The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
Petitioner Elvin Lebron signed this habeas corpus petition on November 7, 2001, raising various claims but primarily charging that his conviction was obtained by a plea of guilty that was unlawfully induced and not made voluntarily with an understanding the nature of the charge and the consequences of the plea, by evidence gained pursuant to an unconstitutional search and seizure, and by ineffective assistance of counsel. (Pet.) Initially, Respondent moved to dismiss the petition on the grounds the proceeding was time barred pursuant to the provisions of the Anti-Terrorism and Effective Death Penalty Act (the "AEDPA"). On February 25, 2004, this Court denied Respondent's motion, finding that approximately 20 days remained untolled at the time of the filing of the petition. Lebron v. Sanders, No. 02 Civ. 6327, 2004 U.S. Dist. LEXIS 2891 (S.D.N.Y. Feb. 25, 2004). For the following reasons, the habeas petition is denied on the merits in its entirety.
The Supreme Court of the State of New York, County of New York, conducted a three-day hearing on Petitioner's motion to suppress physical evidence, statements to law enforcement, and identification testimony on May 19, 20, and 23, 1994. At the conclusion of the hearing on May 23, 1994, Justice John A. K. Bradley denied the motion but suppressed the first of two statements Petitioner made to police officers and ordered trial to commence the next day. (Resp't Answer Opposing Pet., App., Ex. A.) On May 24, 1994, rather than proceed with trial, Petitioner pled guilty to manslaughter in the first degree, robbery in the first degree, and gun possession in the third degree in satisfaction of all charges in the outstanding indictments. On the same date, Petitioner also pled guilty to a youthful offender violation of probation for an offense committed on August 13, 1993.*fn1 (Plea Hr'g Tr. at 1-3.)
By a twenty-page letter dated September 12, 1994, Petitioner expressed a desire to withdraw his plea, asserting his innocence and that his attorney from Neighborhood Legal Services improperly pressured him to plead guilty and lied to him. (Resp't Answer Opposing Pet., App., Ex. B.) Accordingly, new counsel was assigned, and, in a motion dated October 3, 1994, Petitioner's new counsel moved to withdraw the plea. (Id., Ex. B.) In a written decision dated December 1, 1994, Justice Bradley denied Petitioner's motion (id., Ex. C). On December 14, 1994, Justice Bradley sentenced Petitioner to concurrent terms of seven and one-third to twenty-two years for manslaughter, eleven to twenty-two years for armed robbery in the first degree, one to three years for gun possession in the third degree, and one to three years for his violation of probation. (Sentencing Hr'g Tr.) Petitioner is currently incarcerated in state prison pursuant to that judgment.
On September 12, 1993, on the footbridge between Ward's Island and Manhattan Island, two men attempted to rob Terrence Campbell. During the course of the attempted robbery, one of the men shot Campbell once in the head, killing him.
At about 12:40 a.m. on September 20, 1993, on Ward's Island, two men used a gun to rob Fernando Canales of money and subway tokens. In response to a radio call about the robbery, Police Officer John Bianco and his partner drove across the Triborough Bridge to Ward's Island. (Suppression Hr'g Tr. at 12-13.) Bianco saw Petitioner and Robert Rodriguez, who met the description of the robbery suspects, riding bicycles on the Bridge's footpath towards Manhattan. (Id. at 14.) Rodriguez was apprehended on the Bridge, but Petitioner escaped. (Id. at 17-20.)
At approximately 3:00 p.m. on September 22, 1993, Police Officer Terrance McGhee arrested Petitioner for criminal possession of a weapon while riding a bicycle. (Id. at 132). At the time, Petitioner was not a suspect in the murder of Terrence Campbell. (Id. at 137.) When Officer McGhee asked Petitioner during his interview if he knew anything about a man being killed on the footbridge, Petitioner replied that he had witnessed the shooting and gave a statement about what happened. (Id. at 139.) Petitioner, who had claimed he was fifteen years old, was detained at a juvenile facility until it was learned that he was actually eighteen years old, at which point he was processed as an adult. (Id. at 135-36, 144-45).
