (A. 254/T. 846). Justice Bell also instructed the jury at considerable length about the manner in which it was to evaluate the credibility of the witnesses. (A. 257-62/T. 849-54). With respect to the prosecutor's second comment, Justice Bell carefully instructed the jury that it was duty-bound to follow his instructions as to the law and that it had "no discretion whatsoever" to depart from those instructions. (A. 251-52/T. 843-44). Justice Bell also correctly instructed the jury as to the meaning and application of the reasonable doubt standard. (A. 279-83/T. 871-75). There is absolutely no reason to believe that the jurors failed to heed these instructions.

Moreover, the prosecution's case, while perhaps not overwhelming, certainly was very strong. Thus, the People established that DeJesus had a pecuniary motive to have Gist killed, showed that he had placed a call to Hernandez shortly before the shooting, put him at the scene of the crime, and adduced evidence that he had signaled Hernandez and Bruno just before the fatal shots were fired. In the absence of any significant exculpatory testimony, it comes as no surprise that DeJesus was convicted, nor is there any reason to believe that additional cautionary instructions by the trial judge would have led to a different result.

For these reasons, to the extent that DeJesus' ineffective assistance of counsel claim is based on the prosecutor's remarks in summation, it plainly lacks merit.

c. Accomplice Liability Charge

DeJesus also claims that his trial counsel was ineffective for failing to object to the trial court's accomplice liability instruction to the jury. (Pet'r's Mem. at 3, 12-14; Pet'r's Am. Mem. at 9-10). It is undisputed that DeJesus was not the trigger man. Accordingly, in order to convict him, the People had to establish that he solicited, or aided and abetted, Hernandez's shooting of Gist, with the intent that Gist be killed. See, e.g., People v. Lewis, 683 N.Y.S.2d 521 (1st Dep't 1999) ("defendant could only be convicted as an accomplice if he intentionally aided the other participant and shared that person's specific intent in the commission" of the crime).

In his initial charge to the jury, Justice Bell set forth the legal principles applicable to a charge of accomplice liability, stating:

Under the law of New York a person is criminally liable for a criminal act not only when he directly commits it, but when he is present at and intentionally aids in its commission.

The basic principle is stated in a section of the Penal Law which read as follows: When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.*fn11

Under this general provision of the law, the guilt of a defendant may be established without proof that the defendant did each and every act constituting the crime charged.

(A.274-75/T. 866-67) (emphasis added).

The jurors were further instructed that "[a] person is guilty of murder in the second degree when with intent to cause the death of another person he causes the death of such person or of a third person." (A. 284/T. 876).

Finally, the jurors were instructed that if they failed to find DeJesus guilty as an accomplice, they would have to determine whether he was liable individually, and that they could "not consider the actions of Wilbur Hernandez . . . in this case." (A. 277/

T. 869).

At the conclusion of the charge, both DeJesus' counsel and the prosecutor asked that Judge Bell read a portion of his accomplice liability instruction to the jury again because they were uncertain that it had been delivered correctly. (A. 292-93/T. 884-85). Judge Bell complied, stating:

Now, ladies and gentlemen, . . . when one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when acting with the mental culpability required for the commission thereof, he solicits, requests, commands importunes or intentionally aids such person to engage in such conduct. (A. 296-97/T. 888-89) (emphasis added).

DeJesus objects to these instructions on three grounds. First, he alleges that the trial court failed to inform the jury that "each defendant [charged] had to act with the mental culpability required for the commission of the crime charged in the indictment." (Resp't's Supplem. Mem. Ex. A. at 31-32; Pet'r's Mem. at 14-15; Pet'r's Am. Mem. at 21-22). In fact, Justice Bell twice stated the applicable law correctly. There consequently is no basis for this claim.

DeJesus further claims that the court's instructions permitted the jury to find him guilty "without proof . . ." and without considering "the actions of Wilbur Hernandez in [their] deliberations . . . ." (Pet'r's Mem. at 14).

DeJesus' use of ellipses cannot conceal the fact that Justice Bell's instructions, read as a whole, accurately set forth the law. Thus, the jury correctly was told that DeJesus could be convicted as an accomplice if he assisted in Hernandez' murder of Gist, even "without proof" that DeJesus himself "did each and every act constituting the crime." (A. 274-75/T. 866-67). Since this correctly states the law of accomplice liability, DeJesus' claim is frivolous. The jury also was correctly instructed that if it rejected the prosecution's accomplice theory, it had to consider DeJesus' liability as a principal without considering Hernandez's actions. While the Justice admittedly said that the jurors could "not consider the actions of Wilbur Hernandez . . . in this case," (A. 277/T. 869) (emphasis added), it is clear, in context, that he was instructing them not to do so in this circumstance, i.e., if they reached the question of DeJesus' liability as a principal. In any event, since the proof overwhelmingly showed that any liability that DeJesus had was as an accomplice, there is no reason to believe that the jury ever needed to apply this instruction.

In sum, there is no basis for DeJesus' claim that he was prejudiced by Justice Bell's jury instructions.

d. Rosario Violation

Finally, DeJesus contends that his trial counsel was ineffective for failing to object to an alleged Rosario violation. (Pet'r's Mem. at 3-4, 12). This claim, which is spelled out in considerable detail in DeJesus' Section 440.10 motion, (see Resp't's Supplem. Mem. Ex. A at 19-22), is based on the following exchange between Detective Cronin and defense counsel:

Q Now, did you, in preparing these reports, make any notes or notations in those reports as to the substance of the statements that this defendant made to you?

A No, I did not.

Q So, that everything you are now telling the jury is just your recollection of those statements?

A It was not recollection. I told the DA of the statements and he had written them down for me.

Q You made no notes of them at all?

A I did not make any notes of the statements.

(A. 173-a/T. 606) (emphasis added).

This claim fails for at least three reasons. First, it is settled law that a Rosario claim arises exclusively under state law and therefore is not properly the subject of federal habeas review. See, e.g., Pena v. Fischer, No. 00 Civ. 5984 (HB) (MHD), 2003 WL 1990331, at *10 (S.D.N.Y. Apr. 30, 2003); Sease v. Goord, No. 01 Civ. 1378 (HB), 2003 WL 23100261, at *7 (S.D.N.Y. Dec. 30, 2003). Second, even if a Rosario claim was cognizable, nowhere in his papers has DeJesus shown that his trial lawyer did not receive the prosecutor's notes prior to trial. Finally, even if one were to assume, arguendo, that the notes were not timely produced, DeJesus has not shown, as he must, that they contained information which might have changed the result of the trial. DeJesus therefore has failed to meet either prong of the Strickland test with respect to this claim.

IV. Conclusion

For the foregoing reasons, DeJesus' habeas petition should be denied. Moreover, because DeJesus has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.

V. Notice of Procedure for Filing of Objections to this Report and Recommendation

The parties are hereby directed that if they have any objections to this Report and Recommendation, they must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court, and send courtesy copies to the chambers of the Honorable Jed S. Rakoff, United States District Judge, and to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, NY 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Rakoff. Any failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72(b).

FRANK MAAS United States Magistrate Judge

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