United States District Court, N.D. New York
MIGUEL A. JARAMILLO, Petitioner,
DALE ARTUS, Superintendent, Attica Correctional Facility,  Respondent.
ORDER [RE: MOTION AT DOCKET NO. 12] AND MEMORANDUM DECISION
JAMES K. SINGLETON, Jr., Senior District Judge.
Miguel A. Jaramillo, a New York state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Jaramillo is currently in the custody of the New York State Department of Corrections and Community Supervision and is incarcerated at Attica Correctional Facility. Respondent has answered, and Jaramillo has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On October 18, 2009, Lloyd Little was working as a bouncer at Tico's Bar in Watertown, New York. Prior to the bar closing, Little encountered Jaramillo and his girlfriend arguing outside the bar. When Little attempted to intervene, Jaramillo stabbed him in the abdomen with a knife. A grand jury charged Jaramillo with first-degree assault, second-degree reckless endangerment, first-degree perjury, and two counts of fourth-degree criminal possession of a weapon.
Jaramillo was arraigned on June 3, 2010, and entered a not guilty plea to each count of the indictment. At arraignment, Jaramillo requested the assignment of new counsel, claiming that his representation by the Public Defender's Office was ineffective because counsel had waived his speedy trial rights without his consent. The trial court denied the request, stating:
[F]rom my observation there has been no ineffective assistance of counsel. Now, whether or not they waive certain hearings, that may be to your advantage to do that. So as far as I'm concerned, they have done nothing against your interest so far. In fact, it is just the opposite. We have had one, two, three, four, five, six, seven, eight conferences before this was presented to the Grand Jury. Now, whether or not they came back to you with information that you didn't want to hear, that's a whole different issue.
But as far as ineffective assistance of counsel, no, I see none of that, and they will be appointed to represent you.
Through counsel, Jaramillo moved to dismiss the indictment, claiming that the grand jury proceedings were defective because he was shackled during his testimony before that tribunal. He alternatively sought reduction of the indictment on the grounds that the evidence presented to the grand jury was not legally sufficient to prove serious injury and that there was insufficient evidence that Jaramillo intended to use the weapon unlawfully against another. He further moved to suppress eyewitness identification, statements, and physical evidence as tainted by unlawful police conduct. The trial court found that no defect occurred at grand jury and that the evidence was legally sufficient to establish serious physical injury.
The court held a suppression hearing on the remainder of the motion on September 29, 2010. Prior to the commencement of the hearing, Jaramillo again requested a new attorney. He stated that he had filed a civil suit against the Public Defender's Officer which created a conflict such that the court should assign him a new attorney. The court stated that there were no grounds to remove the Public Defender's Office from their representation of Jaramillo and expressed its belief that Jaramillo's actions were "a deliberate action on [Jaramillo's] part to delay these proceedings."
At the hearing, Detective James Romano from the Watertown Police Department testified that, in the early morning hours of October 18, 2009, he was called into work for a reported stabbing at Tico's Bar. He stated that he developed a suspect through witnesses who also informed him that the suspect might be in possession of a shotgun. When Detective Romano and another police officer arrived at Jaramillo's residence, Jaramillo allowed them to enter the apartment. When Jaramillo entered the living room to obtain identification, the officers followed him and observed a shotgun and a bullet proof vest lying in plain view. Another police office took the shotgun and vest into possession. Jaramillo denied any wrongdoing and, although he at times stated that he did not have to go with the police officers because they did not have a warrant, he ultimately agreed to accompany the officers to the station for an interview. At the station, Detective Romano read Jaramillo his Miranda  rights, and Jaramillo gave a signed, written statement about his involvement in the stabbing. After giving his written statement, Jaramillo stated that the victim had grabbed him and that his actions were made in self-defense. Jaramillo then stated that he no longer wanted to speak to the officer.
A status conference was held on January 7, 2011. The conference was held in chambers because a jury on an unrelated case was deliberating in the courtroom. At the conference, Jaramillo requested to represent himself, and the court engaged in a lengthy colloquy with Jaramillo before the following discussion occurred:
THE COURT: All right. Well, Mr. Jaramillo, I am going to allow you to represent yourself. I don't know that that is a very wise decision for you, but my role here isn't to decide whether you are wise or unwise, Mr. Jaramillo. You do have a Sixth Amendment right to represent yourself. I can tell you that everyone that has done that in this Court for the last 11 years has been convicted of something.