On September 29, 1993, the police received an anonymous phone call from a woman who reported that Petitioner and Rodriguez were the persons who killed a man on the footbridge. (Id. at 217-18.) That same day, Officer McGhee assembled a photo array containing Petitioner's photograph based on a description of Rodriguez's unapprehended accomplice and the fact that Petitioner lived in the area and that bicycles were used during the robbery, in addition to the fact that McGhee had arrested Petitioner with a gun on a bicycle. (Id. at 148.) Later on September 29, 1993, Officer McGhee showed Fernando Canales the photo array, and Canales identified Petitioner's photograph as that of one of the people who had robbed him on Ward's Island. (Id. at 153-55.)
On September 30, 1993, Detective Michael Ulacco showed Officer Bianco the photo array containing Petitioner's photo, and Bianco identified Petitioner as the person on a bicycle whom he had tried to apprehend on the Triborough Bridge footpath on September 20, 1993. (Id. at 29-30, 103.) On November 9, 1993, Officer Bianco identified Petitioner from a line-up as that same person. (Id. at 36-37, 190.)
On October 5, 1993, Vincent Perez and David Tavares told detectives that they had witnessed Petitioner and Rodriguez shoot Terrence Campbell. (Id. at 219-26, 233-36.) That afternoon, Detective Ulacco stopped Petitioner riding his bike on the ramp that leads to the 102nd Street footbridge to inquire about Petitioner's cooperation in the murder investigation, and Petitioner agreed to come to the precinct where he was interviewed. (Id. at 109-10.) After midnight on October 6, 1993, Detective Ulacco placed Petitioner under arrest for the robbery of Fernando Canales and seized Petitioner's bicycle and clothing. (Id. at 110-11.) Later on October 6, 1993, Canales identified Petitioner from a lineup as one of the men who had robbed him. (Id. at 168-69.) On October 7, 1993, Perez and Tavares individually identified Petitioner in a oneon-one show-up as one of the men involved in the attempted robbery and shooting of Terrence Campbell. (Id. at 250-52.)
Petitioner was charged with criminal possession of a weapon in the third degree (Indictment No. 9963/93), and then with murder in the second degree, attempted robbery in the first degree, and attempted robbery in the second degree of Terrence Campbell (Indictment No. 10472/93). Petitioner was also charged with robbery in the first degree and robbery in the second degree of Fernando Canales on September 12, 1993 with Rodriguez (Indictment No. 10610/93); armed robbery in the first degree on September 20, 1993 of Fernando Canales with Rodriguez; and criminal possession of a loaded weapon on September 22, 1993, as well as to violation of probation for possession of the weapon on September 22, 1993.
Petitioner moved to suppress the statements he made to the police and the prosecutor, property taken from him after his arrest, and several photo arrays and line-up identifications of him. On May 19, 20 and 23, 1994, Justice Bradley held a hearing on the suppression motions. At the conclusion of the hearing, Justice Bradley granted Petitioner's motion to suppress, or preclude for lack of notice, Petitioner's statements to the police and prosecutors, but denied the remainder of his motions. (Resp't Answer Opposing Pet., App., Ex. A at 12-13.)
II. Direct Appeal and Post-Conviction Proceedings
Subsequent to Petitioner's conviction, his appellate counsel James Montgomery filed a direct appeal to the Appellate Division, First Department, on or about May 1996, asserting that (1) Petitioner's arrest on October 5, 1993 was not based on probable cause; (2) that according to New York Criminal Procedure Law, the trial court was required to hold a hearing before denying Petitioner's motion to withdraw his plea; (3) that his plea to manslaughter was invalid as that crime did not constitute a lesser offense of felony murder under New York law; and (4) that his waiver of his right to raise that claim on appeal was invalid. (Resp't Answer Opposing Pet., App., Ex. D.)
On April 8, 1997, the Appellate Division, First Department, unanimously affirmed Petitioner's conviction and sentence and denied certiorari. In its opinion, the court held that Justice Bradley properly denied Petitioner's request to withdraw his guilty plea and properly denied Petitioner's motion to suppress evidence, and had properly found that the arresting officer had probable cause to arrest the Petitioner because the officer was aware, at the time of arrest, that one of the robbery victims had identified Petitioner's photo. (Resp't Answer Opposing Pet., App., Ex. F.) The First Department also upheld the legality of Petitioner's plea of guilty to manslaughter in satisfaction of the felony murder count involving the same victim, citing New York Criminal Procedure Law § 226.10(4). (Id.)
