The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Allan Stern, a New York State prisoner, seeks a writ of habeas corpus, challenging his conviction for murder and resulting sentence to 25 years to life in prison. The petition will be denied.
A. State Court Proceedings
Both the underlying case and the present petition have a lengthy procedural history. In a 1989-90 trial, a jury in New York State Supreme Court, New York County, found Stern guilty of murdering his brother-in-law, Arthur Katz, nine years before. Stern appealed the conviction to the Appellate Division, raising a number of issues, questioning the sufficiency of the evidence; the adequacy of notice under state law of tape-recorded conversations between Stern and a key witness, the cooperating accomplice Robert DaSilva; the admissibility of those recordings and of additional statements made by Stern to a jailhouse informant in light of his constitutional right to counsel; the exclusion of certain evidence offered on his behalf; the propriety of the judge's instructions on circumstantial evidence and accomplice corroboration; and the length of his sentence.
On May 4, 1992, and October 23, 1996, while Stern's direct appeal was pending, he filed with the trial court two motions to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10. Stern charged that the prosecution had fabricated evidence and violated New York's Rosario rule by failing to disclose prior witness statements. See People v. Rosario, 9 N.Y.2d 286 (1961). When the § 440.10 motions were denied, Stern obtained leave to appeal the denials to the Appellate Division, and the appeals were consolidated with his direct appeal. The Appellate Division affirmed his conviction on April 18, 1996. People v. Stern, 641 N.Y.S.2d 238 (1st Dep't 1996), rejecting all of Stern's arguments. Applications for reargument, leave to appeal to the Court of Appeals, and reconsideration of the denial of leave were all denied, and Stern's direct state-court appeals came to an end, along with his first two § 440.10 motions, on October 17, 1996. See People v. Stern, 88 N.Y.2d 1072 (1996) (denying leave to appeal after reconsideration).
Stern immediately returned to the trial court with a third motion to vacate his conviction pursuant to § 440.10, charging that the prosecutor had failed to comply with his obligations under Brady v. Maryland, 373 U.S. 83 (1963), by withholding certain ballistics and serology test results and had improperly redacted certain exculpatory material from the tape recorded conversations with DaSilva. That motion was denied on December 19, 1996. The Appellate Division affirmed the denial on March 16, 2000. People v. Stern, 704 N.Y.S.2d 569 (1st Dep't 2000), and leave to appeal to the Court of Appeals was denied on September 15, 2000. People v. Stern, 715 N.Y.S.2d 385 (2000).
Stern's next attack on his conviction, filed in June 2001, was a motion in the Appellate Division for a writ of error coram nobis. Stern challenged the effectiveness of the appellate attorneys who handled his initial direct appeal, insofar as they failed to raise the alleged ineffectiveness of his trial counsel and the redaction of the tape recordings, and allegedly waived certain matters in connection with the application for leave to appeal to the Court of Appeals. The Appellate Division denied this motion without opinion on March 12, 2002. People v. Stern, 739 N.Y.S.2d 661 (1st Dep't 2002).
Six days after denial of his coram nobis motion, Stern filed the instant petition in this Court for a writ of habeas corpus (cited herein as "Pet."), raising two constitutional claims: alleged Brady violations and the alleged ineffectiveness of his appellate attorneys. The petition was fully briefed by mid-October 2002. While the petition was sub judice, however, Stern moved the Court to stay proceedings on the petition to permit him to file yet another § 440.10 motion in the state court, to raise another set of claims relating to an allegedly newly-discovered witness.
The request for a stay was granted on August 8, 2003. Stern's fourth § 440.10 motion was not filed in the state courts until March 2004. That motion was denied on February 4, 2005, and leave to appeal to the Appellate Division was denied in May 2005. Stern then returned to this Court, notifying the Court of the outcome of the state proceedings, and seeking permission to file a supplemental brief, adding the claims raised in those proceedings to his petition for habeas corpus. The supplemental brief (cited herein as "Supp.") was duly filed, as was a response from the State, and a reply by Stern, and the matter was finally again fully submitted to this Court in December of 2005.
