UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
April 28, 2006
TIMOTHY P. BROWN, PETITIONER,
SEAN CONNELL, RESPONDENT.
The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
REPORT AND RECOMMENDATION
Timothy P. Brown, proceeding pro se, brings this petition for a writ of habeas corpus challenging his August 8, 2001, conviction in the New York State Supreme Court, New York County, following his plea of guilty to Criminal Possession of a Controlled Substance in the Second Degree (New York Penal Law ("N.Y.P.L.") § 220.18). He was sentenced as a second felony offender to a term of six years' to life imprisonment. Brown is currently released on parole. For the reasons stated below, the petition should be denied.
A. The Suppression Hearing
A pre-trial hearing on Brown's motion to suppress evidence took place on February 8, 1999. In brief, the evidence at the hearing reflected that on the evening of September 23, 1998, plain-clothes officers in an unmarked police car observed two males -- later identified as Brown and a Derrick Martin -- exiting "pretty fast" out of a red car on Riverside Drive and looking up and down the block. (H. 12).*fn1
The neighborhood was the source of "a lot of complaints for cars being broken into and also for cars being stolen." See H. 11. After the men left, the officers inspected the car and found it "in disarray, like it was messy," and apparently unlocked. (H. 14). Thereafter, a man and a child approached a "fairly new" car parked nearby. (H. 15). When the man reached the trunk of that car, he had "this really disgusted look on his face" and asked the officers if they had seen who was trying to break into his trunk. (H. 16).
Brown and Martin returned to the red car shortly thereafter. (H. 17). As Brown was getting into the car, Martin looked directly at the officers and then "grabbed something in his -- either his coat or under his coat and yelled out in a very loud voice, look out, the cops, and then he took off running." (H. 18). As one of the officers approached Brown, who was in the front passenger seat, the officer "saw a bulge on [Brown's] right side in his waistband and his hands started going where that bulge is." (H. 20). Believing Brown had a weapon, the officer grabbed Brown, put him down on the ground, and felt the bulge. (H. 25). Because he could not tell whether it was a weapon, he "reached in and ripped it out." See id. The bulge turned out to be a bag of cocaine. See H. 26.
B. The Suppression Ruling and Appeal
Following Flynn's testimony, Justice Carol Berkman, of the Supreme Court of New York, New York County, granted Brown's motion to suppress. See H. 34-50. The State appealed. See Brief and Appendix for Appellant, dated Dec. 1999 (reproduced in Ex. A to Declaration in Opposition to Petition for a Writ of Habeas Corpus, dated Apr. 12, 2005 (Docket #6) ("Attias Decl.")). Brown's attorney filed a brief supporting the trial court's ruling. See Brief for Defendant-Respondent, dated June 2000 (reproduced in Ex. A to Attias Decl.). On November 21, 2000, the Appellate Division reversed, holding that the totality of the circumstances "provided the officer with a reasonable suspicion that defendant was reaching for a weapon." See People v. Brown, 277 A.D.2d 107, 107-08 (1st Dep't 2000). The court noted that "it may almost be considered common knowledge, that a handgun is often carried in the waistband . . . and a police officer need not 'await the glint of steel before he can act to preserve his safety.'" Id. at 108 (citations and internal quotation marks omitted). Thus the court held that "the officer acted appropriately when he touched the bulge, determined it was a hard object, and removed it." Id. (citations omitted).
On February 27, 2001, the Court of Appeals denied Brown's request for leave to appeal the Appellate Division's ruling. See People v. Brown, 96 N.Y.2d 756 (2001).
C. Brown's Plea and Sentence
On June 26, 2001, Brown appeared with his attorney before Justice Berkman. Brown's attorney indicated that Brown wished to plead guilty to criminal possession of a controlled substance in the second degree, in exchange for which he would be promised an indeterminate sentence of six years' to life imprisonment. See P. 3, 6. Justice Berkman conducted a plea colloquy with Brown, but did not enter his plea in order to allow him to remain at liberty pending the execution of sentence. See P. 3-8. The plea was entered on August 1, 2001 -- the date that Brown was supposed to appear in court for sentencing. See S. 2. On August 8, 2001, Brown was sentenced to a term of six years' to life imprisonment. See S. 3.
