UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
June 21, 2011
REUBEN BRAMBLE, PETITIONER,
WILLIAM CONNOLLY, SUPERINTENDENT, FISHKILL CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: John Gleeson, United States District Judge:
ONLINE PUBLICATION ONLY
MEMORANDUM AND ORDER
Reuben Bramble petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his August 2004 conviction in New York State Supreme Court, Kings County, of manslaughter in the second degree and criminal possession of a weapon in the fourth degree pursuant to New York Penal Law §§ 125.15(1) and 265.01(2). Appearing pro se, Bramble seeks habeas relief on the ground that he was denied the effective assistance of counsel and due process of law when the trial court failed to inform Bramble's trial counsel of a jury note requesting a read-back of certain testimony. Oral argument was heard on May 17, 2011, at which Bramble appeared via videoconference from his place of incarceration.*fn1 For the reasons stated below, the petition is denied.
A. The Offense Conduct
The evidence at trial established that on the evening of June 15, 2003, Bramble escorted home his then-girlfriend, Tanisha Morgan. Ramon Ellis, Morgan's estranged husband, was waiting outside Morgan's home when they arrived. Ellis and Morgan had been separated for a few months as of that evening. Ellis and Bramble departed separately and walked across the street toward a bus stop. The two men got into a verbal altercation that led to Ellis's punching Bramble in the face. A fist-fight ensued, and ultimately Bramble pulled out a knife and stabbed Ellis once in the chest. Bramble then fled the scene. Ellis died as a result of the stab wound.
B. Procedural History
1. The Trial and Sentencing
Bramble was indicted in Kings County on two counts of second-degree murder -- intentional and depraved indifference murder -- and criminal possession of a weapon in the fourth degree. He proceeded to a jury trial before Justice Guy Mangano, Jr. of the New York State Supreme Court, Kings County. The People called as witnesses Juan Ellis, the victim's brother, Police Officer Victor Crespo, Detectives Paul Walsh and Leonard Cocco, and Medical Examiner Beverly Leffers. The defense called Bramble, Tanisha Morgan and Kendrick Bramble, the petitioner's brother. In addition to the counts charged in the indictment, counts of manslaughter in the first and second degrees were submitted to the jury. On July 21, 2004, the jury returned a verdict convicting Bramble of manslaughter in the second degree and criminal possession of a weapon in the fourth degree. On August 11, 2004, Justice Mangano adjudicated Bramble a second felony offender and sentenced him to an indeterminate term of incarceration of seven to fourteen years on the manslaughter count and a concurrent one-year term of incarceration on the weapon count.
2. The Direct Appeal
Bramble, represented by counsel, appealed from the judgment of the Supreme Court, contending that: (1) the People had failed to disprove his justification defense beyond a reasonable doubt; (2) there was insufficient evidence on which to convict him of second-degree manslaughter, and that conviction was also against the weight of the evidence; (3) the trial court erred in failing to charge the jury that a finding of not guilty by reason of justification on any of the homicide counts would preclude guilty verdicts on the remaining homicide counts; (4) trial counsel was constitutionally ineffective in failing to request the foregoing charge and object to its omission; and (5) the trial court deprived Bramble of due process and the effective assistance of counsel by failing to inform defense counsel about and respond to a jury note requesting a read-back of Detective Cocco's testimony, which would have influenced the jury's assessment of the voluntariness of Bramble's inculpatory post-arrest statement to Cocco. On February 6, 2007, the Appellate Division, Second Department, affirmed Bramble's conviction, holding that the evidence was sufficient both to disprove the justification defense beyond a reasonable doubt and to uphold the manslaughter conviction. See People v. Bramble, 829 N.Y.S.2d 205, 205 (2d Dep't 2007) ("[V]iewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to disprove the justification defense beyond a reasonable doubt." (citations omitted)); id. at 206 ("Based upon the evidence, . . . the jury could have concluded that the defendant did not intend to kill the victim, but rather that he acted recklessly, with a conscious disregard of a substantial, unjustifiable, and grave risk that the victim would die." (citations omitted)). The court also exercised its factual review power and held that the guilty verdict was not against the weight of the evidence. Id. In addition, the court held that Bramble's contention regarding the jury charge was unpreserved and without merit, the ineffective assistance claim was without merit, and the contention regarding the jury note was "based on matter dehors the record, and therefore . . . not properly before us on direct appeal." Id. (citation omitted).
