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McLean v. Conway

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


August 21, 2006

DENNIS MCLEAN, PETITIONER,
v.
JAMES CONWAY, RESPONDENT.

The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge

OPINION AND ORDER

Pro se petitioner Dennis McLean seeks a writ of habeas corpus from three convictions in Supreme Court, New York County: (1) his October 8, 1996 conviction after a jury trial for the February 26, 1996 burglary of Janoff's Stationery Store, and sentence as a mandatory persistent violent felony offender to twenty-five years to life imprisonment; (2) his July 8, 1997 conviction after a guilty plea for the January 16, 1996 robbery of his niece Ebony McCoy, and sentence of an aggregate of twenty years to life to run concurrent to the sentence on the October 8, 1996 conviction; and (3) his April 6, 1998 conviction after a guilty plea for the January 17, 1996 robbery of Vinnie Kakkar, and sentence of twenty-five years to life to run concurrent to the sentences imposed under the two prior judgments. (Dkt. No. 5: Am. Pet. ¶¶ 1-6.) See People v. McLean, 309 A.D.2d 639, 639, 765 N.Y.S.2d 626, 626 (1st Dep't 2003).

McLean's amended habeas petition raises the following claims: (1) he "was deprived of his Due Process right to a fair trial under Indictment Number 1599/96" (i.e., his October 8, 1996 conviction) because (a) the prosecutor's repeated references to his statement that he would not "go 'back' to jail" were improper particularly when "juxtaposed to [the prosecutor's] attestations that the police officers in this case were honest and credible witnesses as well as superhuman protectors of our neighborhoods"; and (b) the trial court "infringed on the defense's right to make an effective summation" by instructing the jury during defense counsel's summation on the lawful duty of police officers, after defense counsel had argued that the police had no lawful duty to arrest McLean, thereby "both t[aking] an element from the jury and reinforc[ing] the prosecutor's suggestion that [McLean] was a dangerous individual with a criminal propensity " (Am. Pet. ¶ 12(a)); (2) Theodore Quintana's lineup identification of McLean should have been suppressed (id. ¶ 12(b)); (3) McLean's two guilty pleas should be vacated because they were "improperly induced by the courts' explicit threats that if [McLean] insisted on going to trial and was convicted, [the court] would run the sentences consecutively to the 25 years to life sentences he was already serving" (id. ¶ 12(c)); (4) he "was deprived of his Due Process right to undelayed arraignment . . . for the purpose of depriving [McLean] of his right to counsel and [McLean's] right to testify before the grand jury" and thus his "inculpatory statements, and confessions should have been suppressed and the indictment should [have] been dismissed" (id. ¶ 12(d)(I)); (5) his written confession and the lineup identification should have been suppressed because both were conducted without counsel even though his right to counsel had attached (id. ¶ 12(d)(II)); and (6) ineffective assistance of trial counsel (id. ¶ 12(d)(III)).

The parties have consented to decision of McLean's petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 17.)

For the reasons set forth below, McLean's petition is DENIED and a certificate of appealability is not issued.

FACTS

The Indictments

Indictment No. 1599/96 was filed on March 8, 1996, charging McLean with the February 26, 1996 burglary of Janoff's Stationery Store. (Dkt. No. 8: Chaffee Aff. Ex. A: Ind. No. 1599/96.)

On the same day, Indictment No. 1620/96 was filed, charging McLean in the first three counts with the January 16, 1996 robbery of his niece, Ebony McCoy; the fourth through sixth counts charged McLean with the January 17, 1996 robbery of Vinnie Kakkar; and counts seven through nine charged McLean with the February 14, 1996 robbery of Theodoro Quintana. (Chaffee Ex. B: Ind. No. 1620/96.)

Indictment Number 1599/96: Robbery at Janoff's Stationery Store

The Prosecution Case at Trial

On February 26, 1996 at approximately 6:30 p.m., Andrew Tun was working in Janoff's Stationery Store on Broadway between 111th and 112th Streets when he heard movement in the employees-only office. (Dkt. Nos. 15 & 16: Tun: Trial Transcript ["Tr."] 312, 313, 317.)*fn1 The office is located above the back of the store and is accessible by a small, steep staircase. (Tun: Tr. 315, 317; Surjadi: Tr. 418-21; Sdrougias: Tr. 539-42; Ma: Tr. 788.) A sign, "Private, No Entry," was posted next to the stairway. (Tun: Tr. 316, 350-51, 370, 380; Surjadi: Tr. 417, 423, 476-77, 485-86; Sdrougias: Tr. 539; Nicholson: Tr. 587.) The office contains employee files, the store's cash, and the store's safe which holds cancelled checks and invoices. (Tun: Tr. 315-16; Ma: Tr. 788, 790- 92.)

When Tun went up to the office to check, he found McLean standing by a table in the office. (Tun: Tr. 317-21.) McLean was sweating and appeared nervous. (Tun: Tr. 320.) Tun told McLean that he was not supposed to be in the office; McLean responded that he was not stealing anything, he was a "working person" and he was looking for someone. (Tun: Tr. 320-21, 324, 387.) Tun noticed that the cabinet door where the safe was kept was open. (Tun: Tr. 322, 354-55, 372-73.) Tun called out to another employee, Oscar Surjadi, who was downstairs, and in a nervous voice told him that there was a stranger in the office. (Tun: Tr. 324; Surjadi: Tr. 411-15, 446, 475.) Surjadi got nervous, thought it might be a robbery, and called 911. (Surjadi: Tr. 415, 425-26, 446, 474.) Tun and McLean went downstairs. (Tun: Tr. 324; Surjadi: Tr. 427.) Surjadi told McLean that he could not leave, but rather had to wait for the police. (Tun: Tr. 324; Surjadi: Tr. 428-29.)*fn2 McLean repeated that he had only been looking for someone and tried to get past Surjadi to leave. (Tun: Tr. 324; Surjadi: Tr. 429-31; Nicholson: Tr. 555.)

At that point, Sergeant Nicholson entered the store with his gun drawn.*fn3 (Tun: Tr. 324; Surjadi: Tr. 431; Nicholson: Tr. 553.) Tun told Sgt. Nicholson that there was "a robbery going on." (Nicholson: Tr. 552, 637.) Tun pointed out McLean in the back of the store; Sgt. Nicholson told McLean to get on the ground, and McLean did so, repeating that he was in the store looking for someone. (Tun: Tr. 325; Nicholson: Tr. 552-56.) When Sgt. Nicholson tried to handcuff McLean, McLean tried to grab Sgt. Nicholson (Tun: Tr. 325-28, 389-93; Nicholson: Tr. 556-57, 641), pushed Sgt. Nicholson off of him and ran toward the door, but Tun blocked his exit and a fight ensued between Sgt. Nicholson and McLean (Tun: Tr. 389-92, 399; Nicholson: Tr. 557-62, 567, 643-45, 647).

Sgt. Nicholson testified that during the fight, McLean was screaming: "you're not taking me to jail"; "you're going to have to kill me"; "I'm not going back to jail." (Nicholson: Tr. 557, 560-61.) Defense counsel did not object to this testimony. (Id.)

During the fight, Sgt. Nicholson saw a folding knife in McLean's hand that McLean was trying to "flick" open. (Nicholson: Tr. 558-59, 561, 647-48, 650.) As they continued wrestling, the knife disappeared from sight. (Nicholson: Tr. 560.) McLean grasped at Sgt. Nicholson's gun, but never go it out of Sgt. Nicholson's holster. (Nicholson: Tr. 560, 562-64, 567.) Throughout the fight, Sgt. Nicholson was hitting McLean with his radio, his "fists and basically anything else [he] could have gotten [his] hands on." (Nicholson: Tr. 567.)

Once Sgt. Nicholson's partner arrived, the two were able to handcuff McLean. (Tun: Tr. 329; Surjadi: Tr. 437; Sdrougias: Tr. 509-11; Nicholson: Tr. 568; Judge: Tr. 715.) The police found a knife and a crack pipe on McLean. (Nicholson: Tr. 576-79, 660; Judge: Tr. 716-17, 736.) McLean had a cut on the top of his head that was bleeding. (Judge: Tr. 724-25; Felipe: Tr. 881.) Two other police officers arrived and drove McLean to the 32nd Precinct. (Tun: Tr. 330-31; Judge: Tr. 722; Felipe: Tr. 882.)

McLean did not in fact take anything from the store. (Tun: Tr. 386-87; Surjadi: Tr. 474-75, 480; Sdrougias: Tr. 526; Ma: Tr. 820.)

Bench Conference and Further Testimony Regarding McLean's Statement that He Did Not Want to Go "Back" to Jail

In a conference out of the jury's presence, the trial judge, Justice Corriero, sua sponte raised Sgt. Nicholson's testimony that McLean said that he did not want to go back to jail (Tr. 619):

THE COURT: There was testimony from the officer about the conversation that he had with the defendant about him not going back to prison.

