Hernandez v. Phillips

Full title: JUAN HERNANDEZ, Petitioner, v. WILLIAM PHILLIPS, Superintendent…

Court: United States District Court, S.D. New York

Date published: Jul 17, 2007

02 Civ. 9098 (RWS) (S.D.N.Y. Jul. 17, 2007)

Opinion

02 Civ. 9098 (RWS).

July 17, 2007

THE LEGAL AID SOCIETY, Attorney for the Petitioner, New York, NY, By: BETSY HUTCHINGS, Esq. Of Counsel.

HONORABLE ROBERT M. MORGENTHAU, District Attorney, Attorneys for Respondent, New York, By: RICHARD NAHAS, Esq., Assistant District Attorney, Of Counsel.

OPINION

ROBERT SWEET, District JudgePage 1

The Petitioner, Juan Hernandez ("Hernandez" or "Petitioner"), an inmate incarcerated at Green Haven Correctional Facility in Stormville, New York had petitioned for a write of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent, William Phillips ("Phillips" or "Respondent") filed his answer opposing the petition. For the reasons set forth below, the petition is denied.

While few, if any, trials can claim procedural perfection, the trial under consideration here, which resulted in the conviction of Hernandez on two counts of attempted murder in the second degree and two counts of criminal use of a firearm in the first degree, presented serious questions concerning ineffective assistance of counsel, conflicts of interest, erroneous instructions and procedural questions. While the totality of these issues is troubling, upon consideration none rises to the level of a constitutional deprivation.

Prior Proceedings

Following a jury trial in New York State Supreme Court, New York County, Petitioner was convicted of two counts of attempted murder in the second degree, and two counts of criminal use of a firearm in the first degree. Petitioner was represented at that trial by C. Vernon Mason ("Mason" or "Defense Counsel"). On June 16, 1994, the court sentenced Petitioner to two concurrent terms of imprisonment of 121/2 to 25 years for one count of attempted murder in the second degree and one count of criminal use of a weapon in the first degree, to run consecutively to two concurrent terms of a 9 to 18 years for the other counts of attempted murder in the second degree and criminal use of a firearm in the first degree. He remains incarcerated pursuant to this judgment.

On March 31, 1997, Hernandez filed a pro se motion pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10, to vacate the judgment. He submitted additional papers in June 1997 and September 1997. In April 1998, counsel submitted an affirmation and accompanying exhibits and a memorandum of law in support of that motion. On July 12, 1999, the Supreme Court, New York County, denied Petitioner's motion pursuant to C.P.L. § 440. On September 9, 1999, the Appellate Division, First Department granted Petitioner permission to appeal the denial of the § 440 motion and consolidate it with the direct appeal. Briefs were submitted by Petitioner's counsel and by Petitioner pro se and on March 27, 2001, the Appellate Division affirmed the conviction.People v. Hernandez, 722 N.Y.S.2d 159, 160 (N.Y.App.Div. 2001). Petitioner sought leave to appeal from the Court of Appeals. On August 20, 2001, the Court of Appeals denied leave. Petitioner was represented on appeal and on the § 440 motion by M. Sue Wycoff of the Legal Aid Society, Criminal Appeals Bureau. Kerry Elgarten served as counsel to Ms. Wycoff.

The petition was filed on November 14, 2002 pursuant to 28 U.S.C. § 2254 presenting questions (1) whether, where Defense Counsel, inter alia, failed to raise a justification defense and to request a justification charge, just the only reasonable once, deprived the Petitioner of the effective assistance of counsel under the Sixth and Fourteenth Amendments to the U.S. Constitution; (2) whether the appellant was deprived of his rights to counsel and to be present to due process, when the court responded to a jury note in a non-responsive and prejudicial manner without affording Defense Counsel an opportunity to have input into the formulation of the response under the Sixth and Fourteenth Amendments to the U.S. Constitution; and (3) whether evidence failed to prove beyond a reasonable doubt that Petitioner intended to kill rather than to scare or impede Miguel Luna under the Fourteenth Amendment to the U.S. Constitution.

The answer of the State was filed on September 3, 2003. The Petitioner by letter of July 2, 2004 which was treated as a motion and made returnable on August 15, 2004 sought a stay of the proceedings in this court. Petitioner withdrew that request by letter of July 16, 2004, and, his motion was stricken from the calendar by order of July 29, 2004, at which time the matter was considered fully submitted.

Pretrial Proceedings

On November 26, 1992, Petitioner was arrested at St. Luke's Hospital. On December 2, 1992, he was arraigned at the hospital. He was represented by Earl Ward ("Ward") of the Neighborhood Defender Services. On December 3, 1992, he was moved to Bellevue Hospital Jail Ward (H. 573-75).¹

1 Numbers in parentheses refer to the pages of the trial transcript (testimony of a particular witness may be indicated by his or her initials); those preceded by "D." refer to the court's decision on the suppression hearing; those preceded by "V." refer to the minutes of the voir dire; those preceded by "H." refer to the minutes of the § 440 hearing; those preceded by "440D" refer to the pages of the § 440 hearing decision; those preceded by "Adj." refer to the minutes of the adjournments annexed to counsel's § 440 papers, and those preceded by "S." refer to the minutes of the sentencing.

On December 7, 1992, in Part F, there had been no grand jury action. The court adjourned the case to March 3, 1993, and released Petitioner on his own recognizance. Defense Counsel was ordered to be notified. On December 8, 1992, in Part F, Assistant District Attorney Sally Hines ("Hines") informed the court that the court file jacket mistakenly recorded the C.P.L. § 180.80 release day as December 7, when actually, the parties had agreed that the date should have been December 9. Bail was reinstated, and the case was rescheduled to December 11, 1992. Hines sent a securing order to the Bellevue prison ward to try to prevent Petitioner's release, but he had already been released (H. 1275-76).

A corrections officer had told Petitioner he was released on his own recognizance and had given him a piece of paper telling him to return to court on March 3, 1993. After being moved to a noncustodial ward of the hospital, Petitioner left the hospital against medical advice. He was not told about the December 11 adjourn date (H. 147-48, 574-79, 585-89).

The case was presented to the grand jury on December 9 and 10, 1992 (H. 1277). On December 11, by New York County Indictment Number 13308/92, Petitioner was charged with two counts each of Attempted Murder in the Second Degree (New York Penal Law (" P.L.") §§ 110 and 125.25[1]) and Criminal Use of A Firearm in the First Degree (P.L. § 265.9[1]), one count of Assault in the First Degree (P.L. § 120.10[1]), and one count of Criminal Possession of a Weapon in the Second and Third Degrees (P.L. §§ 265.03 and 265.02[4]).

On December 11, in Part F, neither Petitioner nor his attorney was present. The Assistant District Attorney told the court what had occurred with respect to Petitioner's release from custody and a bench warrant was ordered, despite the fact that Petitioner had not received notice to appear on that date (H. SH: 1275-80).

On April 18, 1993, Petitioner was arrested on an unrelated case for endangering the welfare of a minor (H. 602-04). On April 20, he was returned on the warrant and brought to court on the instant case, but was not represented by counsel. He stated that his name was Willie Thompson (H. 602-05).

On April 21, 1993, the next court appearance on the instant case, counsel was again not present, but Petitioner was nevertheless arraigned on the indictment and the case was adjourned to April 29, 1993, when an attorney with Neighborhood Defender Services (not Ward) appeared on the case (H. 604-06).

A Wade, Mapp and Huntley hearing was conducted. Petitioner was represented by Ward of the Neighborhood Defender Services. The court found that the showup, at which two witnesses identified petitioner on a gurney at the hospital, was not unduly suggestive (D. 1-26). Petitioner's statements were also found admissible but were never offered into evidence at trial (D. 1-26).

During jury selection, two separate times the court indicated to the prospective jurors that the defense in the case would be self-defense (V. 29, 35).

Facts

At the time of the incident in question, Jaime Luna ("Jaime") was part owner of the C-Town supermarket on 150th Street and Broadway in Manhattan (78-88). Publio Parra ("Parra") was an employee at the supermarket and in charge of security (127). Miguel Luna ("Miguel"), Jaime's brother, was also part-owner of the store. Lorenzo Caldwell ("Caldwell"), an off duty corrections officer, was a customer at the store (411-14). On November 25, 1992, at about 8:30 p.m., one of the cashiers became involved in an argument with a customer, Pat Hernandez ("Ms. Hernandez"), sister of Petitioner, about the price of a certain kind of cheese (JL: 89-90; PP: 127, 129-30; LC: 411-14). Jaime intervened and then went with the customer to the dairy case to show her the price. Upon returning to the counter, Ms. Hernandez started yelling because the signs were in Spanish. She also began throwing and breaking groceries (JL: 91-92, 116; PP: 129-30; LC: 411-14).

