Opinion
00-CV-07272 Rel. to, 94-CV-00278(§ 1983), 97-CV-07069 (Habeas), 99-CV-02329 (Habeas).
May 28, 2004
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. A certificate of appealability is granted. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims. The case is one of the many heartbreaking examples in our courts of a promising young man's involvement in New York's gun culture, causing death and serious injury to innocent people and destruction of the life of the youngster.
I. Facts and Procedural History
A. Introduction
This petition for a writ of habeas corpus was filed on October 6, 2000 in the Northern District of New York. The case was stayed on April 28, 2003 to permit exhaustion of state remedies. It was reopened on February 12, 2004 upon petitioner's motion. Final papers by petitioner (sometimes referred to as defendant) were received on May 4, 2004.
For the reasons stated below, the petition is dismissed and a certificate of appealability is granted.
B. Procedural History
Petitioner was convicted, after a non-jury trial, in the County Court, on October 16, 1992, of murder in the second degree (N.Y. Penal Law § 125.25[2]), assault in the first degree (three counts) (N.Y. degree (three counts) (N.Y. Penal Law § 120.10[3]), reckless endangerment in the first degree (N.Y. Penal Law § 120.25), criminal possession of a weapon in the second degree (three counts) (N.Y. Penal Law § 265.03), and criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02[4]). He was sentenced to concurrent terms of incarceration of twenty-five years to life for the murder conviction, five to fifteen years for each assault and second-degree weapon possession conviction, two and one-third to seven years for the reckless endangerment conviction, and a consecutive term of two and one-third to seven years for the third-degree possession of a weapon conviction. He is incarcerated pursuant to this judgment of conviction.Petitioner appealed to the Appellate Division. The judgment of conviction was unanimously affirmed by that court on August 5, 1996. People v. Bartley, 230 A.D.2d 748 (2d Dept. 1996). Petitioner's request to reargue the appeal was denied on October 18, 1996. Leave to appeal to the New York Court of Appeals was denied on November 21, 1996. People v. Bartley, 89 N.Y.2d 1066 (1996).
On appeal, petitioner raised three claims: first, that his confession should have been suppressed as involuntary due to either the delay between his arrest and arraignment or isolation from his family or his age or deprivation of sleep and food or a combination of these; second, that the evidence at trial failed to prove his guilt beyond a reasonable doubt. Third, he sought reduction of sentence in the interest of justice.
In its affirmance, the Appellate Division agreed with the hearing court's finding that the claim that petitioner was isolated from his family during his questioning by the police was not supported by credible evidence. It held that the claim concerning the delayed arraignment was unpreserved and without merit. It found that the evidence was legally sufficient to establish petitioner's guilt beyond a reasonable doubt, and concluded that the remaining issues were "without merit." People v. Bartley, 230 A.D.2d at 749.
Petitioner's application for leave to appeal to the New York Court of Appeals included claims concerning the sufficiency of the evidence and that suppression of the confession should have been ordered based on the delayed arraignment. With respect to the latter argument, petitioner's counsel argued that the Appellate Division erred in holding that the claim was unpreserved and argued that the claim was reviewable regardless of preservation. The application for leave to appeal was denied on November 21, 1996. People v. Bartley, 89 N.Y.2d at 1066.
Petitioner moved to reargue his appeal, based on his claim that the confession should have been suppressed because of the delayed arraignment On October 18, 1996, the motion was denied by the Appellate Division.
Before the submission of a response by respondent, petitioner's request to withdraw his habeas corpus petition in this court "without prejudice" was granted.
Petitioner subsequently moved in state court, pursuant to C.P.L. § 440.10, to vacate his judgment of conviction on the ground that he was deprived of effective assistance of trial counsel. He asserted nine alleged deficiencies in the representation provided by his trial attorney. On September 28, 1998, the motion was denied by the County Court. The court found that seven of the claimed deficiencies were procedurally barred because they appeared on the record and should have been raised on direct appeal. See Decision and Order of the County Court, dated September 28, 1998, pp. 2-4. The County Court found that, with respect to the two remaining claims, petitioner had failed to support the claim with sworn allegations of fact as required by the statute. Id. At 4. The County Court found further that the representation provided was competent and that petitioner had failed to show prejudice. Id. at 4-6. Petitioner's application for leave to appeal to the Appellate Division was denied on January 20, 1999.
