The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
[Re: Motion at Docket No. 45]
Petitioner, Marty Humphrey, a state prisoner proceeding pro se, has timely moved under Rule 59(e), Federal Rules of Civil Procedure, for reconsideration of the decision denying his Petition for Habeas Corpus relief under 28 U.S.C. § 2254. In his motion, Humphrey seeks reconsideration of this Court's denial of relief based upon his seventh ground, ineffective assistance of counsel, and denial of his motion for leave to file an amended petition.*fn1 For the reasons that follow, this Court finds no basis upon which to reverse its prior decision that the seventh ground was procedurally barred. Furthermore, even if this Court were to reach the merits of Humphrey's seventh ground, Humphrey would not prevail.
Prior to trial, Humphrey, appearing through counsel, brought a Huntley motion to suppress incriminating statements Humphrey made to the police.*fn3 That motion was denied.
Subsequently, counsel who filed the Huntley motion was relieved and new counsel appointed. In his seventh ground Humphrey argues that by failing to move to reopen the Huntley hearing his second trial counsel's performance was deficient. Humphrey raised this claim in his post- conviction New York Criminal Procedure Law § 440.10 motion, which the Schenectady County Court denied under New York Criminal Procedure Law § 440.10.
In his response to the Petition in this Court, Respondent asserted that, because the state court denied the Humphrey's claim on adequate independent state grounds, his seventh ground was procedurally barred. This Court agreed and denied Humphrey relief on that ground. Nearly two years after he had filed his Traverse, Humphrey filed a motion for leave to file an amended petition, which this Court denied as untimely.
Distilled to its essence, Humphrey's position is that this Court should have reviewed the state-law basis for the procedural default de novo. More specifically, Humphrey argues that, in denying his § 440.10 motion, the Schenectady County Court misapplied § 440.10 as interpreted and applied by the New York Court of Appeals. With respect to the denial of his motion for leave to file an amended petition, Humphrey's argument is essentially that this Court should have applied the rule that a pro se litigant's pleadings are to be liberally construed and take into consideration his youth and incomplete education.
There are four basic grounds upon which a Rule 59(e) motion may be granted: (1) to correct manifest errors of law or fact upon which the judgment is based; (2) to present newly discovered or previously unavailable evidence; (3) an intervening change in controlling law; or (4) to prevent manifest injustice.*fn4 A Rule 59 motion may not be used to relitigate old matters, or to raise arguments that could have been raised, or present evidence that could have been presented, prior to the entry of judgment.*fn5 The motion must specify the ground on which it is based.*fn6 Humphrey cites no intervening change in controlling law, nor does Humphrey point to any controlling decision or evidence that the court overlooked.*fn7 Thus, Humphrey's motion may be granted only if this Court committed a clear error of law or to prevent a manifest injustice.*fn8
It does not appear that Humphrey contests that § 440.10 is a firmly established and regularly followed state procedural rule. Indeed, that argument is foreclosed.*fn9 In arguing for de novo review of whether the state courts properly applied § 440.10 to the facts of this case, Humphrey principally relies upon two exceptions to the general rule precluding review of a state court's interpretation of state law: "exorbitant application" and "manipulation" of the rule.
Ordinarily, violation of "firmly established and regularly followed" state rules-for example, those involved in this case-will be adequate to foreclose review of a federal claim. There are, however, exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.*fn10
The Second Circuit has held:
Wainwright [v. Sykes, 433 U.S. 72 (1977)] invoked the well-established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts. However, this immunity is not absolute, in either the substantive or the procedural context. For it is equally well established that a state may not, in an attempt to deprive a litigant of the right to a hearing on a federal claim, manipulate its findings of law . . . or fact. Thus, an unsupported or manipulative finding of procedural default would not constitute an adequate state ground barring federal habeas relief.*fn11
In denying Humphrey's § 440.10 motion, the Schenectady County Court held:
Under CPL § 440.10(2)(c), the Court must deny a motion to vacate the judgment when there are sufficient facts in the record to allow adequate review of the issue on appeal but no such review occurred because the defendant unjustifiably failed to raise the issue. [Humphrey's] direct appeal has been denied, and defendant unjustifiably failed to raise the issue of ineffective assistance of counsel during that appeal. Therefore, the Court denies [Humphrey's] ineffective assistance of counsel claim.
Pursuant to CPL § 440.10(2)(a), the Court must also deny a motion to vacate the judgment when the issue was previously determined on the merits upon an appeal from the judgment, unless there has been a retroactively effective change in the law controlling the issue. On appeal, [Humphrey] raised the issue that the statement should have been suppressed because it was obtained by official trickery or deceit. Even though the Third Department held that the issue was not preserved for appeal, the Court determined that there was "no evidence that [Humphrey] was isolated from family members as the result of any official deception." People v Humphrey, 15 AD3d 683, 685 (3d Dept 2005) relying on People v Salaam, 83 NY2d 51, 55 ; People v Dearstyne, 230 AD2d 953, 958 , Ivs [sic] denied 89 NY2d 921 , 89 NY2d 1034 ). Since this issue has already been determined on direct appeal and there has been no subsequent change in the law this part of [Humphrey's] motion must also be denied.
