Opinion
02-cv-3752 (jbw), 03-misc-0066 (jbw)
November 5, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
This petition was filed on June 19, 2002, Petitioner (sometimes referred to as defendant) claims:
Ground one: Conviction obtained by a violation of the protection against double jeopardy.
Supporting facts: I was convicted of criminal possession of a weapon in the second degree. I was never in possession of any weapon. There was a weapon found — a gun — that is related to this case but Thomas Nimely — a co-defendant — was conviction of the weapon due to a plea bargain. The same weapon was presented at trial as the weapon I allegedly used to shoot the victim — Roger Savery.
Ground two: Conviction retained by use of mishandled evidence that was disclosed at trial.
Supporting facts: 1) The arresting officers were well aware of material/or residue that exits the barrel when a gun is fired and lands on the hand. Knowingly, the officers ignored following procedure by not testing my hands for any type of residue to determine if I shot the gun that was found. 2) I was wearing a sweatshirt that had dry blood stains on the sleeves. The sweatshirt was never tested to determine whose blood stains were on the sweatshirt. But yet the shirt was presented at trial as the sweatshirt I had on and with blood stains on it, giving the juries the impression that the blood stains of the sweatshirt was that of the victim whom was shot. During deliberation, the juries requested to see the sweatshirt — without my knowing — to view it. The three-day deliberation ended with a conviction.
Ground three: Conviction obtained by prosecutor's witnesses committing perjury.
Supporting facts; The victim, his brother, their cousin and the bartender testimony did not coincide. The victim and his brother said I threatened to shoot up the club but seen me reach for something and they say the flash. The bartender said I was just walking around. The cousin said I wasn't fighting but he saw me shooting a gun.
Ground four; Very harsh sentence; excessive amount of time to serve.
Supporting facts: Being that I was a first time felon, the amount of years that was given to me to serve is excessive and unconstitutional.
The evidence supports the following statements:
On February 14, 2998, at approximately 1:15 a.m. Mr. Roger Savary ("Roger") arrived, at Liberty Hall, located at 543 Bay Street, Staten Island, with his brother, Ian Savary, ("Ian") and a friend, David Tucson, to attend a dance party (T264), As with all guests, they were searched by a bouncer, Charles Arrindell, for weapons, and being found "clean", entered (T 534-35).
Earlier that evening, petitioner had arrived with a group of roughly ten other people (T 493). One member of the group, Thomas Nimely, was repeatedly turned away because he was carrying a weapon (T 491-96). Nimely was subsequently let in; pelitioner, however, was kept out when a gun (later identified as being the weapon that was used to injure the victim) fell out of his pant leg, (T 496-497). Eventually, petitioner was admitted to the party (T 501).
At approximately 2:00 a.m. (now February 14), a number of fights broke out in the club; one of the members of the group with which the petitioner came, Bobby Paasewe, was cut in the face, (T 269-69), Paasewe started picking fights with other party-goers, including people with whom Roger had arrived, (T 269), Until tins point, Roger, Ian and another friend, Edward Hines, had had minimal contact with the petitioner or his friends; only Mines had approached petitioner to ask if he could calm Paasewe down. (T 450-51). At that point, Paasewe and two other men started a fight with Tucson (T 271-72), When Ian Savary attempted to extract Tucson from the melee, he was hit on his head from behind (T 274).
At this point, petitioner drew the gun he had previously tried to smuggle into the club, took aim, and shot Roger Savary in the neck. (T 278-79). As the victim hid behind the bar bleeding, petitioner fired two more shots toward the front of the club, prompting patrons to flee from the club in search of cover and protection. (T 368). After the shots were fired, petitioner, Nimely, and Eric Farley fled the scene (T 370-73). The police arrived shortly thereafter to interview witnesses and collect evidence (T 637-41), Roger Savary was hospitalized and continues to sec a physical therapist because of pain and numbness in his head and shoulders (RE 101-102).
