The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge
This matter was referred for Report and Recommendation by the Honorable Gary L. Sharpe, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c). The case was re-assigned to me on January 4, 2010, following the retirement of Magistrate Judge Gustave J. Di Bianco.
Petitioner brings this action challenging a judgment of conviction from Oneida County Court. On February 25, 2004, petitioner was convicted, following a jury trial, of Attempted Murder in the First Degree; Assault in the Second Degree; Criminal Possession of a Weapon in the Second Degree; Criminal Possession of a Weapon in the Third Degree; and False Personation. Petitioner was sentenced on April 20, 2004 to serve an indeterminate prison sentence of from 23 years to life for attempted first-degree murder and lesser, concurrent sentences on the other counts. He is presently incarcerated at the Green Haven Correctional Facility, pursuant to the judgment of conviction.
The Appellate Division, Fourth Department affirmed petitioner's conviction (Ex. E, Dkt. No. 20-5)*fn1 , and leave to appeal to the New York Court of Appeals was denied (Ex. H, Dkt. No. 20-8). People v. Smith, 32 A.D.3d 1318, 821 N.Y.S.2d 723 (4th Dept.), lv. den., 7 N.Y.3d 929, 827 N.Y.S.2d 698 (N.Y. 2006) (table). On February 20, 2008, petitioner filed a pro se motion to vacate his convictions under N.Y. CRIM. PROC. LAW § 440.10 (Ex. I, Dkt. No. 20-9), which was denied by in the Oneida County Court on May 5, 2008 (Ex. K, Dkt. No. 20-11). Petitioner sought leave to appeal this decision from the Appellate Division (Ex. L, Dkt. No. 20-12), which was denied on December 18, 2008 (Ex. M, Dkt. Nos. 20-13).
Lauren A. Smith's initial pro se petition, styled as a pleading under 28 U.S.C. § 2241, was dated March 5, 2008. It was filed on or about March 27th, about a month after he filed his section 440.10 motion, and well before that motion was decided. The original petition alleged that: (1) the evidence was legally insufficient to establish that petitioner was guilty of attempted first-degree murder; (2) the trial court's jury instructions under N.Y. PENAL LAW § 265.15(4), regarding a presumption of intent to use a weapon unlawfully, were erroneous; (3) the evidence was legally insufficient to establish that petitioner was guilty of third-degree criminal possession of a weapon; and (4) petitioner's indeterminate sentence of 23 years to life was unduly harsh. (Pet., Dkt. No. 1).
By Order dated April 15, 2008, Magistrate Judge Di Bianco advised petitioner that he had improperly filed his petition under 28 U.S.C. § 2241, and that petitioner could consent to convert the action to one under 28 U.S.C. § 2254. (Dkt. No. 4). By letter dated April 28, 2008 (Dkt. No. 5), petitioner consented, and Magistrate Judge Di Bianco converted petitioner's action to one under 28 U.S.C. § 2254 by Decision and Order dated May 27, 2008 (Dkt. No. 6).
By letter dated June 5, 2008, petitioner requested a stay so that he could continue to try to exhaust the claims raised in his section 440.10 motion. (Dkt. No. 7). By Order dated June 23, 2008, the Court granted petitioner's application for a stay. (Dkt. No. 8). By motion dated January 22, 2009, petitioner sought to lift the stay and requested leave to add an additional claim alleging ineffective assistance of trial counsel. (Dkt. No. 10). In that motion, petitioner alleged that his trial counsel was ineffective in five specified ways. (Dkt. No. 10 at 2-3).
By Decision and Order dated February 23, 2009, Judge Di Bianco lifted the stay, granted petitioner leave to amend the petition, and directed respondent to answer the original petition, as well as the additional claims of ineffective assistance of counsel asserted in petitioner's motion. (Dkt. No. 11). Respondent filed an answer (Dkt. No. 18), a memorandum of law (Dkt. No. 19), and the pertinent state court records. (Dkt. No. 20). Respondent argues that some of petitioner's claims are procedurally barred and that the rest should be denied on the merits.
