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Tracy v. Warden

June 1, 2008

PATRICK ALLEN TRACY, PETITIONER,
v.
WARDEN, TERRE HAUTE FEDERAL CORRECTIONAL COMPLEX, RESPONDENT.



The opinion of the court was delivered by: Neal P. Mccurn Senior United States District Judge

MEMORANDUM-DECISION AND ORDER

I. Background

The record reflects that on April 8, 2000, Deputy Sheriff Park Freshwater of the Tompkins County Sheriff's Department was on duty in his patrol car on Route 96B in the Town of Danby, New York. See Transcript of Trial of Patrick A. Tracy (8/21/2000) ("Trial Tr.") at 43. At the time, visibility was limited and it was snowing heavily. Id. At about 8:50 p.m., Deputy Freshwater noticed a vehicle traveling north toward Ithaca with just one headlight illuminated. Trial Tr. at 44. The deputy also noticed that the driver's view through the car's windows was obstructed by snow. Id. Deputy Freshwater stopped the vehicle, approached the driver, and asked him for his license and registration. Trial Tr. at 44-46. The driver, who was identified at trial as petitioner, pro se Patrick A. Tracy (Trial Tr. at 54), declared at the time that he did not have his driver's license with him. Trial Tr. at 46. Deputy Freshwater then asked Tracy if the car was registered to him, and Tracy said that it was. Id. Deputy Freshwater instructed Tracy to clean off the windows of the car while the license plates were checked by the deputy. Trial Tr. at 46-47. When Deputy Freshwater learned that the registered owner of the car was a female, he returned to the car and asked Tracy if the car was registered to his mother. Trial Tr. at 47-48. Tracy said that it was, and identified himself as Seth Ruggles. Trial Tr. at 48-49. When Deputy Freshwater asked Tracy for his date of birth, he hesitated and became silent. Trial Tr. at 49. When the deputy again asked Tracy for his birth date, he admitted that he had lied, that the name he had given to the deputy was that of his roommate, and that he did not have a license. Trial Tr. at 49. The deputy assured Tracy that he was not in "big trouble," and that he would be issued two traffic tickets, one for the broken headlight and the other for unlicenced operation of a motor vehicle, but that Tracy still needed to provide the deputy with Tracy's true name. Trial Tr. at 49-50. Petitioner then volunteered that his name was Jeff A. Kerns. Trial Tr. at 50. When Deputy Freshwater again asked for his date of birth, Tracy hesitated and became silent. Trial Tr. at 51. He then began fidgeting in his seat and looking at the keys in the ignition. Trial Tr. at 51-52. The deputy then began to suspect that Tracy might be a "wanted" person, and accordingly directed him to step out of the car. Trial Tr. at 51-52. Soon after Tracy exited the vehicle, he attempted to run away. Trial Tr. at 54. Deputy Freshwater grabbed him and the two engaged in a struggle which ended when the deputy sprayed Tracy in the face with pepper spray. Trial Tr. at 54-66. Deputy Sheriff Scott O'Dell soon thereafter arrived at the scene, and accompanied Tracy in an ambulance to the Cayuga Medical Center. Trial Tr. at 144-47.

Nurse Randa Best was on duty at the Cayuga Medical Center when Tracy arrived at the hospital. During the course of treating him, she cut his pants and, as she was removing them from his body, two baggies dropped from his groin area. Trial Tr. at 148, 206-07. One baggy contained a green leafy substance which appeared to be marijuana, while the other baggy contained a piece of white paper. Trial Tr. at 149. Deputy Sheriff O'Dell secured both items as potential evidence.

The record also reflects that Undersheriff Randy Haus was at the hospital while Tracy was being treated, and that he overhead Tracy utter spontaneous statements while in the examining room. Specifically, Undersheriff Haus recalled Tracy saying: "Hey, you guys, I'm sorry for being such a fucking asshole," which was soon followed by: "I'm sorry. I just got scared." Trial Tr. at 213. Around that same time, Undersheriff Haus heard Tracy make the following statements: i) "I'm sorry. I didn't hit the officer. I was just trying to get away from him;" (id.) ii) when another deputy walked into the room, Tracy asked him, "Are you the Deputy who stopped me?" When the deputy answered no, petitioner said, "If you were, I was going to apologize." See Trial Tr. at 213-14.

