The opinion of the court was delivered by: Seybert, District Judge:
Petitioner, Rory Dolan ("Dolan" or "Petitioner"), petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His Petition raises nineteen discrete constitutional arguments. For the reasons discussed below, the Petition is DENIED.
BACKGROUND I. Factual Background: Commission Of The Crimes And Investigations On the morning of November 17, 1988, Petitioner raped Mary Jean Sherin.
Brandishing a knife, he forcibly entered her home with a pillowcase cloaking his facial features. It was approximately 8:30 a.m. Sherin resisted; Dolan slashed her, slapped handcuffs on her wrists, and shoved her to the ground. His first objective was to locate Sherin's money. After dragging Sherin to her sons' bedroom, he ordered her to produce her checking card and PIN number. She replied -- truthfully -- that she did not use one. Questioned about money secreted away in the house, she disclosed the location of $900 cash, prompting Dolan to go in search of it. (T2. 3105-11.)*fn1
While Dolan searched outside of Sherin's presence, Sherin made a move to escape. At that instant Dolan barreled back into the room, threw her to the floor between her sons' beds, and threatened to murder her if she should move again. With Sherin lying face downward, Dolan removed her nightgown and traced the knife down her back. He then demanded to know where she stored her jewelry. So informed, he briefly exited the room. (T2. 3111-16.)
On reentering he blindfolded and raped Sherin. (T2.3115-16.)
After he had completed the act he bound together her arms and legs with a jump rope and cord; soon thereafter he left, but not before informing Sherin that he was en route to kill her husband. He added that if she called the police she too would die. (T2.3115-25.)
Subsequent crime-scene investigation failed to locate satisfactory fingerprints for comparison. But in spite of the assailant's pillowcase mask and the blindfold used during the rape, Sherin was able to describe him as a young (T2. 3129) Caucasian male (T2. 3193) who was approximately 5'9" inches tall (T2. 3106) with an aquiline nose, high cheekbones, brown hair and bushy eyebrows (T2. 3117). More uniquely, she noted that amid the violence of the rape her assailant dwelt on her husband whom he knew by name and who "stole his house." (T2. 3117.) A rape kit was also performed. (T2.3126.)
Two years later, on November 19, 1990 at approximately 8:20 a.m.--virtually the same time at which the Sherin crimes commenced--Deborah Cabo came home after dropping her daughter off at school to find Dolan, whom she had never seen, standing inside her home. He refused to identify himself, claiming to be there for a landscaping job. Increasing the palpable oddness of the situation, Dolan then began to question Mrs. Cabo about her neighbors. At length Dolan apologized for the apparent misunderstanding and proceeded to back out of Mrs. Cabo's driveway in a Nissan truck whose appearance and license plate number she duly recorded. She thereupon reported the episode and information to the police. (T2. 1321-27.)
A month passed. On December 12, 1990 at, again, approximately 8:20 a.m., Mrs. Cabo returned to her home after dropping off her son at school. There in the hallway, completely clad in black, gloved and masked, stood Dolan clutching a shotgun. He pumped it. Accosting her, he first shoved her to the floor and then handcuffed her arms behind her back. Dolan carried her into a bedroom, and, after threatening to shoot her in the groin with the shotgun, raped her. Similar to the Sherin rape, Dolan demanded Mrs. Cabo's checking card and PIN number. When this proved unsuccessful, he screwed the rings off her fingers and departed the house with them. (T2. 1331-49.)
During the follow-up police investigation Mrs. Cabo described the rape, the Nissan truck which made an appearance on both November 19 and December 12, the assailant's appearance (his clothing was reminiscent of a ninja's)and had a rape kit performed. (T2. 31; 1392-94.) On December 12, 1990 Mrs. Cabo picked Dolan out of a photospread lineup; presented with another lineup identification on July 14, 1991, she singled him out once more. Separately, Nancy Modica, a neighbor of Cabo's, identified Dolan in a photo array as the Nissan truck's driver who was seen near the Cabo house on the morning of the rape. (T2. 1416-21; 1427; 1446-47; 1509-13; 1536; 1682-84; 1716; 1753; 1962-64; 2037; 2040; 2505-23.)