Do you want me to give any kind of instruction with regard to that, to that testimony? . . .

There was no objection at the time.

[Defense Attorney] COHEN: Actually, you know what, I would like to have it just lie, have nobody point it out, just let it be.

[ADA] KIM: But I have to be able to point to it because it goes to his intent. The charge is dealing with his intentional act.

THE COURT: Well, I'm not saying that you can't address it in your summation. . . but you have to be cautious.

[ADA] KIM: I'm not going to argue propensity, I'm just going to argue intent.

THE COURT: But if there is no evidence that he actually was in jail other than the statement, you have to be somewhat circumspect about how you do it.

[ADA] KIM: I'm going to confine myself to the statement . . . .

(Tr. 619-20.)

On cross-examination, defense counsel brought out that in Sgt. Nicholson's memo book, in which he recorded the events surrounding McLean's arrest approximately 24 hours after the incident occurred, Sgt. Nicholson had written down only that McLean had said that Sgt. Nicholson would not be able to take him alive. (Nicholson: Tr. 653-55.) Sgt. Nicholson had not recorded that McLean had made a statement referring to being taken back to jail, nor had he related such a statement when he testified before the grand jury. (Nicholson: Tr. 655-56.)

On re-direct examination, the ADA asked Sgt. Nicholson why he had not told the grand jury about McLean's statement that he was "not going back to jail," to which Sgt. Nicholson replied that he just "didn't think to say it." (Nicholson: Tr. 687-88.)

Defense Counsel Summation

During summation, defense counsel questioned Sgt. Nicholson's credibility, arguing that Sgt. Nicholson had "enhanced" the events in Janoff's to explain why he hit McLean on the head with his radio. (Defense Summation: Tr. 920-21, 923-28.)

Defense counsel further discussed Sgt. Nicholson's actions when he first entered Janoff's:

[W]as [it] his lawful duty, to walk into a store not knowing what's going on and take a gun, point it at the first person he sees, order him on the floor and try and arrest him?

Is that what we want our police officers to do?

Or is his lawful duty, especially once Mr. McLean is lying on the ground to find out what happened.

Is it so unreasonable that someone placed in Mr. McLean's situation on the ground with a gun resists an unlawful arrest.

Because if you find that Sergeant Nicholson had no lawful duty to arrest him, you must acquit him.

THE COURT: Ladies and gentlemen, look, you're getting into areas of law, [defense counsel] Cohen, and they may not conform to my instructions with respect to the areas of law.

Now, lawful duty is a matter that I will define for the jury.

And it seems to me that my understanding of the law is that if the officer had reasonable cause to place the defendant under arrest, then that would have been the compliance with his lawful duty.

[Defense Counsel] COHEN: That's correct.

THE COURT: And if, further, he was told that a robbery was taking place by a civilian, he would seem to have a lawful duty to place the person responsible under arrest.

So confine your remarks within that context.

(Defense Summation: Tr. 928-30.) Defense counsel made no objection and continued with her summation. (Defense Summation: Tr. 930-31.)

Prosecution Summation

In summation, the prosecutor argued that Sgt. Nicholson was truthful in his recounting the fight with McLean. (Prosecution Summation: Tr. 954-55.) The prosecutor discussed the nature of police officers:

And, you know, with police officers it's different from us in this one respect, when we see trouble, you know, of course we're going to want to get away, you know, people, human reaction when they see trouble is to try to run from it.

Police officers, on the other hand, have to overcome that human reaction by training, by occupation, they are trained to run to trouble when everyone else is running from it.

(Prosecution Summation: Tr. 955-56.)

When the prosecutor discussed McLean's intent as evidenced by the fact that he was carrying a knife and by his comments to the police upon his arrest, she asked that the jury

[R]emember he was yelling and screaming throughout the fight. I'm not going back to jail. You're going to have to kill me.

And use those statements as to what you think defendant's intent was when he was trying to pull out the sergeant's gun.

I submit to you, based on his own statements, based on his deliberate actions, that there was only one thing on his mind, which was to take that weapon and use it unlawfully, whether it be to shoot the sergeant or anyone else who gets in his way.

(Prosecution Summation: Tr. 958-59.)

The prosecutor returned to Sgt. Nicholson's job as a police officer:

Sergeant Nicholson was doing nothing more than what we pay him, which is to enforce law and order.

I am not going to be doing that job, you shouldn't be expected to do that job. (Prosecution Summation: Tr. 962.) Defense counsel's objection to the last statements was overruled. (Id.) The prosecutor continued that "[t]he police officer is the one who is entrusted with that duty." (Id.)

At the end of her summation, the prosecutor asked the jury to imagine what George Ma, Janoff's owner (Ma: Tr. 784), would say if he were recounting the incident in Janoff's at a cocktail party. (Prosecution Summation: Tr. 969-71.) The prosecutor reiterated all the details of the incident, as Mr. Ma might tell it, including the fact that McLean fought with Sgt. Nicholson and that he said "you're not taking me alive, you're going to have to kill me before you take me in, I am not going back to jail. . . ." (Prosecution Summation: Tr. 970.)

Verdict and Sentence

The jury found McLean guilty of two counts of second degree burglary, and one count each of second degree assault, third degree criminal possession of a weapon, resisting arrest and second degree criminal possession of a controlled substance. (Tr. 1058-63.) The jury acquitted McLean of second degree attempted criminal possession of a weapon and attempted second degree robbery. (Tr. 1059.)

On October 8, 1996, Justice Corriero sentenced McLean as a mandatory persistent violent felon to twenty-five years to life imprisonment. (Dkt. No. 10: 10/8/96 Sentencing at 19, 34- 35.)

Indictment No. 1620/96

The Suppression Hearing

On July 31, 1996, Justice Corriero held a suppression hearing to determine whether McLean's non-Mirandized statements in the police car on his way to the 24th Precinct and his written confession given after Miranda warnings were involuntarily made and whether the lineup identification procedures were unduly suggestive. (7/31/96 Suppression Hearing ["H."].) Justice Corriero continued the suppression hearing on January 27, 1997. (Dkt. No. 9: 1/27/97 Suppression Hearing ["1/27/97 H."].)

At the start of the suppression hearing, speaking on his own behalf, McLean moved to dismiss the indictment, arguing that he was denied the right to testify before the grand jury and that his removal from Central Booking had resulted in the postponement of his arraignment on the Janoff' s burglary, that the police forced him to make inculpatory statements about the Ebony McCoy robbery and that he was denied counsel at the lineup for the Ebony McCoy robbery. (H. 7-17.) McLean explained that he had requested to testify before the grand jury and that his then-attorney had so indicated at a previous hearing. (H. 11-12.) The Assistant District Attorney explained that at that hearing McLean had already been indicted and the hearing was in fact his arraignment on that indictment. (H. 12-13.) The ADA also explained that McLean was charged by "NA" indictments because he had refused to be fingerprinted.*fn4 (H. 13-15.)

Justice Corriero denied McLean's motion and proceeded with the suppression hearing. (H. 15, 17.)

Identification of McLean as a Wanted Robbery Suspect at the 32nd Precinct

McLean was wanted in the 24th Precinct for the three robberies that formed the basis for Indictment No. 1620/96.

Approximately 10 minutes after McLean had been brought into the 32nd Precinct on the Janoff's arrest, Sergeant Cody recognized McLean from a photograph on a police department poster portraying wanted robbery suspects. (Cody: H. 85-87.) Sgt. Cody informed the officers processing McLean's Janoff's arrest and gave them the contact information of the 24th Precinct detective listed on the poster, Detective Pandolfelli. (Cody: H. 88.)

Since McLean was bleeding from the head after his arrest in Janoff's (Cody: H. 88), Sgt. Cody called for an ambulance which took McLean to the hospital. (Cody: H. 89.)

24th Precinct Det. Pandolfelli, who had put McLean's name on the robbery wanted list for the Ebony McCoy robbery, was informed that McLean had been arrested and was being held at the 32nd Precinct for the Janoff's burglary. (Pandolfelli: H. 192-95.) Det. Pandolfelli went to the hospital to confirm that the suspect he was investigating had in fact been arrested. (Pandolfelli: H. 195-96, 220.) After seeing McLean, Det. Pandolfelli contacted Det. Gibson who was investigating the Vinnie Kakkar robbery for which McLean also was the suspect. (Pandolfelli: H. 197; Gibson: H. 103-05.)

