PHILLIP P. BATTEASE, Petitioner,
PAUL CHAPPIS,  Superintendent, Elmira Correctional Facility, Respondent.
JAMES K. SINGLETON, Jr., District Judge.
Phillip Battease, a New York state prisoner proceeding pro se, filed an Amended Petition for Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Battease is in the custody of the New York State Department of Corrections and Community Supervision and is incarcerated at Elmira Correctional Facility. Respondent has answered. Battease has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Battease and his 22-year-old niece engaged in sexual activity during parts of March and April of 2007. After the victim, K.G., was released from a heroin detoxification program in mid-March 2007, Battease allegedly sold and supplied to her, in exchange for sex, the prescription drug Avinza, which is a morphine sulfate. In mid-April 2007, K.G. went to the police and reported that Battease had been providing Avinza to her, had coerced her to engage in sex, and had made some videos of their sexual encounters. K.G. further alleged that she had had sex with Battease because he threatened that he would cause her to lose custody of her young child by telling the child's father that she was using drugs if she did not have sex with him. K.G. additionally stated that Battease sometimes forced her to have sex after she told him no. Battease made videos of some of the sexual encounters and admitted to police that he had been having sex with his niece, but claimed it was consensual.
A Washington County Grand Jury charged Battease with Criminal Sale of a Controlled Substance in the Fifth Degree, Incest in the Third Degree, Rape in the Third Degree, Criminal Sexual Act in the Third Degree, Rape in the First Degree by Forcible Compulsion, and Coercion in the First Degree.
On October 31, 2007, a jury found Battease guilty of Criminal Sale of Controlled Substance in the Fifth Degree, Incest in the Third Degree, Rape in the Third Degree, Criminal Sexual Act in the Third Degree, and Coercion in the First Degree. The jury found Battease not guilty of Rape in the First Degree.
On January 23, 2008, the County Court held a persistent felony offender hearing. At that hearing, the People introduced certified court records establishing that Battease was convicted of third-degree burglary in 1977, fifth-degree sale of a controlled substance on July 31, 2002, and second-degree forgery in 1979. Defense counsel did not object to their admission into evidence. The People also introduced evidence of some of Battease's nineteen misdemeanor convictions. The court found Battease to be a persistent felony offender based on his forgery and controlled substance sale convictions, for which he served over one year each. The court further found that a persistent felony offender sentence was warranted based on Battease's extensive criminal history dating back thirty years, his "total disregard for society and laws, " and his conduct leading to his current conviction, which the court noted was "beyond reprehensible." The court sentenced Battease to five concurrent indeterminate terms of twenty years to life. Noting that Battease had been convicted of multiple sex offenses, the court certified Battease as a sex offender and required that he register with the New York Criminal Justice Services. In addition, the court imposed a $3, 000 fine with respect to the controlled substances sale conviction.
On February 26, 2008, Battease filed a pro se motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10. Construing his motion broadly, Battease argued that the conviction was obtained by false evidence because the prosecutor argued in summation that the video clips showed that Battease gave drugs to K.G. Battease also claimed that trial counsel was ineffective for: 1) failing to give notice of his intent to testify before the grand jury; 2) failing to prepare for and consult with Battease prior to the suppression hearing, failing to object to the introduction of evidence found on his computer; 3) failing to subpoena various unidentified witnesses that Battease had proposed, including a medical doctor who could testify as to the effects of Avinza, a morphine sulphate extendedrelease capsule, and a witness who could testify as to K.G.'s "spiteful nature and habit of lying";
4) failing to object to the introduction of video clips which the prosecutor alleged showed K.G. "snatching" a pill from Battease; 5) failing to cross-examine unidentified witnesses; 6) failing to obtain a copy of the transcripts of the "controlled call" K.G. made to Battease, in which Battease essentially confessed to having sexual relations with K.G.; and 7) failing to file an unidentified motion. Battease did not include any affidavits from potential witnesses that he claimed defense counsel failed to call.
On June 2, 2008, the trial court denied Battease's CPL § 440.10 motion. The court concluded that although Battease's disagreement with the prosecution's presentation of evidence was understandable, there were no misrepresentations or false evidence. The court further denied Battease's claim that he was denied the effective assistance of counsel, concluding that the decision of whether or not to call a witness rests with defense counsel, that calling a doctor to testify as to the sedating effects of Avinza could have strengthened the prosecution's case, and that the decision not to cross-examine certain witnesses could have been a tactical decision. The court further found that Battease's allegation that counsel was ineffective for failing to object to the introduction of the video clips was without merit.
The Appellate Division granted Battease's application for leave to appeal from the denial of his CPL § 440.10 motion and ordered Battease to consolidate it with his direct appeal.