Parra then approached Ms. Hernandez, patted her on the shoulder, and told her to leave (JL: 92-93, 115-16; PP: 130). She cursed at him, telling him to keep his hands off of her, and then hit him in the face and chest with her hands (JL: 94, 115-16; PP: 140-41). Parra grabbed Ms. Hernandez's hands to stop her (JL: 93; PP: 129-31; LC: 418).

Caldwell approached, displayed his corrections officer shield, asked the woman to leave and then tried to move her out. Caldwell and Ms. Hernandez then began to argue (JL: 94-96; PP: 131-32; LC: 414-15).

At that point, a man later identified as the Petitioner entered the store and asked who had hit his sister (JL: 95-96; PP: 132; LC: 416-18). A customer pointed at Parra, whom Petitioner then punched in the eye (JL: 96-97, 119; PP: 131; LC: 416-18). Caldwell then became involved in a fight between Parra and Petitioner and all three fell to the ground (JL: 97, 110-11; PP: 133).

According to Parra and Jaime, Petitioner pulled a gun from his waist area, aimed at the ceiling, and fired one time (JL: 98, 100, 119; PP: 133-34). Caldwell ran away and Parra tried to do so as well, but Petitioner stood up and pointed the gun at them (JL: 98).

Jaime then pulled out his licensed gun and told Petitioner to stop (JL: 98, 108). Petitioner shot him in the temple and chest (JL: 98-99). Jaime testified that he had no memory of anything after he was shot (JL: 98-99). On redirect examination, Jaime was asked, "When the man with the gun [Petitioner] pointed the gun at you, do you remember today how many times you shot at him?". Jaime responded that he fired the gun one time and he thought he had hit Petitioner (JL: 123-24).

After Petitioner fired into the ceiling, Parra ran out of the store and then went to a separate room (PP: 134-35). Parra testified that he heard two or three shots, all at approximately the same time but did not at any time see either Jaime or Miguel with a gun (PP: 142-43). Parra denied having a gun himself, or engaging in a struggle cver a gun during the incident (PP: 136-37, 154-55).

Caldwell testified that Petitioner had reached for his waistband with his right hand, pulled out a gun, and extended his arm toward the man in front of him (LC: 419, 438-39, 453, 476). That man hit Petitioner's arm, his arm went up, and the gun discharged towards the ceiling. Caldwell conceded, however, that Petitioner may have aimed the gun at the ceiling (as Jaime and Parra testified) (LC: 419, 466-67, 480). Petitioner brought his arm down and pointed at one of the Hispanic men. Caldwell then drew his own gun. Petitioner then fired two shots at the Hispanic man (LC: 419-20, 467).

Caldwell testified that he did not see anyone with a gun except Petitioner (LC: 440-41, 445-46, 465, 476). He denied having told Detective Robert Nugent ("Nugent") that one of the Hispanic men pulled a gun in the store (LC: 445-69). Petitioner, followed by the manager, a stock clerk, and a woman, exited the store, followed by Caldwell, who, outside, heard three loud shots and one quieter one (LC: 420-21, 424, 443-43). Caldwell saw one of the store employees lying wounded on the ground with a gun in his hand (LC: 421-22). He then heard about four shots from what sounded like a larger gun, and about two from a smaller gun (LC: 423-27, 442-43). Caldwell attempted to secure the area and unsuccessfully tried to take the gun from the wounded man (LC: 427-28).

Miguel testified that when Parra tried to control Ms. Hernandez and asked her to leave, Caldwell identified himself as a corrections officer and said he would take over (ML: 244). About five minutes later, Petitioner came in and asked his sister who had hit her. She pointed at Parra, whom Petitioner then punched in the eye. Parra and Caldwell then wrestled Petitioner to the ground (ML: 246).

According to Miguel, Petitioner then pulled a gun from his waist and immediately fired one time at the ceiling (ML: 247, 288-90, 299, 486). Miguel then drew his licensed "Double Eagle .45" gun and held it at his side (ML: 242-43, 247-48, 299-300). Both Parra and Petitioner started to run toward the exit (ML: 248, 300-301). Jaime drew his gun, pointed it at Petitioner but did not fire, and "told him stop. [Jaime] went to shoot him in the back" (ML: 248-49, 293-94). Still inside the store, as he neared the exit, Petitioner suddenly turned around and fired back towards Jaime (ML: 248-50, 290, 295, 297, 303-04, 486). Petitioner continued out the door, and Jaime chased him, at a quick pace, almost running (ML: 249-51, 297, 303-04). Miguel claimed that he had not fired at all inside the store; he was unaware that the police had in fact found a shell from his gun inside the store (ML: 271, 277-78).

Miguel exited and caught up with Jaime, who had fallen down with injuries to his head and chest (ML: 251, 303-04, 327). From about eighteen feet away, Petitioner shot once more after Jaime went down and Miguel returned fire once or twice (ML: 251-53, 305-06). Petitioner ran south toward 149th Street, moving in a sideways fashion, facing Miguel (ML: 251, 259). Before reaching 149th Street, Petitioner shot toward Miguel again. Miguel shot more than once as he chased Petitioner, at a distance of about eighteen feet (ML: 255, 259, 306-08). Miguel changed his gun's magazine during the chase (ML: 255-56, 317).

Between 149th and 148th Streets, Petitioner fell down (ML: 255-56, 261, 308-09, 311). According to Miguel, when he saw that Petitioner was no longer a threat, he put his gun in his waist and waited there for the police to arrive (ML: 255-56, 310-11, 316-17). Miguel no longer saw Petitioner with a gun and did not look for it (ML: 257, 309-310, 312-313). Miguel was not shot at all, and he denied shooting Petitioner in the back (ML: 294, 310, 312, 494). He claimed not to know his bullets contained buckshot (ML: 240-41, 484).

When the police arrived, they handcuffed Miguel, and took him to the precinct for three or four hours (ML: 257-58, 263, 318). According to the statement Miguel made to the police, Petitioner had aimed the gun at him (rather than Jaime) after shooting at the ceiling. The prior statement also indicated that Petitioner had waved the gun at customers and employees, though Miguel contradicted that statement at trial (ML: 301-02).

Other store employees testified to hearing an argument and shots but, except for one who saw Petitioner shoot at the ceiling (JL, Jr.: 180), did not see who fired them (JL. Jr.: 158-64, 184, 187-88; JQ: 195-99, 200-02, 213-15; GL: 536, 548-55, 570).

Caesar Quintana ("Quintana") was waiting for his twin brother Julio in a pizzeria on the corner of 149th Street and Broadway when he saw two men come out of C-Town, shooting (CQ: 218-21). Miguel was chasing the other man, as they headed south across 149th Street toward 148th Street (CQ: 220-21, 228-29, 232, 235). Quintana heard two different kinds of gunshots. Miguel's gun sounded stronger. Quintana estimated that Miguel shot at the man three to five times, but Quintana did not know whether any of the shots hit their target. The other man shot three or four times while running, firing from a side angle (CQ: 220-21, 223, 228, 234).

Joseph Palazzolo ("Palazzolo") was driving a New York City bus when, at about 8:30 p.m., while stopped at a light, he heard the sound of many shots fired and saw a man come out of C-Town and fall to the ground (JP: 389-91). Another man followed and a third man, a short Hispanic man with a very large gun, crouched over the man on the ground (JP: 391, 396). The Hispanic man with the large gun then chased and fired at the other man, who ran south on Broadway, toward 149th Street (JP: 392). Palazzolo never saw the first man fire or even hold a gun, but he did see that man turn around more than once, heard the sound of two different guns and testified that it "seemed" as if he fired back. The Hispanic man fired from a combat stance and kept firing until the other man fell to the ground (JP: 392-93, 405, 406, 408-09). He appeared to have shot the other man in the back (JP: 407-08).

Police officer Zoltan Carpati ("Carpati") went to 148th Street and Broadway, where he saw many people gathered around Petitioner, who had been shot many times and was lying on the street (ZC: 337). Petitioner said he had been shot, but that he did not know who shot him or where he was shot (ZC: 337-338). A woman attending to Petitioner pointed to Miguel, who was standing in the crowd, and said that he was the shooter (ZC: 338-40, 351-52). From Miguel, Carpati recovered a .45 caliber semi-automatic weapon (ZC: 340-42, 361-62). Miguel told Carpati, "He killed my brother so I shot him" (ZC: 343-44, 353). Carpati took Miguel into custody and brought him to the precinct (ZC: 341, 344, 356).