Petitioner filed a second petition (dated November 12, 1997, but served March 31, 1999) for a federal writ of habeas corpus. Following the issuance of an Order to Show Cause, nd the submission of an Affidavit in Opposition and Memorandum of Law by respondent, petitioner again requested and was granted permission to withdraw the petition "without prejudice."
Thereafter petitioner submitted to the Appellate Division an application for a writ of error coram nobis on the ground of ineffective assistance of appellate counsel. The factual basis asserted was that appellate counsel was ineffective for failing to include in his application for leave to appeal to the New York City of Appeals a claim that petitioner's confession should have been suppressed due to police misconduct in that the police allegedly isolated petitioner from his mother. By Decision and Order, dated September 18, 2000, the Appellate Division denied that application. People v. Bartley, 275 A.D.2d 748 (2000).
Petitioner filed a third application for a writ of habeas corpus dated September 25, 2000, raising three of the four claims asserted on the direct appeal to the Appellate Division, a claim of ineffective assistance of trial counsel previously asserted in his motion to vacation the judgment of conviction, and a claim of ineffective assistance of appellate counsel raised in his coram nobis petition to the Appellate Division.
Petitioner, for the third time, sought permission from the district court to withdraw his petition "without prejudice" for the purpose of exhausting "further issues in the state court." By Memorandum and Order, dated April 25, 2003, the district court dismissed without prejudice "[t]he unexhausted claims of ineffective assistance of trial and appellate counsel," stayed all remaining exhausted claim, and directed petitioner to file for the appropriate state court relief in a prompt manner.
Petitioner filed a motion in the County Court, dated May 19, 2003, to vacate the judgment of conviction, pursuant to C.P.L. § 440.10, on the ground that he had been deprived of effective assistance of trial counsel due to his attorney's failure to seek suppression of petitioner's confession and physical evidence on the ground that the police improperly delayed petitioner's arraignment and improperly took petitioner with them to Queens County to search for weapons following petitioner's arrest.
The County Court, in a decision and order dated August 7, 2003, denied petitioner's motion, holding that, because ":the claim of ineffective assistance should have been raised on direct appeal. . . . [it] is denied pursuant to CPL § 440.10(2)©)."
Petitioner thereafter sought permission to appeal from the denial of his motion to the Appellate Division. That application was denied by the Appellate Division on December 24, 2003.
The case has been reinstated in this court. It is now ready for decision.
C. Facts and Suppression Hearing
The evidence demonstrated that on the evening of December 25, 1990, petitioner, armed with a .380 automatic pistol, accompanied by codefendants Norman Williamson, Michael Bennett, and Vauvenargues Hilton, and other friends, went to the Sunrise Cinema movie theater in Valley Stream, Long Island, New York. At approximately 11:45 p.m., while petitioner and his codefendants were seated on the left side of the crowded theater and the movie was playing, a group of people in the center of the first row began making noise. An argument erupted between petitioner's group and the group in the first row after someone yelled for the group in the first row to be quiet. As the argument escalated, the front group moved to an exit on the left side of the theater and challenged petitioner's group to come outside.
The front group then left the theater. One man quickly returned, pulled out a gun, and fired it into the air. At that point, petitioner and his codefendants pulled out the guns that they had brought with them and started firing. Termaine Hall, Turane Haines, Dwayne Clark, and Dean Hoskins were four friends who had also gone to the Sunrise Cinema that night. They were seated in the front on the left side of the theater when the shooting took place. Mr. Hall was struck in the back of the head and killed. The medical examiner later opined that the fatal bullet was a .380 caliber. Mr. Haines was struck in the face and lost his left eye. Marco and Patrice Candelaria were also seated in the front of the movie theater on the left side. When the shooting began, Mr. Candelaria was seated with his left arm around his wife's shoulder. A bullet passed through Mr. Candelaria's arm and lodged in Mrs. Candelaria's neck. Fragments of a 9mm bullet were subsequently removed from Mrs. Candelaria's neck during surgery.