Transport of McLean to the 24th Precinct and Statements Made

On February 27, 1996, Dets. Pandolfelli and Gibson went to Manhattan Central Booking, picked up McLean and took him to the 24th Precinct. (Gibson: H. 105-07; Pandolfelli: H. 193, 197-98.) McLean was not given his Miranda warnings prior to being transported to the 24th Precinct. (Gibson: H. 107; Pandolfelli: H. 198.) In the car on the way to the precinct, the detectives did not question McLean. (Gibson: H. 107; Pandolfelli: H. 198, 213.) However, according to Det. Pandolfelli, McLean made several statements including that he had been at the Ryan Center, a small clinic in the 24th Precinct, and then McLean said: "You know, I saw my niece [Ebony McCoy] there and I had to leave. I don't want you to think that I was hiding anything, you know. I wasn't trying to get away." (Pandolfelli: H. 199.) Det. Pandolfelli told McLean to "just relax, calm down" and that he would "explain everything and what's going on" when they got to the precinct. (Pandolfelli: H. 199, 215.) McLean also said he "was running away from the police. He was running into the projects. He ran into the building [where the Ebony McCoy robbery allegedly occurred]. . . . He ran up to a floor. He went to see a friend or something." (Pandolfelli: H. 201.) McLean was just "talking and talking" in the police car. (Pandolfelli: H. 201-02, 215-16.) At the precinct, Det. Pandolfelli told McLean that if he wanted to make a statement he would read him his rights and tell the district attorney that McLean had cooperated, but he could not control what the DA would do. (Pandolfelli: H. 216-19.) Det. Pandolfelli intended, "in a way," to give McLean the impression that he would ask for leniency with the DA, but never actually used the word "leniency" with McLean nor made any promises. (Pandolfelli: H. 223-24.) When he actually spoke to the ADA, Det. Pandolfelli did not ask for leniency for McLean but did tell the ADA that McLean had not "give[n] [him] a hard time or anything." (Pandolfelli: H. 224.)

McLean's Written Confession and the Identification Procedures Conducted at the 24th Precinct

Once McLean was at the 24th Precinct, Det. Pandolfelli put McLean in the holding cell and "made sure he was as comfortable as possible." (Pandolfelli: H. 203.) The detective observed that McLean had a band-aid on his head but McLean did not complain of any dizziness or physical ailments, or ask for medical care, nor did McLean have any medication on him when they had picked him up from Central Booking. (Pandolfelli: H. 204-05, 211.)

McLean was put in a confirmatory lineup where Ebony McCoy identified him.*fn5 (Pandolfelli: H. 221.) After that, Det. Pandolfelli read McLean his Miranda rights and began questioning McLean about the McCoy robbery. (Pandolfelli: H. 221-22.) McLean gave a written statement, confessing to the robbery of Ebony McCoy. (Pandolfelli: H. 206-10.)

Det. Gibson called in Vinnie Kakkar to view a lineup. (Gibson: H. 108, 151-52.) There were five "fillers" in the lineup and the six man was McLean. (Gibson: H. 109.) Kakkar identified McLean as the man who had robbed him. (Gibson: H. 112-13.)*fn6

Once Kakkar was finished, Theodoro Quintana was called down to view the lineup. (Gibson: H. 114-17.) Quintana identified McLean as the person who had robbed him. (Gibson: H. 119-21.) Thirteen days earlier, Quintana had identified McLean in a photo array. (Gibson: H. 115- 16; Howard: H. 159.)*fn7

The Suppression Hearing Decision

On April 10, 1997, Justice Corriero denied McLean's suppression motion. (Dkt. No. 8: Chaffee Aff. Ex. E: 4/10/97 J. Corriero Decision.) Justice Corriero ruled that the lineup identification by Kakkar was not unduly suggestive. (4/10/97 Corriero Decision at 8-10.) Further, the judge ruled that the fact that Kakkar had chosen someone else from the mugbook photos "does not disqualify him from viewing the lineup," and there was nothing unfair in the composition of the lineup or the police interaction with Kakkar. (Id. at 10.) Justice Corriero also denied the motion as to Quintana's identification. (Id. at 10-15.)

Justice Corriero ruled that since McLean was speaking spontaneously and was not being questioned by the police when he made the oral statements during the car ride to the 24th Precinct, the officers were not required to administer Miranda warnings. (4/10/97 Corriero Decision at 15.) As to McLean's written confession, Justice Corriero ruled that Det. Pandolfelli's statement that he would tell the district attorney about McLean's cooperation was not impermissibly coercive, and thus the confession was voluntary. (Id. at 16-18.)

McLean's First Guilty Plea on the 1620/96 Indictment

On June 11, 1997, jury selection was set to begin on the Ebony McCoy robbery under Indictment 1620/96. (Dkt. No. 14: 6/11/97 Plea Transcript ["P1."].) The defense brought to Justice White's attention that McLean had an EKG scheduled for the following day as part of his treatment for a heart condition and diabetes. (P1. 25-26.) Since the case was on for trial, Justice White said the EKG would have to be rescheduled for the following week, after the trial concluded. (P1. 26.) At that point, McLean, through his attorney, expressed his intent to plead guilty. (P1. 27.) The offer from the prosecution, which had been confirmed by Justice Corriero who had presided over McLean's jury trial on the Janoff's burglary, was that if McLean pled guilty, he would be sentenced to twenty years to life to run concurrent to his sentence for the Janoff's conviction, but if he proceeded to trial his sentences could run consecutively. (P1. 27-28.)

McLean explained, through his attorney, that the reason he wanted to plead guilty was because he felt, medically, he could not "undertake the pressure of the trial." (P 1. 30.) Justice White declined to accept a guilty plea under those circumstances:

THE COURT: The court will not accept a plea on that basis, will only accept a plea if he's interested in pleading guilty because he's guilty of the charges.

[Defense Counsel] LEVY: What he wants me to express is that he feels his medical needs are at this point substantial and that they're not being addressed by the court and that he has no alternative but to in effect abort the trial.

THE COURT: Well, I'm not taking a plea under those circumstances. We'll bring in the jurors and tell Judge Corriero that the defendant has now changed his mind; is that correct?

THE DEFENDANT: Yes.

(P1. 30.) Justice White began jury selection. (P1. 30-55.) After the lunch recess, McLean renewed his desire to plead guilty. (P 1. 56.) Justice White clarified why McLean wished to plead guilty:

THE COURT: . . . [T]his is with the clear understanding that this plea was not being considered because of any medical problems - - Is that correct, Mr. McLean?

THE DEFENDANT: That is correct.

THE COURT: It is because you wish to enter a plea to the charge because in fact you're guilty of the charge and want the best deal possible; is that correct?

THE DEFENDANT: That's correct.

(P 1. 61.) After discussion with Justice Corriero, Justice White confirmed that if McLean pled guilty to all three robberies charged in Indictment 1620/96, McLean would be sentenced to 20 years to life to run concurrent to the sentence imposed after his Janoff's burglary jury trial before Justice Corriero. (P1. 61-62, 68.) McLean told Justice White, through his attorney and later in his own words, that he wanted to plead guilty only to the Ebony McCoy robbery and defer any disposition on the other two robberies, which Justice White agreed to do. (P1. 62, 69.)

McLean accordingly pled guilty to the first three counts of Indictment 1620/96 pertaining to the Ebony McCoy robbery. (P1. 63-67.) Justice White inquired whether McLean was aware of the rights he was giving up by pleading guilty:

THE COURT: So you understand when you plead guilty you are giving up your right to a trial by jury?

THE DEFENDANT: Yes.

THE COURT: And we are in the process of selecting that very jury so you are giving up your right to continue with the trial that has already commenced - - understand that?

THE DEFENDANT: Yes. . . .

THE COURT: Are you pleading guilty voluntarily of your own free will because in fact you are guilty of these crimes?

THE DEFENDANT: Because I'm guilty of the crime.

(P1. 66-67.)

On July 8, 1997, at the start of McLean's sentencing (Dkt. No. 13: 7/8/97 Sentencing Transcript ["S2."]), McLean's attorney informed Justice White that McLean wished to withdraw his guilty plea:

[Defense Counsel] LEVY: Judge, Mr. McLean informed me that he wishes to withdraw his plea, the basis of that is contradictory advi[c]e between counsel that represented him over the course of the indictment pending, the immediate cause was medication he was taking as a result of the psychiatric condition from Riker's Island that made him incapable, made him confused and incapable of rendering independent judgment at the time the plea was made.

He also indicates he was extremely reluctant . . . to admit guilt, and does not believe he was guilty and repeatedly asked the Court to take an [Alford] plea under the circumstances.

And for those reasons I guess what should happen is new counsel should be appointed and a motion should be made in writing and he would request that. He also requests your Honor order a [C.P.L. §] 730 examination. He claims he does not understand the proceedings or the players in those proceedings.

(S2. 2-3.)

