The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Clarence Stokes, a state prisoner appearing pro se, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Stokes is currently in the custody of the New York Department of Correctional Services, incarcerated in the Auburn Correctional Facility. Respondent has answered the petition. Although the time for doing so has long lapsed, Stokes has not filed a traverse.
I. BACKGROUND/PRIOR PROCEEDINGS
In February 2003 Stokes was convicted following a jury trial in the Onondaga County Court of First-degree Manslaughter [N.Y. Pen. Law § 125.20(1)]. Stokes was sentenced to a determinate term of 20 years, followed by 5 years of supervised release. Stokes, represented by counsel, timely appealed his conviction to the Appellate Division, Fourth Department, which affirmed his conviction and the New York Court of Appeals summarily denied leave to appeal on July 26, 2005. People v. Stokes, 796 N.Y.S.2d 832 (N.Y. App. Div.), lv. denied, 835 N.E.2d 676 (N.Y. 2005).
While his appeal was pending, Stokes, appearing pro se, filed a motion in the Onondaga County Court to vacate the judgment under New York Criminal Procedure Law § 440.10 on the grounds of ineffective assistance of trial counsel. The Onondaga County Court denied the motion on the grounds that sufficient facts appeared on the record to permit adequate review on appeal. The Appellate Division, Fourth Department, finding that there was no question of law or fact to be reviewed by that Court, summarily denied leave to appeal in an unpublished decision on September 21, 2004.*fn1
On April 14, 2006, Stokes, appearing pro se, filed a motion for a writ of error coram nobis in the Appellate Division, Fourth Department, which was summarily denied without opinion or citation to authority on June 9, 2006; the New York Court of Appeals denied leave to appeal July 31, 2006. People v. Stokes, 816 N.Y.S.2d 398 (N.Y. App. Div.), lv. denied, 854 N.E.2d 1289 (N.Y. 2006).
Stokes timely filed his petition for relief in this Court on July 9, 2006 (date stamped August 25, 2006).
II. GROUNDS RAISED/DEFENSES
In his petition Stokes raises three grounds: (1) ineffective assistance of trial counsel in failing to object to his cross-examination by the prosecutor concerning a knife introduced at trial; (2) ineffective assistance of appellate counsel for failure to raise the issue of ineffective assistance of trial counsel asserted in his first ground; and (3) ineffective assistance of appellate counsel in failing to present a meritorious argument of judicial misconduct. Respondent contends that Stokes' first ground is unexhausted and procedurally defaulted, and that he has failed to exhaust his state court remedies as to the second and third grounds.
Because Stokes 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. Consequently, this Court cannot grant relief unless the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn2 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision.*fn3 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn4 When a claim falls under the "unreasonable application" prong, a state court's application of the Supreme Court precedent must be "objectively unreasonable," "not just incorrect."*fn5 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn6 Finally, in a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn7
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn8
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.*fn9 If a federal claim has not been adjudicated on the merits, AEDPA deference is not required.*fn10 In that situation, conclusions of law and mixed questions of fact and conclusions of law are reviewed de novo.*fn11 A state court decision is conclusively presumed to have been on the merits when the state court disposes of the claim on other than procedural grounds, even where it fails to provide any reasoning for the disposition.*fn12 Where there is no reasoned decision of the state court addressing the ground or grounds raised by Stokes 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.*fn13
The facts of the crime are well known to the parties and, in the interest of brevity, are repeated here only to the extent necessary to understanding this decision. Stokes was informed by his daughter (Rachel Howe) that she had been assaulted by "some dude" who had hit her in the face with a beer can. Stokes sought out the perpetrator. After finding the alleged perpetrator, during the ensuing struggle Stokes stabbed him with a knife. The alleged perpetrator dies as a result of the wounds.
In his first ground, Stokes argues that trial counsel was ineffective for failing to act upon Sandoval*fn14 and Ventimiglia*fn15 violations, when the prosecutor cross-examined him concerning the knife used in the crime. As Respondent notes, Stokes did not present this as a factual basis for his ineffective assistance of trial counsel in either his CPL § 440.10 motion or on direct appeal. "A petitioner satisfies the fair presentation aspect of the exhaustion requirement by presenting the essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it."*fn16 Consequently, because Stokes did not present this as a factual basis for his claim, he did not exhaust his state court remedies. Respondent also argues that Stokes is procedurally defaulted as to this claim as he has had his one permitted direct appeal and may not raise the issue before the state courts. The Court agrees.*fn17
Respondent argues that although Stokes raised his second and third grounds in his motion for a writ of error coram nobis before the Appellate Division, he did not raise them in his application for leave to appeal to the New York Court of Appeals. The Court, having reviewed the application, concludes that, although Stokes used somewhat different language in presenting his arguments in his application for leave to appeal than he did in this motion to the Appellate Division, the fair import of his application to the Court of Appeals was that it requested further review of the issues raised before the Appellate Division and that the Court of Appeals would have so construed it.*fn18 Accordingly, Stokes' second and third grounds were properly exhausted.
Because there is no reasoned decision by a state court addressing the grounds raised in the petition before this Court, it must address those grounds de novo on the record before it to determine if the decision of the Appellate Division 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."*fn19
Under Strickland v. Washington, to demonstrate ineffective assistance of counsel, Stokes must show both that his counsels' performance was deficient and that the deficient performance prejudiced his defense.*fn20 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.*fn21 Stokes must show that trial and appellate counsels' representations were not within the range of competence demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for counsels' ineffectiveness, the result would have been different.*fn22 Strickland and its progeny do not mandate this court act as a "Monday morning quarterback" in reviewing tactical decisions. Indeed, the Supreme Court admonished in Strickland:*fn23
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 or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. 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. Because of the difficulties inherent in making the evaluation, 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.