Bramble applied for leave to appeal from this decision but a judge of the Court of Appeals denied his application on May 14, 2007. People v. Bramble, 8 N.Y.3d 982 (2007) (Read, J.).
3. The Motion To Vacate the Judgment
a. The Motion
On December 22, 2008, Bramble moved*fn2 in the Appellate Division to vacate the judgment of conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10. He contended that the court file for his case contained a jury note, dated July 24, 2004 (but without a time designation), that was never mentioned on the trial record, and that the trial court had "ignored the note entirely." Bramble § 440 Mot., at 4. Appended to Bramble's motion was an affidavit from Kenneth Marsh, Juror No. 10 in his trial, in which Marsh stated that he remembered all of the jury notes submitted in the trial and recalled the jury's request for a read-back of Detective Cocco's testimony. He further stated that the trial court never provided the jury with the requested read-back. Marsh indicated that he had been shown all of the jury notes, including the contested one, by a private investigator for Bramble prior to signing his affidavit. Ex. D to Bramble § 440 Mot. Defense counsel also attached to the § 440 motion an affidavit from that investigator, John J. Holder, Jr., in which Holder explained the measures he had taken to locate the jurors in Bramble's trial and the details of his interview with Marsh. Ex. C to Bramble § 440 Mot.
b. The Response
Respondent's counsel filed her opposition to Bramble's motion on June 11, 2009. She informed the court that, apparently due to an administrative oversight, none of the jury notes in the court file was properly marked as a court exhibit or recorded in the courtroom logbook. Counsel also stated that she had spoken with Sergeant Scott Conelly, the senior court officer assigned to Justice Mangano's part on the date the contested jury note was written, and that although Conelly could not recall Bramble's trial independently, he provided counsel with a detailed description of the protocol in Justice Mangano's part for handling and storing jury notes. In an affidavit that counsel attached to her opposition, Conelly attested that typically one court officer*fn3 is stationed outside the jury room throughout deliberations, either the court officers or the courtroom clerk collects everything from the jury room at the end of each day of deliberations, including any notes, and the courtroom clerk then brings those items to the courtroom and stores them there. Conelly further explained that each time the jury has a note for the judge, the foreperson hands it to the court officer outside the jury room, who hands it to the courtroom clerk, who brings it to the judge. Finally, Conelly stated that the juror who writes a given note generally enters the time on the note; in the absence of such a time notation, either the court officer instructs the foreperson to enter the time on the note or the courtroom clerk does so herself before delivering it to the judge. Ross Affirmation ¶¶ 13-17; Conelly Aff. ¶¶ 2-6.
c. The Decision
In a written decision dated June 18, 2009, Justice Mangano stated that he had not received a note from the jury requesting a read-back of Detective Cocco's testimony and that Bramble had failed to adduce the requisite substantial evidence to overcome the presumption of regularity in court proceedings. On December 7, 2009, a justice of the Appellate Division denied Bramble's request for leave to appeal from the Supreme Court's denial of his § 440 motion. People v. Bramble, 2009 N.Y. Slip Op. 90478U, 2009 N.Y. App. Div. LEXIS 9870 (2d Dep't Dec. 7, 2009) (Mastro, J.). The following January, a judge of the New York Court of Appeals dismissed Bramble's application for leave to appeal from the Appellate Division's December 7, 2009 order. People v. Bramble, 2010 N.Y. Slip Op. 97024U, 2010 N.Y. LEXIS 477 (Jan. 26, 2010) (Jones, J.).