D. Brown's Direct Appeal
In October 2002, Brown's court-appointed attorney, Andrew C. Fine, of the Legal Aid Society, filed a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967), in which he sought to withdraw as counsel because no appealable non-frivolous issues were presented. See Brief for Defendant-Appellant, dated Oct. 2002 (reproduced in Ex. C to Attias Decl.). The Legal Aid Society also wrote Brown a letter informing him that he had a right to seek permission, within 30 days of receiving the letter, to file a pro se supplemental brief "setting forth the points which you think should be considered on your appeal." See Letter from Svetlana M. Kornfeind to Timothy Brown, dated Oct. 9, 2002 (reproduced in Ex. C to Attias Decl.) ("Kornfeind Letter"). Brown did not file a pro se supplemental brief.
On February 18, 2003, the Appellate Division, First Department, agreed that "there are no non-frivolous points which could be raised on this appeal," and granted Fine's motion to withdraw. See People v. Brown, 302 A.D.2d 245, 245 (2003).
On April 15, 2003, Brown filed a pro se motion in the Court of Appeals seeking leave to appeal, claiming that his appellate counsel was ineffective for filing an Anders brief. See Notice of Appeal, dated Apr. 15, 2003 (reproduced in Ex. E to Attias Decl.); Affidavit in Support, dated Apr. 15, 2003 (reproduced in Ex. E to Attias Decl.) ("Aff. in Support"). Specifically, Brown argued that his appellate counsel was ineffective for the following reasons: 1) failing to argue that his plea to a crime punishable by death or life imprisonment was unauthorized by the New York Constitution; 2) failing to argue that both his trial counsel and the prosecutor deprived him of the right to testify before the grand jury; 3) failing to argue that the Appellate Division applied the wrong standard in deciding his motion to suppress the evidence; 4) failing to "present the real facts behind the suppression of [e]vidence"; and 5) disparaging his pro se arguments by "choosing to argue particularly weak appellate issues." See Aff. in Support at 2-3.
Brown's motion was returned to him as incomplete for failure to include the decision he was appealing and failure to serve the district attorney. See Letter from Stuart M. Cohen to Timothy P. Brown, dated Sept. 15, 2003 (reproduced in Ex. E to Attias Decl.). Brown thereafter filed a second application with the Court of Appeals. See Brief Application for Leave to Appeal for Defendant-Appellant, undated (reproduced as Ex. F to Attias Decl.) ("Br. App."). In this application he argued that: (1) the cocaine was properly suppressed by the trial court since the police officer did not have reasonable suspicion that Brown was armed, see Br. App. at 5-10; (2) both the People and Brown's defense counsel "conspired and coerced [him] into entering a plea of guilty to a defective accusatory instrument," where Brown "never had a proper procedural foundation laid down prior to any plea," and the court thus lacked jurisdiction to accept his plea, see id. at 13-18; and (3) his trial counsel provided ineffective assistance, see id. at 19-21. On March 19, 2004, the Court of Appeals denied this application without comment. See People v. Brown, 2 N.Y.3d 738 (2004).
E. The Petition and Stay
Brown timely submitted the instant petition on November 3, 2004, listing various claims for relief. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed Dec. 23, 2004 (Docket #1), and attached pages ("Petition").*fn2 Respondent's opposition to the petition noted that Brown had failed to exhaust certain claims. See Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, dated Apr. 12, 2005 (Docket #5) ("Resp. Mem."), at 11-15. Accordingly, on April 15, 2005, this Court issued an order staying the matter on the condition that Brown both (1) make all necessary applications in state court by May 27, 2005, to exhaust any unexhausted claims, and (2) notify the Court of the state court disposition of those claims within thirty days of the completion of the highest level of review for those claims. See Order, dated Apr. 15, 2005 (Docket #8) ("April 15 Order"), at 3. On May 11, 2005, Brown sent a document to the Court stating that he had submitted a motion to vacate his conviction in the state court under section 440.10. See Memorandum Endorsement, dated May 11, 2005 (Docket #9) ("May 11 Order").