The first step in the Cabo rape investigation was to deduce from the Nissan truck's license plate number the identity of the rapist. Registered to Marianne Carroll, the truck was nevertheless being used by one Paul Czumack. (T2. 80-83; 150-51.)
Czumack's name was not unknown to the detectives on the case. Eight days prior to the December 12, 1990 Cabo rape, Dolan filed an incident report with the Suffolk County Police Department complaining that some of his landscaping equipment had been stolen together with his puppy. In explaining the nature of his business to a detective, Dolan represented that he repaired, purchased and sold homes and that his business partner was Paul Czumack. Now alert to a potential lead in the Cabo rape, police discovered that Dolan had made a copy of the keys to Czumack's Nissan truck two days before the November 19 break-in at the Cabo residence. (T2. 1746; 2344-48; 2350-55; 2370-77).
At about the same time, investigators increasingly drew factual comparisons between the Sherin and Cabo rapes and burglaries. Thus it was then that the Sherin investigation, long dormant for lack of leads, became active again. (T2. 6571.)
Further investigation into Dolan revealed that he drove a singular Trans Am at the time of the 1988 Sherin crimes. This unique vehicle, according to four eyewitnesses, was seen on six occasions in the immediate vicinity of Sherin's home. (T2. 5241-42; 5274; 5314-26; 5354; 5361; 5375; 5382.) Dolan's stepfather and sometime girlfriend corroborated his ownership of the car. (T2. 5239-44.) Police tailed a vehicle matching the description of these witnesses as it sped away from the crime scene on the day of the Sherin rape. (T2. 5471; 5473.)
As for the Cabo rape and burglary, a clutch of witnesses spotted both the Nissan truck and Dolan near the scene of the crime both in time and space. (T2. 1416-21; 1427; 1446-47; 1509-13; 1536; 1682-84; 1716; 1753; 1962-64; 2037; 2040; 1355-68.) Subsequent investigation revealed that at the time of the rapes Dolan owned a shotgun and two pairs of handcuffs -- both items central to the Cabo and Sherin rapes. (T2. 118-20; 2116-23; 2187-88.)
Ultimately, on August 14, 1991 Dolan provided a compelled DNA exemplar. It proved pivotal. RLFP DNA testing demonstrated that Dolan's DNA profile matched evidence gathered from the locations of the Sherin and Cabo crimes. (T2. 6105; 6112; 6184-90; 6191-97; 6148-68; 6221; 6288.) Moreover, an in-depth PCR DNA test concluded that Dolan's genetic signature alone matched the Sherin/Cabo forensic evidence. (T2. 2614-15; 4157-64; 4192-93; 4210-14; 4617-19; 4240-48; 4267; 4239; 4588-94; 4596-604; 4620.)
In March 1992 Petitioner was arrested for the 1988 and 1990 crimes against Mrs. Sherin and Mrs. Cabo. (T2. 1720-21.) On April 14, 1992 Suffolk County indicted him, charging two counts of Burglary in the First Degree, two counts of Rape in the First Degree, two counts of Robbery in the First Degree, two counts of Sexual Abuse in the First Degree, one count of Unauthorized Use of a Motor Vehicle in the First Degree, one count of Unauthorized Use of a Motor Vehicle in the Third Degree, and one count of Criminal Trespass in the Third Degree.
Pre-trial motions ensued and were consolidated. On April 22, 1993 the County Court, Suffolk County denied Dolan's motions to suppress statements and physical evidence. The court likewise denied Dolan's attack on the police's identification procedures which argued that they were unduly suggestive. It also held that the government's DNA evidence would not be suppressed.
