Opinion
19-CV-03188 (AT) (KHP)
07-27-2023
Carlos Ruiz, Petitioner, v. Cyrus Vance, Respondent.
REPORT AND RECOMMENDATION
KATHARINE H. PARKER UNITED STATES MAGISTRATE JUDGE.
TO: THE HONORABLE ANALISA TORRES, United States District Judge
FROM: KATHARINE H. PARKER, United States Magistrate Judge
On October 2, 2013, Petitioner Carlos Ruiz was convicted of two counts of criminal sale of a controlled substance in the first degree (N.Y. Penal Law (“Penal Law”) § 220.43), two counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39), and one count of criminal possession of a controlled substance in the third degree (Penal Law § 220.16) after a trial in the Supreme Court of the State of New York, New York County. Petitioner was sentenced to eight years of imprisonment, followed by five years of post-release supervision. Before the Court is Petitioner's Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, I respectfully recommend that the Petition be DENIED in its entirety.
BACKGROUND
1. Investigation into Petitioner and Arrest
In May or June 2011, Petitioner received a phone call from an individual who, unbeknownst to Petitioner, was acting as a confidential informant for the government. The confidential informant (“CI”) later testified at Petitioner's criminal trial that a drug dealer friend of his had asked him to pick up ten kilograms of heroin from Petitioner. (Trial Transcript 1 at 294:3-4, ECF No. 69-6.) Petitioner and the CI agreed to meet the next night at a fast-food restaurant in Queens for the sale. (Id. at 296:13-14, 299:5.) The CI told the Drug Enforcement Agency (“DEA”) Agent assigned to oversee the CI, Special Agent Canavan, of the expected meeting. (Id. at 297:5-6.)
Agent Canavan's name has alternately been spelled “Canadan” in the record.
The following day, Petitioner and the CI met up as planned. Although the DEA was aware of the meeting, the CI did not record this meeting. Petitioner brought three kilograms of heroin to the meeting instead of the requested ten. (Id. at 300:12.) After consulting with Agent Canavan, the CI informed Petitioner that he would not accept the three kilograms of heroin and ended the meeting. (Id. at 300:1-9.)
The CI contacted Petitioner again in early 2012 to arrange another meeting. (Id. at 308:17-22.) The CI and Petitioner met on March 27, 2012 at 8:30 p.m. at the Basurero restaurant in Queens. (Id. at 317:4-9.) The CI testified that Petitioner gave him a ride in Petitioner's car, a Toyota Camry. (Id. at 323:6-8.) While in Petitioner's car, Petitioner gave the CI about a gram of heroin as a sample. (Id. at 327:12-25.) The CI recorded this conversation and subsequent conversations between himself and Petitioner using a recording device provided to him by the DEA as well as his own personal recording device. (Id. at 314:9-17.) The CI and Petitioner spoke with each other in Spanish and did not use the word “heroin” during this or subsequent meetings, and instead used coded language. (Id. at 303:19-23.) Following this meeting, the CI provided a recording of the meeting and the heroin sample to Agent Canavan and Agent Canavan's partner, Special Agent DaSilva. (Id. at 333:3-5.)
On April 30, 2012, in the presence of Agents Canavan and DaSilva, the CI called Petitioner and arranged another meeting. (Id. at 97:6, 98:9.) Prior to the meeting, the DEA provided the CI with $5,600 in cash to purchase heroin from Petitioner. (Id. at 99:25, 100:4-5.) On May 1, 2012, the CI and Petitioner met at the same restaurant in Queens. (Id. at 345:14-16.) The CI entered Petitioner's car, and Petitioner sold the CI about 100 grams of heroin, which had been stored somewhere inside the car. (Id. at 349:7, 351:11-12.) The CI paid Petitioner $5,600. (Id. at 351:3-4.) The CI later turned over the heroin and the recording of the conversation to Agent Canavan. (Id. at 352:4-5.)
On May 10, 2012, Agents Canavan and DaSilva began surveilling Petitioner's vehicle to see who was getting in the vehicle and where the vehicle was going. (Id. at 122:12-19.)