F. The 440.10 Motion and Subsequent Proceedings
Brown's 440.10 motion raised the following claims: (1) he received ineffective assistance of trial and appellate counsel; (2) he was entitled to a hearing pursuant to Dunaway v. New York, 442 U.S. 200, 214-16 (1979); and (3) he was not given his right to testify before the grand jury. See Notice of Motion to Vacate Judgment, dated May 10, 2005 (reproduced as Ex. C to Supplemental Declaration in Opposition to the Petition for a Writ of Habeas Corpus, dated Nov. 15, 2005 (Docket #15) ("Forshaw Decl.")) ("440.10 Motion"), at 1-2. His motion papers also assert that he "did not have knowledge to know if his plea was voluntarily and knowingly accepted." 440.10 Motion at 7. The People submitted opposition papers. See Affirmation in Opposition to Defendant's Motion to Vacate the Judgment Pursuant to CPL §440.10(1)(h), undated (reproduced as Ex. D to Forshaw Decl.). On July 8, 2005, the trial court denied the motion. See Order, dated July 8, 2005 (reproduced as Ex. E to Forshaw Decl.) ("440.10 Denial"), at 3.
On July 28, 2005, Brown sought leave to appeal the denial of his 440.10 motion to the Appellate Division. See Notice of Application to Justice of Appellate Division Granting Leave to Appeal to Appellate Division Pursuant to 460.15 of Criminal Procedure Law, dated July 28, 2005 (reproduced as Ex. F to Forshaw Decl.). On September 9, 2005, the Appellate Division denied Brown's application for leave to appeal. See Certificate Denying Leave, dated Sept. 9, 2005 (reproduced as Ex. H to Forshaw Decl.).
Respondent subsequently filed supplemental opposition papers with this Court. See Supplemental Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus, dated Nov. 15, 2005 (Docket #14); Forshaw Decl. Brown did not reply.
II. APPLICABLE LAW
A. Law Governing Petitions for Writ of Habeas Corpus
A petition for a writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts unless the state court's adjudication: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
For a claim to be adjudicated "on the merits" within the meaning of 28 U.S.C. § 2254(d), it must "finally resolv[e] the parties' claims, with res judicata effect," and it must be "based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (internal quotation marks and citations omitted). As long as "there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds," a state court decision will be considered to be "adjudicated on the merits" even if it fails to mention the federal claim and no relevant federal case law is cited. See Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001) (internal quotation marks omitted); accord Rosa v. McCray, 396 F.3d 210, 220 (2d Cir. 2005) ("This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether the court has alluded to federal law in its decision.").
In Williams v. Taylor, the Supreme Court held that a state court decision is "contrary to" clearly established federal law only "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different result. 529 U.S. 362, 405-06 (2000). Williams also held that habeas relief is available under the "unreasonable application" clause only "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. A federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application must have been "objectively unreasonable." Id. at 409.
In addition, under 28 U.S.C. § 2254(a), federal habeas review is available for a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Errors of state law are not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). To be entitled to habeas relief a petitioner must demonstrate that the conviction resulted from a state court decision that violated federal law. See, e.g., id. at 68.
Before a federal court may consider the merits of a habeas claim, a petitioner is first required to exhaust his available state court remedies. See 28 U.S.C. § 2254(b)(1) ("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 unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State."); accord Daye v. Attorney Gen. of New York, 696 F.2d 186, 190-91 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984). To exhaust a habeas claim, a petitioner is required to have presented that claim to each level of the state courts. See, e.g., Baldwin v. Reese, 541 U.S. 27, 29 (2004); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (a habeas petitioner must invoke "one complete round of the State's established appellate review process"). The petitioner must also have fairly presented the federal nature of his claim to the state courts. See Baldwin, 541 U.S. at 29; Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971); Daye, 696 F.2d at 191. The exhaustion requirement is "grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991).