Detective Robert Nugent brought Caldwell and Parra to the St. Luke's Hospital emergency room where Petitioner was lying on a gurney (RN: 780-81, 787-89). Caldwell identified Petitioner as the "one with the gun" and Parra identified him as the man who had punched him in the face (RN: 788-91).

Miguel told Nugent that Jaime and Caldwell had lunged at Petitioner (RN: 795-97, 806). Parra said that he and Jaime had knocked Petitioner to the ground (RN: 866). Caldwell told Nugent that there had been a "second round" of gunfire exchanged inside the store between Jaime and Petitioner; Caldwell did not know who fired first (RN: 827-33). Because Miguel presented a valid permit for his gun, he was not arrested (RN: 797-99).

Ramon Mendoza ("Mendoza"), a C-Town employee, testified that he found a gun on the morning after the incident in a hole filled with water, in the street, at the edge of the sidewalk, directly in front of the store. He brought it to the attention of Ruben Luna ("Ruben"), another C-Town employee, who put it in a paper bag and called the police (RM: 497-519: RL: 522-24). Police Officers Robert Funk ("Funk") and David Rios ("Rios") responded to the call. Ruben handed Rios a .38 caliber gun with one live round and four spent shells (RF: 633-35, 655-57). Mendoza pointed out the spot where he allegedly found it: a shallow eight to twelve inch hole filled with water in the street, one inch from the curb in front of the store (RF: 633, 643-45). Rios vouchered the gun, a revolver, at the precinct (in Funk's presence) (RF: 637-44).

Detective Gerald Donohue ("Donohue"), an officer with the crime scene unit, took part in the collection of evidence at and around C-Town on November 25, 1992 (GD: 660-62). He photographed the area, made sketches and collected ballistics evidence (GD: 662-63). Parked directly in front of the C-Town was a car with a bullet hole (GD: 684-85, 702). The crime scene unit looked around and under that vehicle but did not see a gun.

In total, thirteen pieces of ballistics evidence were recovered, both inside the store and outdoors. Donohue described each of the photos taken and the ballistic evidence depicted therein, and diagramed where each piece of evidence was found.

Detective Charles Hopkins ("Hopkins"), an expert in ballistics microscopic comparison, testified that evidence items D6 and D8 and another item were all shell casings fired from the .45 caliber Colt semi-automatic pistol taken from Miguel (CH: 902-12, 918-19). Bullet D9 was also fired from that gun (CH: 919-25). The results concerning D5 and D12 were inconclusive. D5 and D12 were fired from a .45, but Hopkins could not ascertain whether they matched either of the two .45 caliber guns in evidence (CH: 925-27). He could not ascertain the source of D4 or D11 either (CH: 930-32).

Hopkins determined that D13, the bullet removed from the ceiling, was a .38 fired from the revolver found by Mendoza in front of the store (CH: 932-33). The bullet removed from Jaime at the hospital was fired from the same gun (CH: 937-39, 944).

Hopkins could not determine whether the bullet removed from Petitioner's hand came from any of the three guns (CH: 940-942).

According to Dr. David Murray ("Dr. Murray"), who treated Petitioner on the night of the altercation, Petitioner had nine bullet wounds: two each in the back, the left hand, the right calf, and the left thigh, and a single graze to the left elbow (DM: 725). One of the wounds to the thigh left buckshot fragments in the soft tissue of the left groin (DM: 726-28, 731-32).

Buckshot was also recovered from the hand. One of the bullets went across the width of Petitioner's back (DM: 726). The two holes in his back were probably from the same bullet, possibly because Petitioner may have been standing sideways when shot (DM: 734-35, 741). The two holes in his hand were probably from one bullet, as were the two holes in his calf (DM: 737-39). According to Dr. Murray, the entrance wounds other than the wounds to Petitioner's back were probably in the front of his body (DM: 739-41).

The prosecutor sought to introduce the hospital record relating to Jaime, but sought to redact the history section entered upon his admission to the hospital (1019-20). Defense Counsel requested that the portion be included. The disputed excerpt read: "bullet traveled lodging in the right flank during a robbery attempt" (1020-21). The document indicated that the source of the information was "informant patient" (1023). Defense Counsel further explained that during the trial, Rosario material had been provided in a piecemeal fashion and at the time Jaime Luna testified, counsel had not yet been provided with a copy of the medical records, notwithstanding a request for such documents months earlier (1025). See People v. Rosario, 9 N.Y.2d 286 (1961).

The court denied the defense application to admit the "history" portion of the document. The redacted records, pertaining to Jaime, as well as those for Parra were admitted into evidence (1025-26). Counsel noted his objection but sought no other sanction (1026).

During cross examination, Defense Counsel elicited that Miguel had testified to the Grand Jury, signing a waiver of immunity and testifying with his lawyer was present (321-26). Prior to Miguel's redirect testimony (which followed the testimony of other witnesses), the court delivered an instruction to the jury concerning grand jury matters as they supposedly related to Miguel Luna. The court instructed the jur that a person does not have to testify against himself and that ordinarily, if the government wants somebody to testify at the grand jury:

automatically that person can never be prosecuted for a crime that's under discussion in the grand jury.

The waiver of immunity is a circumstance that this witness was in, where the Grand Jury called him as a witness but they would only call him if he agreed to give up the possibility of not being charged himself. In other words, the Grand Jury could have charged this witness with a crime in connection with this incident. They could, for example, have said, "we're going to charge you with using too much force, shooting unnecessarily." This witness could have avoided the possibility of becoming a defendant by saying, "I'm not going in the Grand Jury."

He went in the Grand Jury with this waiver of immunity, which says, "if the Grand Jury decides to charge me, Miguel Luna, after you've heard me, so be it. I'm giving up the opportunity of getting this —

Let me start again.

The Grand Jury wanted to hear, apparently, his evidence but they would not have heard the evidence or at least the state of the record here is, they would not have heard the evidence unless he gave up the automatic rights to avoid being a defendant.

Somebody who waives immunity is allowed to go into the jury with an attorney. The attorney is not allowed to answer questions for the witness. The attorney is allowed to advise the witness on legal matters. But the attorney can't participate in the process. He doesn't supply answers and is not supposed to give advice that causes the witness to give testimony in a certain way.

I think the point is, because of signing this paper, he could have been charged by the Grand Jury. They chose not to charge him.

I think we'll leave it there, unless I decide I should tell you more about it when I tell you the entire law that covers all aspects of the case at the end.

(332-34).

Counsel did not object to the instructions.

On redirect, the prosecutor reviewed the questions and answers constituting Miguel's waiver of immunity at the grand jury (488-89). The prosecutor then asked, "Did you realize that before you went in the Grand Jury you may have been charged with a crime or crimes?" (490). Miguel responded, "Yes. I was sure what I did was . . ." Defense Counsel objected and the court interjected, "Did you realize — I understand what your sentence of what should happen is. But forget that. Did you realize that if the Grand Jury didn't have your sense of what happened you could have been charged?", to which Miguel responded, "Yes" (ML: 490). The prosecutor again asked if he realized it, Miguel again said yes, and the prosecutor asked "And you were not charged with any crimes?" to which Miguel responded, "No" (ML: 490).

In his summation, Mason did not discuss the idea of justification or self-defense. He discussed the following issues: the nine bullet holes in Petitioner's body; that there was still a cartridge in the .38 revolver despite the claim that Petitioner fired many times; that nearly all testimony against Petitioner was given by the Luna brothers or their employees; that there was no revolver near Petitioner when the police arrived (and that that gun was supposedly found near the store the next day, two blocks from where Petitioner was found); that the People did not call any of the store's customers as witnesses; that nobody was able to make an in-court identification; that the accused participants in the scuffle with the shooter denied their involvement; that the various accounts were inconsistent with each other; that Petitioner was left-handed but Caldwell said the shooter used his right hand; and that one of the shells from Luna's gun was found inside the store. Counsel argued that only Palazzolo, the bus driver, who had no interest in the outcome, told the truth (1027-64).

The court charged one count of attempted murder pertaining to Jaime Luna, one count of attempted murder pertaining to Miguel Luna, one count of criminal use of a firearm pertaining to such use against Jaime Luna, another count pertaining to such use against Miguel Luna, and, as alternatives, one count each of assault in the first degree and criminal possession of a weapon in the second and third degrees (1107-51).

The court gave a lengthy and elaborate identification charge (1137-40). It did not charge on self-defense.