The murder victim, Arthur Katz, was the husband of Stern's sister. Katz was an x-ray technician at a Bronx hospital and a long-time drug addict. He was found dead of two gunshots to the head in the early morning hours of December 6, 1980, just two hours after leaving work, in lower Manhattan under the old elevated West Side Highway. There was evidence that Stern had had an altercation with Katz at his sister's house the preceding weekend, in which Stern had injured his hand. Stern himself, discussing this incident while being surreptitiously tape-recorded, says that he "went fucking crazy . . . [a]nd smashed all the windows and stuff." (A. 1608.)
The principal witness against Stern was Roberto DaSilva, also known as "Bob," an informant with a number of violent deeds to his credit. As the jury heard, DaSilva, while a member of a "death squad" (Tr. 689) in the Brazilian military, had killed and tortured political prisoners on more than one occasion. (Tr. 494-95.) In the United States, DaSilva beat up four of his bosses - some because of specific disagreements, and one simply because he was a "pain in the ass." (Tr. 695.) DaSilva came forward in 1988, more than seven years after Katz's murder, and advised the police (as he later testified at trial) that he had been the intermediary who had connected Stern with the contract killers who had murdered Katz on Stern's behalf.
DaSilva testified that Stern had hired him to be superintendent of a West Side apartment building in early 1980. Sometime thereafter, Stern expressed a wish to have Katz beaten up. Stern disliked Katz because Katz was a drug addict, and because he was "not paying the bills." (Tr. 506.) According to DaSilva, Stern was angry because Katz had mistreated Stern's sister: "he changed the locks, and he threw my sister out of the house." (Tr. 581.) DaSilva advised Stern that he knew people who could handle such matters "in a professional way."
After many discussions in which DaSilva offered to put Stern in touch with someone who could get rid of "headaches" in a professional way, Stern asked how much it would cost. DaSilva reached out to a friend named "Richie," an ex-tenant of a building in which DaSilva once worked. "Richie" in turn recruited another man named "Sam" or "Sam Feet," who said he could hire a killer for $15,000 to $20,000. DaSilva passed this information on to Stern, who said he'd think about it. (Pet. 5-6; Tr. 507-10.)
Some time later, Stern spoke to Sam on the phone in DaSilva's presence, and made arrangements to pay for the murder of Katz. (Tr. 513-15.) Stern gave Sam an advance payment of $10,000 in DaSilva's presence (Tr. 517) - DaSilva had to chip in an extra $500 of his own when Stern's payment came up short, for which Stern later reimbursed him (Tr. 517-26) - and in late October of 1980, Sam visited Stern's office with a man known as "Crazy Joe," a professional killer based in Florida (Tr. 566), who told DaSilva that the job would soon be done. (Tr. 570.)
Sam told DaSilva to tell Stern to have an alibi on the weekend of his birthday, November 7, 1980. (Tr. 572.) On November 8, Stern called DaSilva, angry that Katz had not been murdered. (Tr. 576.) DaSilva called Sam, who told him that "we missed the guy." (Tr. 577.)
By December 3, Katz was still alive, and Stern called DaSilva again, this time reporting that he had had a fight with Katz - the fight in which Stern's hand was injured - and saying "I'm going to wind up doing this job . . . myself." (Tr. 579-81.)
On December 7, Stern called DaSilva to report that Katz was dead. Sam told DaSilva that he and Crazy Joe had killed Katz and "left the guy underneath[ ] the West Side Highway." (Tr. 584.) On December 9, the killers arrived at DaSilva's office to collect their money, and produced an item of jewelry taken from Katz to prove their involvement in the killing. (Tr. 586.) DaSilva called Stern, who said he would pay the rest of the money. The next day, Sam and Crazy Joe came to collect. While the killers waited in their car, drinking coffee, Vito Amato, another employee, arrived at the office with a white envelope containing their payment, went to the car, and gave it to them. (Tr. 590.)