Senior Investigator Mark Dresser of the Tompkins County Sheriff's Department also assisted law enforcement agents in the criminal investigation. He obtained a search warrant for Tracy's car and, after executing that warrant, discovered clear plastic baggies containing what appeared to be marijuana in Tracy's backpack. Trial Tr. at 175-76.

The substances law enforcement agents had seized in conjunction with the criminal investigation were subjected to chemical testing by John Pierce. Pierce testified at trial that the substances seized by law enforcement agents relating to Tracy included 64.29 grams (over 2 ounces) of marijuana and 4.70 milligrams of lysergic acid diethylamide ("LSD"), which was contained on the piece of paper that had fallen from Tracy's person while he was in the hospital. Trial Tr. at 246-53.

On April 11, 2000, Investigator Dresser learned from fingerprint records the true identity of Tracy. Trial Tr. at 181-83. Investigator Dresser also discovered that Tracy was the subject of an outstanding federal arrest warrant. Trial Tr. at 183-84.

As a result of the foregoing, on June 16, 2000, a Tompkins County Grand Jury returned a five count (superceding) indictment against Tracy. In that accusatory instrument, he was charged with one count of assault in the second degree, resisting arrest, criminal possession of a controlled substance in the fourth degree, criminal possession of marijuana violation in the fourth degree and second degree criminal impersonation See Superceding Indictment, Counts One through Five.

Tracy's jury trial on the above charges commenced in Tompkins County Court on August 21, 2000 with County Court Judge M. John Sherman presiding. At that trial, Seth Ruggles testified that he was the roommate of Tracy at the relevant time, identified the backpack in which Investigator Dresser had found the marijuana as belonging to Tracy, and declared that he did not allow Tracy to use Ruggles' car or name on the evening of April 8, 2000. Trial Tr. at 168-69. At the conclusion of that trial, the jury acquitted Tracy of the second degree assault charge, but convicted him of the remaining charges. Trial Tr. at 383-84.

On November 28, 2000, Judge Sherman heard oral argument from the parties on defense counsel's motion under New York's Criminal Procedure Law ("CPL"), §§ 330.30 and 440.10, for a new trial based upon his claim of newly discovered evidence. In that application, defense counsel argued that he did not receive a copy of the cassette recording made of a preliminary hearing involving Tracy that was held in the Groton Town Court until after Tracy's trial had been completed. See Transcript of Hearing (11/28/00) ("November, 2000 Hearing") at 2.*fn1 Counsel noted that at that hearing, Deputy Freshwater claimed that he had sustained an injury to both his head and back eighteen years earlier, but that the deputy did not refer to that injury when he testified at trial as to the medical treatment he had sought in the past for injuries he had sustained to his back and neck. November, 2000 Hearing at 2-3; see also Trial Tr. at 79-80. Counsel argued that because he was not provided with a copy of that tape until after the trial had been completed, he was unable to effectively impeach Deputy Freshwater at trial. November, 2000 Hearing at 3-5. In opposing the motion, the prosecutor explained that it had contacted the clerk of the Groton Town Court and was informed that the court did not have the audiotape, and that if one had been made, copies of the tape would have been provided to defense counsel and the prosecutor at the end of the hearing. See Dkt. No. 21-2 at 11. The prosecutor further explained that on October 26, 2000, after the trial had been completed, he received a telephone call from the court clerk and was advised that the tape had been located. Id. at 12. The District Attorney advised that clerk to promptly send a copy of the tape to defense counsel. Id.

Judge Sherman denied Tracy's CPL application and scheduled Tracy's sentencing for the following month. See November, 2000 Hearing at 9-10. On December 1, 2000, the County Court sentenced Tracy to an indeterminate period of incarceration of two to six years on the fourth degree criminal possession of a controlled substance conviction (which related to the LSD found on Tracy's person), and to lesser, concurrent terms on the remaining convictions. See Transcript of Sentencing of Patrick Tracy (12/1/2000) at 12.