At approximately 2:40 a.m. New York City police officers John McCarthy and John Muirhead observed three males standing at a cab stand on the corner of Broad Street and Tompkins Avenue in Staten Island, (T 693). One of the men, Nimely., fitted a description of a suspect the police had developed after preliminary interviews of the party goers (T 692), Upon seeing the police, Nimely drew a gun later identified as the same weapon fired by petitioner and fled; he was later apprehended near the corner of Cedar and Broad Streets, (T 694-95), At approximately 3; 30 a.m., police responded to another call from the same cab stand reporting that two males — petitioner and Farly — were attempting to enter a cab (T 653-54).
Petitioner was charged under Richmond County Indictment Number 56/98 with Attempted Murder in the Second Degree (N.Y. Penal Law §§ 110/125.25), Assault in the First Degree (RY, Penal Law § 120.10), two charges of Criminal Use of a Firearm in the First Degree (N.Y. Penal Law § 265.09), 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). (RE 92-97), Co-defendants Nimely and Parley were jointly charged under Indictment Number 56/98 for their participation in the incident at the dance hall. Both men pleaded guilty before trial, to respective charges of Assault in the Third Degree, and Criminal Possession of a Weapon in the Third Degree, (RE 94). Trial proceeded against defendant alone.
At the conclusion of a seven-day trial. The court submitted the charges of attempted murder, assault, criminal possession of a weapon in the second and third degrees, and reckless endangerment to the jury, which subsequently found petitioner guilty of all five charges. (T 1104-06).
On October 27, 1998, petitioner was sentenced to concurrent indeterminate terms of imprisonment often to twenty years upon his convictions of attempted murder and assault, five to ten years and two to four years upon his convictions of second and third degree weapons possession respectively, and two to six years upon his reckless endangerment conviction. (RE 98-108).
Petitioner appealed his judgment of conviction to the Appellate Division claiming that; (1) the People failed to prove his identity as the perpetrator beyond a reasonable doubt; (2) the trial court improperly refused petitioner's request for a standard identification charge and failed to provide the jury with proper instructions on proof of identity beyond a reasonable doubt; (3) petitioner's conviction was tainted by jury misconduct resulting from the jury consulting the New York State Office of Court Administration's jury handbook during deliberations; and (4) petitioner's sentence is severely harsh and should be reduced in the interests of justice. (RE 8-45).
The Appellate Division unanimously affirmed petitioner's conviction. People v. Johnson, 281 A.D.2d 435; 721 N.Y.S.2d 258 (2d Dep't 2001); (RE 90).
On June 20 2001, petitioner's application for leave to appeal to the New York Court of Appeals from the Appellate Division's affirmation was denied. People v. Johnson, 754 N.E.2d 1121; 730 N.Y.S.2d 38 (2001); (RE 91).
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 199(5 ("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 ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); 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 me 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, Brow 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 he 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, 158 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 be 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 23 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)), 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 n10 (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 lo 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 US. 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 light . . . to have the Assistance of Counsel for his defense." U.S. Const, amend, VL 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 S-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.