The murder of Arthur Katz was unsolved until DaSilva reported it to the police. (Tr. 616-17.) DaSilva agreed to wear a tape recorder to meetings with Stern, and in a series of tape-recorded conversations, DaSilva, pretending to be worried that police would learn of their connection to Katz's murder, elicited a number of incriminating remarks indicating Stern's awareness of and involvement with the murder and his interest in covering it up. These tapes were played for the jury at trial. (Tr. 617-18.) Largely on the basis of the tapes and DaSilva's testimony, Stern was found guilty, and on January 29, 1990, he was sentenced to 25 years to life.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), [a]n application for a writ of habeas corpus . . . 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 [ ] 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 [ ] 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). This opinion addresses arguments raised in Stern's 2002 habeas petition ("Pet."), and a supplement filed in 2005, that the State courts misapplied clearly established federal law in rejecting his various arguments for a new trial, all of which are without merit.*fn1
I. Ineffective Assistance Claims
A claim of ineffective assistance of course "necessarily invokes federal law that has been 'clearly established' by the Supreme Court within the meaning of AEDPA." Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001). The Supreme Court set forth the test for such claims in Strickland v. Washington, 466 U.S. 668 (1984). To establish ineffective assistance of counsel under Strickland, a plaintiff must demonstrate (1) that his counsel's performance was deficient, and (2) "that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. The first component "requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. The second requires "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
To establish eligibility for habeas relief under AEDPA's deferential standard, a plaintiff must demonstrate that the state court's application of Strickland was not merely incorrect, but "'objectively unreasonable.' " Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001), quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)). An objectively unreasonable application involves "[s]ome increment of incorrectness beyond error." Sellan, 261 F.3d at 315 (internal quotation marks omitted).
Most of Stern's ineffective assistance claims pertain to the performance of his appellate counsel. "[T]he Fourteenth Amendment guarantees a criminal defendant the right to counsel on his first appeal if the state has provided such an appeal as of right." Taveras v. Smith, 463 F.3d 141, 147 (2d Cir. 2006) (emphasis in original). Where a claim of ineffective assistance is based on counsel's failure to raise certain arguments, the petitioner must show that those arguments were meritorious and that there is a reasonable probability that raising them would have changed the outcome of the proceedings. See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); Mosby v. Senkowski, 470 F.3d 515 (2d Cir. 2006). Courts "'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" United States v. Kurti, 427 F.3d 159, 163 (2d Cir. 2005), quoting Strickland, 466 U.S. at 689.
A. Juror's Exposure to Extra-Record Information
Stern's first argument concerns remarks made by Jackie Katz, a witness at the trial and Arthur Katz's sister-in-law, which may have been overheard by one of the jurors. Stern contends that his appellate counsel was ineffective for failing to argue that his trial counsel was ineffective in failing to demand judicial inquiry into whether the juror overheard these remarks.
The Sixth Amendment guarantees criminal defendants the right to a trial by jury, and the right to confront their accusers. U.S. Const. Amend. VI. The Supreme Court has interpreted this provision to require that the jury's verdict "be based upon the evidence developed at the trial." Irvin v. Dowd, 366 U.S. 717, 722 (1961). "A defendant's Sixth Amendment rights are therefore implicated when the jury considers incriminating evidence that was not admitted at trial." Bibbins v. Dalsheim, 21 F.3d 13, 16 (2d Cir. 1994). Stern argues that his prior counsel were ineffective for not arguing that the remarks overheard by a juror constituted prejudicial extra-record evidence.
Stern relies on a line of cases holding that "[o]n . . . direct review of federal convictions, extra-record information that becomes known to the jury is 'presumptively prejudicial.'" Bibbins, 21 F.3d at 16, quoting Remmer v. United States, 347 U.S. 227, 229 (1954). As the Second Circuit has noted, however, "review of the effect of constitutional errors on a state court conviction is more limited." Bibbins, 21 F.3d at 16. "In order to secure a writ of habeas corpus following a state-court conviction, a petitioner alleging that a trial error violated his constitutional rights must show that the error had substantial and injurious effect or influence in determining the jury's verdict." Id. (quotation marks omitted). "In other words, the petitioner must show 'actual prejudice'" flowing from the alleged error." Id.*fn2
Ms. Katz had testified that shortly before the murder, Arthur Katz had called her to say that Stern was "trying to kill [him]" and that Stern was "breaking in to [Katz's] house." (Tr. 194.) On the second day of the trial, ...