On April 16, 1997, Petitioner's appellate counsel sought leave to appeal the decision of the First Department to the New York Court of Appeals. (Resp't Answer Opposing Pet., App., Ex. G.) On July 16, 1997, Petitioner's application was denied upon reconsideration by Associate Judge Ciparik. (Id.) Certiorari was denied on December 15, 1997 by the Supreme Court of the United States. Lebron v. New York, 522 U.S. 1032 (1997).
On April 29, 1999, Petitioner moved pro se pursuant to New York Criminal Procedure Law §§ 440.10 and 440.20 to vacate his May 24, 1998 judgment of conviction. (Resp't Answer Opposing Pet., App., Ex. H.) The motion to vacate contended that Justice Bradley, by imposing the mandatory monetary surcharge, violated the plea agreement; that the ballistics report submitted to the grand jury had been improperly authenticated; that the people had introduced third-party hearsay before the grand jury; that the evidence before the grand jury was insufficient to support his indictment; that his pre-sentence report was not available the day before he was sentenced; and that he did not receive sufficient notice that a member of the victim's family would speak at the sentence hearing. (Id., Ex. H.)
Justice Bradley denied Petitioner's motions on February 10, 1999. (Id., Ex. H.) His opinion pointed out that Petitioner did not make his sentencing claims at the time of sentencing and that, in any event, he had not been prejudiced since he received the sentence he had been promised at the time of his plea. As for the grand jury procedural claims, Justice Bradley held that, since such claims could have been raised on direct appeal, denial was required pursuant to New York Criminal Procedure Law § 440.10(2). Furthermore, he held that the issues raised by Petitioner did not constitute such an egregious violation of basic rights as to render the proceedings a nullity. People v. Gerber, 182 A.D.2d 252 (N.Y. App. Div. 1992), leave to appeal denied, 80 N.Y.2d 1026 (holding that guilty plea operated to waive his challenges to the evidence presented to the grand jury); People v. Ogbudinkpa, 242 A.D.2d 451 (N.Y. App. Div. 1997); People v. Morales, 239 A.D.2d 254 (N.Y. App. Div. 1997). On July 1, 1999, Judge Lerner of the First Department denied Petitioner's application for leave to appeal Justice Bradley's decision. (Resp't Answer Opposing Pet., App., Ex. H.) On December 30, 1999, Judge Howard A. Levine of the Court of Appeals denied Petitioner's leave to appeal. (Id.)
On June 17, 1999, Petitioner sought a writ of error coram nobis from the First Department, raising a claim of ineffective assistance of appellate counsel. (Resp't Answer Opposing Pet., App., Ex. I.) His petition was denied on January 6, 2000, by the First Department. (Id., Ex. J.)
On March 8, 2000, Petitioner filed a motion captioned "Leave to Renew Appeals" in which he restated the arguments he made in his § 440.10 and § 440.20 motions of September 1998, and his 1999 application for a writ of error coram nobis. On August 10, 2000, the First Department denied Petitioner's application for a certificate to appeal. (Id., Ex. L.) On September 20, 2000, the Court of Appeals certified that Petitioner's application for a certificate to appeal was dismissed because the order is not appealable. (Id.)
On August 28, 2000, Petitioner filed a motion before the First Department again seeking reargument of his writ of error coram nobis. (Id., Ex. M.) On May 8, 2001, the First Department denied Petitioner's motion. And again, on June 8, 2001, the Court of Appeals certified that Petitioner's application for a certificate to appeal was dismissed because the order is not appealable. (Id.)