After beginning its deliberations at 12:46 p.m., the jury sent a note to the judge. At 2:26 p.m., without conferring with counsel about the note, the court called the jury in and read the note aloud: "reinstruction on the law regarding elements required for the first and second charges" (1152). The court then instructed:

the fact that in an attempted murder case, the person wasn't shot or didn't die doesn't matter. What matters is whether the two elements are proven beyond a reasonable doubt. And I am going to give a longer explanation of the two elements than I did this morning. The law says a person is guilty of murder in the second degree when, with intent to cause the death of another person, he causes the death of such person. Now, that's what murder is. Read the definition of murder because you have to know that with regard to the first element of an attempt to commit a crime of murder. There is an intent requirement.

The intent requirement at the time that the act or acts is done is that the desire of the actor is to cause the death of the other person. I repeat, it doesn't matter if the other person is not shot and doesn't die.

The intent of the actor at the moment, at least at the moment he does an act is to cause the death. . . . Again, it doesn't matter if the person didn't die or wasn't shot.

Attempt is described this way: A person is guilty of an intent to commit a crime when, with the intent to commit that crime, he engages in conduct which tends to effect the commission of that crime. The words intent or tend to effect mean to bring about the commission of that crime. . . . They don't mean does an act that brings about the result. The words say, does an act or acts which tends to bring about the result.

I am going to give you a couple of examples. . . . Examples always make everybody nervous. Oh, my God, the Judge gave an example, it was too close to the case, bad, bad, bad.

Well, here are two examples as I make an effort to illustrate the idea of tending to effect the commission of a crime. Suppose somebody wanted to poison somebody. There are a whole series of things that could happen before the person, the intended victim drank the stuff, the act of putting the stuff into the drink, the act of carrying the stuff to the place, the act of acquiring the stuff. . . . [A]cquiring a poison, bringing a poison to the place where the intended victim was, or putting the poison into the drink, a jury in a case like that could decide that any one of those things by itself was an act or acts which tended to effect the commission of the crime of murder.

The person didn't even have to drink the stuff and the person could have had no idea. The focus is what was the intent. The People are required to establish beyond a reasonable doubt what was the intent at the time the act or acts were done.

And then, if the People have proven the intent beyond a reasonable doubt, then their second obligation is to prove beyond a reasonable doubt that, acting with that intent, a person did an act or acts that tended to bring about the commission of the intended crime.

(1153-59).

Defense Counsel objected to the court's response. The jury's request had been simply for the court to reread the original instructions on the first two counts, but the court had both expanded the instruction and added illustrations (1160-61). The court did not take any corrective action in response to defense counsel's complaint.

The jury left the courtroom at 2:39 and, at 3:51, was recalled to the jury room after sending two more notes (1160-61). The first additional note requested certain exhibits and the second asked for "testimony of Jaime Luna describing his actions from when Juan walked into the store" (1161-62). Another note asked for "further explanation of the counts, i.e., which counts involve Jaime, and which involve Miguel, counts one to four." The jury left at 4:11 p.m. and was recalled at 5:24 p.m., after sending two more notes requesting certain testimony from Caldwell, Palazzolo and Quintana, and the address of the pizza place from which Caesar Quintana made his observations (1165). The readback was given and the jury was told that the requested address was not in evidence (1165-67). The jury left the courtroom at 6:35 and, at 7 p.m., was sequestered without being returned to the courtroom (1167).

The next day, the court stated its intention to bring the jurors to the courtroom to ask them to disregard part of an example the court had given the previous day. Specifically, it wanted to retract the part of the example discussing acquisition of poison as tending to effect the commission of the crime, since such could be viewed as mere preparation (1169).

Defense Counsel pointed out that, the previous day, he had objected to the court's expanded charge and that by now, the next day, the jury had already deliberated on it (1170-71). Therefore, the court should not only instruct the jury to disregard the example, but, in addition, to begin its deliberations anew (1170-71).

After the jury was recalled to the courtroom, the court instructed that its example from the previous day, of obtaining poison as an example of an attempt to kill "probably is not a good example" because it could be mere preparation (1180). It told the jury to disregard the example and that if the jury had relied on it, the jury should "redo it" (1180).

The jury had also sent an additional note reading, "Should we consider the first two charges as separate incidents rather than a chain of events" and "if we are hung on one count, does that affect or negate the whole indictment" (1169). After discussions with the parties, the court gave the jury an instruction during which it said: "You have the absolute right to consider the incident in the store apart from the incident outside the store" (1181).

Defense Counsel objected to these instructions as confusing, but the court declined to make any changes (1187). At 10:17 a.m., the jury resumed its deliberations (1186).

When the jury indicated that it would orally render its verdict, Petitioner interrupted the proceedings, stating that the jury had not heard all the evidence and referring to the taped statement he had made, which had been found admissible, but never entered into evidence (1189-90). When the jury was cleared from the courtroom, Petitioner argued that he had not had the chance to speak (1191). The jury convicted Petitioner of every count which the instructions allowed — both counts of attempted murder in the second degree and both counts of criminal use of a firearm in the first degree (1193-94).

Prior to summations the foreperson had been discharged in order to attend a funeral and the remaining alternate was substituted for the foreperson (835, 1011-12, 1025). After summations and the court's charge, the court had informed both attorneys, at a side bar, that the clerk had told the court that the new foreperson "doesn't want the responsibility of being foreperson" (1147). The court stated to the attorneys that a foreperson's only responsibility would be to sign the notes and announce the verdict (1147-48). When the prosecutor asked if the juror was "afraid" to announce the verdict, the court said, "I don't know. I am not going to get into it with her. I don't want to do anything other than resolve it here on our own" (1148). Defense Counsel indicated that he did not care how the court proceeded and agreed when the court said it would allow the jury to pick somebody else to announce the verdict (1149).

Before the verdict was announced, the court repeated to the parties that P.L. § 310.40 requires the verdict to be rendered and announced by the foreperson. The court then so informed the jury (1150-51). All jury notes were signed by the court-designated foreperson except for the last one which stated that a verdict had been reached. The court indicated its belief that the person who signed the last note had been selected to announce the verdict. That person then announced the verdict (1193-94). Defense Counsel agreed to the procedure, as long as the jury would be polled (1187-88).

After the verdict was rendered, the court told Petitioner he had had his chance to speak but had chosen not to. Petitioner disputed this, saying it had not been his choice (1196).

Post-trial Proceedings

On the day set for sentencing, Mason orally moved to set aside the verdict on various grounds. One ground was the court's response to the note for reinstruction, in which the court expanded on the original charge and gave examples (S. 11-12). Counsel also complained about the fact that the foreperson did not want to read the verdict (S. 13-14). Finally, he argued that the guilty verdict with respect to Miguel as an intended murder victim was "against the weight of the evidence" (S. 14-15). The motion was denied in all respects.

Petitioner, who spoke on his own behalf, complained that he had expected the case to be presented as a self-defense case and that he did not understand what had gone wrong. This feeling apparently caused his outburst in court when the jury was about to render the verdict. Petitioner stated that he had wanted to tell his side of the story but had not been able to do so (S. 22-23). He would have testified that he had acted in self-defense and had not entered the store with a gun (S. 6, 22-23).

The court sentenced Petitioner to two concurrent terms of imprisonment of 12½ to 25 years for the attempted murder and criminal use of a weapon counts pertaining to Jaime Luna, consecutive to two concurrent terms of 9 to 18 years for the attempted murder and criminal use counts pertaining to Miguel Luna (S. 29-30).

On March 31, 1997, the Petitioner filed a pro se motion pursuant to C.P.L. § 440.10(1)(b)(c)(f) and (h), to vacate the judgment and order a new trial, or in the alternative, for a hearing.

Petitioner also sought relief under C.P.L. § 440.10(1)(f) and (h), asserting that Mason had rendered ineffective assistance. A hearing was granted and conducted on various dated from January 1999 through May 1999.²

2 The following account is drawn from Petitioner's testimony at this hearing, and does not constitute the finding of any court.

At this hearing, Petitioner testified that on the evening of November 25, 1992, he was in his apartment with his sister Patricia Hernandez and Adrienne Walker. Ms. Hernandez planned to prepare some food for their Thanksgiving meal, but needed to buy a few items. The three of them left the apartment together, headed for the C-Town supermarket. The two women entered the supermarket, but Petitioner went around the corner to play dice. After a while he went into the C-town to see what was going on. He testified that he did not have a gun and had never possessed one in his life (H. 473-75, 546-47).