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 lest was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel, See Clavio 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," M (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, (58 (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. Verdict Against the Weight of the Evidence
To the degree 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 petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
XI. Legal Claims Frequently Raised in Habeas Corpus Applications
For an explication of the law concerning other claims that are frequently raised before this court in applications for a writ of habeas corpus, see Waters v. McGuiness, 99-CV-0615, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y. June 16, 2003) (grand jury claims); Custodio v. Duncans, Nos. 99-CV-2561, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y, June 11, 2003) ( Batson challenges); Reyes v. Irwin, 99-CV-3758, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y. June 20, 2003) ( Wade claims); Brathwaite v. Duncan, 00-CV-0860, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11056, at *4-*5 (E.D.N.Y. June 10, 2003) ( Sandoval claims); Thomas v. Kuhlman, 255 F. Supp.2d 99, 180-09 (E.D.N.Y. 2003) (perjured testimony); Martinet v. Greiner, 99-CV-4G63, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11046, at *7 (E.D.N.Y. June 20, 2003) ( Fourth Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003) ( Rosario claims); Beniquez v. 3ennett, 00-CV-0955, 03-MISC-OO66 (JBW), 2003 US, Dist. LEXIS 11032f at *15-*16 (E.D.N.Y. June 16, 2003) (prosecutorial misconduct); Sevencan v. Herbert, No. 01-2491, slip op, at 6-13 (2d Cir Aug. 7, 2003) (public trial); Cox v. Donnelly, 99-CV-8216, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 9886, at * 12-*14 (E.D.N.Y. June 12, 2003) (shifting burden of proof); Jelinek v. Costello, 247 F. Supp.2d 212, 266-67 (E.D.N.Y. 2003) (right to self-representation); Stewart v. Senkowski, 00-CV-0806, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11028, at *6 (E.D.N.Y. June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz, 98-CV-7837, 00-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11049, at *7-*8 (E.D.N.Y. June 13; 2003) (abuse of discretion in sentencing);
XII. 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 he 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 he 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 $326, at *92 (2d Cir. May 1, 2003).
XIII. Analysis of Claims
A.
Grounds I, II, and III are unexhausted and now procedurally barred in State court, Nevertheless, the petition will be dismissed on the merits because the claims have no substance. See, 28 U.S.C. § 2254(b)(2). Ground IV is unavailing for it raises no constitutional question. White v. Keane, 969 F.2d 1381 (2d Cir. 1992) (no federal constitutional issue presented where the sentence is within the range prescribed by state law).
Unexhausted federal habeas claims may be deemed otherwise exhausted if petitioner's return to state court would be futile because of state procedural bars to raising the claims. 28 U.S.C. § 2254(b)(1)(B); e.g., Reyes v. Keane, 118 F.3d 136 (2d Cir. 1997); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991), While the bar in the state courts allows otherwise unexhausted claims to be considered exhausted, it also requires the federal court to deem the claims procedurally defaulted, and thus deny them unless petitioner demonstrates either 1) both cause for the default and actual prejudice resulting therefrom, or 2) a fundamental miscarriage of justice, Coleman v. Thompson, 501 U.S. 722, 735, n. 1 (1991); Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001); Gray v. Hoke, supra; Washington v. James, 996 F.2d 1442, 144*5-47 (2d Cir. 1993). Petitioner has failed to offer proof of either exception for any of his claims.
Petitioner concedes Grounds I and II were not raised previously but asserts as justification that "the lawyer saw it from a different perspective, and when I found out, the briefs were already submitted and I did not know how to pull it back for change" (RE 6), Although contentions of ineffective assistance of counsel are reasons from procedural default, such a difference of opinion does not constitute ineffective assistance of counsel Jones v. Barnes, 463 U.S. 745 (1983) (appellate counsel is not required to raise every possible issue); Aparicio v. Artuz, 269 F.3d at 95; Cantone v. Superintendent, N.Y. Correctional Facility, 759 F.2d 207, 218-219 (2d Cir. 1985); Pendleton v. Scully, 664 F. Supp. 100, 105 (S.D.N.Y. 1987). Even if petitioner had a viable claim of deficient representation, it, too, is subject to the rules of exhaustion, Murray v. Carrier, 477 U.S. 478, 488-89 (1986), Thus, because petitioner did not raise this justification in the state courts, it is now foreclosed to him.
Double jeopardy "is a personal right and, like other constitutional rights, can be waived if it is not timely interposed at trial." Aparicio v. Artuz, 269 F.3d at 96; United States v. Papadakis, 802 F.2d 618, 621 (2d Cir. 1983). Petitioner did not raise an objection based on Double Jeopardy at trial, nor did he on his subsequent appeal. He has waived it.