The CI and Petitioner met again on June 13, 2012 at the same restaurant in Queens. (Id. at 365:3-9.) Petitioner gave the CI two samples of heroin totaling roughly two grams. (Id. at 366:17-18.) Following the meeting, the CI gave Agent Canavan the heroin samples and a recording of the conversation. (Id. at 371:7-8, 372:3-7.)
On August 1, 2012, the CI and Petitioner met again, and Petitioner sold the CI 136 grams of heroin for $7,420. (Id. at 381:2, 386:4-10.) This exchange took place in Petitioner's car. (Id. at 385:6-7.) The CI testified that he saw Petitioner take the heroin from a concealed compartment in the car. (Id. at 386:17-19, 388:3.) The CI gave the heroin and a recording of the conversation to Agent Canavan. (Id. at 390:17-25.)
On August 19, 2012, based on their investigation into Petitioner, Agent DaSilva and other DEA agents arrested Petitioner. (Trial Tr. 2 at 974:15-16, ECF No. 69-7.) The agents recovered two cell phones from Petitioner's car as well as a plastic bag containing two grams of heroin from a hidden compartment in the rear passenger seat. (Id. at 975:9-10; Trial Tr. 3 at 1062:9-10, ECF No. 69-8.)
2. Petitioner's Indictment and Initial Consultations with Trial Lawyer
On January 14, 2013, a New York County Grand Jury of the Special Narcotics Courts indicted Petitioner in connection with the possession and sale of heroin, charging him with two counts of first-degree criminal sale of a controlled substance for selling more than two ounces of heroin on May 1 and August 1, 2012; two counts of third-degree criminal sale of a controlled substance for providing the CI with samples of heroin on March 27 and June 13, 2012; and one count of third-degree criminal possession of a controlled substance for possessing heroin on August 19, 2012, the date of Petitioner's arrest, with the intent to sell it. (ECF No. 69-2 at S.R. 152-154.)
Petitioner was detained at Rikers Island while awaiting trial. Petitioner retained Andres M. Aranda, Esq. (“Aranda”) to represent him at trial. (Am. Pet. 4.) At the time, Aranda had a history of disciplinary action due to professional misconduct, which included three admonishments in the 1990s and a year-long suspension in 2006 based on neglect and failure to file retainer statements. (Id. at 8; Ex. A at 2.) Aranda was reinstated in June 2008 and did not face disciplinary action in the four years before being retained by Petitioner. (Am. Pet. 9.) After Petitioner's case, Aranda was reprimanded by the Second Circuit in May 2015 and suspended for 18 months in connection with seven criminal appeals before the court, none of which was related to Aranda's representation of Petitioner. (Id. at 8.)
Aranda met with Petitioner twice at Rikers Island before trial, and Petitioner asserts that the only other times he saw Aranda were during pretrial conferences and at trial. (Id. at 4.)
3. Pre-Trial Matters
On or about September 16, 2013, prior to the start of trial, the Government advised the trial court of a plea offer it had extended to Petitioner. The trial court advised Petitioner of the possible sentences he could receive if he was convicted at trial and inquired whether Petitioner had enough time to discuss the plea offer with counsel. (Pre-Trial Tr. at 6:2-4, ECF 69-5.) Petitioner confirmed that he understood the Government's offer and the potential sentence he could receive if convicted after trial, that he had enough time to speak with Aranda about the offer, that he had no questions about the offer, and that he was not interested in accepting the offer. (Id. at 6:17-22, 7:1-7.) Several days later, the Government extended another plea offer, which Petitioner also rejected. Upon inquiry by the trial court, Aranda advised the court that he and Petitioner had a “long conversation” about the plea offer. (Id. at 413:1-10, 19-21.)
Prior to trial, the Government moved to introduce what it called a “prior conviction” at trial. (Id. at 7:14-16.) Aranda successfully defeated the motion because he noted that the charges in question had been dismissed. (Id. at 75:22-25.) The Government also moved to introduce evidence at trial of the CI's first meeting with Petitioner in May or June of 2011, even though no heroin was exchanged at this meeting and the meeting had not been recorded. (Id. at 15:15-16.) Aranda opposed the motion on the basis that there were no recordings or other evidence of the meeting, but the court allowed the CI to testify about the meeting in order to provide background for the jury. (Id. at 399:17-19.) Prior to the start of trial, Aranda also objected to the Government's anticipated use of an expert to testify regarding code words typically used in drug sales, arguing the testimony would unduly bolster the credibility of the CI and would be “like directing the jury to find [his] client guilty.” (Id. at 24:4-7, 403:2-5.) The trial court overruled the objection and permitted the expert to testify.