By petition signed November 7, 2001, Petitioner sought a writ of habeas corpus from this Court. Petitioner raises the following four grounds for relief, which were previously reviewed on direct appeal: (1) the trial judge erred in finding that the police had probable cause to arrest him (Pet. at 48); (2) his pleading guilty to manslaughter was invalid because manslaughter is not a lesser included offense of felony murder under New York's Criminal Procedure Law (id. at 72); (3) the trial court should have granted him a hearing to review his contention that his attorneys coerced him into pleading guilty (id. at 77); and (4) his waiver in particular and his guilty plea in general were not knowing and voluntary (id. at 70).
Petitioner also raises six claims that he previously raised in his September 1998 motions to set aside his sentence and to vacate judgment: (5) he should have been allowed to withdraw his plea because the trial judge broke the plea agreement by imposing the mandatory surcharge and victims fees which were not part of his plea agreement; (6) his pre-sentence report was not made available to him prior to his sentencing so he could correct inaccuracies; (7) he did not receive notice that a member of the victim's family would make a statement at his sentencing; (8) a ballistics report was improperly admitted in the grand jury proceedings; (9) police testimony was improperly used to bolster an identification witness's testimony before the grand jury; and (10) evidence before the grand jury was insufficient to support Petitioner's indictment on the robbery charges, since there was no evidence presented that the gun used in the robbery, which was never recovered, was operable.
In addition, Petitioner raises several new evidentiary and procedural issues: (11) the prosecutor failed to present exculpatory material to the grand jury; (12) the disclosure of Rosario material on the eve of trial constituted prosecutorial misconduct (id. at 62); (13) emergency room physicians were responsible for the death of Terrence Campbell (id. at 54-57); (14) the trial court abused its discretion in joining Petitioner's trial with that of Rodriguez (id. at 74); (15) the trial court erred in its pretrial Sandoval decision (id. at 51); (16) the prosecutor never responded to his request to be subjected to brain fingerprinting, polygraph and DNA testing. Petitioner also alleges that (17) Justice Bradley was biased against him and that (18) his trial counsel rendered ineffective assistance. Finally, Petitioner reasserts his claim of ineffective assistance of appellate counsel to show cause for his procedural default of claims he failed to exhaust in the state courts.
Petitioner filed another habeas corpus petition signed February 1, 2007, which was assigned to Chief Judge Wood under docket number 07 Civ. 4704. In that petition, Petitioner raised due process and equal protection challenges to his conviction and sentence. He asserted that he was owed "jail time" but did not provide a sufficient basis for the court to review this claim. By order dated June 4, 2007, Chief Judge Wood directed Petitioner to submit an amended petition to the Pro Se Office within sixty days of the order. In his amended petition signed August 1, 2007, Petitioner clarified that he was challenging a December 14, 1994 New York County conviction. On September 27, 2007, Chief Judge Wood ordered Petitioner's amended petition to be filed in the action pending before this Court and dismissed the 07 Civ. 4704 action without prejudice to this pending action.
A. Standards of Review under the AEDPA
A petitioner in custody pursuant to a state court judgment is entitled to habeas relief only if he can show that her detention violates the U.S. Constitution or the laws or treaties of the United States. 28 U.S.C. § 2254(a) (2000). Before bringing his petition to federal court, the petitioner must have exhausted his state court remedies. Id. § 2254(b)(1)(A). If a petitioner's claims were previously decided on the merits, habeas relief may be granted only if the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d). If all of the claims in a petition are incapable of justifying relief, "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State" with respect to one or more of the claims. Id. § 2254(b)(2); see Granbery v. Greer, 481 U.S. 129, 135 (1987); Pratt v. Greiner, 306 F.3d 1190, 1196-97 (2d Cir. 2002).
B. Exhaustion and Procedural Default
Under the AEDPA, federal habeas corpus petitioners are required to exhaust their claims in the state courts before seeking relief from the federal courts. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76 (1971); see also Vasquez v. Hillery, 474 U.S. 254, 257 (1986). "State remedies are deemed exhausted when a petitioner has: (i) presented the federal constitutional claim asserted in the petition to the highest state court (after preserving it as required by state law in lower courts) and (ii) informed that court (and lower courts) about both the factual and legal bases for the federal claim." Ramirez v. Attorney General, 280 F.3d 87, 94 (2d Cir. 2001); see also Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). If denied relief after bringing his claim in the appropriate state court, the petitioner must take advantage of all available mechanisms to secure appellate review of the denial of that claim. See 28 U.S.C. § 2254(c) (providing that "(an) applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented"); Dean v. Smith, 753 F.2d 239 (2d Cir. 1985) (stating that a petitioner must also have used "all available mechanisms to secure review" of the federal claim in state court).
