The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner, Malik Black ("Black"), filed this petition for habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on charges of second degree murder. The parties have consented to disposition of this matter by the undersigned pursuant 28 U.S.C. § 636(b).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The conviction here at issue stems from the shooting death of Gregory Rodgers ("Rodgers") on October 31, 1993, at 532 Seward Street in the City of Rochester. Rodgers died as a result of multiple gunshot wounds, two to the head and one to the chest. Black, who at that time was known as Ernest Dunham, was eventually arrested and indicted by a Monroe County grand jury on five counts: second degree (intentional) murder (N.Y. Penal Law § 125.25(1)); second degree (depraved indifference) murder (N.Y. Penal Law § 125.25(2)); second degree (felony) murder (N.Y. Penal Law § 125.25(3)); and first degree robbery (N.Y. Penal Law § 160.15(3), (4)). Black was tried before a jury in Monroe County Court (Bristol, J.).
The prosecution presented evidence that just minutes before his death, Rodgers had been visiting at the home of Kenya Matthews ("Kenya") at 879 Jefferson Street. At the time, Kenya was Black's girlfriend. Also present at the house were Black; Kenya's cousin, Chandra Matthews ("Chandra"); Robert Carlos ("Carlos"); Adam Bowen ("Bowen"); Jeremy Siplin ("Siplin"); and Kenya's and Chandra's children. Carlos was in the kitchen with Bowen and Siplin, and Black and Kenya were in a nearby bedroom. T.542.*fn1 Chandra and the children were in the living room. When Rodgers arrived at Kenay's residence, he joined the men sitting the kitchen and was talking with them when Kenya and Black came out of the bedroom. Chandra heard Kenya said something to the effect of, "Don't say anything," while Siplin held her back from going into the kitchen. T.623-24. Both Chandra and Kenya testified that Black then confronted Rodgers verbally, calling Rodgers a "bitch ass nigger" and stating something to the effect of, "That was real foul, that shit you did." T.624-25, 692. Rodgers replied, "What are you talking about?"
T.625. Black then said to Bowen, "Give me the tool," referring to the gun that Black had just given him in the bedroom. T.626, 689, 693. Bowen handed it over. Chandra and Kenya recounted that Black held the gun right up against Rodgers's head and ordered him to strip.
T.627-28, 694. At first, Rodgers tried to laugh it off, but he started to comply when Black yelled at him. T.694. When Rodgers went to remove his shirt, he threw it over Black's face and knocked the gun out of Black's hand, causing it to go flying under the table. T.696. As Black and Rodgers struggled, Black eventually made his way under the table and picked up the gun. Id. By this time, Chandra had run out of the house, with Rodgers right behind her, and Black following him. Id. In his hurry to escape, Rodgers left his coat, pager and keys in Kenya's kitchen.
Chandra was already across the street when she heard the first shot fired somewhere behind her. T.630-31. Chandra looked around and saw Black standing on the porch, holding the gun and pointing in the direction where Rodgers had run, which was through the "cut," a driveway that led into some backyards. T.631-32. As Chandra turned right to head in the other direction, she saw Black running after Rodgers. T.634. Kenya also saw Black chasing after Rodgers, firing a gun at him. T.698. She called form Black to come back to the house but he did not. Kenya testified that Carlos and Siplin grabbed Rodgers' coat and belongings and left the house. T.699.
Eventually, Black returned to Kenya's house and announced to Kenya and Chandra, "[T]hat kid is dead." Chandra asked him how he knew, and he responded, "[B]ecause [I] shot him in the head." T.638. Chandra did not believe Black, but he insisted that he had stood over Rodgers and shot him in the head in front of the house belonging to some of Chandra's cousins on Seward Street. T.701-02. Chandra went outside to investigate and discovered Rodgers's dead body at the location on Seward Street (number 532) that Black had indicated.
Wayne Walker ("Walker"), the resident of 532 Seward Street, stated that he heard three sets of three gunshots. T.446 (Walker). Just before the last series of gunshots, Walker heard a male voice say, "Where do you think you're going?" Id. When the shooting stopped, Walker ventured outside and found Rodgers, fatally shot.
Back at the house, Kenya overheard Black talking to Bowen. T.703. Black told Bowen that when they were running through the yards, Rodgers slowed down somewhat and said that he was all right. Id. Kenya testified that Black recounted that he caught up to Rodgers and said, "[T]hat was some bitch that he pulled or something in that category and he [Black] shot him [Rodgers] again." Id. Before Black left Kenya's house, he announced that he was going to dye the victim's coat white and have a purple lining put in it. T.704.