Through counsel, Battease filed a consolidated direct appeal and appeal from the denial of his CPL § 440.10 motion. Battease argued that: 1) Counts three (third-degree rape), four (third-degree criminal sex act), and six (first-degree coercion) of the indictment were jurisdictionally defective because they failed to allege every material element of the crimes; 2) the evidence was insufficient to establish Battease's guilt and the verdict was against the weight of the evidence; 3) the indictment and proof in support of the indictment were duplicitous; 4) the time frame of the indictment did not provide Battease with notice of the dates of the offenses for which he was being charged and therefore deprived him of due process; 5) the trial court denied Battease a fair trial by failing to relieve defense counsel, permitting constructive amendment of the indictment, and instructing the jury that Avinza was a Schedule II controlled substance when the People provided no evidence in support of that fact; 6) the trial court erred in denying his CPL § 440.10 motion without a hearing; 7) the sentence was excessive; 8) New York's persistent felony offender statute violates the Equal Protection Clause by not considering the staleness of an individual offender's predicate offenses; and 9) the determination by the court and not a jury that Battease was a persistent felony offender was unconstitutional.
Battease further claimed that trial counsel was ineffective because counsel: 1) did not meaningfully communicate with Battease; 2) failed to meet with Battease before the preliminary hearing and suppression hearing; 3) failed to investigate or interview suggested witnesses; 4) failed to facilitate Battease's viewing of the video files which were seized from his computer and to discuss them with Battease prior to trial; 5) waived the preliminary hearing; 6) failed to oppose the People's bail request of $100, 000 cash and a $200, 000 bond; 7) failed to request a Mapp hearing regarding evidence seized from Battease's computer; 8) failed to move to dismiss the third-degree rape, third-degree criminal sexual act, and first-degree coercion accounts on the ground that they were jurisdictionally defective, or alternatively to request a bill of particulars; 9) failed to dismiss all counts on the ground that they were duplicitous and the time frames specified in the indictment were too broad; 10) failed to convince Battease of the "irrationality of his rejecting the reasonable and favorable plea offer"; 11) failed to advise Battease of the need to obtain suitable clothes for trial or to make timely arrangements for him to obtain clothes; 12) failed to obtain a witness list from Battease in a timely manner; 13) did not review the audiotape of the controlled call from K.G. to Battease until the eve of trial; 14) made only a minimal effort during voir dire; 15) failed to move to dismiss the People's opening statement; 16) did not give an adequate opening statement; 17) failed to object to the introduction into evidence of a compact disk and hard drive containing videos of Battease's sexual encounters with K.G.; 18) failing to interview witnesses before calling them; 19) rested his case without noticing that a witness he had subpoenaed had shown up, and unsuccessfully attempting to repoen his case when the witnesses showed up the following day; 20) belatedly requested a jury instruction on an incident in which the jury may have seen Battease in his jail clothes; 21) rarely objected to the presentation of prejudicial or otherwise inadmissible proof presented by the People; 22) failed to object to leading questions, particularity with regard to the testimony of K.G.; 23) inadequately cross-examined K.G.; 24) failed to request any curative instructions regarding testimony about uncharged crimes; 25) failed to make an adequate motion to dismiss the indictment at the conclusion of the People's case; 26) failed to address the constructive amendment of the indictment; 27) failed to object to the People's summation; 28) failed to request an accomplice instruction with respect to the incest count; 29) failed to file a motion to set aside the verdict.
On June 17, 2010, the Appellate Division concluded that there was insufficient evidence to support the third-degree rape and third-degree criminal sexual act convictions, reversed those convictions, vacated the remaining convictions and remanded for resentencing. The court found Battease's remaining arguments to be unavailing. The court concluded that the remaining three counts were supported by sufficient evidence and were not against the weight of the evidence. The court rejected Battease's claims that the trial court erroneously denied his CPL § 440.10 motion without a hearing, that the prosecutor had committed misconduct, and noted that Battease had made a sufficient record as to his complaints about trial counsel which were addressed by the trial court. With respect to Battease's claim that his sentence was excessive and violated the United States Constitution, the court noted that at the time he was sentenced, the New York Court of Appeals had upheld the constitutionality of New York's persistent felony offender statute. Although the Second Circuit had later held that the persistent felony offender scheme violated the Sixth Amendment under Aprendi v. New Jersey, 530 U.S. 466 (2000), the state appellate court was bound by the ruling of the New York Court of Appeals until such conflict is resolved by the United States Supreme Court. In addition, because the appellate court reversed two of Battease's convictions, they would no longer be part of the persistent felony analysis at resentencing. The court likewise denied Battease's claims that trial counsel was ineffective.