Justice White concluded that McLean had been "coherent" when he pled guilty and that he had done so "without question intelligently" and "knowingly," and Justice White saw "no basis for an application to withdraw a plea." (S2. 4.) She thus proceeded with sentencing. (S2. 4.) Defense counsel stated that he had not known that McLean was on psychiatric medication when McLean had entered his guilty plea and asked Justice White "to consider that both in reconsidering the application and imposing sentence." (S2. 6.)

McLean told Justice White that he had "attempted to be sentenced under the [Alford] plea on numerous occasions in front of Judge Corriero [who presided over his Janoff's jury trial] and in front of this Court because [he is] innocent and didn't want to plead guilty." (S2. 6.) McLean said that he was told if he pled guilty here, and his other conviction was reversed, this guilty plea would also be reversed, but he had since learned that was not the case. (S2. 6-7.) McLean proclaimed that there was "a lot of pressure on [him] to cop out to 20 to life" and that he could not believe he "admitted to cop out to 20 to life." (S2. 7.) Further, McLean proclaimed: "It is not something I will do, especially since I'm innocent on the case." (S2. 7.)

Justice White sentenced McLean as a mandatory persistent felon to a sentence of 20 years to life on each count to run concurrent to each other and to run concurrent to the sentence he was already serving for his Janoff's jury trial conviction before Justice Corriero. (S2. 8.) Justice White sent the remaining counts in Indictment 1620/96 back to Justice Corriero's part for trial. (S2. 8.)

McLean's Second Guilty Plea on Indictment 1620/96

On February 2, 1998, McLean appeared before Justice Bruce Allen for a pretrial conference on the remaining charges in Indictment 1620/96, the Kakkar and Quintana robberies. (Dkt. No. 12: 2/2/98 Ct. Appearance ["A."].) After discussing McLean's claim that he was being denied access to the prison law library (A. 2-9), Justice Allen addressed McLean directly about the remaining charges he faced:

What I was getting at, Mr. McLean, and I just want you to be clear on all of this, is that [ADA] Kim tells me that even today, even though the case is about to go to trial, that she does not oppose concurrent time on this case if there is a plea.

If you go to trial and you lose, I can tell you, I can guarantee you that you're going to get consecutive time. And the minimum consecutive time is 20, the maximum is 25. But the statute doesn't even give me that much room. The stakes are enormously high and I know that you understand that.

THE DEFENDANT: Yes, I do.

THE COURT: And you've had some time to think about it. But, you know, there always comes a moment when there is no turning back and we've just about reached that point. And I don't know what else to tell you. I mean, it's your life. And you looked at me like you're not so old that you don't at least have some hope of obtaining freedom before you're finished. But if you lose on this case I think that it's all over. And that's a terrible reality for you to have to face.

THE DEFENDANT: I understand where you're coming from.

THE COURT: I just lay it out to you. I don't know how strong the case is, I don't know that much about the case. I'm not trying to pressure you. I can assure you that you'll receive as fair a trial as anybody can receive in this courtroom. But that's what you're facing if you lose.

THE DEFENDANT: I understand.

(A. 9-10.) The conference continued with pretrial motions and Justice Allen's conclusion after speaking with corrections officials that McLean did, in fact, have access to the law library, despite McLean's protestations to the contrary. (A. 11-34.)

McLean told Justice Allen that "it doesn't make sense for me being here and I can't participate in it anyway because I can't research the appropriate work. . . . So I waive the right to be present [at trial]." (A. 35.) McLean's attorney moved for a four to five day adjournment of the trial so that he could investigate McLean's housing situation. (A. 35-37.) Defense counsel said that McLean had informed him "on a couple of occasions that he feels physically threatened by his present location because of enemies that are there" and that "[u]nder these circumstances he feels that it would be improvident and impossible for him to go to trial, which is why he has simply said that he would rather not be seen or heard from because he can't participate." (A. 37.)

Before breaking for lunch, Justice Allen told McLean: "[Y]ou have some thinking to do over lunch, Mr. McLean, because the trial is going to go forward with you or without you. And you can be your own worst enemy here by not coming to court." (A. 41.) McLean responded:

It's not possible for me to go to trial where I'm at right now. I mean, if you want to believe Corrections, I have the documents to prove it. Then, I have no, you know, I have no say so in the matter. It's like you Shang[ha]i me into trial and I don't have any legal work, I don't have any clothes. I can't participate in the law library. And you're telling me because Corrections tells you that I can, that that's absolute. And I'm telling you that it's not absolute, that I cannot participate in the law library.

Then you're telling me to go to trial and I can't help defend myself. So therefore, what sense does it make my being here? . . .

(A. 41-42.) Justice Allen made further phone calls to Corrections officers over the lunch break, and, after lunch, reported on the record that he had spoken to a Corrections Captain who was "very familiar" with McLean and who "assured" the court that McLean had access to the law library, as did all defendants. (A. 42, 46-47.) McLean was not present in the courtroom, having refused to return to court after lunch. (A. 46.) Defense counsel further explained McLean's position and also made a C.P.L. § 730 motion. (A. 47-48.) Justice Allen denied the § 730 motion (A. 54) and proceeded with pre-trial motions and jury selection in McLean's absence. (A. 54-145).

The next day, February 3, 1998, defense counsel informed Justice Allen that McLean wished to plead guilty to the fourth count of the indictment - first degree robbery of Kakkar - in satisfaction of the entire balance of the indictment with the understanding that a sentence of 25 years to life would be imposed to run concurrent to the sentences already imposed and that should McLean prevail on his appeals of his two previous cases, he would be able to withdraw this guilty plea.

(Dkt. No. 11: 2/3/98 Plea Proceeding ["P2. "] 2-3; see Chaffee Aff. Ex. B: Ind. No. 1620/96.) Before McLean allocuted to the Kakkar robbery count, Justice Allen asked McLean:

THE COURT: Have you had enough time to discuss with [your attorney] your decision to plead guilty?

MR. McLEAN: Yes.

THE COURT: Has anybody threatened you or forced you to plead guilty?

MR. McLEAN: No. I'm pleading guilty with the stipulation that - - no.

THE COURT: Do you understand that by pleading guilty you give up your right to a jury trial?

MR. McLEAN: Yes.

(P2. 5-7.) Once McLean allocuted to the offense (P2. 5-6), Justice Allen reiterated that the conditions of the plea were that McLean's sentence would run concurrent to his two previous sentences and that a successful appeal on those cases would enable him to withdraw his guilty plea on the Kakkar robbery. (P2. 6.) McLean agreed that that was his understanding of the plea deal. (P2. 6-7.) Justice Allen further asked whether McLean understood:

That this allocution will not be used against you at such a trial on this case? MR. McLEAN: Yes.

THE COURT: Were any other promises made?

MR. McLEAN: No.

(P2. 7.) Justice Allen accepted McLean's guilty plea. (P2. 8.)*fn8 Justice Allen adjudicated McLean a persistent violent felon and set a date for sentencing. (P2. 11-18.) McLean was sentenced on April 6, 1998 in compliance with the conditions agreed to at his guilty plea proceeding. (Dkt. No. 7: State Br. at 8.)*fn9

McLean's Direct Appeal

Represented by the Legal Aid Society Criminal Appeals Bureau, McLean's appeal to the First Department raised three claims: (1) McLean was deprived of his Due Process right to a fair trial under Indictment No. 1599/96 (the Janoff's burglary) when (a) the prosecutor improperly repeated references to McLean's alleged statement that he would not "go 'back' to jail" "particularly where that message was juxtaposed to her attestations that the police officers in this case were honest and credible witnesses as well as superhuman protectors of our neighborhoods"; and (b) the judge's instruction to the jury during defense counsel's summation on the lawful duty of police officers, after defense counsel had argued that the police had no lawful duty to arrest McLean, "both took that element from the jury and reinforced the prosecutor's suggestion that appellant was a dangerous individual with a criminal propensity" (Dkt. No. 8: Chaffee Aff. Ex. F: McLean 1st Dep't Br. at 25- 40); (2) Theodore Quintana's lineup identification of McLean should have been suppressed (id. at 40-45); and (3) McLean's guilty pleas should be vacated because they were "improperly induced by the courts' explicit threats that if [McLean] insisted on going to trial and was convicted, they would run the sentences consecutively to the 25 years to life sentences he was already serving" (id. at 45- 49). McLean sought to challenge Quintana's lineup identification and vacate his guilty pleas only in the event the First Department reversed his Janoff's trial conviction, but if the First Department affirmed his trial conviction, McLean did not seek withdrawal of his guilty pleas or to challenge the lineup. (Id. at 45 n.7, 46 n.8.)