4. The Instant Petition
Bramble filed this petition for a writ of habeas corpus pro se on November 29, 2010,*fn4 contending that (1) the trial court failed to comply with its statutory obligations to respond to jury requests pursuant to CPL § 310.30, and (2) the trial court erred in denying Bramble's § 440 motion without a hearing on the ground that the contested jury note was outside the record. Pet. at 6, 6A.
A. The Statute of Limitations
With the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress imposed a one-year statute of limitations on habeas petitions challenging state-court convictions. See 28 U.S.C. § 2244(d)(1). Bramble seeks to challenge a conviction that became final in August of 2007. Specifically, on May 14, 2007, the New York Court of Appeals denied Bramble's application for leave to appeal from the Appellate Division's decision affirming his conviction. Bramble then had 90 days within which to petition the United States Supreme Court for a writ of certiorari. See Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001); see also Sup. Ct. R. 13(1) ("A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review."). He elected not to do so, and his conviction thus became final upon the expiration of that 90-day period, i.e., on August 13, 2007.*fn5 Bramble had until August 13, 2008 to file his petition for a writ of habeas corpus, but he did not do so until more than two years after that date.
A properly filed application for state post-conviction relief will toll the limitations period for the time during which that application is pending. 28 U.S.C. § 2244(d)(2) ("The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection."). Bramble moved to vacate his conviction on December 22, 2008, more than four months after the deadline for filing his federal habeas petition. Because the limitations period had already expired, Bramble finds no comfort in the tolling that otherwise would apply under 28 U.S.C. § 2244(d)(2) to the time period during which his § 440 motion was pending.*fn6 See, e.g., Doe v. Menefee, 391 F.3d 147, 154 (2d Cir. 2004) ("When the AEDPA limitations period expired on November 19, 1999, Wall had not yet filed the § 440 motion, thereby losing the opportunity to invoke 28 U.S.C. § 2244(d)(2)'s provision for tolling the limitations period during the pendency of a state post-conviction motion. Lawrence v. Greene, No. 06-CV-0202, 2011 WL 1327128, at *3 (E.D.N.Y. Mar. 31, 2011) (§ 440 motion does not toll AEDPA limitations period if filed after the expiration of that one-year period) (citing Smith v. McGinnis, 208 F.3d 13, 16 (2d Cir. 2000) (per curiam)). Accordingly, Bramble's petition is untimely and must be dismissed unless he can demonstrate that he qualifies for equitable tolling.
In order to be eligible for equitable tolling, a habeas petitioner must establish "'(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.'" Jenkins v. Greene, 630 F.3d 298, 302 (2d Cir. 2010) (quoting Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (quotation marks omitted)) (emphasis omitted). The Second Circuit has "set a high bar to deem circumstances sufficiently 'extraordinary' to warrant equitable tolling," and the determination of whether a circumstance is extraordinary turns not on "how unusual the circumstance alleged to warrant tolling is among the universe of prisoners, but rather [on] how severe an obstacle it is for the prisoner endeavoring to comply with AEDPA's limitations period." Dillon v. Conway, --- F.3d ---, 2011 WL 1548955, at *4 (2d Cir. 2011) (per curiam) (quotation marks omitted). In addition, a "petitioner seeking equitable tolling must demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances." Jenkins, 630 F.3d at 303 (quotation marks omitted).
I construe Bramble's reply brief to allege the following extraordinary circumstances preventing his timely filing: (1) his appellate counsel misled him as to the avenues of post-conviction relief available to him and failed to inform him of the narrow window of time in which they would remain available, and (2) counsel was at least negligent in (a) promising Bramble that he would file a § 440 motion on his behalf, (b) making no progress toward that end in the span of a year and a half, and (c) ultimately deciding against filing the motion. By the time Bramble retained Dennis Coppin to handle his § 440 motion in August 2008,*fn7 the one-year limitations period for a federal habeas petition had already expired. Thus, the essence of Bramble's extraordinary circumstances argument, read liberally, is that he was lulled by his attorney into believing (1) that he would be preserving his rights by first proceeding with a § 440 motion in state court, (2) that counsel would need to complete a thorough investigation prior to filing that motion, and (3), although Bramble does not argue this explicitly, that filing a § 440 motion was a condition precedent to filing a federal habeas petition. It appears that Bramble's change of counsel in August of 2008, rather than dispelling these beliefs, worked to reaffirm at least the second of them, i.e., that a lengthy investigation needed to be conducted and a juror's affidavit secured before filing the § 440 motion.