On February 22, 2010, petitioner filed a traverse, which referenced additional claims of constitutional violations that were not included in the original petition or the amendment. (Dkt. No. 26). On March 16, 2010, Lauren A. Smith filed a letter motion to further stay the habeas proceedings to afford him the opportunity to exhaust additional claims in state court, e.g. by filing a writ of error coram nobis to raise new allegations of ineffectiveness of his appellate counsel. (Dkt. No. 29). On April 9, 2010, this court denied that motion, noting that petitioner had already had the benefit of a stay to exhaust state remedies and an opportunity to amend his petition, and that any new habeas claims would likely be barred by the applicable statute of limitations. (Dkt. No. 31). On April 12, 2010, apparently before he was served with the court's order of April 9th, petitioner filed a supplemental traverse (Dkt. No. 32) noting that he was prepared to file a writ of error coram nobis to raise the new allegations about his appellate counsel.
For the reasons set forth below, this court will recommend denial of the claims raised in the original petition and the court-authorized amendment. The court will not consider the additional and untimely claims raised by petitioner in his traverse and supplemental traverse.
I. Relevant Facts and Procedural History
A. The Arrest and Indictment
On July 22, 2003, Utica Police Officer Charles Kelly initiated a traffic stop of a car being driven by petitioner Lauren Smith. Petitioner was unable to produce a license and provided a false name. After Officer Kelly directed petitioner to get out of the car, Smith started to flee. When the officer physically restrained Smith, he pulled a .45 caliber semi-automatic pistol. A struggle ensued during which the gun was, at various times, pointed at Officer Kelly's stomach, chest, and head. At one point, petitioner tugged at Kelly's holstered service gun, but was unable to draw it due to the holster's safety features. Petitioner and Kelly wrestled until other officers arrived and placed petitioner in handcuffs.
Petitioner's weapon contained a magazine with seven live rounds, and an eighth bullet in the gun's chamber. During the fight with petitioner, Officer Kelly pushed back on the slide of the weapon which may have prevented it from being fired. The serial number on the gun was obliterated. As a consequence of Officer Kelly's altercation with petitioner, Kelly suffered severe pain in his wrist, a torn labrum in his right shoulder, and various abrasions.
An Oneida County grand jury returned an indictment charging petitioner with Attempted Murder in the First Degree (N.Y. PENAL LAW §§ 110, 125.27 (1)(a)(i)(b)); Assault in the Second Degree (N.Y. PENAL LAW § 120.05(3)); Criminal Possession of a Weapon in the Second Degree (N.Y. PENAL LAW § 265.03(2)); Criminal Possession of a Weapon in the Third Degree (N.Y. PENAL LAW § 265.02(3)); and False Personation (N.Y. PENAL LAW § 190.23). Petitioner's trial before County Court Judge Michael L. Dwyer, began on February 23, 2004.
On the morning of July 22, 2003, Officer Kelly was patrolling alone in downtown Utica in a marked car, and was wearing his uniform. (Trial Transcript ("TT.") at 313). He observed a maroon Ford Escort, which did not have a front license plate, being driven by a man who was not wearing his seatbelt. He decided to turn his patrol car around and execute a traffic stop. (TT. at 314). As Officer Kelly followed the car down several streets, he put on his emergency lights and then blew his air horn, at which point the driver turned onto Lansing Street and stopped in the middle of the road. (TT. at 315-316).
Officer Kelly approached the other vehicle and asked the driver for his license and registration. The driver replied that he had a license, but did not have it with him. (TT. at 317-318). Officer Kelly asked the driver to identify himself, and he gave the name Anthony Tyrone and a date of birth. (TT. at 319). Officer Kelly returned to his patrol car to enter that information into his mobile data computer, which indicated that no one with that name and date of birth had a New York driver's license. (TT. at 320).
Officer Kelly testified that he walked back to the maroon car and told the driver that there was no license in New York under the name and date of birth he provided. The driver then stated that his name was Tyrone Anthony and gave a slightly different date of birth. (TT. at 321). Officer Kelly then returned to his patrol car and checked the new information but, again, found that the second name and date of birth provided by the driver were not in the drivers' license data bank. (TT. at 322-323). Officer Kelly said that he then returned to the maroon car and told the driver that neither of the names he had given matched with a license in the State of New York. (TT. at 323).