There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.
The failure of appellate counsel to raise meritless or weak issues does not constitute ineffective assistance of counsel.*fn24 "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."*fn25
1. Ineffective Assistance of Trial Counsel
As noted above, this ground is unexhausted. The Court need not rely on the failure to exhaust as it may deny the petition on the merits notwithstanding the lack of exhaustion of state court remedies.*fn26 Discussion of this ground is also a necessary prerequisite to the second ground; i.e., if trial counsel was not ineffective it follows, a fortiori, that appellate counsel could not have been ineffective in failing to raise the issue.
The testimony in question, which was elicited by the prosecution on cross-examination, is set forth in Appendix 1. As Respondent correctly points out, the fundamental flaw in Stokes' position is that the testimony does not fall within the ambit of either Sandoval or Ventimiglia. The testimony in question went to the identification of the murder weapon and that it belonged to Stokes. Stokes cites no New York authority that identification of the murder weapon as belonging to the defendant falls within the scope of Sandoval or Ventimiglia. Contrary to the characterization sought to be imposed by Stokes, it does not involve any prior uncharged criminal, vicious or immoral conduct intended to impeach Stokes' credibility (Sandoval), nor can it be characterized as evidence of other crimes introduced as part of the prosecution's direct case (Ventimiglia).
Stokes has failed to establish that trial counsel committed any error that was so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment or that his defense was prejudiced, as required by Strickland-Hill. In particular, Stokes has failed to overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.
Stokes is not entitled to relief under his first ground.
2. Ineffective Appellate Counsel (Failure to Raise Issue of Ineffective Trial Counsel)
Because trial counsel was not ineffective for failing to raise the issue of a groundless Sandoval and/or Ventimiglia violation, appellate counsel was not ineffective for failing to raise the issue on appeal.
Stokes is not entitled to relief on his second ground.
3. Ineffective Appellate Counsel (Failure to Argue Judicial Misconduct)
Stokes claims that appellate counsel should have argued that the trial judge was biased, showed nepotism and injudicious decisions in refusing two mistrial requests, not allowing full questioning by defense counsel, and yelled at counsel that the victim hit Stokes' daughter, Stokes went after the victim and that was all of it.
In this case, appellate counsel argued quite vigorously the issue that denial of the motions for mistrial based upon prosecutorial misconduct constituted reversible error. The Appellate Division rejected those arguments, holding: "We reject the contention of defendant that he was denied a fair trial based on prosecutorial misconduct. It cannot be said that the prosecutor's conduct caused such substantial prejudice to the defendant that he [was] denied due process of law"*fn27 Thus, on this point, Stokes has failed to provide a factual basis supporting his claim.
Stokes's second and third points deal with evidentiary rulings made during the course of the trial regarding the direct testimony of Rachael Howe, Stokes's daughter.*fn28 The two evidentiary rulings are set forth in Appendix 2.*fn29 In Liteky v. United States, the United States Supreme Court held that judicial rulings and the opinions formed by judges on the basis of facts introduced in the course of proceedings "almost never constitute a valid basis for a bias or partiality motion . . . unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible."*fn30 Contrary to Stokes's assertions, these evidentiary rulings, made outside the hearing of the jury in the course of the trial, do not have the indicia of bias on the part of the trial judge. Indeed, they fall squarely within the scope of Liteky. Stokes's arguments that the trial judge was injudicious and biased are without merit. Consequently, the failure of appellate counsel to raise them on appeal does not constitute ineffective assistance of appellate counsel.
This Court cannot say that the decision of the Appellate Division denying the motion for a writ of error coram nobis 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."*fn31 Nor can this Court find that the state court unreasonably applied the correct legal principle to the facts of Stokes's case within the scope of Lockyer--Williams; i.e., the state court decision was more than incorrect or erroneous, its application of clearly established law was objectively unreasonable. Stokes has failed to establish that appellate counsel committed any error that was so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment or that Stokes's defense was prejudiced, as required by Strickland-Hill. In particular, Stokes has failed to overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.
Stokes is not entitled to relief on his third ground.
Stokes is not entitled to relief on any ground raised in his petition.
IT IS THEREFORE ORDERED THAT the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability.*fn32 To the extent the issues raised in the petition were addressed by the Appellate Division, Fourth Department, no reasonable jurist could find that the decision was "objectively unreasonable." Any further request for a Certificate of Appealability must be addressed to the Court of Appeals. See Fed. R. App. P. 22(b); Second Circuit R. 22.
The Clerk of the Court to enter final judgment accordingly.
Q: The knife that you had when this incident happened, the one that you stabbed William Smith with --
Q: (Continuing) -- okay, how long had you had that knife?
A: About seven, eight years.
Q: Okay. And that was your work knife?
A: Yes, I did use it for a work knife.
Q: When Mr. Carey -- you called it a work weapon?
A: That's what I use it for.
A: (Continuing) -- at work. And you're trying to get me mixed up.
Q: No, I'm just asking you about what you said.
A: You're trying to get me mixed up.
Q: No, I'm not, Mr. Stokes. Mr. Stokes, is that the only knife you owned?
A: Yeah, I got kitchen knives.
Q: Okay. Well, after you threw that knife out the window, did you replace your work knife with anything?
A: Did I replace it with anything?
Q: Yeah, you went to work.
A: There's another work knife.
Q: Where -- what does that knife look like?
A: It's a little knife, about this big.