After speaking with a young man who had been in the theater that night, the police began watching petitioner's house. On December 27, 1990, the officers observed petitioner and codefendants Williamson and Hilton leave the house and get into Williamson's car. The officers followed the car and attempted to stop Williamson. Williamson responded by leading the police on a high-speed chase, during which Hilton threw a gun out of the car. After Williamson stopped the car in an alley, the occupants fled.
A search of the area discovered petitioner hiding in a nearby backyard. He was arrested and taken to the police station. There he was given Miranda warnings and questioned by the police. Petitioner cooperated, admitting his presence in the car during the chase and in the movie theater during the shooting. He identified the other perpetrators. He admitted also that at least one gun was thrown from the car during the chase and assisted the police in an unsuccessful search of the streets for guns.
Upon further questioning, petitioner admitted that he had been armed with a loaded .380 automatic pistol in the theater and that he had fired it once during the melee. He told the police that the gun and ammunition were in his house, and signed a consent-to-search form. Petitioner called his home and spoke to his cousin, Steven Bartley, giving him instructions to locate the gun and ammunition and to give the items to the police. Bartley gave these items to police officers who came to the house.
Petitioner identified the .380 pistol as the weapon he had fired in the movie theater. He subsequently signed a written statement relating a detailed account of the crime, as well as the events leading up to it and following it.
Petitioner was indicted jointly with Williams, Bennett, and Hilton. They were charged, by Nassau County Indictment Number 78123, with acting in concert in the commission of the crimes of murder in the second degree (N.Y. Penal Law § 125.25), assault in the first degree (3 counts) (N.Y. Penal Law § 120.10), reckless endangerment in the first degree (N.Y. Penal Law § 125.25) criminal use of a firearm in the second degree (3 counts) (N.Y. Penal Law § 265.08[1]), and criminal possession of a firearm in the second degree (4 counts) (N.Y. Penal Law § 265.03). The indictment also charged petitioner with acting alone in the commission of the crimes of criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03), criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02), and reckless endangerment in the first degree (N.Y. Penal Law § 120.25).
An extended joint evidentiary hearing was held to decide the motions of all four defendants to suppress various items of evidence. Petitioner had moved to suppress his confession, identification testimony, and physical evidence seized by the police (H. 17-19). The issues of probable cause for petitioner's arrest and whether he had received immunity from prosecution with respect to a particular gun recovered by the police were also subjects of the hearing (H. 18-19).
The hearing testimony could have been found to have established that, two days after the December 25, 1990, shooting in the Sunrise Cinema, Nassau County detectives interviewed a young man name Travis James, who admitted that he was in the cinema with other members of a gang called "The Young Guns." James identified petitioner and his codefendants as other gang members present in the theater.
Ownership of a gun was prerequisite to membership in the gang. At the theater that night, they all showed each other the guns they were carrying (H. 36-39, 1018-19, 1033-37, 1078). James described in detail the events that took place in the movie theater, including that, during the confrontation, he witnessed petitioner pull out a .380 pistol and fire it (H. 39-40, 1019, 1034-35, 1099-1100). James told the police that, when he spoke to petitioner later that night, petitioner stated that he had fired his gun twice (H. 40-42, 1019, 1044). James went with the detectives to Queens County and identified petitioner's house. He told the detectives that the gang met at petitioner's house and that he thought that they would be there.
As already noted, the detectives parked and watched petitioner's house. Soon, petitioner and his codefendants exited the house and got into codefendant Williamson's car. The detectives followed the car and attempted to stop it by activating their siren and red flashing light. During the chase, one of the codefendants threw what appeared to be a gun out of a car window (H. 44-45, 1022-23). Finally, Williamson's vehicle stopped in an alley and all the occupants fled on foot. The detectives searched the area and found petitioner hiding in a nearby backyard. James identified petitioner.