Notwithstanding this requirement, a habeas court has the power to deny a petition on the merits even where there has not been exhaustion. See 28 U.S.C. § 2254(b)(2).
Brown attaches to his habeas petition a list of six grounds for relief, along with the tables of contents of (1) his brief in support of his application for leave to appeal (containing three grounds for relief); (2) his appellate counsel's Anders brief; and (3) his trial counsel's brief submitted in opposition to the prosecution's appeal of the suppression ruling. See Petition, attached pages at 1-8. Mindful of its obligation to construe the petition liberally, see, e.g., Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983), this Court will assume that Brown wishes to have the Court consider all the claims he lists. The Court does not include, however, of the two points made in the Anders brief inasmuch as these do not constitute grounds for relief.
After consolidating duplicate claims, Brown's remaining claims appear to be that (1) the seizure of the cocaine was improper and thus that the suppression motion should have been granted; (2) there was no probable cause for his arrest; (3) he was denied his right to appear before the grand jury and there were other defects in the grand jury presentation; and (4) he was denied the effective assistance of counsel in various respects. Each is discussed below.
A. Legality of Arrest and Motion to Suppress Evidence
The claims challenging the ruling on the suppression motion and arguing the legality of Brown's arrest are easily disposed of. It is unnecessary to reach respondent's claim that these issues have not been exhausted because the claims are barred by Stone v. Powell, 428 U.S. 465 (1976). Under Stone, a habeas petitioner is not entitled to relief for a Fourth Amendment claim if the state courts provided him with "an opportunity for full and fair litigation" of the claim. Id. at 482. Rather, a habeas petitioner's Fourth Amendment claims may be reviewed only "(a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) (en banc), cert. denied, 434 U.S. 1038 (1978)).
Neither prong of this test is met. First, New York provides a corrective procedure in the form of a suppression hearing. See N.Y. Criminal Procedure Law ("C.P.L.") § 710.10 et seq.; Capellan, 975 F.2d at 70 n.1 ("'[F]ederal courts have approved New York's procedure for litigating Fourth Amendment claims . . . as being facially adequate.'") (quoting Holmes v. Scully, 706 F. Supp. 195, 201 (E.D.N.Y. 1989)). Second, Brown was never precluded from using this mechanism. While he ultimately lost on the merits, he had every opportunity to litigate his suppression motion. The Second Circuit has squarely held that "once it is established that a petitioner has had an opportunity to litigate his or her Fourth Amendment claim (whether or not he or she took advantage of the state's procedure), the [state] court's denial of the claim is a conclusive determination that the claim will never present a valid basis for federal habeas relief." Graham v. Costello, 299 F.3d 129, 134 (2d Cir. 2002). A "mere disagreement with the outcome of a state court ruling is not the equivalent of an unconscionable breakdown in the state's corrective process." Capellan, 975 F.2d at 72. Brown's argument that he was entitled to a hearing pursuant to Dunaway, 442 U.S. at 214-16, is unavailing since a suppression hearing pursuant to Dunaway is available under New York state law. See, e.g., People v. Mendoza, 82 N.Y.2d 415, 422 (1993).
