United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
BRIAN M. COGAN, District Judge.
Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction for first degree manslaughter. As to those claims raised on direct appeal, I hold that the rejection of one of the claims was not inconsistent with nor did it unreasonably apply Supreme Court precedent. As to petitioner's second claim, I hold that it is deemed exhausted and procedurally barred because petitioner did not raise it as a federal claim on direct appeal. Most of petitioner's other claims are procedurally barred, but he has exhausted ineffective assistance of counsel claims as to those barred contentions, so the petition largely turns on the review of his ineffective assistance claims as constituting cause to excuse the procedural bar.
The ineffective assistance of counsel claim presents a procedural posture often seen but rarely analyzed, raising issues about both the proper application of the New York Criminal Procedure Law in state court and how that law intersects with the standard of federal habeas corpus review. Under New York law, ineffective assistance of counsel claims that are based on errors or omissions that appear on the record of a defendant's direct appeal must be raised on that direct appeal or they are deemed forfeited. Conversely, counsel errors based on matters that do not appear on the record cannot be raised on direct appeal and must be raised in collateral proceedings. But what happens if a defendant's ineffective assistance claim alleges both on the record and off the record error? Which state court considers the possibility that while each individual counsel error may not have prejudiced a defendant, the sum total of error, both on the record and off, does?
Recent decisions from the Appellate Division, Second Department, which rendered the decision under review here, hold that a collateral proceeding is the proper place to raise these "mixed" claims of ineffective assistance. Nevertheless, it appears that these holdings have not taken root with either the District Attorneys' offices within the Second Department, nor with some of the trial courts in that jurisdiction. As occurred in this case, District Attorneys continue to assert in collateral state court proceedings that any claims of counsel error that could have been raised on direct appeal are procedurally barred, and the court in the collateral proceeding can only hear claims of counsel error based on matters that are off the record. The state courts, as occurred in this case, often oblige, and to make matters more complicated, often do not expressly distinguish which claims they believe to be off the record, and thus are being considered on the merits, and which claims they believe are procedurally barred by the failure to raise them on direct appeal.
After some initial resistance, respondent in the instant case has conceded at the Court's urging that when this occurs, this Court cannot apply the deferential standard of review normally applied in federal habeas corpus proceedings under the Antiterrorism and Effective Death Penalty Act of 1996. No state court has evaluated the ineffective assistance claim in its totality, and petitioner cannot be faulted because he fully utilized the available state procedures to exhaust the claim in the only manner provided by state law. Under these circumstances, the ineffective assistance claim must be considered de novo.
Having undertaken this analysis, I conclude that none of the counsel errors alleged by petitioner can be classified as objectively unreasonable decisions by counsel, nor can I conclude that petitioner was prejudiced. I therefore deny the ineffective assistance claim along with the other claims and dismiss the petition.
Petitioner's conviction arose out the stabbing death of one Jose Santiago. Santiago and his friend Richard Gonzalez encountered a group of men and women in a diner that included petitioner and his friend Jose Placencia. The encounter occurred after 4:00 a.m., after all of the participants had spent the night at a nightclub. Words were exchanged in the diner and the exchange escalated into a street fight a short distance from the diner, in which Santiago was stabbed and ultimately died. A medical examiner testified that Santiago died from being stabbed multiple times with such force that his ribs were broken and his heart was pierced.
Following the incident, petitioner fled, making a stop at his girlfriend's sister's house in Pennsylvania, then going on to the Dominican Republic, where he was found and extradited seven years later. As discussed below, the time lapse has significance, since by the time petitioner was extradited, neither of the two identifying witnesses could identify petitioner in court, even though they had independently picked out his photograph immediately following the incident.
The morning of Santiago's death, the investigating detective, Martin, interviewed González, who gave a description of the two men who had fought with Santiago as Hispanic and Dominican. Detective Martin had worked in the precinct for a decade, knew that it was a Dominican neighborhood, and knew that a street gang called Los Papi Chulos was active there.
The next day, Detective Martin and another detective interviewed a disinterested witness, Raul Rios, who had witnessed the fight and attempted to give aid to Santiago after the stabbing. Rios did not know Santiago or Gonzalez, but knew by sight the two men who had fought with Santiago. He described the two men as Dominican, one dark-skinned with a light mustache, and the other light-skinned with bleached blonde hair. Martin, who had no suspects at that point, showed Rios 27 photographs of people who Martin thought were affiliated with Los Papi Chulos. Rios picked petitioner's photograph out of the group, and Martin issued a warrant for petitioner's arrest.