[JARAMILLO:] I understand that, Your Honor.
THE COURT: All right. So you know, the odds aren't with you, Mr. Jaramillo; but that's not for me to decide.
[JARAMILLO:] Yeah, I can tell.
THE COURT: But it is not a wise thing, but I think you have enough intelligence and you are able to do that.
The court granted Jaramillo's motion to represent himself but appointed Jaramillo's previously-assigned attorney to serve as shadow counsel during trial. At the conference, Jaramillo also moved to reduce the indictment on the ground that the evidence presented to the grand jury was not legally sufficient to prove serious injury.
On January 18, 2011, the court held an additional conference where it handed down its written decision on the suppression motion. The court found the police testimony credible and concluded that the officers were entitled to seize the shotgun because it posed "a legitimate safety concern" and that Jaramillo consented to the seizure of the vest. The court also declined to suppress Jaramillo's statement to the police. The court did, however, grant Jaramillo's motion to dismiss count 4 of the indictment, finding that there was not legally sufficient evidence before the grand jury to sustain that count.
Jaramillo proceeded to jury trial on January 24, 2011. During trial, the court held at least three conferences in chambers with both parties present. At the first of these in-chambers proceedings, the court ruled that the prosecution would be allowed to introduce evidence that Jaramillo had possessed the shotgun and vest as well as other witness testimony of Jaramillo's prior bad acts. Upon conclusion of trial, the jury found Jaramillo guilty of first-degree assault, fourth-degree criminal possession of a weapon, and first-degree perjury. After hearing statements from Jaramillo and the prosecution as well as reviewing the pre-sentence report, the court sentenced Jaramillo to an imprisonment term of 14 years plus 5 years of post-release supervision on the assault conviction, a concurrent 1-year sentence on the criminal possession of a weapon conviction, and a consecutive term of 11/3 to 4 years on the perjury conviction. The court also imposed restitution and a mandatory surcharge.
Through counsel, Jaramillo appealed his conviction, arguing that: 1) the evidence was legally insufficient to sustain his assault conviction and the verdict was against the weight of the evidence; 2) the trial court committed "cumulative error" by refusing to assign new counsel, denying his motion to suppress evidence and admitting the evidence at trial, holding proceedings in chambers, failing to give a curative instruction during the prosecution's summation, and denying his motion to dismiss the grand jury proceeding; and 3) the sentence imposed was erroneous as well as harsh and excessive. Jaramillo also submitted a pro se supplemental brief, arguing that: 1) the trial court failed to dismiss the indictment and failed to disclose to the Appellate Division and his appellate counsel Jaramillo's motion to dismiss the indictment; 2) trial counsel was ineffective for waiving Jaramillo's rights to a speedy trial and to testify at the grand jury; 3) the trial court should have dismissed the indictment due to the prosecutor's knowing and willful use of perjured testimony in obtaining it; and 4) the trial erroneously refused to suppress evidence seized from his home and statements he made to law enforcement. The Appellate Division affirmed his conviction in its entirety in a reasoned opinion. See People v. Jaramillo, 947 N.Y.S.2d 876, 878 (N.Y.App.Div. 2012). Appellate counsel then sought leave to appeal the denial of the claims brought in the main appellate brief. Jaramillo also sought leave, raising the claims he addressed in his pro se supplemental brief. The Court of Appeals summarily denied both requests on September 27, 2012.
Jaramillo timely filed a Petition for a Writ of Habeas Corpus to this Court on November 2, 2012. Jaramillo subsequently moved for discovery and requested that this Court investigate the authenticity of documents indicating that Jaramillo's counsel waived his right to a speedy trial on Jaramillo's behalf.