As for whether Bramble was reasonably diligent in pursuing his rights, Bramble's correspondence with his appellate counsel after the Appellate Division's affirmance of his conviction, see Bramble Reply Br. at 8 (Letter dated March 2, 2007 from appellate counsel to Bramble ("I apologize for not responding to your recent letters a bit sooner . . . .")), and his efforts to pursue collateral relief in state court through counsel demonstrate a degree of diligence on his part prior to the much-delayed filing of his § 440 motion.
In spite of the foregoing facts and contentions, there are serious problems with Bramble's equitable tolling claim. First, though it is true that the actions of counsel can, in an appropriate case, warrant equitable tolling, such relief has been found appropriate only in cases involving egregious attorney misconduct.*fn8 Whether the requisite level of egregiousness exists in a given case is a fact-intensive inquiry, Holland v. Florida, 130 S. Ct. at 2565, and here, further evidence would be necessary in order to establish that Bramble's attorney's misconduct rose to that level.
Second, even if Bramble were able to establish the requisite degree of attorney error, he would still face the uphill battle of demonstrating that the "extraordinary circumstances" of such error caused the lateness of his filing, Baldayaque v. United States, 338 F.3d 145, 153 (2d Cir. 2003), and that he exercised reasonable diligence in attempting to file his petition after such extraordinary circumstances began, see Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001) (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)). Put differently, Bramble would be entitled to tolling only up to a date on which he, acting with reasonable diligence, could have filed his habeas petition. Cf. Valverde, 224 F.3d at 134 ("[I]f an act of confiscation [of an inmate's habeas petition] such as that alleged by Valverde prevents a petitioner from filing before the ordinary limitations period expires, the tolling period must be sufficient to permit the filing of a petition on or before the earliest date after the act of confiscation by which that petitioner, acting with reasonable diligence, should have filed his or her petition."). By this analysis, it is far from clear that even the maximum amount of tolling to which Bramble could lay claim between when the alleged attorney misconduct began (in mid-August 2007, see Bramble Reply Br. at 4) and November 2010, when Bramble filed his habeas petition, would be sufficient to render his federal habeas petition timely. Specifically, I am not persuaded that Bramble needed to wait to secure a juror's affidavit regarding the contested jury note before seeking either state or federal post-conviction relief. Bramble's misimpression to that effect, even if attributable to the advice of counsel, would not justify tolling the entirety of the more than three years leading up to the November 2010 filing date. See Doe, 391 F.3d at 175 ("The act of retaining an attorney does not absolve the petitioner of his responsibility for overseeing the attorney's conduct or the preparation of the petition.")*fn9 ; see also Walker v. Jastremski, 430 F.3d 560, 564 n.5 (2d Cir. 2005) ("[E]ven if Walker was unsure that he had all the data needed to pursue his claim forcefully, he could have filed a timely complaint and sought to amend it later after receipt of the transcript. . . . Walker does not argue (and has not demonstrated) that the warrant and transcript were necessary to make specific allegations concerning the existence of a conspiracy.").
Even more problematically, Bramble did not act with reasonable diligence to file a federal habeas petition after the state courts denied his § 440 motion. Instead, he waited approximately ten months*fn10 before handing off his petition to prison officials. Although Bramble explained at oral argument that his misunderstanding of the law -- namely, his belief that he could not file his federal habeas petition until one year had passed after the state courts' denial of his § 440 motion -- caused his delay in filing his habeas petition, this difficulty with the law does not qualify as an "extraordinary circumstance" for equitable tolling purposes. See, e.g.,
Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (per curiam) ("[N]either a plaintiff's unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling."); Smith v. McGinnis, 208 F.3d 13, 18 (2d Cir. 2000) (per curiam) (citing Turner).