During jury selection, the court granted Aranda's request to confer with Petitioner in private and the two met for approximately 25 minutes. (Id. at 293:8-11.)
A week before trial began, the Government provided defense counsel with transcripts of the recorded conversations between the CI and Petitioner to be used in trial, along with certified English translations of the transcripts. (Id. at 78:23-25.) Both Aranda and Petitioner signed a stipulation attesting that they had reviewed the transcripts together and the transcripts were accurate. (Id. at 79:6-11.)
4. Trial
At trial, the Government's case included testimony from the CI; DEA Agents Canavan and DaSilva; a third DEA agent who had participated in the surveillance of Petitioner; and an expert witness. The CI testified about his interactions with Petitioner, including testimony that Petitioner provided the CI with heroin samples on two occasions and sold the CI heroin on two occasions. (See Trial Tr. 1 at 286:4-10, 327:12-25, 349:7, 351:3-4, 366:17-18, 381:2.) During the CI's testimony, transcripts of the recorded conversations between the CI and Petitioner were admitted into evidence. (Id. at 397:1-6.) The CI testified that during his conversations with Petitioner, Petitioner used the Spanish word “trabajo,” meaning work, to refer to heroin. (Id. at 303:19-21.) The DEA agents testified as to their supervision of the CI's interactions with Petitioner and their surveillance of, and investigation into, Petitioner. Agent Canavan testified about finding the hidden compartment in Petitioner's car, which he described as a “hydraulic trap.” (Id. at 160:4.) The expert witness, Bernard Malone (“Malone”), a former Senior Investigator with the Office of the Special Narcotics Prosecutor for the City of New York, testified regarding coded language and practices typically used by drug dealers. During Malone's testimony, which occurred after the CI testified, the Government read into the record transcripts of recorded conversations between the CI and Petitioner and had Malone explain the meanings of certain words and practices. Malone testified that drug traffickers typically use coded language to refer to drugs, such as “cut” to refer to adulterating drugs, “Pedro” to refer to cocaine, and “photo” to refer to a sample of heroin. (Trial Tr. 2 at 617:8-20, 665:4-16, 676:48, 704:4-5).
The Government's case also included stipulations from experts concerning the heroin samples and cell phone records recovered from Petitioner, as well as photographs of Petitioner's vehicle, including the hidden compartment where heroin was found, and photographs of the heroin samples Petitioner gave the CI.
Aranda cross-examined each of the Government's witnesses. On cross examination of Agent DaSilva, Aranda called into question the accuracy of the trial transcript, noting that a line in the transcript attributed to the CI read “I am a Dominican,” but the CI was Colombian and Petitioner was Dominican. (Trial Tr. 2 at 987:17-22.) While cross-examining Agent Canavan, Aranda asked whether the agents found any of Petitioner's fingerprints or DNA on any drugs, and Canavan testified that the agents had not found Petitioner's fingerprints or DNA on any drugs. (Trial Tr. 1 at 176:14-17.) Aranda also elicited testimony from Canavan regarding the CI's criminal history, including the CI's membership in a drug organization between 1993 and 1999, his attempt to enter the United States in 2003 on a forged passport, and his numerous drug-related arrests. (Id. at 180:8-15, 184:17-19, 185:9-11, 189:1, 190:19-25.) During Aranda's cross-examination of Malone, Aranda asked whether the recorded transcripts of conversations between Petitioner and the CI showed that Petitioner and the CI had used certain common code words for heroin such as “Manteca” and “Mantequilla.” (Trial Tr. 2 at 875:5-13.) Malone testified that he agreed that those words were known code words for heroin, and that he did not see those words in the transcripts. (Id.)
For Petitioner's case in chief, Aranda called seven character witnesses to testify to Petitioner's reputation as a law-abiding citizen. (Trial Tr. 3 at 1235:1, 1255:6, 1288:20, 1298:3, 1304:9, 1312:15, 1316:11.) The Government cross-examined the witnesses and asked three of the seven witnesses if they knew about the Amber Room-a nightclub Petitioner co-owned sometime before 2010 that had been shut down in 2010. (Id. at 1250:9-11, 1295:4-7.)