II. GROUNDS RAISED
In his pro se Petition before this Court, Jaramillo raises the following claims: 1) the trial court committed cumulative errors, including a) abusing its discretion when it denied Jaramillo's repeated requests for new counsel, b) allowing the admission of prior bad acts evidence, c) holding proceedings in chambers rather than open court, d) denying his motion to dismiss the indictment even though he was required to testify before the grand jury in shackles, and e) failing to issue curative instructions after the prosecution inaccurately stated its burden during summation; 2) the trial court failed to disclose to the Appellate Division and appellate counsel for appellate review Jaramillo's motion to dismiss the indictment and failed to dismiss the indictment on speedy trial grounds; 3) trial counsel was ineffective for waiving his right to a speedy trial and to testify before the grand jury; 4) the trial court failed to dismiss the indictment after it was obtained through the prosecutor's knowing use of perjury; and 5) the trial court failed to suppress evidence obtained without a warrant and statements made by Jaramillo in violation of his right against self-incrimination.
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 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).
To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002). Under the 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); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
In applying these standards on habeas review, this Court reviews the "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). Where there is no reasoned decision of the state court addressing the ground or grounds raised on the merits and no independent state grounds exist for not addressing those grounds, this Court must decide the issues de novo on the record before it. See Dolphy v. Mantello, 552 F.3d 236, 239-40 (2d Cir. 2009) (citing Spears v. Greiner, 459 F.3d 200, 203 (2d Cir. 2006)); cf. Wiggins v. Smith, 539 U.S. 510, 530-31 (2003) (applying a de novo standard to a federal claim not reached by the state court). In so doing, the Court presumes that the state court decided the claim on the merits and the decision rested on federal grounds. See Harris v. Reed, 489 U.S. 255, 263 (1989); Coleman v. Thompson, 501 U.S. 722, 740 (1991); see also Jimenez v. Walker, 458 F.3d 130, 140 (2d Cir. 2006) (explaining the Harris-Coleman interplay); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810-11 (2d Cir. 2000) (same). This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court. Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011) (rejecting the argument that a summary disposition was not entitled to § 2254(d) deference); Jimenez, 458 F.3d at 145-46.
Respondent correctly contends that two of Jaramillo's claims are unexhausted. This Court may not consider claims that have not been fairly presented to the state courts. 28 U.S.C. § 2254(b)(1); see Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing cases). Exhaustion of state remedies requires the petition to fairly present federal claims to the state courts in order to give the state the opportunity to pass upon and correct alleged violations of its prisoners' federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995). A petitioner must alert the state courts to the fact that he is asserting a federal claim in order to fairly present the legal basis of the claim. Id. at 365-66. An issue is exhausted when the substance of the federal claim is clearly raised and decided in the state court proceedings, irrespective of the label used. Jackson v. Edwards, 404 F.3d 612, 619 (2d Cir. 2005). As Respondent notes, Jaramillo raised his admission of prior bad acts and failure to give curative instructions arguments (both part of claim 1) solely on the basis of state law.
These unexhausted claims are procedurally barred. Because Jaramillo's claims are based on the record, they could have been raised in his direct appeal but were not; consequently, Jaramillo cannot bring a motion to vacate as to these claims. N.Y. CRIM. PROC. LAW § 440.10(2)(c) ("[T]he court must deny a motion to vacate a judgment when[, ] [a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal...."). Moreover, Jaramillo cannot now raise these claims on direct appeal because he has already filed the direct appeal and leave application to which he is entitled. See Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991).
"[W]hen a petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, ' the federal habeas court should consider the claim to be procedurally defaulted." Clark v. Perez, 510 F.3d 382, 390 (2d Cir. 2008); see also Grey, 933 F.2d at 121. A habeas petitioner may only avoid dismissal of his procedurally defaulted claims if he can demonstrate "cause for the default and prejudice from the asserted error, " House v. Bell, 547 U.S. 518, 536 (2006), or a "fundamental miscarriage of justice, " Murray v. Carrier, 477 U.S. 478, 495-96 (1986). A miscarriage of justice is satisfied by a showing of actual innocence. See Schlup v. Delo, 513 U.S. 298, 326-27 (1995). Jaramillo does not claim that cause exists for his procedural default nor does he assert actual innocence. Because Jaramillo may not now return to state court to exhaust these claims, the claims may be deemed exhausted but procedurally defaulted from habeas review. See Ramirez v. Att'y Gen., 280 F.3d 87, 94 (2d Cir. 2001).
Despite Jaramillo's failure to exhaust these claims, this Court nonetheless may deny those claims on the merits and with prejudice. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."). This is particularly true where the grounds raised are meritless. See Rhines v. Weber, 544 U.S. 269, 277 (2005). Accordingly, this Court declines to ...