The detectives arrested petitioner, advised him of hisMiranda rights, and took him to Nassau County Police Headquarters. It was approximately 7:30 p.m. on December 27, 1990 (H. 45-49, 428, 1023-24). At police headquarters, petitioner was again given Miranda warnings. This time, a detective read the warnings from a card and then gave the card to petitioner. Petitioner stated that he understood his rights and was willing to speak to the detectives without an attorney present. He signed the card, which was left on the desk during the interview. It began at 9:05 p.m. (H. 48-51, 616-18, 624-25).
Although petitioner initially denied any involvement in the movie theater shooting and the car chase preceding his arrest, over the course of a seven-hour intermittent interview he began cooperating with the detectives. He admitted that he had been in the fleeing car during the chase and identified the other people in the car (H. 617-20, 676). He also admitted that he had been in the theater on the night of the shooting. He described the shooting, but denied that he was armed that night. He admitted that some of his companions had been armed with guns in the theater (H. 620-22).
Petitioner told the detectives that at least one gun was thrown from Williamson's car during the chase and described the location where it had been discarded. He agreed to accompany the detectives to look for guns. At approximately 3:55 a.m. on December 28, 1990, they left police headquarters to search for guns in the vicinity of Springfield Boulevard and 121st Street in Queens. It was snowing heavily. When they were unable to find anything by 5:30 a.m., they gave up and returned to police headquarters (H. 623-27, 675, 678, 899, 1026).
After petitioner was given approximately one hour to rest, the interview recommenced. When confronted with James' statement that he had fired a gun in the theater, petitioner admitted that he had fired one shot from his .380 pistol. Petitioner then gave a detailed account of each person's participation in the movie theater shooting and marked on a sketch the location of each participant. (H. 627-29, 693).
During the interview, petitioner never requested to speak to an attorney or family member and never indicated that he did not wish to speak to the police. When the detective conducting the interview had to leave because of appointments concerning another case, a new detective took over the interview. At approximately 8:00 to 8:30 a.m., petitioner was given something to eat and told that it would be difficult to finish the interview and get petitioner arraigned that day. Petitioner indicated that it would be "no problem" if the arraignment was delayed. The departing detective shook petitioner's had and thanked him for his cooperation (H. 55-57, 452-54, 630-31, 691-96).
The new detective re-interviewed petitioner about the events of the night of the shooting until about 12:15 p.m., when petitioner was given a bathroom break. Following the break, petitioner informed the detective that the gun he had fired in the theater and some ammunition were in his house. Petitioner agreed to sign a form consenting to the search of his home for guns and ammunition. The form was read to petitioner and then given to him to read again. Although petitioner was advised that he did not have to sign the form, he signed his name and wrote his address and telephone number on the bottom of the form (H. 468-70, 473).
At approximately 12:45 p.m., petitioner agreed to the detective's request for a written statement. Petitioner was again re-advised of Miranda rights. He stated that he understood his rights and was willing to speak to the detective. The detective wrote petitioner's statement in narrative form, asking questions as they went along and obtaining more detailed information than had been provided in petitioner's oral statements. The written statement, which was twelve pages long, was completed at approximately 3:15 p.m. on December 28, 1990. Petitioner read the completed statement, stated that it was true, and signed the bottom of each page (H. 477-86, 738-39, 803-08).
At approximately 4:30 p.m. petitioner called his house and spoke to his cousin, Steven Bartley. He told Bartley where his gun and ammunition were hidden and asked him to retrieve them. After Bartley had located the items, petitioner gave the telephone to the detective, who instructed Bartley to deliver them to police officers, who were outside petitioner's house. When the detectives received notification that Bartley had followed their instructions, they went to petitioner's house and interviewed Bartley. He told detectives that he lived in the same house, signed a written statement and told them that he knew of another gun inside the house. The detectives accompanied Steven inside and he led them to a gun box and leather pouch containing ammunition in petitioner's bedroom and an unloaded .32 caliber automatic pistol in the drip pan under the refrigerator. Petitioner's mother was not home, but the detectives identified themselves to his sister and left a receipt for the items removed from the home (H. 487-92, 516-17, 581-86, 595-99, 740, 811-14).