Petitioner did not testify at trial. At the conclusion of Petitioner's case, the court asked Petitioner whether he understood that he has “an absolute right to testify,” and Petitioner responded that he did understand. (Id. at 1320:24, 1321:1.) The court asked Petitioner whether anyone forced, threatened, or pressured him not to testify, and Petitioner responded: “No, your Honor.” (Id. at 1321:2-5.) The court then asked whether Petitioner had enough time to speak with his attorney about the decision not to testify, and Petitioner responded in the affirmative. (Id. at 1321:6-8.)
5. Verdict, Sentencing, and Direct Appeal
On October 13, 2013 the jury convicted Petitioner on all counts. On October 23, 2013, Petitioner was sentenced to concurrent terms of eight years in prison with five years of postrelease supervision. (Am. Pet. Ex. A at 18.)
In December 2017, Petitioner, with the assistance of the Office of the Appellate Defender, filed a direct appeal of his conviction. (ECF No. 69-2 at S.R. 8.) Petitioner argued that the trial court erred in: (1) permitting an expert to explain coded language in recorded conversations between himself and the CI, which Petitioner argued should have been excluded as unnecessary and which deprived Petitioner of his right to cross-examine the CI; (2) permitting evidence of defendant's uncharged attempt to sell heroin to the CI in May or June 2011 before the charged sales; and (3) allowing the Government to cross-examine Petitioner's character witnesses about the police closure of the Amber Room. See People v. Ruiz, 166 A.D.3d 544 (1st Dept. 2018).
Petitioner was released from prison on May 2, 2018 while his direct appeal was pending. (ECF No. 69-3 at S.R. 274.) On November 27, 2018, the New York Supreme Court, Appellate Division, First Department (“Appellate Division”) rejected each claim as meritless, and some claims as procedurally barred, and unanimously affirmed the conviction. (Id. at 288.) On February 15, 2019, Petitioner's request for leave to appeal to the New York Court of Appeals was denied. People v. Ruiz, 32 N.Y.3d. 1209 (2019).
6. The Instant Petition and the CPL § 440.10 Motion
On April 10, 2019, while on parole, Petitioner timely filed a pro se petition in this Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2254. (Pet., ECF No. 1.) The Petition asserts one claim-that the trial court erred by allowing expert testimony to decode language in recorded conversations between Petitioner and the CI. The Petition argues that this error violated the federal constitution by “shifting the burden of proof, denying [Petitioner's] federal constitutional right to confront witnesses, and denying [Petitioner] a fair trial.” (Pet. 18.)
On May 24, 2019, Petitioner sought leave to amend the Petition to add a claim for ineffective assistance of counsel. The undersigned granted Petitioner's request, and, finding the claim to be colorable, appointed counsel pursuant to 18 U.S.C. § 3006A(a)(2)(B) to represent Petitioner in this action. (ECF No. 16.) On October 20, 2019, Bobbi C. Sternheim entered an appearance as appointed counsel for Petitioner. (ECF No. 22.) Petitioner then moved to hold his Petition in abeyance to allow him to exhaust the ineffective assistance of counsel claim in state court. (ECF No. 44.) On April 1, 2020, the undersigned granted that motion and held this case in abeyance. (ECF No. 48.)
On March 17, 2020, with assistance of counsel, Petitioner filed a motion pursuant to CPL § 440.10 in the Supreme Court of the State of New York, County of New York (“New York Supreme Court”) claiming ineffective assistance of trial counsel. (ECF No. 69-3 at S.R. 260.) Petitioner argued that Aranda was ineffective because he had failed to provide discovery to Petitioner or review discovery with Petitioner; confer and counsel Petitioner; or permit Petitioner to participate in his defense at trial and testify on his own behalf. (Id. at S.R. 262.) On December 4, 2020, the Honorable Miriam R. Best, Acting Justice of the New York Supreme Court, issued a comprehensive decision and order denying the CPL § 440.10 motion on the merits. (Am. Pet. Ex. A.)