Officer Kelly testified that he told the driver that he was going to take him into custody for vehicle and traffic violations and directed him to step out of the car. (TT. at 325). At the trial, Officer Kelly identified the driver as being the petitioner, Lauren A. Smith. (TT. at 356). Officer Kelly directed the petitioner to face the rear of the car and to place his hands on the trunk. As Officer Kelly was patting him down and reaching for his handcuffs, he felt an object in the petitioner's rear pocket, which turned out to be a cell phone. (TT. at 325-326). By then, a woman had appeared on the scene, who stated that she was the mother of the petitioner's child, and Officer Kelly handed her the cell phone and told her to call the owner of the car to come down and get it. (TT. at 327-328).
Officer Kelly testified that he then noticed that the petitioner was fidgeting in his waistband. (TT. at 328). Officer Kelly grabbed the petitioner's left hand to handcuff him, and the petitioner pushed off of the car and began running down the street. (TT. at 329). Officer Kelly gave chase and grabbed the petitioner by his shirt. Smith then spun around so he was facing the officer. (TT. at 329-330). The officer testified that he saw that the petitioner was clutching a large firearm in both hands. (TT. at 330-331). Officer Kelly immediately grabbed and pushed back on the top of the slide of the gun with his right hand and held the petitioner with his left hand. (TT. at 331-332). The officer testified that he was trained to push back on the slide of an automatic weapon because that should prevent the gun from firing. (TT. at 333).
Officer Kelly testified that, as he struggled with the petitioner, he pointed the gun at the officer's chest and stomach and resisted Officer Kelly's efforts to push the gun away. (TT. at 333-334). After grappling on their feet, both men fell to the ground, on the grassy area under a tree. (TT. at 335). Officer Kelly testified that he maintained pressure on the slide of the gun so that it would not go off. (TT. at 335).
As they wrestled on the ground, the gun was pointed, at different times, at Officer Kelly's chest and head. The officer continued to try to push the weapon so that it was not pointing at him, but the petitioner, who held the gun in both hands, thwarted those efforts. (TT. at 335-336). Joseph Yaletchko, Ellen Pugh, and April Davis witnessed the struggle between petitioner and Officer Kelly from nearby houses. (TT. at 239-240, 262-263, 412-415). Yaletchko and Davis testified that they saw the two men fighting over a black object. (TT. at 263, 412-413).
When the gun was facing towards his head, Officer Kelly confirmed that it was a real, semi-automatic handgun and started to yell for help. He also attempted to summon back-up using his mobile radio, which had been ripped off of his belt and was lying on the ground. (TT. at 336-337). As the struggle over the gun continued, Officer Kelly testified that he was able to push it so it pointed into the dirt. (TT. at 338). Officer Kelly testified that he heard sirens in the background, and knew that help was coming. Just then, he said, he felt a tug at his own service weapon and saw the petitioner's hand on the grip of that weapon. (TT. at 339). The service holster had various safety features that prevented the petitioner from removing Officer Kelly's gun from the holster, although the top snap on the holster was undone. (TT. at 340-341). Eyewitness April Davis testified that she saw petitioner "trying to get the officer's gun" out of its holster. (TT. at 414).
With sirens blaring in the background, the petitioner started to stand up, and he returned both of his hands to his gun. Officer Kelly said that he then stood up and noticed that the magazine on petitioner's gun had fallen out. (TT. at 342-343). As the men continued to struggle, the gun fell from both of their hands and landed in a grassy area. Officer Kelly testified that the petitioner then started to try to flee. (TT. at 344). According to Robert Scully, the first back-up police officer to arrive, he observed the petitioner trying to cross Lansing Street, with Officer Kelly holding on to him or in close pursuit. (TT. at 231-232). Officer Scully tackled the petitioner and, with the assistance of Officer Kelly and other back-up officers who had arrived, eventually subdued and handcuffed him. (TT. at 214-215, 252-253, 345). Officer Scully testified that, as the petitioner was being handcuffed, he said that he had dropped the magazine, and that he was going to give it to the officer. (TT. at 216, 233). The petitioner, who was still combative, was then placed in the rear of a patrol car. (TT. at 216, 253-256).