Additionally, McLean filed a pro se supplemental appeal brief in which he claimed that: (1) his statements to the police should have been suppressed because they were made in violation of his right to counsel (Ex. G: McLean Pro Se Supp. 1st Dep't Br. at 1); (2) his arraignment was unnecessarily delayed which caused him to be denied counsel and the right to testify before the grand jury, and the prosecutor failed to "establish a valid reason for [the] delay of arraignment, as well as [the] purpose for N.A. indictments" (id.); (3) prosecutorial misconduct denied him his right to due process when the prosecutor (a) repeatedly withheld Rosario material and violated discovery rules; and (b) "circumvented [McLean's] criminal court arraignment, then unlawfully indicted [McLean] under N.A. indictments on both indictment[s]" which deprived McLean of his right to testify before the grand jury (id. at 1-2); (4) he received ineffective assistance of trial counsel (id. at 2); and (5) he was denied his right to a fair trial by the trial judge who allowed the ADA to violate Rosario, Brady and discovery rules, helped the ADA argue its case and painted "false and misleading pictures to the jury" (id.).

On October 23, 2003 the First Department affirmed McLean's convictions. People v. McLean, 309 A.D.2d 639, 735 N.Y.S.2d 626 (1st Dep't 2003). With respect to McLean's main brief claims as to the Janoff's conviction, the First Department held each claim was "unpreserved" and "decline[d] to review them in the interest of justice." Id. at 639, 735 N.Y.S.2d at 626. Alternatively, the First Department held:

Were we to review these claims, we would find that uncharged crime evidence was properly admitted because it was relevant to defendant's intent with respect to the resisting arrest and assault charges and because its prejudicial effect was minimal; we would find that the challenged portions of the prosecutor's summation were responsive to the defense summation; and we would find that the jury instruction given by the court during defendant's summation was appropriate since the defense argument had the potential for misleading the jury on the law and since the instruction did not undermine any proper summation arguments.

Id. at 639-40, 735 N.Y.S. 2d at 626-27.

Since the First Department affirmed McLean's trial conviction and he sought to vacate his guilty pleas only upon a reversal of his trial conviction, the First Department did "not reach [McLean's] arguments relating to his guilty pleas, including his arguments relating to suppression of identification testimony." Id. at 640, 735 N.Y.S.2d at 627.

Finally, the First Department "considered and rejected the claims contained in [McLean's] pro se supplemental brief." Id.

On January 29, 2004, the New York Court of Appeals denied leave to appeal. People v. McLean, 1 N.Y.3d 598, 776 N.Y.S.2d 230 (2004).

McLean's Federal Habeas Petition

McLean's amended habeas petition raises the following claims: (1) he was deprived of his Due Process right to a fair trial under Indictment Number 1599/96 (the Janoff's burglary) because (a) the prosecutor's repeated references to his "alleged statement that he would not go 'back' to jail" were improper particularly when "juxtaposed to [the prosecutor's] attestations that the police officers in this case were honest and credible witnesses as well as superhuman protectors of our neighborhoods"; and (b) the trial judge "infringed on the defense's right to make an effective summation" by instructing the jury during defense counsel's summation on the lawful duty of police officers, after defense counsel had argued that the police had no lawful duty to arrest McLean, thereby "both t[aking] an element from the jury and reinforc[ing] the prosecutor's suggestion that appellant was a dangerous individual with a criminal propensity" (Am. Pet. ¶ 12(a)); (2) Theodore Quintana's lineup identification of McLean should have been suppressed (id. ¶ 12(b)); (3) McLean's two guilty pleas should be vacated because they were "improperly induced by the courts' explicit threats that if [McLean] insisted on going to trial and was convicted, [the court] would run the sentences consecutively to the 25 years to life sentences he was already serving" (id. ¶ 12(c)); (4) he "was deprived of his Due Process right to undelayed arraignment . . . for the purpose of depriving [McLean] of his right to counsel and [McLean's] right to testify before the grand jury" thus his "inculpatory statements, and confessions should have been suppressed and the indictment should [have] been dismissed" (id. ¶ 12(d)(I)); (5) his written confession and the lineup identification should have been suppressed because both were conducted without counsel even though his right to counsel had attached (id. ¶ 12(d)(II)); and (6) ineffective assistance of trial counsel (id. ¶ 12(d)(III)).

ANALYSIS

I. THE AEDPA REVIEW STANDARD*fn10

Before the Court can determine whether McLean is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U. S. 362, 403, 120 S. Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) 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; or

(2). . . 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)(1)-(2).*fn11

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S. Ct. at 1519.*fn12 Both, however, "restrict[] the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S. Ct. at 1523.*fn13 "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 341 F.3d at 110; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent 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 result different from [Supreme Court] precedent.

Williams v. Taylor, 529 U.S. at 405-06, 120 S. Ct. at 1519-20.*fn14

In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ 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." Williams v. Taylor, 529 U.S. at 413, 120 S. Ct. at 1523.*fn15 However, "[t]he term 'unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U. S. at 410, 120 S. Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id.*fn16 Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S. Ct. at 1521.*fn17 "Objectively unreasonable" is different from "clear error." Lockyer v. Andrade, 538 U.S. at 75, 123 S. Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, the Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).*fn18 "[T]he range of reasonable judgment can depend in part on the nature of the relevant rule." Yarborough v. Alvarado, 541 U. S. at 663, 124 S. Ct. at 2149.*fn19

Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45.*fn20

Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 341 F.3d at 109; accord, e.g., Bell v. Cone, 543 U.S. at 455, 125 S. Ct. at 853.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim - even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

Sellan v. Kuhlman, 261 F.3d at 312; accord, e.g., Bell v. Cone, 543 U.S. at 455, 125 S. Ct. at 853 ("Federal courts are not free to presume that a state court did not comply with constitutional dictates on the basis of nothing more than a lack of citation."); Early v. Packer, 537 U. S. 3, 8, 123 S. Ct. 362, 365 (2002) (State court not required to cite Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, "so long as neither the reasoning nor the result of the state-court decision contradicts them."); Lynn v. Bliden, 443 F.3d at 246; Howard v. Walker, 406 F.3d at 122; Rosa v. McCray, 396 F.3d at 220: Wade v. Herbert, 391 F.3d 135, 140 (2d Cir. 2004) (Appellate Division held claim was "'without merit.'" "Such a summary determination, even absent citation of federal case law, is a 'determination on the merits' and as such requires the deference specified by § 2254." Moreover, "[I]f any reasonable ground was available [for the state court's decision], we must assume that the [state] court relied on it."); Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir.) (Where "the Appellate Division concluded its opinion by stating that it had 'considered and rejected defendants' remaining claims,'" AEDPA deference applies.), cert. denied, 543 U.S. 872, 125 S. Ct. 110 (2004); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition - the word 'denied' - triggered AEDPA deference.").*fn21 "By its terms, § 2254(d) requires such deference only with respect to a state-court 'adjudication on the merits,' not to a disposition 'on a procedural, or other, ground.' Where it is 'impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).*fn22 Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA, de novo standard of review applies." Cotto v. Herbert, 331 F.3d at 230.

Finally, "[i]f [the] court finds that the state court engaged in an unreasonable application of established law, resulting in constitutional error, it must next consider whether such error was harmless." Howard v. Walker, 406 F.3d at 122.

In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1); accord, e.g., Lynn v. Bliden, 443 F.3d at 246-47; Rosa v. McCray, 396 F.3d at 220. "The petitioner bears the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'" Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)); accord, e.g., Lynn v. Bliden, 443 F.3d at 246-47.

II. MCLEAN'S CLAIM OF PROSECUTORIAL MISCONDUCT AND IMPROPER JUDICIAL INTERFERENCE WITH DEFENSE COUNSEL'S SUMMATION IS BARRED BY ADEQUATE AND INDEPENDENT STATE LAW GROUNDS

McLean claims that he was deprived of his right to a fair trial because the prosecutor improperly referred to his statement that he "would not go 'back' to jail" which he asserts was improper particularly "where that message was juxtaposed to [the prosecutor's] attestations [during her summation] that the police officers in this case were honest and credible witnesses as well as superhuman protectors of our neighborhoods." (Dkt. No. 5: Am. Pet. ¶ 12(a).) Additionally, McLean asserts he was denied a fair trial because the trial court "infringed on the defense's right to make an effective summation by directing the jury to discount counsel's argument that there was no factual support to find that the police had a lawful duty to arrest" McLean. (Id.)

A. Adequate and Independent State Ground Doctrine*fn23

The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U. S. 255, 262, 109 S. Ct. 1038, 1043 (1989) (citations & internal quotations omitted).*fn24

"[I]n order to preclude federal review [under the adequate and independent doctrine], the last state court to render judgment must 'clearly and expressly state [ ] that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415 (quoting Glenn v. Bartlett, 98 F.3d at 724). The Second Circuit has made clear that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d at 9; accord, e.g., Harris v. Reed, 489 U. S. at 264 n.10, 109 S. Ct. at 1044 n.10 ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.") .*fn25 Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris v. Reed, 489 U.S. at 264 n.10, 109 S. Ct. at 1044 n.10.