Martin then created a photo array that included petitioner's picture and five others. He testified that he included photographs that had similar physical characteristics to petitioner as to likeness, skin color, and ethnicity. A computer then randomly arranged the comparables that Martin had selected in the array. Martin showed the array to Gonzalez that same day. Gonzalez identified petitioner and signed petitioner's photograph to so indicate. Rios identified petitioner out of another copy of the same photo array, also signing his name, and identified Placencia as the second assailant out of a different photo array.
The facts were disputed at trial as to who the aggressor in the fight was and who had stabbed Santiago. Gonzalez testified that he saw the fight but could not see who had stabbed Santiago. However, he further testified that after petitioner and Placencia ran away when Santiago was stabbed, petitioner returned, holding a knife, and Gonzalez told him they didn't want any more trouble. Gonzalez testified that he did not see where petitioner went after that.
Prior to petitioner's trial, Placencia pled guilty to first degree manslaughter, stating in his allocution that he and petitioner had intended to cause Santiago serious physical injury and had caused his death. At trial, however, he testified on behalf of petitioner more specifically than his allocution and said that he (Placencia) had stabbed Santiago but that was because Santiago had "walk[ed] into the knife, " which Placencia testified was only two inches long and which Placencia had drawn only to scare Santiago. Thus, Placencia's story was that Santiago had effectively impaled himself on the knife. Placencia further testified that petitioner had only punched Santiago when Santiago came at them. Petitioner testified in his own behalf as well, consistently with Placencia, although saying that he did not know how Santiago had been stabbed and had not seen it.
Petitioner and Placencia were both charged with two counts of second degree murder and one count of fourth degree criminal possession of a weapon. As noted above, Placencia pled guilty prior to petitioner's trial to first degree manslaughter and was sentenced to ten years' imprisonment. At petitioner's trial, the trial court submitted, without objection, the additional charge of first degree manslaughter as a lesser included offense. The jury convicted petitioner on the manslaughter charge and acquitted him of the murder charge. The court sentenced petitioner to twenty years as a second violent felony offender. The Appellate Division affirmed his conviction and the New York Court of Appeals denied leave to appeal. People v. Acevedo, 84 A.D.3d 1390, 925 N.Y.S.2d 523 (2d Dep't 2011), leave to appeal den., 17 N.Y.3d 951, 936 N.Y.S.2d 77 (2011).
Petitioner then commenced simultaneously two collateral challenges to his conviction:
(1) a proceeding in the trial court under N.Y. C.P.L. §440.10, challenging the effectiveness of his trial counsel on numerous grounds; and (2) a coram nobis proceeding in the Appellate Division, challenging the effectiveness of his appellate counsel for failing to raise the effectiveness of his trial counsel, for those same reasons, on direct appeal. As to the latter, the Appellate Division summarily held that "[petitioner] has failed to establish that he was denied the effective assistance of appellate counsel." People v. Acevedo, 104 A.D.3d 862, 960 N.Y.S.2d 656 (2d Dep't 2013), leave to appeal den., 21 N.Y.3d 1001, 971 N.Y.S.2d 253 (2013).
About three weeks later, the §440 court denied petitioner's §440 motion. It set forth three grounds for its ruling, in the following order. First, the §440 court held that: "[T]o the extent that the conduct complained of appears in the trial record, the court is barred from considering them." It did not specify which grounds appeared in the trial record and which did not. Second, it held that: "In the instant matter, the conviction was affirmed and there was also a finding that appellate counsel was effective, leading this court to the inevitable conclusion that the present motion must be denied." Third, it held that:
Under Federal Standards the defendant is also require to demonstrate prejudice, manifested by the reasonable probability that the verdict would have been different but for [trial] counsel's alleged ineffectiveness. Strickland v. Washington, 466 U.S. 668. No credible evidence has been presented to this court that would substantiate such a finding.
The Appellate Division denied leave to appeal this Order.
Additional facts will be set forth below as they relate to each of petitioner's points of error.
I. Claims rejected on the merits on direct appeal
Petitioner had two claims rejected solely on the merits on direct appeal.
A. Insufficiency of the evidence
The Appellate Division held that "viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish that the defendant intended to cause serious physical injury to the victim and caused the victim's death." Acevedo, 84 A.D.3d at 1391, 925 N.Y.S.2d at 525 (citation omitted).
Since the Appellate Division rejected this claim on the merits, my review of that decision attracts the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254(d). That statute provides for habeas corpus relief only if the state court's adjudication of the claim was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id . The decision of a state court is "contrary" to clearly established federal law within the meaning of § 2254(d)(1) if it is "diametrically different" from, "opposite in character or nature" to, or "mutually opposed" to the relevant Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 1519 (2000) (internal quotation marks omitted). Moreover, a state court decision involves "an unreasonable application" of clearly established Federal law if the state court applies federal law to the facts of the case "in an objectively unreasonable manner." Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 1439 (2005).