For these reasons, it is doubtful, to put it mildly, that Bramble is entitled to sufficient equitable tolling to render his petition timely. However, I need not decide the issue because, as discussed below, Bramble's claim has no merit.
B. Bramble's Claim
Even if Bramble's petition could be salvaged by equitable tolling, it would fail on the merits. Bramble seeks habeas relief on the ground that the trial court deprived him of his due process right to a fair trial and his right to the effective assistance of counsel by failing to notify defense counsel of and respond to a jury note requesting a read-back of Detective Cocco's testimony. Justice Mangano rejected this claim after making a finding of fact that he had not received the jury note in dispute.*fn11 I review this factual determination as set forth below, pursuant to AEDPA's standard of review.
1. Standard of Review
AEDPA narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. 28 U.S.C. § 2254(d). Under the AEDPA standard, the reviewing court may grant habeas relief only if 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," id. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2).*fn12
The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001). A decision is "contrary to" clearly established federal 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 decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413.A decision is an "unreasonable application" of clearly established federal law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a 'governing legal principle' to 'a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).
Under the "unreasonable application" standard set forth in Williams, "'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.'" Gilchrist, 260 F.3d at 93 (quoting Williams, 529 U.S. at 411). Elaborating on this standard, the Supreme Court has held that a habeas court may only "issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents." Harrington v. Richter, 131 S. Ct. 770, 786 (2011); see also id. at 786-87 (a state prisoner seeking federal habeas relief "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement"). "[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 786.
AEDPA's limited scope of review applies whenever a state court disposes of a state prisoner's federal claim on the merits and reduces its disposition to judgment, regardless of whether it gives reasons for its determination or refers to federal law in its decision. See Richter, 131 S. Ct. at 785; Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
In addition to the deference owed to state court determinations of fact under § 2254(d), subsection (e) requires that a federal habeas court presume all state court factual determinations to be correct. The petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Bramble contends that the trial court's failure to comply with the New York state law governing courts' responses to jury requests deprived him of a fair trial and the effective assistance of counsel. CPL § 310.30 provides that, upon the jury's request for further instruction or information, "the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper." "Determination of the appropriate answer rests within the discretion of the trial court, so long as the answer given does not deprive a defendant of a constitutional right." McShall v. Henderson, 526 F. Supp. 158, 161 (S.D.N.Y. 1981).*fn13
Federal habeas courts have routinely dismissed claims of a trial court's noncompliance with CPL § 310.30 on grounds that they fail to implicate federal law and a due process right in this context has not been clearly established by the Supreme Court. See, e.g., Johnson v. Graham, No. 09-CV-5838, 2010 WL 3855286, at *5, *5 n.36 (S.D.N.Y. Oct. 1, 2010). While I am unpersuaded that this kind of claim is categorically not cognizable on federal habeas review, I reject Bramble's contentions in this case that the trial court failed to notify defense counsel regarding the contested jury note and to provide the jury with a read-back of Detective Cocco's testimony, thereby depriving Bramble of a fair trial, the ability to present a meaningful defense, and the effective assistance of counsel. The trial court notified counsel regarding the other four jury notes and properly responded to all of them, and the court stated in its decision denying Bramble's § 440 motion that it had not received the contested jury note. That finding of fact is entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). Moreover, the omission of a "time" notation on the jury note in question -- in contrast to the other four jury notes -- raises the prospect that the jury, after drafting the note, decided for whatever reason not to submit it to the court. And the fact that the other request on the note -- to "have the counts explained" -- was replicated in one of the time-indicated jury notes to which the trial court did respond further supports the trial court's finding of fact.*fn14
Bramble has not rebutted the presumption of correctness accorded the state court's finding of fact "by clear and convincing evidence."*fn15 28 U.S.C. § 2254(e)(1). Accordingly, I conclude that Bramble's jury note claim is without merit.*fn16
Bramble's petition for a writ of habeas corpus is denied. As Bramble has failed to make a substantial showing that he was denied a constitutional right, no certificate of appealability shall issue.
John Gleeson, U.S.D.J.