B. McLean's Claims Are Procedurally Barred

The First Department rejected McLean's claim that the prosecutor improperly referred to his statement that he did not want to "go back to jail," and that the prosecutor had improperly bolstered the testimony of Sgt. Nicholson, holding that these claims were unpreserved and "decline[d] to review them in the interest of justice." (See page 26 above.) Additionally, the First Department held that "[w]ere [it] to review these claims" it would find them meritless. (Quoted in full on page 26 above.)

State courts are not required to use any particular language:

We encourage state courts to express plainly, in every decision potentially subject to federal review, the grounds upon which their judgments rest, but we will not impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim - every state appeal, every denial of state collateral review - in order that federal courts might not be bothered with reviewing state law and the record in the case.

Coleman v. Thompson, 501 U.S. 722, 739, 111 S. Ct. 2546, 2559 (1991).

Furthermore, unlike the situation where the state court holds that claims were either unpreserved or without merit, which the Second Circuit has found is usually too ambiguous to preclude habeas review,*fn26 here the First Department explicitly stated that it found McLean's claim "unpreserved," People v. McLean, 309 A.D.2d 639, 639, 735 N.Y.S.2d 626, 626 (1st Dep't 2003), and the fact that the First Department also stated the conclusion it would reach on the merits "[w]ere [it] to review these claims," id. at 639-40, 735 N.Y.S.2d at 626-27, does not change the result. See, e.g., Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810-11 & n.4 (2d Cir. 2000) ("where a state court says that a claim is 'not preserved for appellate review' and then ruled 'in any event' on the merits, such a claim is not preserved"); Glenn v. Bartlett, 98 F.3d 721, 724-25 & n.3 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S. Ct. 1116 (1997) (state decision which denied prosecutorial misconduct claim as not preserved for appellate review represented an independent and adequate state procedural ground even though court addressed merits of claim "in the interests of justice"); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (state decision which denied claims as procedurally barred but then alternatively addressed merits rested on adequate and independent state grounds).*fn27 Thus, the First Department's decision here unambiguously rested on a state procedural ground.*fn28

Under New York law, "[a]s a general rule points which were not raised at trial may not be considered for the first time on appeal." People v. Thomas, 50 N.Y.2d 467, 471, 429 N.Y. S.2d 584 (1980) (citing C.P.L. § 470.05(2)).*fn29 In order to preserve his prosecutorial misconduct claim, his uncharged evidence claim and his interference with defense counsel summation claim, McLean was required to object at the time the evidence was admitted or statement was made. E.g., People v. Campbell, 813 N.Y.S.2d 313, 313 (2d Dep't 2006) ("The defendant's claim that the prosecutor's allegedly improper comments during summation require reversal is unpreserved for appellate review since the defendant failed to raise any objection to the comments at trial."); People v. Pettiford, 812 N.Y.S.2d 371, 371 (2d Dep't 2006) ("The defendant's contentions concerning the admission into evidence of what he claims were uncharged crimes . . . are unpreserved for appellate review, as he did not object to this evidence at trial."); People v. Ramos, 26 A.D.3d 197, 197, 808 N.Y.S.2d 897, 898 (1st Dep't) ("Defendant's challenges to the court's jury instructions are unpreserved."), appeal denied, 6 N.Y.3d 851, 816 N.Y.S. 2d 757 (2006) ; People v. Griffin, 24 A.D.3d 237, 238, 808 N.Y.S.2d 163, 163 (1st Dep't 2005) ("Defendant took no exception to the court's charge. . . . Accordingly, his present arguments are unpreserved."), appeal denied, 6 N.Y. 3d 851, 812 N.Y.S.2d 453 (2006); People v. Garcia, 23 A.D.3d 293, 294, 803 N.Y.S.2d 908, 908 (1st Dep't 2005) ("Defendant's argument that evidence of uncharged crimes was improperly admitted also is unpreserved."); People v. Jiminez, 22 A.D.3d 423, 424, 805 N.Y.S.2d 2, 3 (1st Dep't 2005) ("Also unpreserved for failure to object are defendant's claims with respect to the prosecutor's comments."); People v. O'Flaherty, 16 A.D.3d 121, 121, 789 N.Y.S.2d 890, 890 (1st Dep't) ("By failing to object, or by making generalized objections, defendant did not preserve his present challenges to the prosecutor's summation."), appeal denied, 4 N.Y.3d 855, 797 N.Y.S.2d 429 (2005); see also, e.g., Olivo v. Thornton, 2005 WL 3292542 at *9 ("In order to preserve her erroneous jury charge claim for appellate review, [petitioner] was required to object at the time of the instructions.") (citing N.Y. cases); Roberts v. Batista, 01 Civ. 5264, 2003 WL 1900866 at *9 (S.D.N.Y. Apr. 16, 2003)(Peck, M.J.) ("In order to preserve his prosecutorial misconduct claim for appellate review, [petitioner] was required to object at trial to the prosecutor's statements during summation.") (citing N.Y. cases).*fn30

Here, defense counsel did not object when the prosecutor brought out on direct and re-direct examination of Sgt. Nicholson that McLean had said he did not want to go "back to jail."

Indeed, Justice Corriero sua sponte asked defense counsel (outside the jury's presence) if she wanted a curative instruction concerning that testimony, but defense counsel declined, choosing to just "let it be." (See page 6 above.) Further, when the prosecutor mentioned the statement during summation, defense counsel did not object. (See page 9 above.)

Additionally, defense counsel did not object when the prosecutor spoke about the bravery of police officers during summation. Defense counsel only objected when the prosecutor stated that "I am not going to be doing that [police's] job, you shouldn't be expected to do that job." (See page 10 above.) Defense counsel did not specify her grounds for objecting nor whether she was objecting to the prosecutor injecting herself into the summation or to the prosecutor discussing the job of police officers; while McLean now argues for the latter, in context it is clear to this Court that it was the former. Finally, defense counsel did not object when the court instructed the jury on the law of a police officer's duty to arrest during the defense summation. (See page 8 above.)

Both the Supreme Court and the Second Circuit have held that the failure to object at trial when required by New York's contemporaneous objection rule, C.P.L. § 470.05, is an adequate and independent state ground. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 86, 90, 97 S. Ct. 2497, 2506-08 (1977) (contemporaneous objection rule is an adequate and independent state ground); Murray v. Carrier, 477 U.S. 478, 485-92, 497, 106 S. Ct. 2639, 2644-48, 2650 (1986) (same); Franco v. Walsh, 73 Fed. Appx. 517, 518 (2d Cir. 2003) (finding petitioner's claim of an erroneous jury charge procedurally defaulted because "[n]o contemporaneous objection to the charge was lodged, and the Appellate Division found that the issue was therefore unpreserved. "); Garcia v. Lewis, 188 F.3d 71, 79 (2d Cir. 1999) ("we have observed and deferred to New York's consistent application of its contemporaneous objection rules") (citing Bossett v. Walker, 41 F.3d 825, 829 n.2 (2d Cir. 1994) (respecting state court's application of C.P.L. § 470.05(2) as adequate bar to federal habeas review), cert. denied, 514 U.S. 1054, 115 S. Ct. 1436 (1995), & Fernandez v. Leonardo, 931 F.2d 214, 216 (2d Cir.) (noting that failure to object at trial constitutes adequate procedural default under C.P.L. § 470.05(2)), cert. denied, 502 U.S. 883, 112 S. Ct. 236 (1991)); Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996) (failure to object constituted adequate and independent state ground), cert. denied, 520 U.S. 1108, 117 S. Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (violation of New York's contemporaneous objection rule is an adequate and independent state ground).*fn31

Because there is an adequate and independent finding by the First Department that McLean procedurally defaulted on his constitutional claims concerning the Janoff' s trial, McLean would have to show in his habeas petition "cause for the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750, 111 S. Ct. at 2565.*fn32 McLean does not allege cause, prejudice or a fundamental miscarriage of justice. Thus McLean's claim is procedurally barred for habeas review. This claim thus is DENIED.*fn33

III. MCLEAN WAS NOT CONVICTED OF THE QUINTANA ROBBERY AND THEREFORE HIS CLAIM REGARDING QUINTANA'S IDENTIFICATION PROVIDES NO BASIS FOR RELIEF

After previously pleading guilty to the first three counts of Indictment No. 1620/96, the Ebony McCoy robbery, McLean pled guilty to count four of Indictment No. 1620/96, charging McLean with first degree robbery of Vinnie Kakkar, in satisfaction of the balance of the indictment. (See pages 22-23 above.) McLean thus was not convicted of the Quintana robbery and his incarceration therefore is not related to those charges. Any claimed error in the identification procedures concerning the Quintana robbery charges did not contribute to McLean's conviction or sentence and cannot provide a basis for federal habeas relief.