Petitioner testified that upon entering the store, he saw his sister standing by one of the counters, crying. He asked what had happened; Ms. Hernandez pointed to Parra and stated that he had hit her. Petitioner approached Parra and angrily asked why he had hit Petitioner's sister. Parra then reached into the slit of the butcher type jacket he was wearing. Since Petitioner had previously seen store personnel with guns, he thought Parra might be reaching for a gun or other weapon, and punched him hard, in the face, with his left hand. Parra's back was to the large window facing out onto Broadway and when he fell slightly back against the window, Petitioner saw a gun fall to the floor and land about three feet away, in between two counters (H. 476-78, 541, 651-54, 972-83).

Petitioner (who is left-handed) and Parra simultaneously lunged for the gun. Petitioner was slightly closer to it and was able to fend off Parra with his left hand and arm while reach for and grabbing the gun with his right. As Petitioner returned to an upright position, Parra fled the store through the exit, which was to the right of Petitioner, who was facing the Broadway window. As he rose, Petitioner also saw two store employees whom he recognized as such, and whom he later learned to be Jaime and Miguel Luna. They were approaching him from inside the store, to Petitioner's left, each with a gun in his hand. Miguel crouched behind one of the counters, peering around it at Petitioner; Jaime was standing right next to Miguel. Their guns were pointed at Petitioner (H. 542-45, 652-54, 656-57, 984-95, 1004).

Petitioner testified that he feared that they were going to shoot him. Still using his right hand, Petitioner pointed the gun toward the ceiling. He had his left hand up indicating that he wanted to get out of the store. He fired one shot at the ceiling, telling the Lunas not to shoot him and that he wanted to leave. However, one or both or the Lunas immediately fired at him. One shot hit him in the side of his left hand, which was up and extended toward the Luna brothers in a manner indicating that they should desist. He was also shot in the left forearm area (H. 545-46, 561-64, 656-57, 996-1000, 1005-07).

Acting to protect himself and to prevent them from shooting at him any more, Petitioner fired back two or three shots in the direction of the Lunas. He did not know at the time whether either shot hit anyone. As he fired, they fired back and hit him again in the lower back; the bullet entered his left side and exited his right side. He dropped the gun right where he was an ran out of the store, chased by Miguel (H. 548-51, 565-67, 657, 1000-01, 1008-11).

Right outside, Miguel stood at the exit, facing Petitioner, whose back was to Broadway. Miguel then shot Petitioner in the right calf. Petitioner held both hands up, palms facing Luna, and told him not to shoot anymore and that he did not have their gun anymore. Miguel's attention was temporarily diverted toward Adrienne Walker, who had exited the store, and when Miguel turned, Petitioner started running south. As he ran, at a slow pace, he frequently turned toward Miguel Luna, who was firing repeatedly, and pleaded with him to stop shooting. As they approached the middle of the block between 148th and 149th streets, Miguel shot Petitioner in the back of the right calf, causing him to fall to the ground (H. 551-53, 567-70, 1019-22).

Miguel then walked up to Petitioner, who was lying on his back. He aimed the gun at Petitioner's head and pulled the trigger but the gun did not fire. Miguel then changed the gun's clip and, standing over Petitioner, shot him in the left thigh, then put the gun back in the holster and began walking away, toward the crowd (H. 553-56, 570-73).

In a written decision dated July 12, 1999, Justice McLaughlin denied Petitioner's motion, finding Petitioner's testimony contrived and not credible and Mason's trial strategy "prudent and competent" (440D. 7).

The court accepted Mason's stated view that use of the justification defense would have been detrimental in part because it would have caused the jury to focus on the testimony of Lorenzo Caldwell (440D. 6-7, 10-11).

As for the failure to call Michael Delfish as a witness, the court said it would have made no difference on the issue of self-defense (440D. 15) and rejected Petitioner's speedy trial argument.

Petitioner was granted leave to appeal the § 440 denial and to consolidate that appeal with the direct appeal. On the consolidated appeal, Petitioner argued three points including the following two: 1) that Petitioner was denied the effective assistance of counsel where, among other things, the attorney failed to request a justification charge, even though that defense was not just the only reasonable one, but was indeed a strong one on which Petitioner would likely have prevailed (citing the Sixth and Fourteenth Amendments to the U.S. Constitution, and Strickland v. Washington, 466 U.S. 668 (1984)); and 2) that Petitioner was deprived of his rights to counsel, to be present to a jury trial, and to due process, when the court answered a jury note in a non-responsive and highly prejudicial manner, without first affording Defense Counsel an opportunity to have input into the formulation of the response (again citing the Sixth and Fourteenth Amendments). Petitioner raised additional issues pro se.

On March 27, 2001, the Appellate Division affirmed the convictions stating that the verdict was based on legally sufficient evidence and was not against the weight of the evidence; intent to kill Miguel Luna "could be reasonably inferred from the totality of defendant's conduct, particularly with respect to the seriously wounded victim, as well as the surrounding circumstances" and finding that Petitioner "received meaningful representation" and that counsel's decision not to pursue a justification defense was a "reasonable choice of possible strategic alternatives." Hernandez, 722 N.Y.S.2d at 160. It held that the response to the jury note was "meaningful"; it did not address the right to be present and right to counsel aspects of that point. The decision found the pro se claims to be unpreserved. Id.

Petitioner sought leave to the Court of Appeals urging the court to consider all issues raised in the Appellate Division brief and the pro se supplemental brief. In a follow-up application, Petitioner focused on the ineffectiveness issue and jury note issue. On August 20, 2001, the Court of Appeals denied leave. People v. Hernandez, 96 N.Y.2d 919 (2001).

Counsel Was Not Constitutionally Ineffective

According to the Petitioner, Mason deprived him of the effective assistance of counsel by not presenting a justification defense or requesting a justification charge, by his questioning of Miguel Luna, by not achieving effective relief for the State'sRosario violation, see People v. Rosario, 9 N.Y.2d 256 (1961), his failure to request an inquiry into the reluctance of the foreperson of the jury to render an oral verdict, the failure to seek dismissal under C.P.L. § 30.30, the failure to investigate and present witnesses, including appropriate medical evidence, and the failure to disclose the conflict of interest resulting from his own prosecutions for professional misconduct. The facts underlying these failures were the subject of the § 440 hearing before Justice McLaughlin which the State quite candidly has characterized as "blistering" (Resp. Memorandum of Law in support of Answer at 4) in its characterizations of the Petitioner. Under 18 U.S.C. § 2254(d)(1), a Petitioner can only prevail if he can establish that the state court's determination of a claim was contrary to, or an unreasonable application of, established Supreme Court precedent. A Petitioner can also obtain habeas relief if the state court's rejection of the claim resulted in a decision that was based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2). Furthermore, "a determination of a factual issue by a State court is presumed to be correct, and the Petitioner has the burden rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

To demonstrate constitutional ineffectiveness, defendant must first show "that counsel's performance was deficient."Strickland, 466 U.S. at 687; see also Lockhart v. Fretwell, 506 U.S. 364 (1993); Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001). To make this determination, the court must decide whether "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 689. Counsel's conduct must be judged on facts of the particular case, viewed as of the time of counsel's conduct. See id. at 690; see also Lockhart, 506 U.S. at 372. The reviewing court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and be careful to "eliminate the distorting effects of hindsight." Strickland, 466 U.S. at 689.

In addition to showing deficient performance, the defendant must show that the deficient performance prejudiced the defense; it must be shown 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. A reasonable probability is one that "undermine[s] confidence in the outcome."Strickland, 466 U.S. at 694.

Where a petitioner seeks habeas corpus relief, under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254,

a writ may issue only if . . . the state court adjudication resulted in a decision that . . . involved an unreasonable application of . . . clearly established federal law, as determined by the Supreme Court of the United States . . . Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 529 U.S. 362, 413 (2000).

In a petition for habeas relief based on ineffective assistance of counsel, the question as to whether the matter is governed by existing Supreme Court precedent is "easily answered because the merits of [such] claim[s] are squarely governed by [the Supreme Court's] holding in Strickland v. Washington," Id. at 390; see also Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001). A petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also clearly established. Aparicio, 269 F.3d at 95 n. 8; Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001). Application of the New York State standard set forth in People v. Baldi, 54 N.Y.2d 137 (1981), is essentially consistent with the Strickland standard, so that relief is appropriate only if the legal principle was unreasonably applied. Lindstadt, 239 F.3d at 198.

Ineffective assistance can be established by counsel's failure to make a motion or take action where such motion or action would have been successful and there is no tactical reason for failing to do so. See Brown v. United States, 167 F.3d 109, 110 (2d Cir. 1999).

