The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge.
REPORT AND RECOMMENDATION TO THE HONORABLE SHIRA A. SCHEINDLIN
Petitioner Chester Sanders ("Sanders") brings this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 to challenge his conviction in Supreme Court, Bronx County, on two counts of Assault in the First Degree, following a jury trial. (See Pet. ¶¶ 1, 5). On July 26, 1999, Acting Justice Barbara F. Newman, before whom the case was tried, sentenced Sanders to concurrent indeterminate terms of twelve and one-half to twenty-five years in jail. (Id. ¶¶ 3-4).
In his petition, Sanders alleges that he was denied effective assistance of counsel in violation of the Sixth Amendment because his trial counsel prevented him from testifying. (Id. ¶ 13). For the reasons that follow, Sanders' habeas petition should be denied. Additionally, pursuant to 28 U.S.C. § 2253(c)(2), Sanders should be denied a certificate of appealability because he has failed to make a substantial showing of the denial of a constitutional right.
The proof at trial would have permitted a reasonable juror to find as follows:
On the evening of April 15, 1997, Sanders was smoking crack and
drinking alcohol, along with James Isaac ("Isaac"), Isaac's friend
Marcus, and Tanya Anderson ("Anderson") at Anderson's apartment in a
housing project in the Bronx. (Tr. 43, 45, 47-49, 157).*fn1
Several hours later, during the early morning hours of April
16, 1997, Isaac invited the others to go out for drinks because he was
leaving for Florida the next day. (Id. at 54-55). Isaac then left a
$100 bill on the bed, which was intended to compensate Sanders for
staying behind to look after Anderson's son, Antoine. (Id. at 55, 184,
186). Sanders threw the money back, however, telling Isaac, "I don't
want the money." (Id. at 55, 57, 185-86).
Shortly thereafter, Isaac walked into the bathroom, and Sanders and Anderson returned to the kitchen. (Id. at 56, 58). According to Isaac, at some point, Sanders entered the bathroom and proceeded to stab him in both his back and his right eye. (Id. at 58-60, 69-71). After telling Isaac, "I'm going to kill you. You disrespect [sic] me," Sanders also made an unsuccessful attempt to stab him in the chest. (Id. at 59-61). Shortly thereafter, Isaac and Marcus were able to grab Sanders' hands and stop the attack. (Id. at 61-62). As they were doing so, Sanders warned Marcus that if he did not let go of Sanders' hands, "he would be next." (Id. at 449).
At trial, Anderson testified to a slightly different version of the facts. As she explained, while everyone was playing a game, Sanders excused himself from the bedroom. (Id. at 433). When he returned, Sanders said "Excuse me" and Anderson moved to the side. (Id. at 435). Sanders then began stabbing Isaac, who was sitting in a chair in the bedroom. (Id.).
Eventually, Isaac and Anderson ran out of the apartment and went to a Housing Police office in an adjacent building. (Id. at 62, 66, 170, 437). A little while later, Sanders was arrested on the street near Anderson's apartment. (Id. at 255-66). At the time of his arrest, Sanders had blood on his left hand. (Id. at 264). Once he was handcuffed and placed in a patrol car, Sanders stated, "I don't know where the knife is, I just ran out of there." (Id. at 266-68). A steak knife used in the attack subsequently was recovered from a stairwell in Anderson's building. (See id. at 86, 282-87, 456).
Sanders did not testify at trial. The defense case consequently consisted of only one witness, Police Officer Francis Pittone ("Pittone"). Pittone evidently was called to establish a conflict between his testimony and that of a supervisory police official who testified that Pittone had been sent to Anderson's apartment to secure the scene. (Id. at 806, 820, 1021). Pittone also testified that he mopped up a considerable amount of blood at a police facility on the night Isaac was stabbed. (Id. at 891-96). Additionally, the defense introduced two certificates of disposition relating to Anderson and a stipulation that the knife recovered at the scene was removed from its sealed package in court prior to the trial. (Id. at 991-92). The certificates of disposition established that Anderson had two prior convictions related to cocaine, not simply one for marijuana possession, as she had testified. (See id. at 430, 480, 1048-50).
C. Conviction and Sentencing
On July 1, 1999, the jury found Sanders guilty on two counts of Assault in the First Degree. (Id. at 1199). The jury was unable to reach a verdict on the remaining count submitted for its consideration, Attempted Murder in the First Degree, which thereafter was dismissed on the prosecutor's motion. (Id. at 1199-1202).
On July 26, 2999, Justice Newman sentenced Sanders to concurrent indeterminate prison terms of twelve and one-half to twenty-five years. (S. 13). Prior to the imposition of sentence, Sanders' trial counsel, Robert Reyes, Esq. ("Reyes"), stated, in part, as follows:
Your Honor, I think that your function as the sentencing judge for Mr. Sanders is a difficult one and perhaps I see it differently than the prosecutor and yourself because I feel somewhat to blame for Mr. Sanders' decision not to testify. And had he done so perhaps the result would have been different and I think that's an unavoidable consequence of being defense counsel[:] you make a decision and you must live with it for better or worse.
Mr. Sanders' life is unalterably affected by my strenuous recommendation to him to not testify. . . .
Mr. Sanders has always told me that he had a defense that he wanted to put forward, and as you know I prevented that from ...