Put slightly differently, McLean raised this issue with the First Department but conditioned it on a reversal of his trial conviction. (Dkt. No. 8: Chaffee Aff. Ex. F: McLean 1st Dep't Br. at 45 n.7: "Should this Court grant appellant a new trial . . . he seeks full relief under this Point, i.e., plea vacatur and suppression of the identification testimony. If, however, this Court declines to order a new trial, appellant does not seek to disturb his plea convictions.") As discussed in Point IV below, McLean advised this Court that if his Janoff's conviction were not overturned on habeas review, he does not seek to set aside any of his guilty plea convictions. (See 8/18/06 Conf. Tr. at 3.)

This claim therefore is DENIED.

IV. MCLEAN'S CLAIM THAT HIS GUILTY PLEAS WERE COERCED IS DENIED

McLean argues that his two guilty pleas under Indictment No. 1620/96 were coerced "by the courts' explicit threats that if [McLean] insisted on going to trial and was convicted, they would run the sentences consecutively to the 25 years to life sentences he was already serving under Indictment no. 1599/96." (Dkt. No. 5: Am. Pet. ¶ 12(c).)

On his counseled direct appeal to the First Department, McLean stated that he sought "plea vacatur only in the event that this Court reverses his trial convictions . . . but refuses to vacate his plea convictions on Fuggazzatto*fn34 grounds. If, however, this Court affirms [McLean's] trial convictions, he does not seek plea withdrawal." (Dkt. No. 8: Chaffee Aff. Ex. F: McLean 1st Dep't Br. at 46 n.8; see also McLean 1st Dep't Br. at 45 n.7.)*fn35

Accordingly, the First Department, after affirming McLean's trial conviction concluded:

Since defendant does not seek vacatur of either of his guilty pleas unless this Court reverses his trial conviction, and since we find no basis upon which to reverse that conviction, we do not reach defendant's arguments relating to his guilty pleas, including his arguments relating to suppression of identification testimony.

People v. McLean, 309 A.D.2d 639, 640, 765 N.Y.S.2d 626, 627 (1st Dep't 2003). The First Department's ruling on this issue was exactly what McLean had requested: that the court not review his claim surrounding his guilty pleas if it affirmed his trial conviction.

McLean's amended habeas petition raised this claim without directly indicating whether it was conditional on this Court overturning his Janoff's conviction (Am. Pet. ¶ 12(c)), but his petition also stated that support for the claim was "set forth in petitioner's appellate brief, pages 45-49" (id.), which pages included the footnote about the conditional nature of the claim. To clarify McLean's intent, the Court held a telephonic conference on August 18, 2006, at which McLean confirmed that all of his habeas claims relating to his guilty pleas were conditional on the grant of habeas relief on his Janoff's trial conviction. (8/18/06 Conf. Tr. at 3.)*fn36

Because this Court has denied McLean's Janoff's-based habeas claims, McLean's habeas claim attacking his guilty plea convictions is DENIED. See, e.g., Mapp v. Phillip, No. 04- CV-1889, 2005 WL 1541044 at *7 (E.D.N.Y. June 29, 2005).

V. MCLEAN'S CLAIM THAT HIS ARRAIGNMENT WAS UNCONSTITUTIONALLY DELAYED IS DENIED*fn37

McLean claims that his delayed arraignment under Indictment No. 1599/96 deprived him of his right to counsel, his right to testify before the grand jury and, as one of the "many pertinent factors bearing on the question of voluntariness" of a confession, should have caused his inculpatory statements and written confession to have been suppressed. (Dkt. No. 5: Am Pet. ¶ 12(d)(1).)

A. McLean's Claim That His Delayed Arraignment Rendered His Statements Involuntary Is Not Cognizable Because The Statements Related Not to The Janoff's Case But The Case He Pleaded Guilty To

Federal habeas courts have considered the constitutionality of delayed arraignment of state defendants only "as part of an analysis, pursuant to the Fifth Amendment, of the voluntariness of confessions." Grimes v. Goord, 371 F. Supp. 2d 305, 317 (W.D.N.Y. 2004) (citing cases). Thus, any delay in arraigning McLean would not be a constitutional violation in itself, but rather, "a factor to be weighed in determining whether or not, viewed in the totality of the circumstances, an incriminating statement was the product of police coercion." See id.

The statements McLean challenges relate not to the Janoff's charges, but to the statements he allegedly made in the police car about the Ebony McCoy robbery. (See page 13 above.) Those statements were not admitted (nor even offered) into evidence at his Janoff's trial. Since he pled guilty to the McCoy robbery and his challenge to that conviction is conditional on reversal of his Janoff's conviction (see 8/18/06 Conf. Tr. at 3), the allegedly improperly obtained statement issue is not cognizable on federal habeas review, for the reasons discussed in Point IV above.

B. Any Delay in Arraignment Did Not Deprive McLean of the Right to Counsel

A delay in arraignment does not give rise to a deprivation of a defendant's right to counsel. People v. Ramos, 99 N.Y.2d 27, 34, 750 N.Y.S.2d 821, 825-26 (2002) ("We have never held . . . that an undue delay in arraignment triggers a State constitutional right to counsel, i.e., one that goes beyond the requirements of the United States Constitution . . . [and] we decline to do so now."); see, e.g., Hotchkiss v. Walsh, 00 Civ. 5518, 2004 WL 2721943 at *7-8 (S.D.N.Y. Nov. 29, 2004); Curry v. Burge, 03 Civ. 0901, 2004 WL 2601681 at *18-19 (S.D.N.Y. Nov. 17, 2004) (Peck, M.J.); Grimes v. Goord, 371 F. Supp. 2d at 318; Sease v. Goord, 01 Civ. 1378, 2003 WL 23100261 at *6-7 (S.D.N.Y. Dec. 30, 2003).

To the extent McClean may be arguing that he was deprived of the right to counsel at his lineups in connection with the charges in Indictment No. 1620/96, McLean is not pursuing claims in connection with Indictment No. 1620/96 since this Court is denying habeas relief as to his Janoff's trial conviction. (See 8/18/06 Conf. Tr. at 3.)

C. McLean's Claim That He Was Deprived Of His Right To Testify Before a Grand Jury Due To A Delay In Arraignment Does Not Provide A Basis For Habeas Relief

McLean's claim that a delay in arraignment deprived him of his right to testify before the grand jury (in both indictments) is not cognizable on habeas review. "A jury conviction transforms any defect connected with the grand jury's charging decision into harmless error, because the trial conviction establishes probable cause to indict and also proof of guilt beyond a reasonable doubt." Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *17 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.) (citing cases); accord, e.g., Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at * 11 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.) (citing cases), report & rec. adopted, 2003 WL 1621702 (S.D.N.Y. Mar. 28, 2003); see, e.g., United States v. Mechanik, 475 U.S. 66, 67, 106 S. Ct. 938, 940 (1986) ("The petit jury's verdict of guilty beyond a reasonable doubt demonstrates a fortiori that there was probable cause to charge the defendants with the offenses for which they were convicted. Therefore, the convictions must stand despite the [grand jury] rule violation."); Davis v. Mantello, 42 Fed. Appx. 488, 490-91 (2d Cir. 2002) ("Claims of deficiencies in state grand jury proceedings are not cognizable in a habeas corpus proceeding in federal court.") (citing cases), cert. denied, 538 U. S. 986, 123 S. Ct. 1803 (2003); 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 federal court."); Folger v. Conway, No. 03-CV-0239, - - F. Supp. 2d - -, 2006 WL 2374261 at *12 (W.D.N.Y. Aug. 17, 2006) ("[T]he guilty verdict at [petitioner's] jury trial precludes habeas review of his claim" alleging error in the grand jury proceeding.); Harrison v. Girdich, 05 Civ. 0603, 2005 WL 3465622 at *3 (S.D.N.Y. Dec. 14, 2005) ("[D]enial of the right to appear before the grand jury is not a cognizable claim on habeas review after a jury has convicted the petitioner."); Moore v. Warden, Southport Corr. Facility, 380 F. Supp. 2d 321, 328 (S.D.N.Y. 2005) ("[C]laims of deficiencies in state grand jury proceedings, where rendered harmless by a petit jury, are not cognizable in a habeas corpus proceeding in federal court."); Patterson v. Pool, 02 Civ. 5389, 2004 WL 1874967 at *4 (S.D.N.Y. Aug. 18, 2004) (Petitioner's "claim fails because errors in grand jury proceedings are deemed harmless once a petit jury returns a guilty verdict."); Palmer v. Greiner, 00 Civ. 6677, 2003 WL 22019740 at *6 (S.D.N.Y. Aug. 22, 2003); ("[F]ederal habeas courts are precluded from reviewing claims based on procedural deficiencies in state grand jury proceedings."); Marrero v. Senkowski, 01 Civ. 5867, 2003 WL 21750137 at *11 (S.D.N.Y. July 28, 2003) ("As a matter of law, any errors in a state grand jury proceeding are not cognizable on federal habeas corpus review because 'such errors are rendered harmless once a defendant has been convicted by a petit jury.'"); Bingham v. Duncan, 01 Civ. 1371, 2003 WL 21360084 at *4 (S.D.N.Y. June 12, 2003) ("[C]laims of error relating to state grand jury proceedings are not cognizable on federal habeas review, since '[t]he right to testify before a grand jury is a state statutory right, and is not of constitutional dimension.'"); Figueroa v. Donnelly, 02 Civ. 6259, 2003 WL 21146651 at *8 (S.D.N.Y. May 16, 2003) ("[I]t has been consistently held that claims of error in a state grand jury proceeding are not cognizable for federal habeas corpus review after a petit jury has convicted the petitioner. . . ."); Pena v. Fischer, 00 Civ. 5984, 2003 WL 1990331 at *8 (S.D.N.Y. Apr. 30, 2003) (Grand jury claims are not cognizable on habeas "since claims regarding state grand jury proceedings raise no federal constitutional issues."); Cates v. Senkowski, 02 Civ. 5957, 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.") (citation omitted).*fn38