In addition, failure to investigate or present exculpatory witnesses or other exculpatory evidence for no tactical reason can also amount to ineffective assistance. See Strickland 466 U.S. at 691; Lindstadt, 239 F.3d at 200.

Actions or omissions by counsel that might be considered sound trial strategy do not constitute ineffective assistance. See Strickland, 466 U.S. at 689; Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998). A petitioner may rebut the suggestion that the challenged conduct reflected merely a strategic choice by showing that "counsel omitted significant and obvious issues while pursuing other issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994),cert. denied, 513 U.S. 820 (1994).

Finally, where there is a conflict of interest between an attorney and his client due to disciplinary action against the attorney and the attorney's failure to disclose it to the client, such failure to inform and obtain a waiver can render counsel's assistance ineffective. See Herrera v. Russi, 1996 WL 651017, at *9 (E.D.N.Y. Nov. 6, 1996); see also Cuyler v. Sullivan, 446 U.S. 335 (1980); United States v. Levy, 25 F.3d 146 (2d Cir. 1994).

The Petitioner has failed to meet his burden of overcoming the strong presumption of competent representation. Strickland, 466 U.S. at 689. As Justice McLaughlin put it, Mason was "an effective advocate trying an impossible case" (D. 19).

Petitioner's primary complaint is that Mason should have argued that Petitioner shot the Luna brothers in self-defense and should have requested a justification charge. He does not rely on the account of events he presented at the § 440 hearing and instead contends that the defense was warranted even under the accounts given by the State's witnesses.

As a matter of New York law, a person is only entitled to use deadly physical force upon another if he or she "reasonably believes that such other person is using or about to use deadly physical force" against him or another. P.L. § 35.15(2)(a). But even if that condition is satisfied, a person still may not deadly physical force if he "knows that he can with complete safety as to himself . . . avoid the necessity of so doing by retreating." Id.; see also People v. Stevens, 665 N.Y.S.2d 860 (N.Y.App.Div. 1997). Furthermore, if the person was the "initial aggressor," he is not authorized to use any physical force at all, unless he has "withdrawn from the encounter and effectively communicated such withdrawal." P.L. § 35.15(1)(b). An "initial aggressor" has been defined as the first one to use or threaten to use physical force aggressively. See People v. Giammarino, 481 N.Y.S.2d 435 (N.Y.App.Div. 1984).

In order to claim that Petitioner shot at Jaime in self-defense, Mason would have had to argue that Petitioner reasonably believed that Jaime was about to use deadly physical force against him and that he could not have retreated and avoided firing his gun. See P.L. § 35.15(2)(a).

Petitioner has contended that there is support in the record for his contention that Jaime was the initial aggressor to use deadly force. Petitioner has noted the record evidence that his first shot was aimed at the ceiling and he subsequently sought to leave the store. Jaime, with his gun drawn, ordered Petitioner to stop. The prosecutor asked Jaime how many times he shot at Petitioner "when the man pointed the gun" and Jaime responded, "I remember shooting once" (JL: 123). The record permits Petitioner to assert that Jaime thereby admitted that he fired first, because he did not specify that Petitioner was firing as well as pointing and that he remembered nothing after being shot (JL: 99). However, elsewhere, Jaime specifically testified that Petitioner shot him before he shot at Petitioner, and Caldwell confirmed that sequence of events (JL: 98; LC: 420-21).

Finally, Petitioner has cited the ballistics evidence indicating that Miguel fired before Petitioner had threatened to shoot anyone. Petitioner has also noted that all the spent cartridges found in the store — aside from the .38 caliber slugs recovered from the ceiling and from Jaime's body — were .45 caliber and matched the Luna brothers' weapons.

Petitioner also contends that the fact he fired into the ceiling as soon as he pulled out his gun establishes that he drew his weapon only to signal that he wanted to retreat, and not with the intention of harming anyone. However, Caldwell testified that he believed that Petitioner had not intended to shoot at the ceiling, and that the bullet's path was the result of Petitioner's hand being deflected when he pointed his weapon at one of the store personnel (LC: 419, 480 — 81).

Even if an argument can be constructed to support a defense of justification, Mason cannot be faulted for declining to ask for a jury instruction on such a defense, because the judge indicated he would have rejected that request. See generally People v. Butts, 72 N.Y.2d 746, 750 (1988); People v. Padgett, 60 N.Y.2d 142, 145 (1984). At the close of evidence, Justice McLaughlin stated, "The obvious is the obvious. Obviously, I'm not going to be charging justification; is that correct?" When Mason answered, "I think that's correct," Justice McLaughlin replied, "You think it is and I know it is" (1013).

Even if a justification defense had been possible, Mason advanced a strategic reason to forgo such a defense: it would have required Petitioner to testify, presenting his own version of what happened the night of the shooting. If Petitioner took the stand, the State was prepared to disclose that Petitioner had a previous conviction for severely beating his girlfriend. Thus, as Mason reasoned, trying to convince the jury to believe Petitioner's disclaimer that he had provoked the incident or that he was acting only to defend himself or his sister would have been difficult, to say the least (H. CVM: 211, 348-49). See United States v. Aguirre, 912 F.2d 555, 562 (2d Cir. 1990) (counsel not ineffective for advising defendant not to testify since the dangers "in light of the areas of cross-examination available to the Government, were very real."). In addition, Mason explained that he had "serious questions" about Petitioner's version of events, most notably Petitioner's claim that he did not enter the supermarket armed with a gun (H. CVM: 355). Mason's doubts were not lessened by Petitioner's having told it to Mason with "a smirk or smile on his face" (H. CVM: 356). Mason concluded that Petitioner's version of the shooting would not "have held up, particularly under cross-examination" (H. CVM: 356).

At the § 440 hearing, Petitioner testified that he did not go into the store with a gun, that the gun used to shoot Jaime was Parra's, that the Luna brothers shot at him when he made it clear that he wanted to leave the store, and that he was unarmed when Miguel shot him on the street (H. JH: 546, 548-49, 578, 583-85, 653, 1010). Justice McLaughlin noted that this version of the facts was inconsistent with the testimony of Caldwell, who was far more credible than Petitioner, and required believing that Petitioner, who claimed he had never touched a gun before in his life, was nonetheless a startlingly good shot under difficult circumstances. In addition, Parra had a good reason not to be carrying an unlicensed gun since the legal risk to him as an alien resident was substantial. Justice McLaughlin found Petitioner's version of events "contrived," "illogical," and "beyond the realm of possibility" (D. 8-9). Justice McLaughlin stated that "obvious demeanor considerations" also compelled rejection of what he described as Petitioner's "tall tale" (D. 8).

Mason stated that he paid close attention to the jurors' reactions during the trial and saw that they responded favorably to the testimony of the Luna brothers. In addition, he recognized that the testimony of corrections officer Caldwell, an unbiased witness who corroborated the Luna brothers' testimony that Petitioner fired at Jaime first, was also well-received (H. CVM: 351-52, 383). Mason felt that the impact on the jury of extremely graphic photographs of Jaime lying in a puddle of blood also made the jury less than receptive to a self-defense argument (H. CVM: 347).

Mason concluded that the jury "would not have considered [a justification] defense" and predicted that if he had tried to argue self-defense, "that strategy would have blown up in our faces within a matter of minutes" (H. CVM: 236). Justice McLaughlin agreed with that assessment (D. 12). The court's factual determination is entitled to deference. 28 U.S.C. § 2254(e)(1). In sum, the evidence against Petitioner and the difficulties inherent in winning the jury over to a justification defense presented Mason with a strategic reason not to argue self-defense.

Petitioner has noted that Mason was remiss in failing to argue that the wound to Petitioner's groin showed that he had been shot while lying on his back. This evidence, according to Petitioner, would have demonstrated that it was Miguel, rather than Petitioner, who was bent on violence. However, developing this evidence would have served little purpose in a defense which was not founded on a justification claim. The contention that it would have helped undermine Miguel's credibility and made Petitioner more sympathetic represents little more than a disagreement with Mason's professional judgment that he would have difficulty mustering any warm feelings for Petitioner from the jury (H. CVM: 390).

Mason did not call Michael Delfish to testify that Petitioner was unarmed and that Miguel shot him while he was down. McLaughlin pointed out that calling Delfish as a witness would require the jury to have credited his story that Petitioner was unarmed (D. 15), a version of events directly contradicted by the testimony of Miguel, Palazzolo, Quintana and Caldwell. The value of Delfish's testimony was further compromised by the fact that he had no information to provide about what occurred inside the store.