B. Right to Testify Before Grand Jury
Brown claims that the prosecutor and defense counsel conspired to violate his right to appear before the grand jury. See Petition, attached pages at 2. Once again, it is unnecessary to reach the issue of whether this claim is exhausted since it involves a matter of state law and thus is not cognizable on habeas review. See Cates v. Senkowski, 2003 WL 1563777, at *2 (S.D.N.Y. Mar. 17, 2003) ("The right to appear before the grand jury is secured by New York State criminal law, and not by the federal Constitution.") (citing C.P.L. § 190.50(5)(a)); Mirrer v. Smyley, 703 F. Supp. 10, 11-12 (S.D.N.Y.), cert. denied, 493 U.S. 850 (1989) ("The right to a grand jury is a matter of New York State law and as such is not reviewable on a petition for habeas corpus.") (citing Hameed v. Jones, 750 F.2d 154, 160 (2d Cir. 1984), cert. denied, 471 U.S. 1136 (1985)). To the extent Brown asserts other defects regarding the grand jury presentation, his guilty plea bars these claims on habeas review. See Alston v. Ricks, 2003 WL 42144, at *7 (S.D.N.Y. Jan. 7, 2003) ("a guilty plea extinguishes the ability of a habeas petitioner to raise a claim regarding misconduct before a grand jury"); United States v. Tiedemann, 1997 WL 587255, at *6 (E.D.Pa. Sept. 12, 1997) (same); Lloyd v. Walker, 771 F. Supp. 570, 576-77 (E.D.N.Y. 1991) (same); see also Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) ("if federal grand jury rights are not cognizable on direct appeal where rendered harmless by a petit jury, similar claims concerning a state grand jury proceeding are a fortiori foreclosed in a collateral attack brought in a federal court.").
C. Ineffective Assistance of Counsel
In his petition Brown states the following ground for relief: "Attorney-client, Intentional Misconduct, Legal Malpractice, and Ineffective Assistance of Counsel." See Petition, attached pages at 2. No additional detail is provided. Accordingly, we rely on Brown's state court filings to determine the claims he intends to raise under this rubric.
1. Applicable Law
To show ineffective assistance of counsel, a petitioner must satisfy both prongs of the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). The Strickland test has been characterized as "rigorous" and "highly demanding." Pavel v. Hollins, 261 F.3d 210, 216 (2d Cir. 2001) (internal quotation marks and citations omitted). To meet Strickland, a petitioner must show (1) "that counsel's representation fell below an objective standard of reasonableness"; and (2) "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; accord Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003); see also Massaro v. United States, 538 U.S. 500, 505 (2003) ("[A] defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial.").
In evaluating the first prong -- whether counsel's performance fell below an objective standard of reasonableness -- "'[j]udicial scrutiny . . . must be highly deferential'" and the petitioner must overcome the "'presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Bell v. Cone, 535 U.S. 685, 698 (2002) (quoting Strickland, 466 U.S. at 689); see also Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (affording counsel a presumption of competence). In assessing whether an attorney's conduct was constitutionally deficient, "[t]he court must . . . determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690; accord Pavel, 261 F.3d at 216. Concerning the second prong -- whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different -- a court "requires some objective evidence other than defendant's assertions to establish prejudice." Pham, 317 F.3d at 182 (citing United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998) (per curiam)). "A 'reasonable probability' in this context is one that 'undermine[s] confidence in the outcome.'" Pavel, 261 F.3d at 216 (quoting Strickland, 466 U.S. at 694) (alteration in original).
2. Claims of Ineffective Assistance of Trial Counsel
Brown first claimed ineffective assistance of his trial counsel in his second application seeking leave to appeal to the Court of Appeals. See Br. App. at 19-21. Respondent argued in response that, to the extent this claim was based on facts appearing in the trial record, it was unexhausted because Brown had failed to file a pro se supplemental brief after being warned by his appellate counsel to do so. See Resp. Mem. at 12-13; Kornfeind Letter. Brown subsequently raised this claim in nearly identical form in his 440.10 motion, see 440.10 Motion at 5-7, 12-22, which was denied without reference to any procedural bar. See 440.10 Denial at 2-3.