Dolan's first trial was conducted from October through December 1993. Unanimous though the jury was on the Criminal Trespass count, it deadlocked on all of the remaining counts, prompting the County Court to declare a mistrial. (T1V.2 222.) For the Trespass conviction Dolan received a one year definite sentence on January 5, 1994.
In December 1994 Dolan was retried on the counts that the jury was unable to reach a verdict on. This time, in March 1995, a jury unanimously convicted Dolan of all the counts in the original indictment.
Numerous and varied appeals followed. Each is discussed in the context of the particular claims Petitioner has raised.
DISCUSSION I. Federal Habeas Review Of State Convictions Petitioner filed this action after the April 24, 1996, effective date of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The AEDPA's provisions therefore apply to his case. See Williams v. Taylor, 529 U.S. 362, 402, 120 S. Ct. 1479, 1518, 146 L. Ed. 2d 389 (2000).
Respondent rightly concedes that Petitioner has satisfied the exhaustion requirements of 28 U.S.C. § 2254(b) by directly appealing and collaterally attacking his conviction in the highest state courts. It also rightly concedes that Petitioner's writ is timely, for it was filed within one year of the expiration of the time in which to file a writ of certiorari in New York.
Unless a petitioner can demonstrate both cause and prejudice or a fundamental miscarriage of justice, federal courts may not review state court decisions resting on an "adequate and independent" procedural default rule. Fama v. Commissioner of Correctional Services, 235 F.3d 804, 809 (2d Cir. 2000). In the common circumstance where the state court "uses language such as 'the defendant's contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Id. at 810.
Section 2254 provides that a habeas corpus application must be denied unless the state court's adjudication on the merits "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 "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). This deferential review is applied so long as the "federal claim has been 'adjudicated on the merits' by the state court." Cotto v. Herbert, 331 F.3d 217, 231 (2d Cir. 2003). "A state court adjudicates a petitioner's federal constitutional claims on the merits when it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment." Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002) (internal quotation marks omitted).
"Clearly established federal law 'refers to the holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state-court decision.'" Howard v. Walker, 406 F.3d 114, 122 (2d Cir. 2005) (quoting Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir. 2002) (internal quotation marks and alterations omitted)). A decision is "contrary to" established federal law if it either "applies a rule that contradicts the governing law set forth in" a Supreme Court case, or it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent." Penry v. Johnson, 532 U.S. 782, 792, 121 S. Ct. 1910, 150 L. Ed. 2d 9 (2001). A decision is an "unreasonable application of" clearly established Supreme Court precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case[.]"
Williams v. Taylor, 529 U.S. 362, 407-08, 120 S. Ct. 1495, 1520, 146 L. Ed. 2d 389 (2000). Accordingly "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.
II. Petitioner's Right To Testify Was Not Violated Petitioner attributes the first trial's jury deadlock to his decision to testify in his own behalf. By the same token, he reasons that the jury's decision in the second trial to find him guilty on all counts was a direct consequence of his failure to personally testify. On direct appeal, therefore, Petitioner offered three arguments that spring from this failure. He argued that his constitutional right to testify in his on behalf was violated through (1) the trial court's failure to protect the right; (2) the denial of his right to counsel free of conflict; and (3) his attorney's interference which rose to the level of ineffective assistance of counsel. The arguments, and their reception on appeal, are treated seriatim.
A. The Trial Court Did Not Fail To Protect The Right Petition's Point Number 2)Petitioner contended on direct appeal that his constitutional right to testify in his own behalf was violated when the trial court neglected to ensure that defendant's failure to testify represented a voluntary, intelligent and personal waiver of the right. See People v. Dolan, 2 A.D.3d 745, 746 (2d Dept 2003).
By way of background, on November 28, 1994, Petitioner filed a pro se motion to relieve assigned counsel, Mr. Giannini, on the ground that counsel, among other things, disagreed with Petitioner's belief that he should testify in his own behalf. The trial court denied that motion without further inquiry into Petitioner's alleged quarrel with counsel on this point.