Officer Loriann Cozza testified that, when she arrived at the scene, she secured a handgun and magazine she found lying separately on the ground in a grassy area between the sidewalk and the curb. (TT. at 285-286). The gun had a .45 caliber round in the chamber and the safety switch was off, meaning that the weapon was in the firing position. (TT. at 288-290). The magazine had some dirt on the bottom and was fully loaded with .45 caliber ammunition. (TT. at 286-287). Officer Scully, who photographed the scene after the arrest, testified that there was dirt on the bottom of the magazine and on the slide of the gun. (TT. at 221-222).
At the police station, Officer Kevin Voce found seven live .45 caliber rounds in the magazine secured by Officer Cozza. (TT. at 298-299). He then test fired the gun and found that it was operable, both with and without the magazine inserted. (TT. at 302-303). Officer Voce testified that the serial number had been scratched off. (TT. at 304). Daniel Sullivan, the pistol license officer for Oneida County, testified that the defendant did not have a pistol permit. (TT. at 377-378).
After the incident, Officer Kelly was taken to the emergency room at St. Elizabeth's Hospital. He testified that he had severe pain in his wrist and right shoulder and abrasions on his nose, right hand and both knees. (TT. at 348). X-rays showed no broken bones or fractures. (TT. at 350). However, further tests showed that Officer Kelly had a torn labrum on his right shoulder. (TT. at 351). He elected not to have surgery on his shoulder. (TT. at 352). Officer Kelly was placed on light duty until September 20, when he returned to active duty. (TT. at 351).
Petitioner's trial counsel, from the Oneida County Public Defenders Office, made various objections to the government's case and actively cross-examined government witnesses. He presented a defense through his opening statement and closing argument. However, counsel did not call any defense witnesses.
C. The Verdict and Sentencing
On February 25, 2004, the jury found petitioner guilty on all charges. On April 20, 2004, petitioner was sentenced to indeterminate prison sentences of from 23 years to life imprisonment for attempted first-degree murder, and two and one-third to seven years for third-degree criminal possession of a weapon. The sentencing court also imposed determinate prison terms of seven years, with three years of post-release supervision, for second-degree assault; ten years, with five years of post-release supervision, for second-degree criminal possession of a weapon; and one year for false impersonation. (Sentencing Transcript at 7-8. Dkt. No. 20-15 at 136-137).
D. Petitioner's Direct Appeal
An appellate attorney from the Oneida County Public Defender's Office (not trial counsel), filed a brief in the Appellate Division, Fourth Department, on petitioner's behalf. Petitioner argued that: (1) the evidence was legally insufficient to establish that he was guilty of attempted first-degree murder and third-degree criminal possession of a weapon; (2) the trial court's jury instructions under N.Y. PENAL LAW §
265.15(4), regarding a presumption of intent to use a weapon unlawfully, were erroneous; and (3) petitioner's indeterminate sentence of twenty-three years to life for the attempted murder of a police officer was unduly harsh. (Ex. A., Dkt. No. 20-1).
On September 29, 2006, the Appellate Division unanimously affirmed petitioner's judgment of conviction and sentence. (Ex. E, Dkt. No. 20-5). People v. Smith, 32 A.D.3d 1318, 821 N.Y.S.2d 723 (4th Dept. 2006). The appellate court rejected, on the merits, petitioner's contention that the evidence was legally insufficient to support his conviction of attempted first-degree murder. Id., 32 A.D.3d at 1319.
The court further found that petitioner "failed to preserve," for appellate review, his contention that the jury charge with respect to the second-degree criminal possession of a weapon charge was misleading, confusing and should have specified that "'the [petitioner] was not required to present any evidence in order for the jury to reject the inference' of intent to use the weapon unlawfully." Id. at 1319 (citing N.Y. CRIM. PROC. LAW § 470.05(2)). In any event, the court found petitioner's contention was "without merit." Id. at 1319-20 (citation omitted).
Next, the Appellate Division found that petitioner "failed to preserve" for appellate review his claim that the evidence was legally insufficient to support the conviction of third-degree criminal possession of a weapon on the ground that the People failed to establish petitioner's knowledge that the petitioner's gun was defaced. Id. at 1320. In any event, the court found that petitioner's contention "lack[ed] merit." Id. Finally, the court found that petitioner's sentence was not unduly harsh or severe. Id.