In his 440.10 motion, Brown argued that his trial counsel was ineffective because he (1) "made no challenge to the sufficiency of the factual statements in the indictment," 440.10 Motion at 12; (2) failed to "produc[e] defendant before the grand jury," id. at 13; (3) "failed to prepare petitioner with proper advice for sentencing, nor informed him that he was pleading guilty to life," id.; and (4) "should have compelled the People to produce the witnesses that were supposedly on the scene of the crime asking questions pertaining to their car being tampered with," id. at 16. Brown also appeared to restate an argument from his letter seeking leave to appeal to the Court of Appeals, see Br. App. at 19, that his trial counsel was ineffective for failing to request a Dunaway hearing, see 440.10 Motion at 20 ("trial counsel believed that the introduction of the Mapp hearing was all that was needed to secure a dismissal of the indictment, and would not be enough for the court or the jury to convict his client."). Because the trial court denied these claims on their merits, this Court must determine whether that ruling "was contrary to, or involved an unreasonable application of, clearly established Federal law." See 28 U.S.C. § 2254(d).
Brown's claim that his trial counsel failed to challenge the indictment, see 440.10 Motion at 12, is contradicted by the omnibus motion counsel filed prior to the suppression hearing, in which he requested that the court "dismiss or reduce any charge contained in the indictment which is not supported by legally sufficient evidence, or which is otherwise defective." See Notice of Omnibus Motion, dated Oct. 25, 1998 (reproduced in Ex. A to Attias Decl.) ("Omnibus Mot."), ¶ 1; Affirmation, dated Oct. 25, 1998 (reproduced in Ex. A to Attias Decl.) ("Omnibus Aff."), ¶¶ 3-4. In any event, Brown provides no coherent argument that the indictment was in fact defective. Thus this claim is meritless.
With respect to Brown's claim that his lawyer did not produce him before the grand jury, see 440.10 Motion at 13, Brown has not shown why his testimony would have made any difference to the outcome of the proceeding. Given that the cocaine was recovered from Brown's person, it is impossible even to imagine a scenario under which his testimony could have made any difference to the grand jury's decision to indict. Thus, Brown could not demonstrate that the decision not to have him testify before the grand jury resulted in any prejudice to him.
With respect to the claim regarding Brown's plea, see 440.10 Motion at 13, the trial court found that since Brown "was permitted the best legal plea on the indictment before the court, his complaint as to counsel's deficiency in this regard is incomprehensible." 440.10 Denial at 3. The trial court found that he failed to explain what he did not understand about his plea, and that the record demonstrated that he in fact understood both the plea and its consequences. Thus, the court concluded, Brown's decision to plead guilty was "a product of his own free will and rational decision-making." Id. The transcript of the plea hearing supports this ruling. At his plea hearing, the court asked Brown whether he understood the charges against him, and he replied, "Yes, I do." (P. 3). When asked if they were true, he replied, "Yes, they are." Id. The court then explained that it would accept Brown's plea to a reduced charge -- criminal possession of a controlled substance in the second degree, a Class A-2 felony --and promised him "the minimum legal sentence . . . [of] six to life." (P. 5-6). The court also explained that if Brown failed to return to court as scheduled for sentencing, "there are no promises. You face up to the maximum, twelve-and-a-half to life." (P. 7). Brown replied, "I understand." (P. 7). Finally, the court conducted a plea colloquy, confirming that Brown had not been coerced into accepting the plea, and informing him that by pleading he was giving up his trial rights. Upon being asked whether he understood all of this, Brown said, "Yes." (P. 7-8). Nothing in this record suggests that Brown in any way misunderstood the proceedings or the consequences of a guilty plea. In his papers presented to this Court, Brown gives no explanation of why his statements during the plea allocution were not accurate or in what manner he was improperly counseled. Thus, there is no basis on which to find counsel's performance ineffective.