Kenya admitted that when she first spoke to the police, the statement she gave was not true "because [Black] had not been arrested on the murder charges yet" and "everyone thought that he was getting out soon." T.706-07. She stated that she had two children and that she lived by herself, and that all the people who hung around her house were involved with Black. T.707. Kenya testified that she told the truth to the grand jury because by that time, Black had been arrested. Id.
Two spent casings and a spent bullet were recovered at the crime scene, and were determined to have been fired from the same .38-caliber semi-automatic handgun. The murder weapon was never found, however.
The jury returned a verdict acquitting Black of all charges in the indictment except for one count of second degree (depraved indifference) murder. He was sentenced to twenty-five years to life in prison.
Represented by new counsel, Black appealed his conviction to the Appellate Division, Fourth Department, of New York State Supreme Court. Black also filed a pro se supplemental brief. The Appellate Division unanimously affirmed his conviction on May 7, 1999. People v. Dunham, 261 A.D.2d 909, 692 N.Y.S.2d 244 (App. Div. 4th Dept. 1999). The New York Court of Appeals denied leave to appeal on August 10, 1999. People v. Dunham, 93 N.Y.2d 1017, 697 N.Y.S.2d 576 (N.Y. 1999). Black filed no motions for collateral relief in state court.
The habeas petition was filed on October 16, 2001. Black, represented by Charles Buxton, Inmate Law Library Clerk, raises the following grounds for relief: (1) the delay in arresting petitioner resulted in the denial of the Sixth Amendment right to counsel, the right to testify, and due process; (2) petitioner was denied of his Sixth Amendment right to be present at all material stages of his trial; (3) the trial court's failure to dismiss a juror sua sponte was an abuse of discretion and violated petitioner's right to due process and an impartial jury; (4) trial counsel was ineffective; and (5) petitioner was denied his Sixth Amendment right to be represented by counsel of his own choice. See Petitioner's Memorandum of Law ("Pet'r Mem.") (Docket #3). Respondent has not raised the defenses of non-exhaustion or procedural default with respect to any of Black's claims, and the claims all appear to be properly before this Court on habeas review. For the reasons set forth below, the petition is denied.
To prevail under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
Black contends that there was a two-month "unjustifiable" and "intentional" delay in arresting him in connection with the Rodgers homicide violated his "rights to assistance of counsel, to testify on [his] own behalf, and to due process[.]" Pet'r Mem. at 9 (Docket #3). On direct appeal, the Appellate Division "reject[ed] the contention of defendant that the two-month delay between the questioning by the police and his arrest, during which time he pleaded guilty to an unrelated crime, violated his right to counsel. Defendant has no constitutional right to be arrested[.]" People Dunham, 261 A.D.2d at 910 (citing, inter alia, Hoffa v. United States, 385 U.S. 293, 310 (1966)).
As the Appellate Division noted, the right to be arrested simply is not guaranteed by either the New York state or the federal constitution. See Hoffa, 385 U.S. at 310;*fn2 accord United States v. De Biasi, 712 F.2d 785, 795 (2d Cir. 1983) ("[T]here is no support for [defendant's] novel suggestion that he was constitutionally entitled to an arrest the moment there was probable cause to arrest.") (citing Hoffa, 385 U.S. at 310; United States v. Waltzer, 682 F.2d 370, 373 (2d Cir. 1982)). The Second Circuit has explained that delay prior to arrest "is usually free of the sometimes damaging effects of excessive post-arrest delay" because, until a suspect has been arrested, he "has not been deprived of his freedom or been publicly accused." United States v. Feinberg, 383 F.2d 60, 64 (2d Cir. 1967).
Furthermore, Black's claim that his Sixth Amendment right to counsel was violated also must fail because the Sixth Amendment right to counsel does not attach until "adversary judicial criminal proceedings have been initiated against [the defendant]." Kirby v. Illinois, 406 U.S. 682, 688 (1972) (citing cases). Even though petitioner had already been charged with the robbery and criminal possession of a weapon charges, it would make no difference to the outcome here as the Sixth Amendment right to counsel is "offense-specific." E.g., Texas v. Cobb, 532 U.S. 162, 167-68 (2001) (quoting McNeil v. Wisconsin, 501 U.S. 171, 175 (1991) ("The Sixth Amendment right [to counsel], however, is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.") (citations and internal quotation marks omitted)). Thus, Black could have been questioned regarding the Rodgers homicide even in the absence of counsel. See id.
Finally, Black claims that the alleged delay prior to his arrest compromised his Fifth Amendment right to testify in his own behalf at trial. The Supreme Court noted in United States v. McDonald that "delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment." 456 U.S. 1, 7 (1982) (citing United States v. Lovasco, 431 U.S. 783, 788-789 (1977)). In Lovasco, the Supreme Court rejected respondent's argument, based on United States v. Marion, 404 U.S. 307, 324 (1971), that "due process bars prosecution whenever a defendant suffers prejudice as a result of pre-indictment delay." 431 U.S. at 789. Rather, the Supreme Court has held that Marion stands for the proposition that "proof of prejudice is generally a necessary but not [a] sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." Id. In other words, a defendant must show that the delay "caused substantial prejudice to [his] rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." Id.