Petitioner's argument that his sentence is excessive is not a proper subject for review by this court, and therefore should be rejected, When a state prisoner's sentence falls within the guidelines set by the state legislature, a federal constitutional question fails to exist, White v. Keane, 969 F.2d at 1383 ("No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law"); Underwood v. Kelly, 692 F. Supp. 146, 152 E.D.N.Y. 1988), aff'd, 875 F.2d 857 (2d Cir.), cert denied, 493 U.S. 837 (1989); see, Calderon v. Artuz, 2001 WL 135741 (E.D.N.Y. 2001); Rivera v. Quick, 571 F. Supp. 1247 (S.D.N.Y. 1983). The sentence in this case is well within that allowable by state law; the court could have imposed a sentence of 12 1/2 to 25 years or the Class B violent felony offenses, but instead opted for a maximum term of incarceration of 10 to 20 years (RL. §§ 70.02(1)(a), (3)(a) and (4)), No cognizable federal constitutional issue is raised in this regard.
B.
Petitioner's double jeopardy claim is legally and factually unfounded. The Double Jeopardy Clause of the Fifth Amendment provides protection so no individual citizen is "subject for the same offense to be twice put in jeopardy of life and limb". See Benton v. Maryland, 395 U.S. 754 (1969). Double jeopardy is grounded in principles of collateral estoppel, protecting the individual from being subjected to repeated prosecution for the same crime. Ashe v. Swenson, 397 U.S. 436, 443 (1970) ("[Collateral estoppel] means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit"); United States v. Certain Real property and Premises Known as 38 Whalers Cove Drive, Babylon, New York, 954 F.2d 29, 35 (2d Cir. 1992) (protection against double jeopardy is intrinsically personal). Double jeopardy applies only when the charges or underlying facts are the same as in a prior prosecution, and most importantly, levied against the same defendant. Here, they were not.
Petitioner asserts that he cannot be convicted of Criminal Possession of a Weapon in the Second Degree because co-defendant Nimely's conviction for Criminal Possession of a Weapon in the Third Degree involved the same weapon. Although the weapon was the same, the factual underpinnings of the crimes for which each were prosecuted were separate and distinct; Nimely's charge arose from a separate incident in which he drew the gun on police officers (RE 92-95), The facts supporting the Assault in the Second Degree charge upon which co-defendant Parley was convicted differ from the facts supporting petitioner's Assault in the First Degree charge. Farley's charge reflected his hitting Ian Savory in the head with a bottle during the melee at the party (RE 94-95). The same gun can be used in two separate crimes by two people.
This claim has no merit.
C.
Petitioner makes two claims relating to the sufficiency of the evidence. He first alleges that the physical evidence was not thoroughly forensically examined. Second, he asserts, without foundation, that the witness called by the People were not credible because they purportedly offered perjured testimony (RE 5-6). The latter claim must fail because, inter alia, "[f]ederal courts are not forums in which to relitigate state trials". Herrar v. Collins, 506 U.S. 390, 401 (1993); Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999)("a federal court is not permitted to make its own subjective determination of guilt or innocence*") The former contention does not raise any constitutional violation. There was sufficient evidence of petitioner's guilt presented at his state trial.
The standard of review when a federal habeas court is examining the sufficiency of the proof 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, 319-20, n, 13 (1979). Specific issues of sufficiency or credibility arc not amenable to habeas review unless they are argued within the context of a constitutional violation, and petitioner has failed to do so in the instant writ. Petitioner's claims must fail because the evidence was more than ample to demonstrate his guilt, and no error of constitutional magnitude occurred in its presentation, The Appellate Division held in his case that the evidence was "legally sufficient to establish the defendant's guilt beyond a reasonable doubt". People v. Johnson, 281 A.D.2d 435 (2001), This state court adjudication as not an "unreasonable determination of the facts in light of the evidence," nor was it "an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States". 28 US.C. § 2254(d)(1).