The trial judge concluded that Mason "charted a prudent, competent strategy in not arguing self-defense" (D. 7), a strategy based on a sound evaluation of the defense's merits and risks. The Appellate Division was likewise correct to conclude that "counsel's decision not to pursue a justification defense was a reasonable choice of possible strategic alternatives." Hernandez, 722 N.Y.S.2d at 160. Actions or omissions by counsel that might be considered sound trial strategy do not constitute ineffective assistance. See Strickland, 466 U.S. at 689; Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998). See United States v. Pagliarulo, 1996 U.S. App. LEXIS 12353, at *5-6 (2d Cir. May 29, 1996) (finding no ineffective assistance when decision not to call certain witnesses was a reasonable tactical decision).

Since there were legitimate reasons for Mason's decisions, what amounts to Petitioner's disagreement with Mason over strategy presents no basis for concluding that Mason provided Petitioner with less than effective assistance of counsel. That decision plainly was not contrary to, and did not involve an unreasonable application of, settled Supreme Court precedent. Nor was it premised on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(1) and (2).

Petitioner has also charged Mason with ineffective lawyering with respect to his "extensive questioning about Miguel Luna's prior consistent statement to police in which he exculpated himself and inculpated" Petitioner (Pet. Memorandum of Law at 54-56), elicitation from Miguel that he had waived immunity in the Grand Jury, and failure to protest the court's instruction about Grand Jury immunity.

As an initial matter, "decisions by trial counsel about how and when to engage in cross-examination are strategic in nature and, thus, 'if reasonably made, cannot support an ineffective assistance claim.'" United States v. Robinson, 2002 U.S. App. LEXIS 25866, at *3 (2d Cir. Dec. 16, 2002) (quoting United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992)).

Although some aspects of Miguel's statement to police were consistent with his trial testimony, Mason was able to show that, in contrast to his trial testimony, Miguel had told the police that Jaime and Parra were arguing with three black women and that Petitioner had pointed his gun at him while inside the store (ML: 285, 291). Miguel further conceded that he told the police that Petitioner had also waved his gun at customers and other employees beside Parra (ML: 302-03).

When Mason went on to ask Miguel if he had appeared with an attorney when he testified before the grand jury, Miguel answered that his lawyer had not been there (ML: 321, 324). Mason then impeached him with his grand jury testimony, in which Miguel stated that his attorney was sitting next to him (ML: 322). Mason next read the portion of Miguel's grand jury testimony in which he acknowledged understanding that his testimony could be used against him, that he had the right to refuse to testify, and that he had the right to confer with a lawyer before agreeing to swear to a waiver of immunity and testify. Mason also read Miguel's statement that he understood those matters, had already consulted with his lawyer, and did not need to consult further with him (ML: 325-26).

Petitioner has asserted that this cross-examination about Miguel Luna's grand jury testimony "bolstered, rather than impeached the testimony of a key prosecution witness" (Pet. Memorandum of Law at 54-55). As Mason explained at the § 440 hearing, the requirement that Miguel testify subject to a waiver could be interpreted to imply that the prosecutor did not view him in a "particularly favorable light" (H. CVM: 291), again suggesting that the prosecution had some doubts about Miguel's role in the incident at the store.

According to the Petitioner, Mason's eliciting Luna's testimony about his Grand Jury waiver opened the door to Justice McLaughlin's instruction to the jury about Grand Jury waivers and that he was damaged by that explanation, since Petitioner claims conveyed the inaccurate impression that "a fair and thorough inquiry had cleared Luna" (Pet. Memorandum of Law at 56).

Any strategic decision involves weighing the risks versus the benefits. Mason had a strategic reason for bringing out the fact that Luna testified before the Grand Jury and under what conditions he appeared. Mason could not have foreseen the risk that the court might give an instruction which might not be helpful, or that re-direct examination might blunt the value of the information he had elicited. An objection to the instruction risked focusing the jury's attention on the instruction, or, as Justice McLaughlin himself noted at the hearing, an objection might "theoretically prompt a worse charge under the response to clarify" (H. 301).

The New York State cases Petitioner cites where a judge's references to Grand Jury actions were deemed improper are distinguishable: none involve the situation in the present case, where testimony relating to the Grand Jury was elicited by Petitioner himself and the court gave instructions about the Grand Jury to help the jury understand the procedures to which the defense had referred. See People v. Moran, 443 N.Y.S.2d 753 (N.Y.App.Div. 1982); People v. Branch, 441 N.Y.S.2d 737 (N.Y.App.Div. 1981); People v Sharp, 420 N.Y.S.2d 396 (N.Y.App.Div. 1979).

Petitioner concedes that the judge was in fact correct when he told the jury that the Grand Jury could have, but chose not to, bring charges against Miguel (Pet. Memorandum of Law at 55). Petitioner's complaint that the instruction was nevertheless "misleading," since it would be "an extraordinary measure" for a Grand Jury to bring charges against a witness absent a request by the prosecutor, does not change a correct instruction into an incorrect one. Petitioner also contends that the judge erroneously instructed the jury that Miguel could have avoided being indicted by refusing to testify. However, again Mason cannot be taxed with the instruction. The jury had already learned that the police had not charged Miguel with any crime even though he had participated in a running gun battle down two city streets (ZC: 334; ML: 340). The testimony about the Grand Jury appearance added little, and there is no basis to conclude that it influenced the outcome of the trial.

Immediately before summations commenced, the State sought to enter into evidence Jaime's hospital records (1015, 1018). After a brief conference off the record, Mason stated that he was withdrawing his objection based on the legibility of the documents. He noted, however, that the prosecutor "wants to take something out of the medical records which I don't think is appropriate" (1019). As the prosecutor then explained, the admission history section of the report stated that a bullet lodged in Jaime's right flank "during a robbery attempt." The prosecutor pointed out that the statement was hearsay and asked to have it deleted (1020). Mason opposed redaction, arguing that the reference to a robbery had been made by Jaime, and that it contradicted his trial testimony (1021).

Justice McLaughlin responded that he was not convinced that Jaime was ever conscious and was not sure that Jaime was the source of the statement (1022). Mason then pointed out that according to the hospital document the informant for the statement was Jaime (1023). The prosecutor informed the court that Jaime had told him that he had no recollection of being taken to the hospital, only of being shot and waking up days later under anesthesia (1023). When the judge stated that he did not recall whether Jaime had been questioned about "all this," Mason explained that he had not been provided a copy of the medical records until the previous evening (1024). Justice McLaughlin then ordered the reference to a robbery deleted from the medical records (1025).

Petitioner has acknowledged that Mason recognized that the prosecutor had failed to timely provide him with the hospital record containing Luna's statement (Pet. Memorandum of Law at 57). Where "Mason failed," he contends, is in not seeking an appropriate remedy (id.). According to Petitioner, Mason should have recalled Miguel as a witness and confronted him with this "important prior inconsistent statement," which, Petitioner contends, suggested that the Luna brothers were "fabricating an excuse" for shooting at him (id.).

The statement in the medical record was Rosario material, and when Rosario material is disclosed late in a trial, a possible remedy is to recall the witness and cross-examine him with his statement. People v. Polanco, 571 N.Y.S.2d 710, 711 (N.Y.App. Div. 1991). However, whether or not to recall Jaime presented a question of strategy. Jaime would have been the final witness at the trial. A cross-examination might well have yielded no benefit to Petitioner given Luna's physical state at the time he rendered the statement. Mason's decision not to recall Luna was a strategic decision that does not establish ineffectiveness. See Pagliarulo, 1996 U.S. App. LEXIS 12353, at *6.

The sanction that Mason proposed — not redacting Luna's statement — did not constitute ineffective lawyering. The state court had broad discretion in choosing sanctions and making evidentiary rulings. See C.P.L. § 240.70(1); People v. Ramirez, 707 N.Y.S.2d 6, 7 (N. Y. App. Div. 2000). Further, in light of the fact that the statement may not have come from Miguel, it was of questionable admissibility under the statement for medical diagnosis exception to the hearsay rule. Mason's treatment of the hospital record did not constitute ineffective assistance of counsel.

The Petitioner has also cited Mason's conduct with respect to the court's replacement of the jury foreperson, when it learned that the alternate juror who would ordinarily have been assigned that role — and whose sole function in that role would have been to read the verdict — stated she did not want to be the foreperson.