It should also be noted that suppression of [Humphrey's] statement would not have changed the outcome of the trial. [Humphrey's] trial testimony was consistent with the statement he had given to the police. Even if [Humphrey] were correct in his argument that the statement should have been suppressed, such error would have been harmless.*fn12
In his direct appeal, Humphrey argued:
The defendant's confession should be suppressed because the police used deception and trickery to seal off the most likely means for Humphrey to reach assistance of counsel. In the case People v. Townsend, 33 NY2d 37, 347 NY2d 187 (1973), court said that it is impermissible for the police to use a confession, even if it be otherwise voluntary, obtained from a 17 year old when in the course of extracting such confession they have sealed off the most likely avenue by which the assistance of counsel by means of deception or trickery.
In our case, sixteen year old Marty Humphrey was brought down to the police station and although he was told that he could speak with his sister, he was not offered an opportunity to speak with his mother or uncle. (A32, A84) In fact, Marty Humphrey states on the record that his uncle was told that he could not come into the police station with the defendant. (A32) It is obvious that the police would only permit Mr. Humphrey to speak with his young sister who in her youth did not encourage her brother to request an attorney. (A28, A39) In the record, Detective McHugh told Marty Humphrey in the police station that they had made arrangements for his sister to come down and see him. (A40). When asked by defense attorney, Mike Jurena, if Detective McHugh had tried to contact Marty Humphrey's mother, McHugh responded that "Marty Humphrey's mother was not specifically told she would be afforded the opportunity to speak with her son prior to an interview." (A41). In fact, Marty's mother never spoke to her son prior to Humphrey giving the police a statement. The police reconciled this with saying that it was their understanding that the "sister and Marty were closer than Marty and the mother" (A41). On the record Kim Humphrey states that she was present when the police told their mother that Marty did not want to see his mother. (A8S) In the Huntley Hearing, the detective states that he never even asked Marty Humphrey if he wanted his mother present. (A84). The Schenectady Police tricked Marty Humphrey into confessing without an attorney present. Telling Humphrey's mother that her son did not want to speak with her was a lie. This is the deceit that was used to conceal the means by which Marty Humphrey was most likely to assert his constitutional right to representation. The confession should not have been allowed to be used at trial. This is reversible error.*fn13
The Appellate Division, Third Department, rejected Humphrey's argument, holding:
Next, defendant argues, for the first time on appeal, that his confession to police should have been suppressed because the police used deception and trickery to keep him from contacting his family and possibly seeking the aid of counsel. Were we to consider the issue despite his failure to preserve it, we would find that there is no evidence that defendant was isolated from family members as the result of any official deception.*fn14
Upon thorough review of the motion and accepting Humphrey's factual contentions, but not his conclusions, this Court finds nothing "exorbitant" about the application of § 440.10 to the facts in this case. Nor does it appear that the finding of a procedural default by the Schenectady County Court was unsupported by, or manipulative of, the facts. In short, Humphrey has fallen far short of establishing that the prior decision of this Court was clearly erroneous or, as demonstrated by the following discussion on the merits, that it resulted in a fundamental miscarriage of justice.
Even if this Court were to reach the merits of his ineffective trial counsel claim, Humphrey would not prevail. If a federal claim has not been adjudicated on the merits, Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) deference is not necessarily required.*fn15 In that situation, conclusions of law and mixed questions of fact and conclusions of law are reviewed de novo.*fn16 Where there is no reasoned decision of the state court addressing the ground or grounds raised 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.*fn17 In so doing, because it is not clear that it did not so do, the Court assumes that the state court decided the claim adverse to the petitioner on the merits and the decision rested on federal grounds.*fn18 This Court gives the assumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn19
Under Strickland, to demonstrate ineffective assistance of counsel, Humphrey must show both that his counsel's 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 Humphrey 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.*fn22 An analysis that focuses "solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective."*fn23 Strickland and its progeny do not mandate this Court act as a "Monday morning quarterback" in reviewing tactical decisions.*fn24 Indeed, the Supreme Court admonished in Strickland:
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.*fn25
In reviewing ineffective assistance of counsel claims in a federal habeas proceeding:
The question "is not whether a federal court believes the state court's determination" under the Strickland standard "was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro, supra, at 473, 127 S.Ct. 1933. And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ("[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations").*fn26
It is through this doubly deferential lens that a federal habeas court reviews Strickland claims under the § 2254(d)(1) standard.*fn27
Humphrey's arguments is two-fold. First, Humphrey contends that there are inconsistencies between the testimony of Detective McHugh at the initial Huntley hearing and the testimony of Detectives McHugh and Kutil at trial that casts doubt upon their credibility.
Second, Humphrey points to information concerning an alleged telephone call by an attorney to the Schenectady Police Department that came to light during the trial and was discussed on the record. According to Humphrey, his second trial counsel should have renewed the Huntley motion and by failing to do so his representation was rendered ineffective.
At the Huntley hearing, Detective McHugh testified as follows on direct examination:
Q: Did Kim Humphrey come down to the station?
Q: Was she allowed to go in and see her brother?
Q: Had Marty Humphrey made any requests to talk to any family members?
A: No. I believe I told Mr. Humphrey that I had his sister en route to come ...