Petitioner appears to argue that the evidence presented by the People was not as complete or comprehensive as it was required to be because certain forensic tests were not performed, and presumably, therefore, the jury relied on evidence that was insufficient to support a conviction (RE 5), Essentially, petitioner argues that the People were obligated to perform a rigorous forensic examination of all evidence presented at trial; otherwise that evidence lacked reliability, This is not the law, "[T]here is no due process requirement that the government use any particular investigatory tool, including quantitative testing". Smith v. Edwards, 2000 WL 709005, at *6 (S.D.N.Y. May 31, 2000); citing Arizona v. Youngblood, 488 U.S. 51, 58-59 (1988) ("the police do not have a constitutional duty to perform any particular tests"). The People were not constitutionally mandated to perform additional forensic tests on the evidence in this case — particularly in light of the overwhelming eyewitness evidence demonstrating petitioner's guilt.
Equally without merit would be any claim that the unperformed tests amounted to a violation of Brady v. Maryland, 373 U.S. 83 (1963), because by failing to perform tests or procedures available to them to reveal fingerprint, gun powder residue, or DNA evidence, the People withheld material evidence favorable to the defense. Evidence in the prosecution's possession does not have to be tested for any additional exculpatory evidence, Arizona v. Youngblood, 488 U.S. at 58-59; Smith v. Edwards, 2000 WL 709005; United States v. Tillem, 906 F.2d 814, 824 (2d Cir. 1990).
A Brady claim would not be available in this case because Brady cannot be invoked when defense counsel knew of the existence of the evidence, but chose not to pursue the matter. See, United States v. Zagari, 111 F.3d 307, 320 (2d Cir. 1997); United States v. Zackson, 6 F.3d 911, 918 (2d Cir. 1993); United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982). The defendant was aware of the proof in question; defense counsel raised the lack of forensic testing on cross-examination (T 671; 764-5; 777), The record is devoid of any request by defense counsel for additional forensic testing or claim of prejudice on the ground that no further examinations were done. Strategically this position made sense since it was likely that testing would have revealed adverse evidence.
This claim has no merit.
D.
In Ground III, petitioner appears to assert that the witnesses' testimony was not sufficient to support his conviction because they allegedly committed perjury and lacked credibility. There is no proof that the witnesses perjured themselves. While there were some inconsistencies among the witnesses' testimony, those differences were minor and common among people who observed an event from different angles and points in time during a moment of tension. When viewed cumulatively, the evidence and testimony is consistent and sufficient to pass constitutional muster.
Roger Savary testified to seeing the petitioner reach into his waistband and withdraw his hand holding something. (T 277-278). Savary then heard a pop, and felt something hit his neck; the petitioner had shot him, (T 278-279). Ian Savary also testified to seeing the petitioner "reaching into his pants" and "reaching and grabbing for something", (T 361-362), Moments after that the witness heard a pop, saw a spark coming from petitioner's hand, and saw the petitioner pointing his arm in the direction of the victim (T 362-365). The victim's brother testified that he had no difficulty in seeing that the petitioner was the shooter because he was the only one with a gun (T 3(58-369, 363-365). A third eyewitness, Charles Arrindell, testified that he saw petitioner fire several shots from the gun in the club (T 509), Finally, Edward Hines positively identified the petitioner as the shooter:
Q: Did you see who the shooter was?
A. Yes, I seen who the shooter was.
Q. Was the shooter one of the people you described earlier?
A. Yes, the shooter, he was the same person I was talking to like right before I heard the shot.
Q. Who was that?
A. The person that's sitting right there (indicating).
Q. Indicating the defendant?
A. Yes
(T 452-453).
Despite the fact that no fingerprints were recovered from the weapon used to shoot Roger Savary, there was ample eyewitness testimony to prove that petitioner was the shooter. In fact, there was a crowd of such witnesses establishing that petitioner possessed the weapon which had been used in the offenses.
This claim has no merit.
E. No other possible claim is more than frivolous.
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted, Petitioner made no substantial showing of the possible denial of a constitutional right. He may as already indicated, seek a certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.