If a petitioner failed to meet a state procedural requirement when he presented a federal constitutional claim to the state courts, the petitioner may be barred from receiving federal habeas corpus relief on the claim under the "adequate and independent state procedural grounds" doctrine. Harris v. Reed, 489 U.S. 255, 262 (1989) (stating that the "adequate and independent state ground doctrine applies on federal habeas"). This doctrine prohibits a federal court from reviewing a question of federal law decided by a state court if the decision of that court rests on a state law ground, either substantive or procedural, that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 728-29 (1991). This proscription applies even where a state court expressly relies on a procedural default as an independent and adequate state-law ground but nevertheless has ruled in the alternative on the merits of the federal claim. See Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
A federal habeas court should find a procedural default, rather than an exhaustion problem, when a petitioner fails to exhaust state remedies, and as a result, those remedies are clearly no longer available under state law. See O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (holding that petitioner "has procedurally defaulted his claims" where he failed to exhaust a state remedy that is now time-barred); Gray v. Netherland, 518 U.S. 152, 162 (1996); see also Randy Hertz & James S. Liebman, 2 Federal Habeas Corpus Practice and Procedure § 26.1, at 1255 n.25 (5th ed. 2001). "[I]f the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred" under state law, federal habeas courts also must deem the claim procedurally defaulted. Coleman, 501 U.S. at 735 n.1. Such procedurally defaulted federal claims are "deemed exhausted," McKethan v. Mantello, 292 F.3d 119, 122 (2d Cir. 2002); Ramirez, 280 F.3d at 94; Grey, 933 F.2d at 120, because the petitioner "no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b)," Grey, 933 F.2d at 120.
A petitioner is barred from raising a procedurally defaulted claim as a basis for habeas relief unless he can show (1) cause for the default and actual prejudice as a result of the alleged violation of federal law, or (2) that failure to consider the federal claim will result in a "fundamental miscarriage of justice," which requires the petitioner to make a factual showing that he is "actually innocent" of the crime for which he was convicted. Bousley v. United States, 523 U.S. 614, 622 (1998), quoted in DiSimone v. Phillips, 461 F.3d 181, 190 (2d Cir. 2006); see also Coleman, 501 U.S. at 750; Harris, 489 U.S. at 262.
II. Analysis of Petitioner's Claims for Relief
In reviewing the instant petition, the Court is mindful that Petitioner is proceeding pro se. For this reason, Petitioner's submissions will be "liberally construed in his favor," Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)), and read "to raise the strongest arguments that they suggest," Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citation omitted). In his habeas petition, Petitioner raises both claims that were reviewed on direct appeal in state court and claims for which he failed to exhaust state remedies.
A. Petitioner's Claims Raised on Direct Appeal
Petitioner brings four claims that were previously reviewed on direct appeal: (1) the trial judge erred in finding that the police had probable cause to arrest him (Pet. at 48); (2) Petitioner's plea of guilty to manslaughter was invalid because manslaughter is not a lesser included offense of felony murder under New York's Criminal Procedure Law (id. at 72); (3) the trial court should have granted him a hearing to review his contention that his attorneys coerced him into pleading guilty (id. at 77); and (4) his waiver in particular and his guilty plea in general were not knowing and voluntary (id. at 70).
Petitioner satisfied the AEDPA's exhaustion requirement with respect to each of these four claims:*fn2 he raised each of them on direct appeal (Resp't Answer Opposing Pet., App., Ex. D), and they were denied with opinion by the First Department (id., Ex. F); he applied for leave to appeal the First Department's decision to the highest court of New York and stated the four claims in his letter (id., Ex. G); and finally he raised the same grounds for relief in his motions under section 440 to set aside judgment and vacate his sentence. As explained below, however, the first three claims are not cognizable on habeas ...