The detectives then proceeded, accompanied by Bartley, to the home of another cousin, Irwin Waldron, whom petitioner had identified as one of the armed men in the movie theater the night of the shooting. At approximately 9:30 p.m., Waldron met the detectives in the hallway outside of his apartment and gave them a loaded .25 caliber Beretta pistol. At approximately 12:30 a.m., on December 29, 1990, the detective who had interviewed petitioner returned to the homicide squad office and showed the guns to petitioner, who identified the .380 pistol as the one he had fired in the movie theater (H. 502-04, 520-22, 741-42, 815-16).
The detective told petitioner that his cousins had not been arrested and thanked him for his cooperation in the recovery of the guns. He asked petitioner whether he would be willing to waive his right to be arraigned that morning and continue cooperating with the police. The detective advised petitioner that he had the right to be arraigned and that he could refuse to cooperate. Petitioner stated that he was willing to waive prompt arraignment and continue to assist the police. The detective gave petitioner a document indicating that he was waiving prompt arraignment. The detective explained the document and asked petitioner to read it. Petitioner read the document and signed it at approximately 12:30 a.m. on December 29, 1990. The signed waiver of prompt arraignment form was received into evidence at the hearing (Exhibit 10A). Petitioner was arraigned the following morning, December 30, 1990 (H. 521-27, 601-07).
Petitioner's mother and sister testified on his behalf at the suppression hearing. They asserted that Steven Bartley was a tenant in a basement apartment in their home and that he had no authority to enter other areas of the house. Petitioner's sister claimed that she told Steven and the detectives that they could not come in the house, but that they ignored her. Petitioner's sister admitted that one of the detectives told her that he was from the homicide squad and that the detectives had left a written receipt. She did not, however, tell her mother that the detectives were from the homicide squad nor show her mother the receipt (H. 1150-58, 1165-83).
Petitioner's mother testified that she learned of her son's arrest during the early morning of December 28, 1990, and that sometime during that day she called police precincts in Queens and Nassau County looking for her son and was told that he was not there. She was at work when the police came to her house on the evening of December 28, 1990. His mother testified that sometime during the evening of December 28, 1990, she had called the Nassau County homicide squad and was told that her son was not there. Sometime that day, she also called an attorney who made telephone calls and visited a police precinct to locate petitioner. The attorney eventually located petitioner and notified his mother of his whereabouts. Petitioner's mother could not recall when she had spoken to the attorney or when he had located petitioner (H. 1154-56, 1164-69).
On rebuttal, a detective testified that an attorney called at 10:18 p.m. on December 29, 1990, and identified himself as petitioner's attorney. The attorney requested that all questioning of petitioner cease; that request was honored. The detective made an entry in the police blotter memorializing this telephone conversation. There was no record of any telephone calls from any member of petitioner's family to the homicide squad (H. 1190-93).
Following the hearing testimony, petitioner's counsel advanced three grounds for suppression of petitioner's confession and the guns and ammunition: 1) petitioner's arrest was not supported by probable cause; 2) petitioner did not knowingly and voluntarily waiveMiranda rights because he was deprived of food, drink, and sleep; and 3) the police purposely isolated petitioner from his family by misleading petitioner's mother concerning his whereabouts (H. 1242-50, 1266-68). Counsel argued that the seized weapons should be suppressed on the additional grounds that Steven Bartley acted as an agent of the police and had no lawful authority to enter petitioner's home; that petitioner's sister's refusal of entry should have been honored; that petitioner's consent to search was involuntary; and that a promise of immunity had been made to Steven Bartley (H. 1250-55, 1259-60, 1268-69).
By a written decision, dated June 11, 1992, petitioner's suppression motion was denied. The court credited the testimony of the prosecution's witnesses and held that there was ample probable cause for petitioner's arrest. It held that petitioner was properly given Miranda warnings and knowingly and voluntarily waived his rights. The court rejected the testimony of petitioner's mother that her efforts to locate her son were frustrated by the police. The court found also that the telephone call from petitioner's attorney intervening on his behalf was made after petitioner's statement had been completed and, therefore, did not affect its admissibility. The court ruled that the weapons and other items found in petitioner's home and turned over to the police by Steven Bartley were admissible based upon petitioner's written and signed consent to search form and the direction conveyed by petitioner to Bartley (Decision: 14-17).