In rejecting the merits of this argument, the Second Department cited the rule that "a trial court does not have a general obligation to sua sponte ascertain if the defendant's failure to testify was a voluntary and intelligent waiver of his right." Dolan 2 A.D. 3d at 746 (citing Brown v. Artuz 124 F.3d 73, 79 (2d Cir. 1997)). Although the Brown court's suggestion that "exceptional circumstances" might require a trial court to inquire into the voluntariness of a defendant's failure to testify is dicta, the Second Department charitably construed the suggestion as a rule of law and found that such circumstances were not manifest in Petitioner's trial. Thus to the extent the Second Department applied incorrect governing law (which, in any case, was not governing law as determined by the Supreme Court of the United States), it was to the benefit of the Petitioner.
In support of these holdings, the Second Department made the following factual finding, which the Court accords a deferential "presumption of correctness". 18 U.S.C. § 2254(e)(1):
The defendant never expressly stated that he wanted to testify during the trial. Therefore, it was not irrational that the defendant did not testify. Further, although the defendant indicated in a pretrial pro se motion for the appointment of new counsel that one of the problems with his then-attorney was that he would not allow him to testify, the defendant merely indicated that he wished to testify "if necessary." Accordingly, it was reasonable for the court to believe that any dispute about whether the defendant should testify was resolved. Dolan, 2 A.D. 3d at 746.
Petitioner fails to rebut this finding with "clear and convincing evidence." 18 U.S.C. § 2254(e)(1).
In any event, the standard found in § 2254 is whether the decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 18 U.S.C. § 2254(d). (Emphasis added.) At the time of the relevant decision, it was not clearly established law whether the recognized right to testify in one's own behalf rested within the category of rights that may be waived by defense counsel on behalf of the defendant or was a so-called "personal" right waivable by the defendant alone. See Brown 124 F.3d at 79. This matters because Petitioner's argument on appeal that the trial court constitutionally erred by failing to protect his right to testify was predicated on the assumption that the right was "personal". For purposes of § 2254, the assumption is fatal, for the "personal" nature of the right had not been established by the Supreme Court at the time of the decision of which he seeks habeas review. See id.
B. Trial Counsel Did Not Violate The Right (Points 1 and 4) Petitioner argued on direct appeal that his trial counsel's refusal to let him testify in his own behalf amounted to ineffective assistance of counsel. The Second Department did not explicitly rule on this claim. Rather, the court denied it with the explanation that it was "either not preserved for appellate review, without merit, or constituted harmless error in view of the overwhelming evidence of guilt." Dolan, 2 A.D.3d at 745. Where the state court "uses language such as 'the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama, 235 F.3d at 810. Federal habeas courts review outcomes, not reasoning, when applying § 2254(d)'s "unreasonable application" clause to silent state-court opinions. Jimenez v. Walker, 458 F.3d 130, 147 (2d Cir. 2006).
Thus the question becomes whether the Second Department's rejection of this particular ineffective assistance claim involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States. To establish an ineffective assistance of counsel claim, a defendant must show that (1) his counsel's performance fell outside the range of professionally competent assistance and (2) but for counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been favorably different. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also Brown 124 F.3d at 79.
With the exception of Petitioner's pro se motion in which he alludes to his desire to testify in his own behalf "if necessary", the record is bereft of compelling evidence that trial counsel foiled the exercise of Petitioner's right. This is why Petitioner resorts to the argument that defense counsel's comment to the jury that Petitioner would not testify stifled Petitioner's exercise of the right. That position fails because nothing about that comment necessarily or practically prevented Petitioner from testifying. If testifying in his own behalf were as pivotal in his case as Petitioner asserts, he surely would not let a foolish consistency prevent it. If he did, the fault is his own, for he does not claim that the importance of such consistency was stressed to, or imposed upon, him by counsel. His assertion, then, that counsel's performance fell outside the range of professionally competent assistance comes up short.