Petitioner appealed Justice Best's decision to the Appellate Division and that appeal was denied, as was Petitioner's request for leave to appeal to the New York Court of Appeals. On September 14, 2022, Petitioner advised the Court that his ineffective assistance of counsel claim was exhausted, and the undersigned lifted the stay on his federal habeas petition. (ECF No. 64.) Petitioner filed a Supplemental Amended Petition on October 14, 2022 asserting a claim for ineffective assistance of counsel. (Am. Pet., ECF No. 66.) The Supplemental Amended Petition asserts that Aranda provided ineffective assistance of counsel for the same reasons raised in Petitioner's CPL § 440.10 motion. (Am. Pet. 4.) Respondent filed an opposition brief on December 19, 2022. (Opp. Br. 1.) Petitioner did not file a reply. On March 21, 2023, the Court granted Petitioner an extension of time to file a reply should he choose to file one, but no reply was filed.
Although the Supplemental Amended Petition is styled as an “Amended Petition” on the docket, the document “incorporates” the evidentiary argument raised in the initial Petition and only includes discussion as to the ineffective assistance of counsel claim. Accordingly, in the Court's below discussion of the evidentiary claim, the Court cites to the initial Petition.
LEGAL STANDARDS
1. Standard for Habeas Review
“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97 (2011). To obtain habeas relief, a state prisoner must show that the state court's decision on the merits was either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or that the decision was based on an unreasonable determination of the facts presented to the state court. 28 U.S.C. § 2254(d)(1)-(2). In the AEDPA context, “clearly established” law refers to “only the holdings, as opposed to the dicta,” of a decision by the United States Supreme Court where the cases involve the same specific question. Woods v. Donald, 575 U.S. 312, 316 (2015).
For a state court decision to be “contrary to” clearly established law, a state court must reach a conclusion of law “antithetical to a conclusion of law by the Supreme Court, or decide a case differently than the Supreme Court has when the two cases have ‘materially indistinguishable facts.'” Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 2010) (citation omitted). To satisfy the high bar for habeas relief, a petition must establish that “the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.” Harrington, 562 U.S. at 103.
2. Exhaustion and Procedural Default
Prior to seeking federal habeas review, a petitioner in state custody must exhaust all remedies available in state court. 28 U.S.C. § 2254(b)(1); see also Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). This means that a petitioner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Jackson, 763 F.3d at 133 (explaining a “complete round” requires the petitioner to present the “essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it”). In New York, a petitioner invokes a “complete round” by appealing an issue to the Appellate Division and then seeking leave to appeal to the New York Court of Appeals. Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005).
Where a habeas petition presents unexhausted claims, the court must determine whether the petitioner would be able to return to state court to exhaust those claims. Jackson, 763 F.3d at 133. If the petitioner's claim is unexhausted and the petitioner cannot obtain further review in state court, the claim is procedurally defaulted and must be dismissed. Id.
Additionally, federal habeas review is foreclosed as a procedural matter when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim. Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). The only exceptions to this rule are if the petitioner establishes either “cause for the default and prejudice” or that he is “‘actually innocent' of the crime for which he was convicted.” Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (quoting Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001)).
DISCUSSION
1. Ineffective Assistance of Counsel Claim
Petitioner claims that he received ineffective assistance of counsel in violation of his Fifth, Sixth, and Fourteenth Amendment rights, because his trial counsel essentially failed to prepare the case and consult with and counsel Petitioner. (Am. Pet. 4.) Petitioner raised this claim in his CPL § 440.10 motion, and the New York Supreme Court rejected it as meritless. Petitioner's appeal of that decision was denied, as was his leave to appeal to the New York Court of Appeals. Accordingly, this claim is exhausted.
Where, as here, a federal constitutional claim is adjudicated on the merits in a state court, the “highly deferential standard of review” codified in 28 U.S.C. § 2254 applies. Harrington, 562 U.S. at 105. The applicable question is whether, in dismissing Petitioner's ineffective assistance claims, the New York Supreme Court unreasonably applied the standards set out by the United States Supreme Court in Strickland v. Washington. 466 U.S. 668 (1984). Under Strickland, to prevail on an ineffective assistance of counsel claim, petitioner must show: (1) “that counsel's performance was deficient,” and (2) “that the deficient performance prejudiced the defense.” 466 U.S. at 687.