In April of 2002, appellate counsel filed a brief on Tracy's behalf in the New York State Supreme Court Appellate Division, Third Department, in which he raised seven grounds for relief. Counsel specifically argued that: i) the trial court erred in denying Tracy's motion to suppress the drugs seized at the hospital; ii) the search warrant was improperly issued because it was based in part on statements made by Tracy after he was taken into custody but before he was advised of his Miranda*fn2 rights; iii) the County Court erred in admitting evidence of petitioner's federal arrest warrant; iv) the trial court wrongfully permitted Pierce to testify because the prosecution had failed to disclose a report prepared by him until hours before he was to testify; v) the County Court erred in failing to dismiss the criminal impersonation count; vi) Tracy was denied the effective assistance of trial counsel; and vii) the trial court erred in denying Tracy's CPL § 330.30 motion. See Appellate Brief on Appeal ("App. Br."). In May of 2002, the Tompkins County District Attorney filed a brief in opposition to Tracy's appeal.

While his appeal was pending, Tracy filed a motion to vacate the judgment of conviction in Tompkins County Court. See Dkt. No. 21, Exh G ("CPL Motion"). In that application, Tracy claimed that: i) the conviction was procured by "duress, misrepresentation or fraud" because he was not provided a copy of the audio tape made of preliminary hearing until after trial; ii) the prosecutor belatedly disclosed Pierce's laboratory report; iii) Deputy Freshwater's testimony at trial, as well as that of Undersheriff Haus, was false and perjurious; iv) the justice who issued the search warrant was not neutral because he was the same individual who stopped his car and assisted Deputy Freshwater on the evening of April 8, 2000; v) the bags of drugs that fell from his pants at the hospital should have been suppressed; vi) his statements at the hospital were made without the benefit of Miranda warnings and while Tracy was legally intoxicated due to the pain medication that had been administered to him; vii) prosecution witness Ruggles had an extensive criminal history that was never disclosed to the defense by the prosecutor; viii) the justice who presided over the preliminary hearing was not neutral because he collected a pension from his former employer, the Tompkins County Sheriff's Department; ix) Tracy was not arrested until after he was released from the hospital on April 14, 2000; x) the preliminary hearing audio tape that was not timely provided to Tracy constituted newly discovered evidence which entitled him to a new trial; and xi) his trial attorney provided ineffective assistance by failing to: (a) contest the search warrant; (b) serve a written discovery demand on the People; (c) adequately investigate the materials provided to him by the prosecution; (d) seek independent testing of the substances seized by law enforcement agents; (e) renew an objection regarding the length of the adjournment given to the defense to review the belatedly disclosed lab report; (f) file Tracy's pro se motions; (g) properly cross-examine prosecution witnesses; (h) conduct pretrial interviews and depositions of potential witnesses; (i) impeach Deputy Sheriff O'Dell with his prior, inconsistent testimony; (j) contest the chain of custody relating to the drugs seized at the hospital; and (k) move for a new trial in light of the fact that the LSD which Tracy was convicted of possessing was destroyed by the prosecution. See CPL Motion.

On November 14, 2002, the Third Department affirmed Tracy's conviction and sentence.

See People v. Tracy, 299 A.D.2d 659 (3rd Dept. 2002). The Court of Appeals thereafter denied his application for leave to appeal the Appellate Division's decision. People v. Tracy, 99 N.Y.2d 629 (2003).

In his Decision and Order dated November 21, 2002, Judge Sherman denied Tracy's CPL Motion ("November, 2002 Order").

