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Dozier v. Walsh

May 28, 2009

MARCUS DOZIER, PETITIONER,
v.
JAMES J. WALSH, RESPONDENT.



The opinion of the court was delivered by: John G. Koeltl, District Judge

MEMORANDUM OPINION AND ORDER

Petitioner Marcus Dozier, appearing pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner argues that he received ineffective assistance of counsel both because his counsel withdrew the petitioner's intent to testify before a grand jury without the petitioner's consent and because the petitioner's attorneys failed to investigate his case properly. For the following reasons, the petition for a writ of habeas corpus is denied.

I.

On January 24, 2004, the petitioner allegedly sold cocaine to an undercover police officer, but evaded arrest. The petitioner was found and arrested five days later, and was released on his own recognizance following his arraignment. On March 30, 2004 the petitioner was observed by a police officer with what the officer believed to be a gun in his waistband. When the petitioner appeared to discard something from his waistband into a cardboard box, the officer seized the box, recovered a pistol, and arrested the petitioner. (See Declaration of Priscilla Steward ("Steward Decl."), Ex. B at 4 & Ex. C at 1-3.)

An attorney for the Legal Aid Society was appointed to represent the petitioner concerning the narcotics matter. Another attorney for the Legal Aid Society was assigned to represent the petitioner regarding the weapons matter. A New York County Grand Jury indicted the petitioner on charges of Criminal Possession of a Weapon in the Second and Third Degree and a Special Narcotics Grand Jury indicted the petitioner for Criminal Sale of a Controlled Substance in the Third Degree. The petitioner did not testify at either of these proceedings. (Steward Decl., Ex. C at 5.) Following these indictments, the petitioner made a motion claiming ineffective assistance of counsel. The petitioner claimed that his attorney withdrew the petitioner's notice to testify before the New York County Grand Jury without the petitioner's permission. (Steward Decl., Ex. A at 14-16.) On June 23, 2004, Justice Rena Uliver relieved both Legal Aid attorneys and appointed new counsel to represent the petitioner. On February 15, 2005, the petitioner's motion was heard by the Honorable Herbert J. Adlerberg. The Court found that the attorney's withdrawal of the defendant's notice to testify before the New York County Grand Jury on the weapons offense did not rise to the level of ineffective assistance of counsel. (Steward Decl., Ex. A at 26.)

On April 20, 2005, represented by the same new counsel, the petitioner entered a plea of guilty to one count of Criminal Possession of a Weapon in the Third Degree and to one count of Criminal Sale of a Controlled Substance in the Fifth Degree, resolving the outstanding indictments. (Steward Decl., Ex. C at 8.) On May 10, 2005, the petitioner was sentenced to a five-year prison term plus a five-year term of post-release supervision for the weapons charge, and two to four years in prison for the narcotics charge, to be served concurrently.

On October 11, 2007, the New York State Supreme Court, Appellate Division, First Department affirmed the judgment of conviction. People v. Dozier, 843 N.Y.S.2d 502 (App. Div. 2007). The Court found: "There is no merit to defendant's claim that he was 'denied the right to the assistance of counsel' with respect to the grand jury proceedings leading to his weapons possession indictment, and his alleged desire to testify with respect to that charge." Id. On February 26, 2008, the petitioner's application for leave to appeal to the New York Court of Appeals was denied. People v. Dozier, 883 N.E.2d 1261 (N.Y. 2008).

On April 21, 2008, the petitioner filed his petition, dated April 15, 2008, with the Pro Se Office of this Court. The petitioner has been released from prison and is now under parole supervision.

II.

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant habeas corpus relief to a state prisoner on a claim that was adjudicated on the merits in state court only if it concludes that 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." 28 U.S.C. § 2254(d)(1)-(2); see also Knowles v. Mirzayance, 129 S.Ct. 1411, 1418 (2009); Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006); Walker v. Girdich, 410 F.3d 120, 122 (2d Cir. 2005).

A state court decision is "contrary to" clearly established law if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to" the Supreme Court's result. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision involves "an unreasonable application of . . . clearly established Federal law" when the state court "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08.

To meet that standard, "the state court decision [must] be more than incorrect or erroneous"; it "must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). "[I]t is well established in [this] [C]circuit that the objectively unreasonable standard of § 2254(d)(1) means that [a] petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief." Cotto v. Herbert, 331 F.3d 217, 248 (2d Cir. 2003) (internal quotation marks omitted); see also Dedushaj v. Graham, No. 07 Civ. 5401, 2008 WL 4858242, at *2-*3 (S.D.N.Y. Nov. 7, 2008).

In order to prove ineffective assistance of counsel a habeas petitioner must show that "(1) counsel's performance was deficient and (2) the deficient performance prejudiced the defense." Bunkley v. Meachum, 68 F.3d 1518, 1521 (2d Cir. 1995) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Meeting the first prong of the Strickland test "requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. To satisfy the second prong of the test, the petitioner must show ...


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