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Sharbu Redd v. Carol Woughter

December 3, 2010

SHARBU REDD,
PETITIONER,
v.
CAROL WOUGHTER, SUPERINTENDENT, MOHAWK CORRECTIONAL FACILITY, RESPONDENT.



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

MEMORANDUM OPINION AND ORDER

The pro se petitioner, Sharbu Redd, seeks a stay of his habeas corpus petition to allow him to pursue a state court claim of ineffective assistance of appellate counsel by way of a coram nobis petition to the Appellate Division of the New York State Supreme Court. The petitioner argues that his appellate counsel should have asserted the following claims: (1) trial counsel was ineffective for not moving to suppress certain physical evidence; (2) the indictment against him was jurisdictionally defective; and (3) trial counsel was ineffective for not arguing that the indictment was defective.

I

The Court may stay a habeas petition to allow for exhaustion of claims in state court if the petitioner can demonstrate that: (1) good cause exists for failing to exhaust the claims previously, (2) the claims are potentially meritorious, and (3) the petitioner did not intentionally engage in dilatory litigation tactics. See Rhines v. Weber, 544 U.S. 269, 277-78 (2005); see also Chambers v. Conway, No. 09 Civ. 2175, 2010 WL 2331974, at *1 (S.D.N.Y. June 9, 2010).

II

First, the petitioner has not demonstrated good cause because the petitioner has not provided any reason for not exhausting his ineffective assistance of appellate counsel claim before bringing his current petition. The alleged ineffectiveness of appellate counsel might excuse the petitioner's failure to raise the ineffective assistance of trial counsel claim on appeal. However, it provides no explanation as to why the petitioner did not present his ineffectiveness of appellate counsel claim in a petition for a writ of error coram nobis before bringing this habeas petition. See Scott v. Phillips, No. 05 Civ. 142, 2007 WL 2746905, at *6 (E.D.N.Y. Sept. 19, 2007) (finding no good cause when "actions of [the petitioner's] appellate counsel [did] not explain [the petitioner's] failure to file a petition for a writ of error coram nobis asserting ineffective assistance of appellate counsel").

Second, the petitioner has not demonstrated that his ineffective assistance of appellate counsel claim is potentially meritorious. To establish a claim of ineffective assistance of counsel, the petitioner must show both that (1) his counsel's performance was deficient in that it was objectively unreasonable under professional standards prevailing at the time, and (2) his counsel's deficient performance was prejudicial to his case. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Bunkley v. Meachum, 68 F.3d 1518, 1521 (2d Cir. 1995); see also Garcia-Giraldo v. United States, 691 F. Supp. 2d 500, 510 (S.D.N.Y. 2010).

To meet the first prong of the Strickland test, the petitioner must establish that his appellate counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Strickland, 466 U.S. at 687. There is a "strong presumption" that appellate counsel's conduct fell within the broad spectrum of reasonable professional assistance, and a petitioner "bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (citing Strickland, 466 U.S. at 688-89); see also Garcia-Giraldo, 691 F. Supp. 2d at 510. Appellate counsel is not obligated to "raise every non-frivolous issue that the defendant requests." Jameson v. Coughlin, 22 F.3d 427, 429 (2d Cir. 1994) (quoting Jones v. Barnes, 463 U.S. 745, 754 n.7 (1983)).

Instead, the petitioner must demonstrate that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000) (quoting Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)).

To meet the second prong of the Strickland test, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see also Garcia-Giraldo, 691 F. Supp. 2d at 510.

A.

The petitioner first argues that appellate counsel was ineffective for failing to argue that trial counsel was ineffective because trial counsel failed to move properly to suppress a handgun and money that the police recovered in connection with this case. Trial counsel moved for a hearing to suppress these items on the basis that they were obtained without a search warrant, but the trial court rejected the motion because it was evident that a search warrant was in fact executed. The petitioner argues that his trial counsel should have instead moved for suppression of the handgun on the basis that the petitioner had no connection to the gun because it was found inside a safe in his co-defendant's apartment.

Although trial counsel overlooked the fact that a search warrant was issued and erred in moving for a suppression hearing on that basis, appellate counsel was not ineffective in failing to present a claim of ineffective assistance of trial counsel. The petitioner's appellate counsel recognized the petitioner's trial counsel's mistake, and argued that in light of the mistake, the trial court should have given credit to the petitioner's allegation that his counsel had not fully discussed with him the details of the weapon possession charges prior to the petitioner's guilty plea. Thus, appellate counsel argued, the petitioner should have been allowed to withdraw his guilty plea. This was a reasonable strategic choice in view of the petitioner's guilty plea, and appellate counsel's failure to present a separate ineffective assistance of counsel claim did not amount to ineffective assistance of appellate counsel. See Jameson, 22 F.3d at 429 (appellate counsel is not under an obligation to "raise every non-frivolous issue that the defendant requests"); see also Mayo, 13 F.3d at 533 ("Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.") (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1985)). Indeed, the fact that appellate counsel knew of trial counsel's mistake but chose to raise the issue as part of an argument that the petitioner should have been allowed to withdraw his guilty plea ...


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