Under the first prong of the Strickland test, a petitioner must show that his counsel's errors were “so serious that counsel was not functioning as the ‘counsel' guaranteed [to] the defendant by the Sixth Amendment.” Harrington, 562 U.S. at 104. The petitioner must “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689. Under the second prong of the Strickland test, the petitioner must establish that “but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The question is not whether the court can be sure that counsel's performance had no effect on the outcome of the case, but rather “whether it is ‘reasonably likely' the result would have been different.” Harrington, 562 U.S. at 111.
Here, Petitioner has not shown that the New York Supreme Court's decision denying his CPL § 440.10 motion applied the Strickland standard unreasonably. To the contrary, as discussed below, the New York Supreme Court provided a thorough analysis and reasonably found that none of Petitioner's bases for his ineffective assistance of counsel claim had merit.
a. Whether Counsel Failed to Provide and Review Discovery with Petitioner
Petitioner claims that Aranda was ineffective because he failed to provide and review discovery with Petitioner before and during trial. Specifically, Petitioner asserts that Aranda did not review the transcripts of the recorded conversations with Petitioner, and that Petitioner was not given the Spanish versions of the transcripts ahead of trial. Petitioner claims that he identified inaccuracies in the transcripts that altered the meaning of the conversations he had with the CI, and that had his counsel reviewed the transcripts with him ahead of time, he would have been able to correct the inaccuracies. (Am. Pet. 5.)
However, Petitioner's claim that he did not review the transcripts with Aranda in advance of trial is contradicted by the evidence. Before trial, Petitioner signed a stipulation that he reviewed and discussed the transcripts with Aranda, and he later confirmed to the trial court that he had signed the stipulation “in the presence of [his] attorney and the official Spanish interpreter.” (Pre-Trial Tr. at 86:3-12.) The Court is permitted to rely on the verity of Petitioner's own statements to the trial court. See Shelikhova v. United States, 2017 WL 3995572, at *3 (E.D.N.Y. Sept. 7, 2017) (petitioner failed to meet the first Strickland prong where her claim that her counsel did not properly communicate with her was contradicted by her own sworn statements at the plea hearing that she was satisfied with her counsel and had enough time to discuss her case with him). Further, the trial record shows that Aranda reviewed the transcripts for inaccuracies and noted a potential inaccurate attribution in the transcripts at trial and encouraged the jury not to trust the accuracy of the transcripts. (Trial Tr. 2 at 988:20-21; Trial Tr. 3 at 1339:2-3.) Accordingly, Petitioner has not shown deficient performance by Aranda and has failed to meet the first Strickland prong.
Moreover, as the New York Supreme Court noted in reviewing Petitioner's CPL § 440.10 motion, Petitioner has not identified a “single inaccuracy in the transcripts,” (Am. Pet. Ex. A 25) nor has he articulated any actual prejudice that resulted from his asserted inability to review them in advance of trial. See United States v. Montilla, 85 Fed.Appx. 227, 230 (2d Cir. 2003) (rejecting claim that trial counsel was ineffective for failing to have an independent Spanish translator review transcripts for accuracy where there was no showing that the transcripts contained errors.)
Moreover, regardless of any inaccuracies in the transcripts, the other evidence of Petitioner's guilt at trial was significant, including testimony by the CI and DEA agents, as well as evidence of heroin seized from a hidden compartment inside Petitioner's car. See Akosa v. United States, 219 F.Supp.2d 311, 315-16 (E.D.N.Y. 2002) (petitioner was unable to show prejudice resulting from his counsel's alleged ineffective assistance in light of the “overwhelming evidence of his guilt”). Accordingly, Petitioner has not met the second Strickland prong as to this basis for his ineffective assistance claim.
b. Whether Counsel Failed to Confer with and Counsel Petitioner
Petitioner claims Aranda was ineffective because he failed to confer with and counsel Petitioner, and Aranda met with Petitioner only twice at Rikers Island before trial started and that the only time Petitioner saw Aranda outside of these meetings was during pretrial conferences and during trial. (Am. Pet. 4.)