Petitioner sought leave to appeal all of the issues that he raised in the Appellate Division. (Ex. F, Dkt. No. 20-6). On December 21, 2006, a judge of the New York Court of Appeals denied petitioner leave to appeal. (Ex. H, Dkt. No. 20-8). People v. Smith, 7 N.Y.3d 929, 827 N.Y.S.2d 698 (N.Y. 2006) (table).
E. Petitioner's Motion to Vacate the Judgment
Petitioner filed a pro se motion to vacate under N.Y. CRIM. PROC. LAW § 440.10, dated February 20, 2008, in Oneida County Court. (Ex. I, Dkt. No. 20-9). Petitioner alleged that his trial counsel was ineffective because he: (1) did not properly prepare for trial; (2) only interviewed petitioner once for 15 to 20 minutes; (3) did not interview or call Officer Kelly's orthopedic surgeon; (4) did not interview Barbara Arroyo and her sibling, who were present during the incident; (5) did not employ an investigator to interview potential witnesses who would rebut the assault charge; (6) did not object to certain rulings to preserve issues for appellate review; (7) did not adequately cross-examine Joseph Yaletchko and Officer Kelly; (8) did not object to a discriminatory jury selection process; and (9) did not object to the introduction of highly damaging hearsay testimony or a hearsay statement. (Id.). Petitioner also complained, in passing, that the trial evidence was insufficient to establish his guilty of Attempted Murder in the First Degree. (Ex. I, Dkt. No. 20-9 at 20).*fn2
In a Decision and Order dated May 5, 2008, the County Court denied petitioner's motion, without a hearing, based on the court's review of the trial record, as well its recollection of defense counsel's performance. (Ex. K at 4, Dkt. No. 20-11). The County Court found that defense counsel provided petitioner with meaningful and effective representation. (Ex. K at 3-4). As to petitioner's general claim of ineffective assistance of counsel, as well as petitioner's individual claims of ineffective assistance of counsel that were reflected in the record of the trial, the court denied those claims under N.Y. CRIM. PROC. LAW § 440.10(2)(c) because they could have been raised on direct appeal. (Ex. K at 5)
The County Court also denied petitioner's claim that the evidence was insufficient to establish petitioner's guilt with respect to Attempted Murder in the First Degree. The court found that, under N.Y. CRIM. PROC. LAW § 440.10(2)(a), it was required to deny a motion to vacate a judgment of conviction on ground or issued that were previously determined on the merits upon an appeal. (Ex. K at 5). On December 18, 2008, the Appellate Division, Fourth Department, denied petitioner leave to appeal the denial of his section 440.10 motion. (Ex. M, Dkt. No. 20-13).
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that, when a state court has adjudicated the merits of a petitioner's claim, a federal court may grant an application for a writ of habeas corpus only if "the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that 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). See also, e.g., Noble v. Kelly, 246 F.3d 93, 98 (2d Cir. 2001); Brown v. Alexander, 543 F.3d 94, 100 (2d Cir. 2008).*fn3 Under §2254(d)(1), a state-court decision is contrary to clearly established Supreme Court precedent if its "conclusion on a question of law is 'opposite' to that of the Supreme Court or if the state court decides a case differently than the Supreme Court's decision 'on a set of materially indistinguishable facts.'" Id. (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). A state court decision involves an unreasonable application of clearly established Supreme Court precedent if it correctly identifies the governing legal principle, but unreasonably applies or unreasonably refuses to extend that principle to the facts of a particular case. See Williams, 529 U.S. at 413; Ramdass v. Angelone, 530 U.S. 156, 166 (2000).
Under the AEDPA, a state court's factual findings are presumed correct, unless that presumption is rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). If the state court failed to decide a claim "on the merits," the pre-AEDPA standard of review applies, and both questions of law and mixed questions of law and fact are reviewed de novo. Washington v. Shriver, 255 F.3d 45, 55 (2d Cir. 2001).
"Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, . . . thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995) (internal quotation and other citations omitted)); 28 U.S.C. § 2254(b)(1). The prisoner must "fairly present" his claim in each appropriate state court, including the highest court with powers of ...