Through counsel, Battease sought leave to appeal to the New York Court of Appeals on the grounds that: 1) the first-degree coercion charge was jurisdictionally defective; 2) his third-degree criminal sale and first-degree coercion convictions were not supported by sufficient evidence; 3) the trial court erred in failing to relieve defense counsel; 4) the court erred in instructing the jury that Avinza was a Schedule II controlled substance; 5) trial counsel was ineffective (rasing the majority of claims he had raised in his consolidated appeal); 6) the trial court erred in denying his CPL § 440.10 motion without a hearing; and 7) New York's persistent felony offender statute is unconstitutional.
On September 29, 2010, the Court of Appeals summarily denied Battease's application for leave to appeal.
At the resentencing hearing, defense counsel argued that Battease could not be sentenced as a persistent felony offender because the certified court records of the felony convictions did not contain any identifying information, other than Battease's name, to prove beyond a reasonable doubt that Battease had in fact been convicted of those crimes. The court ultimately adjudicated Battease to be a persistent felony offender and sentenced him to three concurrent indeterminate terms of twenty years to life. The court further required Battease to register as a sex offender, ordered that he pay a $3, 000 fine, and entered a permanent order of protection in favor of K.G.
Through counsel, Battease appealed his sentence to the Appellate Division, arguing that: 1) New York Penal Law § 70.10 violates the Equal Protection Clause of the New York and United States Constitution by not considering the staleness of an individual's predicate offenses and by permitting the court and not a jury to adjudicate him as a persistent felony offender; 2) the People failed to prove beyond a reasonable doubt that Battease was a persistent felony offender; and 3) his sentence was harsh and excessive.
Battease then filed a pro se supplemental brief in which he contended that: 1) the trial court erred in its instruction on incest; 2) the trial court erred in not giving an accomplice charge with respect to the incest count; 3) the trial court erred in failing to instruct on second-degree coercion; 4) the trial court erred in dismissing his CPL § 440.10 motion without a hearing; 5) the $3, 000 fine was excessive and an abuse of discretion; and 6) third-degree incest should not be considered a sex offense requiring registration under New York Law.
The Appellate Division denied Battease's claims in a reasoned, published opinion. The Appellate Division first denied Battease's claim that the persistent felony offender statute violated his right to equal protection because other sentencing enhancements for recidivists do not permit consideration of convictions occurring more than ten years earlier. The court found that the New York Legislature has the discretion to distinguish between societal ills and prescribe appropriate sanctions. Further, to the extent Battease challenged his sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000), the court noted that the Second Circuit had since vacated its decision finding that New York's persistent felony offender statute was constitutionally defective. The Appellate Division likewise held that the People had sustained it's burden of proving the prior felony convictions upon which Battease's felony offender status was predicated because the record contained Battease's certificates of conviction and he was additionally identified by, inter alia, name, date of birth, social security number. The Appellate Division further denied Battease relief on the ground that his sentence was harsh and excessive based on the nature of his crimes and extensive criminal history. The court declined to address Battease's arguments set forth in his pro se supplemental brief, concluding that those arguments should have been raised in an appeal from the original judgment of conviction and may not be raised on an appeal from resentencing.
Through counsel, Battease filed an application for leave to appeal to the New York Court of Appeals. The court summarily denied leave to appeal.
Battease timely filed an Amended Petition for Writ of Habeas Corpus with this Court.
II. ISSUES RAISED
Battease raises the following claims in his Amended Petition before this Court: 1) his trial counsel was ineffective on multiple grounds, 2) he was denied various constitutional rights by being sentenced as a persistent felony offender where the persistent felony offender does not limit the age or class of prior convictions which may be considered; 3) the court made four instructional errors, there was insufficient evidence to support his conviction, and the trial court erred in failing to grant Battease's motion for substitute counsel; 4) the prosecution committed misconduct in summation; 5) the state failed to prove his prior predicate felonies beyond a reasonable doubt; 6) he should not be required to register as a sex offender because third-degree incest is not a sex offense under state penal law; 7) the court failed to make an explicit finding necessary to impose the $3, 000 fine, and the fine, together with his sentence of imprisonment, was excessive.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, " § 2254(d)(2). A state-court decision is "contrary" to federal law "if the state court applies a rule that contradicts the governing law set forth" in controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision, " Williams, 529 U.S. at 412, and not circuit precedent, see Renico v. Lett, 130 S.Ct. 1855, 1865-66 (2010). The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds and not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted). In applying these standards on habeas review, this Court reviews this "last reasoned decision" by the state court. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991); Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000). Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Battease did not file a traverse. 28 U.S.C. § 2248 provides:
The allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true.
Ordinarily, under § 2248, where there is no denial of the Respondent's allegations in the answer, or the denial is merely formal unsupported by an evidentiary basis, the court must accept Respondent's allegations. See Carlson v. Landon, 342 U.S. 524, 530 (1952). Where there is no traverse filed and no evidence offered to contradict the allegations of the return, they must be accepted as true. United States ex rel. Catalano v. Shaughnessy, 197 F.2d 65, 66 (2d Cir. 1952) (per curiam).