This claim is also belied by Petitioner's own statements to the trial court. Petitioner was asked at various times by the court whether he had sufficient time to speak with Aranda, and each time responded that he had. (See, e.g. Pre-Trial Tr. at 7:2-4, 49:17-18, 81:2-4.) Moreover, the record reveals that Aranda requested and was granted the opportunity to confer with Petitioner during jury selection. (Id. at 412:21-23.) In any event, “[i]t is not objectively unreasonable” for counsel to opt to consult with his client “during trial rather than before trial.” Ochoa v. Breslin, 798 F.Supp.2d 495, 502-03 (S.D.N.Y. 2011) (collecting cases). As such, Petitioner has failed to show deficient performance on this basis and has not met the first Strickland prong.
Petitioner has also failed to show how Aranda's alleged failure to confer with and consult him actually prejudiced him at trial, as it is not clear what impact more frequent or lengthier meetings between Petitioner and Aranda would have accomplished. “Failure to indicate what would have been achieved by additional face-to-face communication is fatal to an ineffective assistance of counsel claim.” Id. (quotation marks and citation omitted); see also Akosa, 219 F.Supp.2d at 315-16 (“[I]n light of the overwhelming evidence of his guilt, Akosa cannot show any prejudice resulting from the purported lack of preparedness” of his trial counsel.”). Petitioner therefore fails the second prong of the Strickland test as to this basis for his ineffective assistance claim.
c. Whether Counsel Failed to Prepare and Permit Petitioner to Testify
Petitioner claims Aranda was ineffective because, despite Petitioner's desire to testify on his own behalf, Aranda failed to prepare him to testify. (Am. Pet. 4.)
This claim is also contradicted by the trial record. Upon questioning by the trial court at the close of Petitioner's case, Petitioner informed the trial court that he was not going to testify; that no one had forced, threatened, or pressured him not to testify; and that he had had enough time to discuss that decision with his attorney. Petitioner has not provided any reason why he would have made these statements to the trial court if they were not true or why he only raised this issue for the first time seven years after trial. Further, even assuming Petitioner wished to testify on his own behalf and Aranda counseled him against it, Petitioner has failed to overcome the strong presumption that the challenged action was a sound trial strategy. See United States v. Vargas, 920 F.2d 167, 169-70 (2d Cir. 1990) (counsel's advice that the defendant not testify on his own behalf was presumed to be a reasonable trial strategy and did not amount to ineffective assistance). Petitioner has therefore failed the first step of the Strickland test as to this basis for his ineffective assistance claim.
Additionally, Petitioner has failed to show how he was prejudiced by Aranda's alleged error, because he has not stated what his testimony would have been had he been permitted to testify, nor that the jury would have credited his testimony or that the testimony would likely have been sufficient to overcome the evidence against him. See Montilla, 85 Fed.Appx. at 230-31 (given the strength of the government's evidence against the defendant and because the defendant had not indicated the manner in which his proposed testimony would have led to his acquittal, the defendant failed to demonstrate that he was prejudiced by not taking the stand in his own defense.) Petitioner has therefore failed the second prong of the Strickland test as to this basis.
d. Whether Counsel Failed to Call Certain Witnesses
Petitioner claims that he requested that Aranda retain an expert to rebut the Government's expert on code words, but that his counsel refused to do so. (Am. Pet. 6.) Petitioner also asserts that he requested that Aranda call as a witness the individual from whom Petitioner purchased his car in order for the seller to testify regarding the hidden compartment in the car. (Id. at 6-7.) Petitioner asserts that Aranda's refusal to call these witnesses amounts to ineffective assistance of counsel.
“The decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial.” United States v. Smith, 198 F.3d 377, 386 (2d Cir. 1999) (quotation marks and citation omitted). “[C]ounsel's decision as to whether to call specific witnesses-even ones that might offer exculpatory evidence-is ordinarily not viewed as a lapse in professional representation.” United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000) (quotation omitted).
Here, Petitioner has not shown that Aranda's decision not to call a rebuttal expert or the individual who sold Petitioner his car was anything other than a reasonable strategic decision. As to a potential rebuttal expert, Petitioner has not shown that such an expert existed, nor has he shown why a rebuttal expert would be necessary in light of the fact that a jury does not need an expert to explain that many of the words the Government's expert “de-coded” could have been used for their actual meanings, which on their face are unrelated to drug trafficking. See McDowell v. Heath, 2013 WL 2896992, at *36 (S.D.N.Y. June 13, 2013) (rejecting ineffective assistance of counsel claim based on failure to call an expert witness where the petitioner offered no evidence that an expert was available or that he would have testified favorably if called).