Petitioner was convicted, after a non-jury trial, of murder in the second degree, assault in the first degree (three counts), reckless endangerment in the first degree, criminal possession of a weapon in the second degree (3 counts), and criminal possession of a weapon in the third degree. The three counts charging petitioner with acting in concert in the commission of the crime of criminal use of a firearm in the second degree and one of the four counts charging petitioner with acting in concert in the commission of criminal possession of a weapon in the second degree were dismissed by the trial court. The court dismissed the count charging petitioner with acting alone in the commission of the crime of reckless endangerment in the first degree. It found petitioner not guilty of one count of with acting in concert in the commission of criminal possession of a weapon in the second degree.
Petitioner appealed from his conviction to the Appellate Division, raising three claims of error. He alleged that his confession should have been suppressed because of the delay of his arraignment, isolation from his family, his age, and his alleged deprivation of sleep and food. Petitioner argued further that the prosecution failed to prove his guilt beyond a reasonable doubt, and that his sentence was unduly harsh and should be reduced in the interest of justice. No claim of a deprivation of constitutional rights was raised regarding the quality of the representation provided by petitioner's trial attorney.
The judgment of conviction was affirmed. People v. Bartley, 230 A.D.2d 748 (2nd Dept. 1996). The Appellate Division held that the hearing court properly rejected petitioner's claim that the police intentionally isolated him from his family and correctly declined to suppress petitioner's statement on this ground. Id. The Appellate Division also held that petitioner's claim that his confession should have been suppressed on the ground that there was an unnecessary delay in petitioner's arraignment was both unpreserved for appellate review and meritless. Id. at 749. Finally, the Appellate Division held that the evidence was legally sufficient to establish petitioner's guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence. Id. at 749.
Petitioner, acting pro se, sought permission to reargue the appeal, reasserting his claim that his confession should have been suppressed because of the delay in arraignment. The Appellate Division denied the motion on October 18, 1996.
Petitioner sought leave to appeal to the New York Court of Appeals, alleging that his confession should have been suppressed because of the delay in his arraignment. He did not assert the other grounds for suppression argued in the Appellate Division. Petitioner sought leave also on the claim that the proof of his guilt was legally insufficient. Leave to appeal to the New York Court of Appeals was denied on November 21, 1996. People v. Bartley, 89 N.Y.2d 1066 (1996).
Petitioner moved, in the County Court, to vacate the judgment of conviction, pursuant to C.P.L. § 440.10, on the ground that he was denied effective assistance of trial counsel for a myriad of reasons none of which related to this trial counsel's failure to argue for suppression on the ground of arraignment delay. By Decision and Order dated September 28, 1998, the County Court denied the motion, holding that seven of the nine alleged claims of error were procedurally barred and that all of the claims were meritless. Petitioner sought permission to appeal from the denial of the motion to the Appellate Division, which was denied on January 20, 1999.
Petitioner next filed an application for a writ of error coram nobis, dated April 19, 2000, in the Appellate Division, claiming that his appellate counsel had provided ineffective assistance. Petitioner claimed that his appellate attorney was ineffective because he had omitted one ground for suppression of the confession (i.e., that the police improperly isolated petitioner from his family) from his application for leave to appeal to the New York Court of Appeals. By Decision and Order, dated September 18, 2000, the Appellate Division denied the application. People v. Bartley, 275 A.D.2d 748 (2000).
Petitioner filed another motion in the County Court seeking to vacate the judgment of conviction, pursuant to C.P.L. § 440.10, on the ground that he had received ineffective assistance of trial counsel. Specifically, petitioner argued that trial counsel was ineffective for failing to seek suppression of his confession and certain physical evidence on the ground that the police had improperly delayed petitioner's arraignment and improperly took petitioner to Queens County to help locate weapons.
In a Decision and Order, dated August 7, 2003, the County Court denied petitioner's motion. The County Court held:
The Defendant has previously made the same application . . . and it was denied. In addition, the claim of ineffective assistance should have been raised on direct appeal. The defendant's motion is denied pursuant to C.P.L. § 440.12(2)(c).
