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Howard v. Greene

March 31, 2008

JEFFREY HOWARD, PETITIONER,
v.
GARY GREENE, RESPONDENT.



The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DECISION

Petitioner Jeffrey Howard, state prisoner appearing pro se, has petitioned for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is currently in the custody of the New York State Department of Corrections incarcerated at the Great Meadow Correctional Facility. Petitioner was convicted after a jury trial in the Albany Supreme Court of one count each of Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Pen. Law § 220.39(1)), Criminal Possession of a Control Substance in the Third Degree (N.Y. Pen. Law § 220.16(1)), and Unlawful Possession of Marijuana (N.Y. Pen. Law § 221.05). Petitioner was sentenced to concurrent indeterminate sentences of 121/2 to 25 years on each of the Criminal Sale and Criminal Possession counts.*fn1 Respondent has filed his response and Petitioner has filed his traverse.

Petitioner timely appealed his conviction to the Appellate Division, Third Department, which affirmed his conviction on August 4, 2005; the New York Court of Appeals denied leave to appeal on August 27, 2005. People v. Howard, 799 N.Y.S.2d 833 (N.Y.A.D.), lv. denied, 840 N.E.2d 142 (N.Y. 2005). On November 1, 2005, Petitioner, appearing pro se, filed a petition for a writ of error coram nobis in the Appellate Division, which denied his petition without opinion or citation to authority on December 29, 2005; the New York Court of Appeals denied leave to appeal on March 15, 2006. People v. Howard, 847 N.E.2d 379 (N.Y. 2006). Petitioner timely filed his petition for relief in this Court on June 20, 2006.

Because Petitioner filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the state courts 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." 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 405--406 (2000); see Lockyer v. Andrade, 538 U.S. 63, 70-73 (2003) (explaining this standard). In applying this standard, this Court reviews the last reasoned decision by the state court, Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000), which in this case was that of the Appellate Division, Third Department, affirming his conviction. In addition, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

If a federal claim has not been adjudicated on the merits, AEDPA deference is not required. Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003). In that situation, conclusions of law and mixed questions of fact and conclusions of law are reviewed de novo. DeBerry v. Portuondo, 403 F.3d 57, 67 (2d Cir. 2005). Where there is no reasoned decision of the state court addressing the ground or grounds raised by the Petitioner on the merits and no independent state grounds exist for not addressing those grounds, this Court must decide the issues de novo on the record before it. See Spears v. Greiner, 459 F.3d 200, 203-04 (2d Cir. 2006) (applying the Strickland standards).

To the extent that Petitioner alleges errors of state law, they are beyond the purview of this Court in deciding a petition for federal habeas corpus relief. This Court may only address violations of federal law. 28 U.S.C. § 2254(d); Estelle v. McGuire, 502 U.S. 62, 67--68 (1991) ("We have stated many times that federal habeas corpus relief does not lie for errors of state law. Today, we reemphasize that it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions.") (citations and internal quotation marks omitted).

It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982). It is also presumed that the state court knew and correctly applied state law. See Walton v. Arizona, 497 U.S. 639, 653 (1990) overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).

In his petition before this Court Petitioner raises a single ground: Ineffective assistance of appellate counsel for failing to argue that (1) trial counsel was ineffective for failing to argue that petitioner had standing to challenge the search and seizure of the vehicle because he was the registered owner of the vehicle and (2) prosecutorial misconduct for failing to inform the court of Petitioner's grand jury testimony concerning ownership of the car. Respondent concedes that Petitioner has exhausted his state court remedies.

The ground raised in the petition before this Court was presented to the Appellate Division in Petitioner's application for a writ of error coram nobis. The Appellate Division denied that application without opinion and the Court of Appeals also denied leave without opinion or citation to authority; thus, this Court must independently determine the issue de novo on the record before it.

To demonstrate ineffective assistance of counsel, Petitioner must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). A deficient performance is one in which counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Id. Petitioner must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases and that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different. Hill v. Lockhart, 474 U.S. 52, 57 (1985). The failure of appellate counsel to raise meritless or weak issues does not constitute ineffective assistance of counsel. See Jones v. Barnes, 463 U.S. 745, 751--52 (1983) (holding that appellate counsel does not have an obligation to raise every non-frivolous argument); Apracio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (holding that its not ineffective counsel to fail to raise meritless claims). "However, a petitioner may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000), quoting Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).

As recited by the Appellate Division (799 N.Y.S.2d at 834), the facts of the crime: On March 19, 2004, Detective Dennis Guiry of the City of Albany Police Department was conducting a "rip operation" with a confidential informant. The informant paged defendant, who then unknowingly called an Albany Police Department cell phone. The informant answered and ordered $250 of crack cocaine to be delivered to her at the corner of Central and Lexington Avenues in Albany. When defendant arrived at that location in a vehicle driven by his girlfriend, he was arrested, and the police seized a film canister containing three pieces of crack cocaine from the seat where defendant had been riding. The police also seized a small bag of marihuana from defendant's person.

In an omnibus motion filed with the Albany Supreme Court, Petitioner requested a Mapp hearing to determine the legality of the seizure of the canister containing the crack cocaine. At the hearing, the following occurred.

THE COURT: What property is it you're seeking to have suppressed, Mr. Grenz?

MR. GRENZ: He was a passenger in a vehicle that was stopped. When the vehicle was stopped he was taken out of the car and in the car was a film vial and apparently in there was some crack cocaine.

THE COURT: Is he alleging that was his vial?

MR. GRENZ: No.

THE COURT: Oh. Was it his car?

MR. GRENZ: He was not operating the car. Was the car ...


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