With respect to Brown's claim that his lawyer should have located the witnesses who allegedly alerted the police to be watchful for car thieves, see 440.10 Motion at 16, Brown does not explain "how these 'witnesses' could have assisted the defense," nor does he show that "defense counsel failed to make diligent efforts to find them." See 440.10 Denial at 3. It is well-established that a conclusory claim of failure to investigate potential witnesses will not satisfy the Strickland test for ineffective assistance, especially where, as here, a petitioner does not explain the expected nature of the witnesses' testimony, and does not demonstrate that counsel in fact failed to conduct such investigation. See, e.g., Curry v. Burge, 2004 WL 2601681, at *31 (S.D.N.Y. Nov. 17, 2004) (Conclusory claims "give no indication as to what exculpatory evidence a proper investigation would have revealed, or how such evidence would have benefitted [petitioner's] case. There is also no way to know that trial counsel did not consider investigating these claims but simply rejected them as being unpromising."); see also Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990) ("To affirmatively prove prejudice [from counsel's failure to investigate], a petitioner ordinarily must show not only that the testimony of uncalled witnesses would have been favorable, but also that those witnesses would have testified at trial. Moreover, if potential trial witnesses are not called to testify at a post-conviction review hearing, the petitioner ordinarily should explain their absence and 'demonstrate, with some precision, the content of the testimony they would have given at trial.'") (citations omitted); Lamberti v. United States, 1998 WL 118172, at *2 (S.D.N.Y. Mar. 13, 1998) ("The allegations of failure to investigate or to communicate are vague and conclusory. They do not identify counsel's asserted failings with any specificity or show how any different conduct might have changed the result."); Madarikan v. United States, 1997 WL 597085, at *1 (E.D.N.Y. Sept. 24, 1997) (denying ineffective assistance claim based on failure to investigate or interview witnesses; petitioner's "allegations of ineffective assistance are conclusory, and give no indication as to what exculpatory evidence may have been revealed by an investigation").
Finally, with respect to Brown's claim that his attorney should have requested a Dunaway hearing, the trial properly court found that "the issues of probable cause which might have been explored at a Dunaway hearing were indeed raised and litigated and ultimately resolved against" him at the suppression hearing. See 440.10 Denial at 3. Moreover, his counsel did, in fact, request a Dunaway hearing, see Omnibus Mot. ¶ 3; Omnibus Aff. ¶ 8. Thus this claim is without merit.
Because all of the claims of ineffective assistance of trial counsel are meritless, the state court's decision so holding was not contrary to or an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d).
3. Claims of Ineffective Assistance of Appellate Counsel
In his first letter seeking leave to appeal to the Court of Appeals, Brown claimed that his appellate counsel was ineffective. See Aff. in Support at 2-3. Brown did not exhaust this claim, however, by submitting a coram nobis application to the Appellate Division -- an application that was a specific condition of the existence of the stay contained in this Court's April 15 Order. See April 15 Order at 1-3. The order informed Brown that "[c]laims alleging ineffective assistance of appellate counsel must be presented to the Appellate Division through an application for writ of coram nobis," and gave a May 27, 2005, deadline for presenting such claims. See April 15 Order at 1-2; see generally Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir.), cert. denied, 534 U.S. 1015 (2001). While the Order at one point makes reference to Brown filing "either" an application for section 440.10 relief "or" a coram nobis application, id. at 2, any confusion on this score was eliminated after Brown sent a letter stating that he had submitted a motion to vacate his conviction under section 440.10. In endorsing that letter, which made no reference to an application for a writ of error coram nobis, the Court stated that "if no application for writ of error coram nobis is made to the Appellate Division by May 27, 2005, any such claim in the petition will be deemed withdrawn." See May 11 Order. Because Brown did not file a coram nobis application by May 27, 2005, the claim of ineffective assistance of appellate counsel should be deemed withdrawn.*fn3
In any event, the claim would have to be denied since Brown has not identified any claims of merit with respect to the conduct of his trial proceedings. Obviously, "[t]he failure to include a meritless argument [on appeal] does not fall outside the 'wide range of professionally competent assistance' to which Petitioner was entitled." Aparicio, 269 F.3d at 99.
For the foregoing reasons, Brown's petition should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to serve and file any objections. See also Fed. R. Civ. P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Paul A. Crotty at 40 Centre Street, New York, New York 10007, and to the undersigned at the same address. Any request for an extension of time to file objections must be directed to Judge Crotty. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140, 144-45 (1985).
GABRIEL W. GORENSTEIN United States Magistrate Judge