In a submission dated January 22, 2004, petitioner filed an application in the Third Department seeking a writ of error coram nobis. In that request, Tracy claimed that his appellate counsel was ineffective because he failed to: a) adequately develop the appellate record; b) assert several theories in support of an appellate claim that Tracy received the ineffective assistance of trial counsel; c) argue that the prosecutor improperly withheld Brady*fn3 materials from the defense; d) assert that the prosecution elicited perjurious testimony at trial; e) claim that the prosecutor's failure to preserve the LSD that formed the basis of the felony conviction violated Tracy's due process rights; f) contend that Tracy's Miranda rights were violated; and g) claim that the police used a "false" arrest date for Tracy which affected the admissibility of the evidence seized from Tracy at the hospital. By order dated March 18, 2004, the Third Department denied Tracy's motion. See People v. Tracy, No. 15173 (3d Dept. Mar. 18, 2004).

B. This Action

Tracy filed a pro se petition in this District seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 13, 2002. In that application, Tracy asserts the following claims: 1) he received the ineffective assistance of appellate counsel; (2) he received the ineffective assistance of trial counsel; (3) the prosecutor committed Brady violations at trial; (4) the incriminating statements he made while at the hospital were made after he requested the presence of an attorney; (5) his rights to due process were violated when the County Court: (a) allowed the jury to hear evidence of his federal arrest warrant, (b) permitted Pierce to testify about his chemical analysis of the substances seized from Tracy, (c) failed to dismiss the criminal impersonation charge, and (d) denied his motion to set aside the verdict; and (6) the prosecutor suborned perjurious testimony at trial and committed Rosario*fn4 violations. See Petition (Dkt. No. 1), Grounds One through Six. Petitioner also submitted a memorandum of law in support of his petition that is over eighty pages in length. See Dkt. No. 14 ("Supporting Mem.").

After reviewing the petition, Tracy's in forma pauperis application and the file in this matter, Magistrate Judge David R. Homer issued an order which directed the respondent to file a response to the petition. Dkt. No. 3. The Office of the Attorney General for the State of New York, acting on respondent's behalf, subsequently filed a response in opposition to Tracy's application. Dkt. No. 21. Respondent has also filed a memorandum of law requesting dismissal of the petition. Dkt. No. 23 ("Resp. Mem."). Petitioner thereafter filed a "traverse," Dkt. No. 24 ("Traverse"), as well as supplemental letter-briefs (Dkt. Nos. 30-32), in further support of his habeas application.

On January 5, 2006, this matter was re-assigned to this Court for disposition pursuant to the order of then-Chief Judge Frederick J. Scullin, Jr. Dkt. No. 33.

II. Discussion

A. Procedurally Barred Claims

The Court initially considers Tracy's second ground for relief, which asserts various claims that respondent argues petitioner is procedurally barred from asserting herein. See Petition, Ground Two; Resp. Mem. at 18. In that ground, Tracy offers numerous theories in support of his assertion that his trial counsel rendered ineffective assistance. Specifically, he argues that his trial counsel wrongfully failed to: i) serve a written discovery demand on the District Attorney; ii) interview any witnesses or adequately investigate the case against Tracy; iii) retain an expert witness to testify about, and conduct independent testing on, the substances Tracy was accused of criminally possessing; iv) adequately argue the applications that sought to suppress that physical evidence and which challenged the validity of the search warrant; v) object to: (a) the prosecution's alleged misstatements regarding the date and place of Tracy's arrest; (b) the pre-indictment destruction of the paper which was alleged to contain the LSD that Tracy was convicted of possessing; (c) the prosecution's belated disclosure of Brady material; and (d) misconduct on the part of the prosecution. See Petition, Ground Two.

Tracy asserted these claims challenging the effectiveness of his counsel in petitioner's CPL Motion. See CPL Motion, "Sixth Cause of Action." Judge Sherman denied those claims pursuant to CPL § 440.10(2). See November, 2002 Order at 2, 3. That provision of the CPL provides, in relevant part:

[T]he court must deny a motion to vacate a judgment when:

(a) The ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment, unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue; or

(b) The judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal; or

(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him;

(d) The ground or issue raised relates solely to the validity of the sentence and not to the validity of the conviction.