Black argues that the "ultimate purpose" underlying the pre-arrest delay was "to gain the tactical advantage of securing the weapons conviction first, so it could be either used as a deterrent to discourage [him] from testifying . . . or used for its prejudicial affect [sic] during the cross-examination of [him] if [he] chose to testify." Pet'r Mem. at 15 (Docket #3). Petitioner implies that had he known that he was a suspect in the Rodgers homicide, he might not have pled guilty to the criminal possession of a weapon charge due to the effect it could have on his decision to testify at later trial on the Rodgers murder. As evidence of the prosecution's bad intent, he points to a statement in police investigative report that the assistant district attorney "requested [reporting officers] wait until after 12-22-93 to arrest Dunham due to several charges now pending against Dunham." Petitioner's Appendix of Exhibits at C.53. Ultimately, however, Black did not plead guilty to the weapons possession charge until February 7, 1994. The indictment in the Rodgers homicide subsequently was handed down on February 18, 1994, and a warrant for Black's arrest was issued the same day. In light of this chronology, the fact that the prosecutor asked the police to wait until after December 22, 1993, does not prove that the delay was the result of scheming on the part of the prosecutor to secure a tactical advantage over petitioner. Even assuming that Black based his decision not to testify on the trial court's ruling that the weapons conviction could be introduced by the prosecutor, he has not shown that his right to a fair trial was "substantially prejudiced" by his failure to testify. Habeas relief accordingly is denied on this claim.
2. Denial of Right to be Present at All Stages of Trial
On the day scheduled for Black's arraignment on the homicide charges, and while the trial court and counsel were waiting for petitioner to be brought into court, the court asked if any of the attorneys present in the courtroom were involved in Black's case. The prosecutor answered that he would be handling the matter for the district attorney's office but stated that he did not know who would be representing petitioner. The prosecutor added that there might be a conflict of interest with the public defender's office because several witnesses to the crime, including Robert Carlos, also were represented by that office. The court indicated the name of an attorney who could take the case, should there be a conflict with the public defender's office. The court then requested that the assistant public defender who was present stand in for the arraignment. At that time, petitioner entered the courtroom and was arraigned with the assistant public defender as his attorney. Within two months of the arraignment, petitioner had retained private counsel.
Black contends that had he been present during the side-bar discussion at arraignment, he would have been "capable of resolving the factual basis of the conflict issue right then and there"--that is, whether the public defender's office was in fact already representing Robert Carlos, who apparently was Black's cousin. Petitioner argues that "[he] would have saved the two months it took the Public Defender to verify the factual basis of the conflict of interest" and he "would have then gained two months of earlier defense investigation with a conflict[-]free attorney." Pet'r Mem. at 27-28 (Docket #3). Petitioner's argument is fairly creative but without merit.
It is a well-settled proposition that a criminal defendant has a constitutional right "to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v. California, 422 U.S. 806, 819 n. 15 (1975); accord Kentucky v. Stincer, 482 U.S. 730, 745 (1987). "The principle that the accused has a right to be present at all material stages of trial inheres in the confrontation clauses of the United States and New York Constitutions and is articulated in both federal and state rules of procedure." Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000) (citing U.S. CONST. amend. VI; N.Y. CONST. art. I, § 6; Fed. R. Crim. P. 43; N.Y. Crim. Proc. Law §§ 260.20, 340.50; Illinois v. Allen, 397 U.S. 337, 338 (1970); People v. Parker, 57 N.Y.2d 136, 139, 454 N.Y.S.2d 967, 440 N.E.2d 1313 (1982); People v. Mullen, 44 N.Y.2d 1, 4-5, 403 N.Y.S.2d 470, 374 N.E.2d 369 (1978)). However, the defendant's right to be present "is triggered only when the defendant's 'presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.'" Cohen v. Senkowski, 290 F.3d 485, 489 (2d Cir. 2002) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)). Thus, when the defendant's "'presence would be useless, or the benefit but a shadow,'" there is no constitutional right to be present. Cohen, 290 F.3d at 489 (quoting Snyder, 291 U.S. at 105-06 and citing United States v. Gagnon, 470 U.S. 522, 526-27 (1985) (per curiam) (holding that defendants' rights were not violated by an in camera discussion with a juror where the defendants "could have done nothing had they been at the conference, nor would they have gained anything by attending" )). See also Fed. R. Crim. P. 43(c) ("A defendant need not be present . . . when the proceeding involves only a conference or hearing upon a question of law."). Similarly, New ...