The Petitioner has raised two issues as to Mason's competence. He has contended that the foreperson's misgivings should have alerted Mason that "she might be willing to acquiesce to a verdict with which she did not agree" (Pet. Memorandum of Law at 58) and further inquiry was required. The second contention is that the matter was resolved at a sidebar conference without petitioner's participation or Mason's objection (Pet. Addendum at 82). Although C.P.L. § 310.40(1) provides that "the verdict must be rendered and announced by the foreperson of the jury," changing the procedure amounts to nothing more than a "ceremonial irregularity," (D. 17-18) (citingPeople v. Brown, 625 N.Y.S.2d 570 (N.Y.App.Div. 1995); see also People v. Rosa, 471 N.Y.S.2d 793 (Bx. Cty. Sup. Ct. 1984) (stating that in New York the only function of the foreperson is the ceremonial duty of acting as the jury's spokesperson).

The court-designated foreperson had been questioned during voir dire and found to be an acceptable juror. At the trial, Mason concluded that it was her sudden change of position from alternate to foreperson that caused her reaction (1148). Justice McLaughlin barred inquiring into her motivation by declaring that he "did not want to make the problem more onerous for her" (1148).

The petitioner's suggestion that this juror's nervousness was an indication of her inability to "perform her functions as a juror in a conscientious and proper manner" (Pet. Memorandum of Law at 59) is mere conjecture. A reluctance to read the verdict does not constitute a grounds for disqualification of a juror or an indication of disquiet with the verdict. The issue in any case resolved by polling the jury.

As to the sidebar conference, defendant's right to present at a proceeding only attaches in circumstances where presence "has a relation, reasonably substantial, to the full of his opportunity to defend against the charge." Snyder Massachusetts, 291 U.S. 97, 105-06 (1934); see also Kentucks Stincer, 482 U.S. 730, 745 (1987) ("[A] defendant is guaranteed right to be present at any stage of the criminal proceeding tha critical to its outcome if his presence would contribute to fairness of the procedure");United States v. Padilla, 203 156, 161 (2d Cir. 2000). In light of the fact that the role of jury foreperson is largely ceremonial, the transfer of a portior the role to another did not constitute a critical impact on outcome of the trial. Petitioner's presence at the sidebar deal with these matters would not have contributed to "the fairness the procedure."Stincer, 482 U.S. at 745; see also Pujols Greiner, 2000 U.S. Dist. LEXIS 17041, at *4 (S.D.N.Y. Nov. 2000) (finding no Sixth Amendment violation where petitione presence at sidebar conference would have had no effect on trial). Mason did not render ineffective assistance by failing bring his client to the sidebar.

Petitioner has also contended that Mason failed to make a speedy trial claim pursuant to C.P.L. § 30.30 and that the 92-day period between December 8, 1991, when the court mistakenly released him from Bellevue Hospital, and March 3, 1993, the date that the court set for his next appearance, was chargeable to the State. According to Petitioner, the State was chargeable with another 114 days, and thus would have failed to meet their speedy trial obligations to be ready to try him within a six-month period. See C.P.L. § 30.30.

If a speedy trial motion in all likelihood would have been unsuccessful, trial counsel's failure to make the motion does not constitute ineffective representation. See Whaley v. Rodriguez, 840 F.2d 1046, 1048 (2d Cir. 1988), cert. denied, 488 U.S. 944 (1988). Here, the trial judge stated that had a speedy trial motion been made, it would have been "doomed to fail" due to "obvious" defects (D. 3).

At the time before the Petitioner was first arrested, C.P.L. § 30.30(4)(c) provided for an exclusion of the period during which a defendant who had either escaped from custody or been released on his own recognizance was "absent." That period ran from the day the court issued a bench warrant pursuant to C.P.L. § 530.70 "because of the defendant's failure to appear in court when required" to the day he was returned to the court. A defendant "must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence." C.P.L. § 30.30(4)(c)(i); see also People v. Bolden, 81 N.Y.2d 146, 150 (1993). Justice McLaughlin found that Hernandez was the subject of a bench warrant, was attempting to avoid apprehension and prosecution, and, beyond that, his location could not be determined by due diligence (D. 3-6).

The warrant squad and two case detectives brought to locate Hernandez checked his last known address and his mother's house. When he was arrested on January 11, 1993, pursuant to the bench warrant, he refused to sign a property voucher made out in his name (H. 1124, 1145, 1155) and when he appeared before Justice Soloff, he again denied he was Juan Hernandez (Minutes of January 11, 1993, at 2).

Petitioner has cited no authority for the proposition that a CPL § 530.70 bench warrant does not satisfy the requirements of the statute unless a court has first ascertained whether or not defendant knew of the court date he missed. The trial court decision was premised on an interpretation of New York law which a habeas court is not free to second-guess. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The Petitioner has failed to establish that a § 30.30 motion would have been granted, which is a prerequisite to finding ineffective assistance.

No Cognizable Conflict of Interest Was Presented

Petitioner has relied upon the disciplinary proceedings against Mason resulting in his disbarment, some of which were coterminous with his representation of Hernandez.

The right to counsel under the Sixth Amendment entails "a correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271 (1981) (citingCuyler, 446 U.S. 335). One such conflict exists where trial counsel is not authorized to practice law. See Solina v. United States, 709 F.2d 160, 168-69 (2d Cir. 1983). There exists a per se conflict as well if the lawyer is implicated in the very crime for which his or her client is on trial. See United States v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984). Automatic reversal is required under such circumstances. Armienti v. United States, 234 F.3d 820, 823-24 (2d Cir. 2000).

There is an actual conflict between lawyer and client "when, during the course of the representation, the attorney's and defendant's interests 'diverge with respect to a material factual or legal issue or to a course of action.'" Winkler v. Keane, 7 F.3d 304, 307 (2d Cir. 1993) (quoting Cuyler, 446 U.S. at 356 n. 3), cert, denied, 511 U.S. 1022 (1994). When counsel is burdened by an actual conflict that adversely affects performance, the client is not required to demonstrate prejudice; prejudice is presumed. See Winkler, 7 F.3d at 307. To prove adverse effect, the client must "demonstrate that some 'plausible alternative defense strategy or tactic might have been pursued,' and that the 'alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests.'" United States v. Levy, 25 F.3d 146, 157 (2d Cir. 1994) (quoting Winkler, 7 F.3d at 309).

Claims of counsel's conflict of interest that are neither per se nor actual may constitute potential conflicts. Potential conflicts are evaluated under the familiar two-prong standard established by Strickland, 466 U.S. at 688. See Armienti, 234 F.3d at 824.

In Waterhouse v. Rodriguez, 848 F.2d 375 (2d Cir. 1988), the defendant was represented by an attorney at his suppression hearing, during which the attorney was disbarred. Immediately after learning of his disbarment, the attorney ceased representation of his client. Id. at 379. The Second Circuit held that those circumstances did not trigger "any conflict of interest at all." Id. at 383. In reaching that conclusion, the court rejected the argument that the mere pendency of disciplinary proceedings might dampen an attorney's zealousness. Judge McLaughlin specifically relied on Waterhouse in finding no conflict of interest in the instant case (D. 19).

In re Mason, 621 N.Y.S.2d 582 (N.Y.App.Div. 1995), indicates that the majority of Mason's professional lapses occurred in civil cases. Of the eight criminal matters referred to in the decision, Mason represented six of them on post-trial matters only. See id. at 5, 6, 9, 13, 19, 23). His professional lapses involving the other two centered around fee issues. See id. at 21, 24. In one of those two cases, the Appellate Division faulted Mason for repeatedly sending a newly admitted associate to adjourn the case, and when Mason did appear, for doing nothing more than seeking an adjournment or making a bail application.See id. at 22.

Justice McLaughlin found that while representing petitioner, Mason "showed none of the traits that led to his disbarment" (D. 19). Justice McLaughlin's factual determination is presumptively correct, and petitioner has not presented clear and convincing evidence to rebut it. 28 U.S.C. § 2254(e)(1).

The Petitioner has contended that Mason was preoccupied by his disbarment proceedings, that his conduct of the defense of Hernandez might have been affected by fear of "ruffling the court's feathers," (a somewhat unhappy analogy), a desire to withdraw or alternatively a desire to proceed solely for pecuniary gain. Petitioner has cited no disciplinary rule or authority which required Mason to advise Hernandez of the disciplinary proceedings. Candor, courtesy and professional punctilio would seem to require such advice, but there is no authority that withholding it constitutes ineffective assistance of counsel.

Conclusion

For the reasons stated above, the petition will be denied.

As Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See Lozada v. United States, 107 F.3d 1011, 1016-17 (2d Cir. 1997), abrogated on other grounds United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).

It is so ordered.