Because Tracy's CPL Motion plainly challenged the propriety of his conviction, Judge Sherman could not have been referring to CPL § 440.10(2)(d) -- which only concerns challenges to sentences -- in his November, 2002 Order. Thus, it is apparent that the County Court denied Tracy's claims alleging ineffective assistance of counsel pursuant to CPL § 440.10(2)(a), (b) and/or (c).*fn5

The denial of claims under subdivisions of (a), (b) and (c) of CPL § 440.10(2) are procedural denials of such claims. See Fernandez v. Artuz, 402 F.3d 111, 115 n.4 (2d Cir. 2005) (denial of a claim under CPL § 440.10(2)(a) is a procedural denial of a claim); Flores v. Demskie 215 F.3d 293 (2d Cir.) (trial court's denial of claim pursuant to CPL § 440.10(2)(b) was a finding that the claim was "procedurally barred"); Artuz v. Bennett, 531 U.S. 4, 7 (2000) (denial of a claim under CPL § 440.10(2)(c) was an adequate and independent state procedural ground barring federal habeas review of such claim).

As respondent correctly notes in opposing this aspect of Tracy's petition, a federal district court is precluded from reviewing a habeas claim if the state courts' rejection of that same claim rested on a state procedural bar unless the petitioner demonstrates both good cause for and actual prejudice resulting from the noncompliance with the state's procedural rule. See Resp. Mem. at 18-19; see generally Fama v. Commissioner of Correctional Services, 235 F.3d 804, 809 (2d Cir. 2000); Livingston v. Herbert, No. 00-CV-1698, 2002 WL 59383, at *2 (N.D.N.Y. Jan. 3, 2002) (Homer, M.J.), adopted, No. 00-CV-1698, docket no. 20 (N.D.N.Y. Jan. 24, 2002) (Kahn, J.), appeal dismissed, No. 02-2083, slip op. at 1 (2d Cir. Aug. 28, 2002) (unpublished). Additionally, review of procedurally defaulted claims is available where the petitioner demonstrates that a fundamental miscarriage of justice would occur absent federal court review.*fn6 Dixon, 293 F.3d at 80; Morales v. Greiner, No. CV-98-6284, 2005 WL 1009545, at *8 (E.D.N.Y. May 2, 2005).

In his Traverse, Tracy acknowledges that the County Court found the majority of his claims relating to trial counsel to be procedurally barred. See Traverse at 5. He does not, however, attempt to establish cause for this default; he instead merely refers this Court to his memorandum of law in support of his claims against trial counsel as support for his assertion that he is entitled to federal habeas intervention. See Traverse at 10-11. However, since Tracy has not alleged -- must less established -- cause for his procedural default on these theories,*fn7 this Court need not decide whether he suffered resulting prejudice, because federal habeas relief is unavailable as to procedurally barred claims under this limited exception permitting review of procedurally forfeited claims unless both cause and prejudice is demonstrated. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir.1985); D'Alessandro v. Fischer, No. 01 CIV. 2551, 2005 WL 3159674, at *9 n.10 (S.D.N.Y. Nov. 28, 2005) ("[a]s Petitioner has not shown cause for his default, this Court need not even reach the question of whether Petitioner can show prejudice") (citing Stepney);Moore v. Greiner, No. 02 CIV.6122, 2005 WL 2665667, at *12 (S.D.N.Y. Oct. 19, 2005) (citing Stepney);Lutes v. Ricks, No. 02-CV-1043, 2005 WL 2180467, at *9 (N.D.N.Y. Sept. 9, 2005) (McAvoy, S.J.) (citing Stepney) (other citation omitted); Pou v. Keane, 977 F.Supp. 577, 581 (N.D.N.Y.1997) (Kahn, J.).

This Court's finding that Tracy has failed to establish cause for his default does not necessarily preclude this Court from considering his procedurally forfeited claims, however, because, as noted above, a federal court may nonetheless properly invoke habeas review as to such claims where the court is convinced of the petitioner's actual innocence. On this question, however, the Second Circuit has noted that:

[T]he fundamental miscarriage of justice exception is "extremely rare" and should be applied only in "the extraordinary cases." Schlup v. Delo, 513 U.S. 298, 321-22 (1995); .... "'[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United ...


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