Because McLean was convicted after a jury trial (or pled guilty), his grand jury claim is not cognizable on habeas review, and thus any delay in arraignment could not have caused a constitutional deprivation here.

Accordingly, this habeas claim is DENIED.

VI. MCLEAN'S CLAIM THAT THE LINEUP IDENTIFICATIONS AND STATEMENTS MADE SHOULD HAVE BEEN SUPPRESSED IS DENIED

McLean claims that the lineup identifications and the inculpatory statements he made should have been suppressed because he did not have counsel present. (Dkt. No. 5: Am. Pet. ¶ 12(d)(2).) This claim relates not to his Janoff's trial conviction but to the indictment to which he pled guilty. As noted above, McLean is pursuing claims as to his guilty plea convictions only if his Janoff's conviction were overturned. (8/18/06 Conf. Tr. at 3.) Since the Court has not granted habeas relief as to McLean's Janoff's conviction, this contingent habeas claim is DENIED.

VII. MCLEAN'S CLAIM THAT HE RECEIVED INEFFECTIVE ASSISTANCE FROM HIS TRIAL COUNSEL IS DENIED

McLean contends that his counsel was ineffective because she: (1) "never gave the A.D.A. written notice" that McLean wanted to testify before the grand jury (Dkt. No 5: Am. Pet. ¶ 12(d)(3)); (2) "[i]ncorrectly argued and failed to suppress [McLean's] confession, lineup identification and other inculpatory statements" (id.); and (3) "erroneously explained the facts leading to [his] arrest" in the omnibus motion (id.).

A. The Strickland v. Washington Standard on Ineffective Assistance of Trial Counsel *fn39

In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064; accord, e.g., Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535 (2003); Henry v. Poole, 409 F.3d 48, 62-63 (2d Cir. 2005), cert. denied, 126 S. Ct. 1622 (2006). This performance is to be judged by an objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 688, 104 S. Ct. at 2064.*fn40

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction . . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time . . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Strickland v. Washington, 466 U. S. at 689, 104 S. Ct. at 2065 (citation omitted).*fn41

Second, the defendant must show prejudice from counsel's performance. Strickland v. Washington, 466 U. S. at 687, 104 S. Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S. Ct. at 2068-69. Put another way, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068.*fn42

The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S. Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id.

Any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the 'totality of the evidence before the judge or jury.'" Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quoting Strickland v. Washington, 466 U.S. at 695-96, 104 S. Ct. at 2069); accord, e.g., Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991).

The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland v. Washington, 466 U.S. at 697, 104 S. Ct. at 2069.*fn43

In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 690-91, 104 S. Ct. at 2066.*fn44

As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard." Lindstadt v. Keane, 239 F.3d at 199.

1. Strickland and the AEDPA Review Standard

For purposes of this Court's AEDPA analysis, "the Strickland standard . . . is the relevant 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Aparicio v. Artuz, 269 F.3d at 95 & n.8 (quoting 28 U. S.C. § 2254(d)(1)).*fn45 "For AEDPA purposes, a petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also 'clearly established.'" Aparicio v. Artuz, 269 F.3 d at 95 n.8. "For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. . . . Rather, he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v. Cone, 535 U. S. at 698-99, 122 S. Ct. at 1852; see also Yarborough v. Gentry, 540 U. S. at 5, 124 S. Ct. at 4.

B. Counsel Was Not Ineffective For Failing to Secure McLean's Appearance Before The Grand Jury

McLean argues that his counsel failed to inform the A.D.A. that he wanted to testify before the grand jury with respect to both indictments. Assuming, arguendo, that McLean's attorney failed to notify the A.D.A. of McLean's request to testify before the grand jury, McLean cannot show prejudice from such failure. As discussed above in Point V.C., a conviction cures any error that occurred during grand jury proceedings. Moreover, McLean has failed to show what he would have told the grand jury that would have prevented his indictment. See Lucius v. Filion, 431 F. Supp. 2d 343, 350 (W.D.N.Y. 2006) (petitioner failed to establish prejudice as a result of appellate counsel's failure to argue that his trial counsel was ineffective for failing to raise the issue that petitioner was denied his right to testify before the grand jury where petitioner did not indicate "what he would have said to the grand jury to prevent that body from indicting him . . . . Indeed, given [petitioners'] criminal history, it would have been a sound tactical choice on trial counsel's part to recommend that [petitioner] not testify in the grand jury since doing so would expose him to cross-examination about prior bad conduct."); Johnson v. Artuz, No. 00-CV-6106, 2006 WL 1144513 at *5 (W.D.N.Y. May 1, 2006) (citing cases); Brown v. Connell, 04 Civ. 10152, 2006 WL 1132053 at *8 (S.D.N.Y. Apr. 28, 2006) (Petitioner could not establish prejudice where he "has not shown why his testimony would have made any difference to the outcome of the [grand jury] proceeding."), report & rec. adopted, 2006 WL 1880546 (S.D.N.Y. July 5, 2006); Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *24-25 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.) (citing cases).

C. Counsel Was Not Ineffective For Failing to Prevail on McLean's Suppression Motion

McLean contends that trial counsel was ineffective because she "[i]ncorrectly argued and failed to suppress [McLean's] confession, lineup identification and other inculpatory statements." (Am. Pet. ¶ 12(d)(3).)

The confession and lineup identification issues go to Indictment 1620/96, i.e., his guilty pleas (see Dkt. No. 8: Chaffee Aff. Ex. G: McLean Pro Se Supp. 1st Dep't Br. at 2). McLean is not pursuing claims relating to his guilty plea convictions since the Court has denied habeas relief on his Janoff's jury conviction. (See 8/18/06 Conf. Tr. at 3.)

To the extent McLean is claiming that trial counsel was ineffective for failing to suppress McLean's Janoff's statement that he would not go back to jail, there in fact was a suppression hearing, after which Justice Corriero found the police testimony credible and held that McLean's statements were "spontaneous." (See Dkt. No. 15: Tr. 5; see also Dkt. No. 8: Chaffee Aff. Ex. H: State 1st Dep't Br. at 5-15, describing suppression hearing testimony.) Defense counsel also cross-examined Sgt. Nicholson at trial about statements that he attributed to McLean at trial but were neither in his memo book nor in his grand jury testimony. (See page 7 above.) McLean has not explained how counsel was ineffective in this regard. The claim is DENIED.

A. McLean's Claim About Counsel's Factual Error In the Omnibus Motion Only Goes To Indictment 1620/96

McLean contends that trial counsel's erroneous recitation of the facts surrounding his arrest in the omnibus motion amounted to ineffective assistance of counsel. (Am. Pet. ¶ 12(d)(3).)

The Omnibus Motion was filed with respect to Indictment 1620/96. (See Dkt. No. 8: Chaffee Aff. Exi C: Omnibus Motion, clearly captioned "Indictment No. 1620/96.") That indictment relates to his guilty pleas and, as previously discussed, since the Court is denying McLean relief on his Janoff's trial conviction, McLean is not pursuing his claims as to his guilty plea convictions. (See 8/18/06 Conf. Tri at 3.) The claim therefore is DENIED.

CONCLUSION

For the reasons discussed above, McLean's habeas petition is DENIED. A certificate of appealability is not issued.

SO ORDERED.


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