Petitioner's application for permission to appeal from the denial of his motion to the Appellate Division was denied on December 24, 2003.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) 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 (2) 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).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ 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 this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Under this standard, "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. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Berbary v. Torres, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
III. Limitations Period
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). A conviction becomes final for habeas purposes when the Supreme Court "affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the [the ninety-day period] for filing a certiorari petition has expired." Clay v. United States, 123 S. Ct. 1072, 1075 (2003) (discussing finality in context of federal conviction but noting also that "the Courts of Appeals have uniformly interpreted `direct review' in § 2244(d)(1)(A) to encompass review of a state conviction by [the Supreme Court]"); see also Sup. Ct. R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion." Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground." Id.
In calculating the one-year limitation period, 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. . . ." 28 U.S.C. § 2244(d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is ` properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements. Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998). But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law." Velasquez v. United States, 4 F. Supp. 2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition." 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, No. 02-2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the Court of Appeals has explained,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations.Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 168 F.3d 762, 780 (5th Cir. 1999)).
IV. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." 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."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
V. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)). State procedural rules are insufficient to bar federal review of a claim if the rules are not strictly or regularly followed, see Barr v. City of Columbia, 378 U.S. 146, 149 (1964), are novel and unforeseeable, see NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457 (1958), allow noncomplicance, see Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 233-34 (1969), or impose undue burdens on the assertion of federal rights, see Douglas v. Alabama, 380 U.S. 415, 422-23 (1965). See generally Kermit Roosevelt III, Light from Dead Stars: The Procedural Adequate and Independent State Ground Reconsidered, 103 Colum. L.Rev. 1888 (2003) (addressing origins of the doctrine).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a 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 v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence. Id. at 321. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding."). A habeas court is, in short, concerned "`not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.'" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances).
VII. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also Wiggins v. Smith, 539 U.S. ___, No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
In a federal habeas proceeding the federal standard is followed even though the state standard may be less demanding.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The Court of Appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to federal habeas claims of ineffective appellate counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance." Id. (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA. See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).
X. Insufficiency of the Evidence
To the degree a petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court 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 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree a petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
XI. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No. 01-2694, 2003 U.S. App. LEXIS 8326, at *92 (2d Cir. May 1, 2003).
XII. Analysis of Claims
A.
Ineffective assistance of trial counsel claims were repeatedly raised on motions to vacate petitioner's conviction pursuant to C.P.L. § 440.10. The issue was not raised on direct appeal. It was thus procedurally barred since all of the information relied on was in the record and available on the appeal. See C.P.L. § 440.10. This was the basis for the County Court decision. The denial was on grounds that constituted an independent and adequate basis for denying this ground of the petition.
There is no factual basis for a claim that the procedural defaults had any legal cause or that denying the claim on this basis will result in a fundamental miscarriage of justice. There is no basis for a claim of innocence.
In any event, the claim of inadequate trial counsel is without merit. Counsel for defendant conducted a spirited defense based primarily on his motion to suppress the gun and the confession. The trial court was justified in denying that motion in large part. See the full opinion of the state trial court of June 11, 1992. Once suppression was denied there was little that any trial lawyer could do to save this young man.
Under any standard of review there was no basis for this claim. The petitioner's age, seventeen years, when the trial was held suggests some immaturity, but not enough to question the state proceeding's fairness. He appears to have been treated well by the police. Sadness for a young life so thoughtlessly ruined is not a ground for granting the writ. That remorse at the harm he caused may have led to his cooperation with the police is no basis for habeas relief.
B.
No standard of review would provide a basis for claiming any lack of appropriate work by appellate counsel. The brief on direct appeal was good. The lack of adequate trial counsel could not, as indicated in "A" above, be the basis for any appropriate argument on appeal. The initial suppression hearing as well as the trial left no substantial error tainting trial proceedings.
C.
There is no factual basis for the claim that petitioner's arraignment was delayed so a confession could be obtained. The reason for the delay was appropriate. Petitioner agreed to the delay. He had already incriminated himself before the delay. The matter was open to decision on the full and fair evidentiary hearing to suppress. No basis for reopening this issue is presented.
D.
There is no factual basis for a claim of coercion or physical abuse. The same reasoning as applies to C applies here. There was no deliberate deprivation of sleep, food or parental advice.