The Supreme Court has clarified that the AEDPA standard of review is extremely narrow, and is intended only as "a guard against extreme malfunctions in the state criminal justice systems, ' not a substitute for ordinary error correction through appeal[.]" Ryan v. Gonzales, ___ U.S. ___, 133 S.Ct. 696, 708 (2013) (quoting Harrington v. Richter, ___ U.S. ___ ___, 131 S.Ct. 770, 786). State court decisions must "be given the benefit of the doubt, " Felkner v. Jackson, ___ U.S. ___, 131 S.Ct. 1305, 1307 (2011) (quoting Renico v. Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 1862 (2010)), and "even a strong case for relief does not mean that the state court's contrary conclusion was unreasonable." Harrington, 131 S.Ct. at 786. Indeed, in Harrington, the Supreme Court went so far as to hold 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 [the Supreme Court's] precedents." Id . This standard of "no possibility" of disagreement among "fairminded jurists" as to the existence of legal error is arguably the narrowest standard of judicial review in the law. Moreover, the Supreme Court has expressed a lack of patience with lower courts that view its pronouncements as permitting a substantial measure of flexibility in applying this standard. See Parker v. Matthews, ___ U.S. ___, 132 S.Ct. 2148');"> 132 S.Ct. 2148 (2012).
As is often the case in habeas corpus review, petitioner's burden is doubly difficult. He not only faces the narrow standard of review described above, but the issue he has raised - insufficiency of the evidence - itself is already subject to a narrow standard of review. In reviewing the sufficiency of the evidence to support a conviction, the inquiry is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979) (emphasis in original). Thus, even when "faced with a record of historical facts that supports conflicting inferences[, ] [the habeas court] must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994). Relief on a sufficiency claim cannot be granted unless the record is "so totally devoid of evidentiary support that a due process issue is raised." Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994).
In sum, to obtain relief on an insufficiency claim, Harrington and Jackson, read together, require a finding that both the jury's verdict and the state court's review of the jury's verdict represent conclusions by each that at least border on the irrational. Petitioner does not come close to making that difficult showing here.
The trial of this case was purely a swearing contest. Gonzalez testified that he saw petitioner holding a knife shortly after the fight a couple of inches away from Santiago. He also testified that petitioner and Placencia ran towards him and Santiago after the heated exchange in the diner. Rios confirmed that petitioner and Placencia had fought with Santiago. It was undisputed that Santiago was unarmed. The medical examiner testified that Santiago had died of multiple stab wounds to the heart which caused broken ribs. The identification testimony showed that Gonzalez and Rios had picked petitioner picked out of photographs, and in any event, petitioner and Placencia, in their testimony, admitted being involved in the altercation. Moreover, petitioner's story was undercut by his and Placencia's prior convictions; petitioner's flight to the Dominican Republic after the fight; and Placencia's somewhat absurd testimony that Santiago had suffered multiple, deep stab wounds and broken bones by repeatedly impaling himself on Placencia's supposedly two-inch knife.
All the prosecution needed to do was to introduce sufficient evidence so that the jury could find beyond a reasonable doubt that petitioner intended to cause serious physical injury to Santiago, or that he acted in concert with Placencia, who had such intent, to do so. The Appellate Division's holding that there was sufficient evidence to sustain the jury verdict was neither contrary to, nor an unreasonable application of, Supreme Court authority.
B. Improper questioning as to gang membership 
During the cross-examination of Placencia, the prosecutor elicited that Placencia was "around" Los Papi Chulos but he denied being a member of the gang. In addition, the prosecutor asked both petitioner and Placencia on cross-examination to explain a hand gesture (referred to as a "symbol" in the questioning) depicted in certain photographs of them, which, on direct appeal, petitioner contended was an implied reference to gang membership. In this questioning about the hand gesture, neither the prosecutor, Placencia, nor petitioner ever made any express reference to gang membership; both Placencia and petitioner described the hand gesture as just a greeting that had no significance. In addition, the prosecutor asked petitioner whether he had seen any members of Los Papi Chulos while staying in Pennsylvania with his sister, to which petitioner replied, "No. I don't know them."
On direct appeal, petitioner contended that this line of questioning was "palpably and unduly prejudicial." The Appellate Division held that: "While the prosecutor's questions pertaining to gang involvement were improper since there was no connection between gang membership and the alleged crime, they did not deprive the defendant of a fair trial." Acevedo, 84 A.D.3d at 1391, 925 A.D.3d at 526 (citations omitted).
This point is not reviewable on federal habeas corpus because petitioner presented it to the state courts only as a question of state law. To the extent he is now attempting to assert it as ...