1. Sentencing Errors (claims 2, 5, 6, 7)
A. Claim 2. Adjudication as a persistent felony offender.
Battease first argues that his adjudication as a persistent felony offender violated his Fourteenth Amendment rights by allowing the trial court to consider his 1979 conviction for forgery. Battease argues that the persistent felony offender statute is unconstitutional because, in contrast to other sentencing schemes, it allows the court to consider felonies that are older than ten years and because the statute does not consider the class of prior felony convictions, thus allowing a repeat violent felony offender to be eligible for a lesser sentence than a persistent felony offender with non-violent prior convictions. Battease further argues that the persistent felony offender statute is unconstitutional because it allows the judge to make factual findings in violation of Apprendi, 530 U.S. 466. The Appellate Division denied Battease relief on this claim.
The Equal Protection Clause of the Fourteenth Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1. The Equal Protection Clause directs state actors to treat similarly situated people alike. See Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995). A criminal defendant alleging an equal protection violation must specifically prove that the "decisionmakers in his case acted with discriminatory purpose." See McCleskey v. Kemp, 481 U.S. 279, 292 (1987). Absent a finding of such purpose, a petitioner's discrimination claim must be denied. See id. at 297-99 (denying petitioner's equal protection challenge to Georgia's capital punishment statute because there was no evidence that the Georgia legislature either enacted the statute to further a discriminatory purpose or maintained the statute because of its disproportionate impact).
For purposes of a state prisoner's equal protection claim, the Second Circuit has held that New York's persistent felony offender statute "does not involve a suspect classification or impinge on a fundamental right" and therefore "need only survive rational basis scrutiny." Griffin v. Mann, 156 F.3d 288, 291 (2d Cir. 1998). Even assuming that being sentenced under the persistent felony offender statute implicates equal protection concerns, its differences from other New York sentencing schemes have a rational basis and Battease's claim must fail. In Griffin v. Mann , the Second Circuit held that New York's persistent felony offender statute was "entirely rational." Id. at 292. The court noted that the persistent felony offender scheme authorizes the sentencing court to issue an enhanced sentence for repeat felons where "extended incarcerations and life-time supervision will best serve the public interest." Id. at 290 (quoting N.Y. PENAL LAW § 70.10(2)). It was enacted to prescribe a "special sentence for only those who persist in committing crimes after repeated exposure to penal sanctions." Id. at 291 (quoting COMM'N STAFF NOTES ON THE PROPOSED NEW YORK PENAL LAW, § 30.10, at 285 (1964)). In contrast to other New York sentencing schemes, sentencing as a persistent felony offender is discretionary. See id. at 292. In determining whether to sentence a defendant as a persistent felony offender, a court may consider prior felony convictions regardless of their age, class, and which jurisdiction they occurred in, while the mandatory schemes limit these factors. See id. at 291; N.Y. PENAL LAW § 70.10. In light of the purpose of the persistent felony offender statute, the Second Circuit concluded that "New York might reasonably have concluded that it was necessary to circumscribe narrowly what constitutes a qualifying crime for purposes of the mandatory sentencing enhancements... while providing a looser definition of predicate crimes for purposes of the discretionary sentencing enhancements for persistent offenders." Id. at 292. Because the persistent felony offender statute serves a different purpose from other sentencing schemes, the fact that it does not limit the age or class of predicate felonies survives rational basis review and Battease is not eligible for relief on this claim. See Mason v. Duncan, No. 02-CIV-5729, 2011 WL 2519212, at *9 (S.D.N.Y. Mar. 18, 2011) (the persistent felony offender statute "is rationally related to the societal and penal interests of punishing repeat offenders and protecting society from such repeat felons").
Further, in Portalatin v. Graham, 624 F.3d 69, 84-87 (2d Cir. 2010) (en banc), the Second Circuit held that New York's persistent felony offender statute did not require the sentencing court to engage in impermissible fact-finding in violation of the Sixth Amendment, as construed by the Supreme Court in Apprendi, 530 U.S. 466, and its progeny. Battease is therefore not entitled to relief on this claim.
B. Claim 5. Failure to prove predicate felonies beyond a reasonable doubt.
Battease next argues that he was denied due process and equal protection at sentencing because the People did not establish beyond a reasonable doubt that he was a persistent felony offender. Specifically, he argues that the two certified court records which were admitted into evidence impermissibly identified him only by name. Battease contends that under New York Law, certificates of conviction, standing alone, are insufficient to establish beyond a reasonable doubt that a defendant has a previous felony conviction. The Appellate Division held that the People had sustained their burden of proving the prior felony convictions upon which Battease's felony offender ...