E.
On petitioner's first 440 motion his counsel raised nine instances of trial counsel's ineffectiveness. Except as mentioned in "A" to "D" above, they are so frivolous as not to warrant detailed discussion.
Because of defendant's youth and the fact that other convicted members of his gang have completed their prison terms this court has perused the full state court record. It indicates a fair trial with adequate counsel's representation at every level where counsel was required.
As indicated above, the critical questions were raised on the motions to suppress. The suppression hearing commenced on April 13, 1992. Petitioner was well represented. So too were his three codefendants. The four lawyers together provided a powerful team.
The records and witnesses for the prosecution were thoroughly vetted by the defense. They also presented their own witnesses. Stephen James, Esq., for the petitioner, did well by his client. The court participated actively and fairly in the questioning. The evidentiary hearing covered 1194 pages. Oral argument for Bartlett began on page 1242 of the record of the hearing and continued to p. 1248, with additional subsequent colloquy and response and a response to the prosecutor's argument from page 1266 to 1269. The defense arguments were sound, precise, cogent and designed to persuade.
The trial itself began on September 1, with a jury being waived. That waiver was justified in light of the evidence which might have inflamed a jury. In fact it resulted in a partial judgment of not guilty.
Since the trial was before the same judge who had held the extensive pretrial hearings, it was somewhat shorter than might have been the case before a jury, running to page 338 and there from a new page 1 to 701. The defendant himself testified at length (see p. 416, ff., Sept 11, 1992). His counsel presented him in as favorable a light as possible, for example, showing that he was at the top of his 12th grade at Jamaica High School, a candidate for college, and volunteer at a church. Id. at 418, the defense summation was appropriate. See pp 714, ff. Sept 16, 1992.
On direct appeal the petitioner's brief was adequate. The testimony of twenty-three witnesses was summarized in a way best supporting petitioner's case. The points were proper. They were:
POINT I — The Hearing court erred when it denied to suppress the statement of a seventeen year old juvenile who had been held in police custody for an extraordinarily long period of time without contact with a parent, and who was not arraigned for almost three full days.
POINT II — The defendant's guilt was not proven beyond a reasonable doubt.
POINT III — The defendant's conduct did not rise to the level of acting in concert so that he should not have been convicted of the crimes of Murder in the Second Degree and the other related charges.
POINT IV — The sentence imposed by the trial court was unduly harsh and excessive and should be modified.
A pro se supplemental brief was filed by petitioner making the following points:
POINT V
A. Appellant's statement, elicited after twenty hours of interrogation during which time appellant had not slept or eaten anything other than a single piece of cake, should have been suppressed.
B. The unnecessary delay from appellant's arrest until his eventual arraignment was unreasonable as a matter of law, and appellant's statement, which was not given until twenty hours of interrogation before which he had maintained his innocence, should have been suppressed.
Given the circumstances it is impossible to fault the Appellate Division decision:
The defendant contends, among other things, that his statements to the police should have been suppressed because the police deliberately isolated him from his mother, who testified that she repeatedly called the police station asking about her son after his arrest but was told that he was not there. We disagree. The hearing testimony of the defendant's mother was, at best, vague and contradictory, and the hearing court was justified in declining to credit that testimony.
Furthermore, the defendant's contention that his statements should have been suppressed because of the unnecessary delay in his arraignment is unpreserved for appellate review ( see, People v. Lopez, 185 AD2d 285, 286; People v. Jehle, AD2d 792, 793; People v. Silas, 158 AD2d 561, 562), and, in any event, is without merit ( see, People v. Wheeler, 123 AD2d 411).
F.
The sentencing hearing of October 16, 1992 was adequate. In any event the sentence is within state statutory parameters. It is not subject to review on this proceeding.G.
No other basis for granting the writ is more than frivolous.
H.
The petition is timely. All relevant issues have been exhausted in state court.
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
Particularly because of his age and the extended questioning prior to arraignment, a certificate of appealability is granted on the issue of suppression of defendant's statements and his weapon. There is a substantial showing of the denial of a constitutional right. Petitioner may seek a further certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.