In any case, Petitioner has not made a convincing showing that but for trial counsel's "error" there is a reasonable probability that the result of the proceeding would have been favorably different. There are at least two flaws of logic in his contention that, had he testified, the second jury would have reached the same result as the first jury who did hear him testify.
First, it assumes without supporting evidence that the first jury deadlocked as a result of his testimony rather than of any number of other factors: correlation does not necessarily imply causation. Second, even if the previous assumption were well founded, it assumes further that a second jury would similarly overlook overwhelming evidence of guilt merely because the first one did so. One jury deadlock is too small of a sample on which to base a finding that there is a reasonable probability that the same result would be obtained in the future had he testified again.
III. Disagreement Between Petitioner And Counsel Did Not Constitute An Actual Conflict Of Interest (Point 5)
In his collateral CPL § 440.10 motion, filed ten years after the alleged error, Petitioner asserted a violation of his right to representation free from conflicts of interest that was rooted in his off-the-record disagreement with trial counsel over whether Petitioner should testify.
Of this argument the § 440.10 trial court wrote that: The alleged disagreement between defendant and trial counsel as to whether defendant should testify at trial amounts to a disagreement over trial strategy, not a conflict of interest. Further, defendant's application to vacate judgment on this ground must be denied for defendant's unjustifiable failure to raise this issue on appeal pursuant to CPL § 440.10(2)(c).
The second part of that holding--that Petitioner's application to
vacate judgment on the ground of an actual conflict of interest must
be denied for failure to raise the issue on appeal
cannot serve as a procedural bar to habeas review. That is because
New York courts do not regularly apply CPL § 440.10(2)(c) to such
ineffective assistance claims, dependant as such claims are on
extrinsic evidence of the type ordinarily offered in a collateral
attack rather than on direct appeal. See Bell v. Miller, No.
05-CV-0663, 2005 WL 1962413, at *5 (E.D.N.Y. Aug. 12, 2005). The Court
therefore declines the Government's invitation to eschew merits-based
As the above-quoted holding clearly passes judgment on the merits of Petitioner's claim, the Court views it through the lens of AEDPA deference. The claim was that Petitioner and his assigned counsel, Mr. Giannini, were in such acute disagreement over the issue of Petitioner testifying in his own behalf that an irreconcilable conflict of interest existed. Petitioner's claim therefore posits an actual conflict of interest.
Under Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), reversible error is found when a defendant establishes that his attorney had an actual, as opposed to potential, conflict of interest that adversely affected the lawyer's performance; prejudice is presumed. Quarrels among counsel and the represented over trial strategy do not amount to actual conflicts of interest. See United States v. Rahman, 189 F.3d 88, 144 (2d Cir. 1999). An adverse impact on the lawyer's performance may be shown by a "plausible alternative defense strategy or tactic [that] might have been pursued [which was] inherently in conflict with or not undertaken due to the attorney's other loyalties or interests." United States v. Levy, 25 F.3d 146, 157 (2d Cir. 1994). Petitioner offers a plausible alternative defense strategy or tactic that might have been pursued--namely, testifying in his own behalf--but he neglects to allege that his failure to testify should be chalked up to Mr. Giannini's "other loyalties or interests." Nor is it readily apparent what manner of conflicted loyalty would prompt Mr. Giannini to counsel Petitioner against testifying. Therefore it cannot be said that the denial of Petitioner's CPL § 440.10 motion was an unreasonable application of Federal law as defined by the Supreme Court of the United States.
IV. Petitioner Was Not Denied His Counsel Of Choice (Point6)
On direct appeal Petitioner claimed that by not appointing the lawyer who represented him during the first trial, Mr. Wilutis, as his 18-b attorney for the second trial, the trial court violated his constitutional right to counsel of choice.
The Second Department held that this claim was either without merit, unpreserved, or based on harmless error in view of the overwhelming evidence of Petitioner's guilt. Dolan, 2 A.D.3d at 747. As above, the question thus becomes whether the Second Department's rejection of this claim represented a decision that was contrary to, or involved an unreasonable application ...