As to the individual who sold Petitioner his vehicle, Petitioner has not indicated what this person's testimony would likely have been or how it would have been relevant or helpful to Petitioner at trial, nor that the individual's testimony would have been found credible by the jury. See Vargas, 920 F.2d at 169-70 (rejecting ineffective assistance of counsel claim where there was no indication that the proposed defense witnesses would have been helpful to the defense); Washington v. Graham, 2011 WL 3610107, at *8 (W.D.N.Y. Aug. 16, 2011) (trial counsel was not ineffective in failing to call witnesses to testify where counsel could have reasonably concluded that the witnesses were not credible).
Petitioner has thus not overcome the presumption that Aranda's decision not to call these witnesses was reasonable, and he fails the first prong of the Strickland test.
Petitioner also has not demonstrated prejudice as a result of Aranda's failure to call these witnesses. Petitioner can only speculate as to what these witnesses would have testified to had they been called at trial. Speringo v. McLaughlin, 202 F.Supp.2d 178, 192 (S.D.N.Y. 2002) (explaining that ineffective assistance of counsel claims based on the failure to call witnesses are disfavored because allegations of what a witness would have testified are necessarily speculative); Heath, 2013 WL 2896992, at *40 (“[I]n the absence of a specific proffer of what an expert would have said that might be relevant to Mr. McDowell's case, petitioner cannot show that he was prejudiced by counsel's decision not to call such an expert.”) Petitioner has also failed to demonstrate that, even if his desired witnesses were able to testify and would have testified in a manner beneficial to him, their testimony would likely have been sufficient to overcome the Government's evidence against him. Therefore, Petitioner fails the second prong of the Strickland test as to this basis as well.
e. Aranda's Disciplinary History
The Supplemental Amended Petition discusses Aranda's disciplinary history at length, arguing that this history reveals a “pattern” of professional misconduct. While the history of disciplinary action is noteworthy, the New York Supreme Court correctly held that Aranda's disciplinary history resulting from his conduct in unrelated cases “neither demonstrates nor compels a finding that he provided ineffective assistance at this trial.” (Am. Pet. Ex. A at 29.) This finding comports with federal law. See, e.g., United States v. Rondon, 204 F.3d 376, 380 (2d. Cir. 2000) (counsel's disbarment during course of trial did not constitute per se ineffective assistance of counsel); Duong-Cam Tran v. United States, 2010 WL 3609538, at *2-3 (W.D.N.Y. Sept. 8, 2010) (the fact that appellate counsel was admonished by the appeals court did not on its own constitute ineffective assistance of counsel). Indeed, under Strickland, the Court must not look at Aranda's performance in other cases, but at his performance in this case. The record from Petitioner's trial shows that at each stage of the proceedings, Aranda provided effective assistance, including by successfully defeating several of the Government's pre-trial motions, objecting successfully to attempts by the Government to elicit unduly prejudicial testimony, obtaining helpful admissions during cross-examination of the Government's witnesses, and presenting a strong case of Petitioner's reputation in his community as a lawabiding individual. The fact that Aranda has a history of disciplinary action does not change the Court's analysis.
2. Claim Regarding Malone's Expert Testimony
Petitioner argues that habeas relief is warranted on the ground that the trial court erred in admitting Malone's testimony. Petitioner asserts two separate bases for relief on this issue. First, Petitioner claims Malone's testimony was unnecessary as a matter of law and should not have been admitted. Second, Petitioner claims that Malone's testimony deprived him of his constitutional right under the Sixth Amendment to confront the CI, because Malone testified after the CI and Petitioner was unable to cross-examine the CI about Malone's testimony. (Pet. 18.) Both bases are procedurally barred and alternatively are meritless.
a. The Unnecessary Testimony Claim is Procedurally Barred
Before presenting a federal constitutional claim to the federal habeas court, a petitioner must exhaust available state court remedies. 28. U.S.C. § 2254(b). A petitioner satisfies the exhaustion requirement by fairly presenting all federal claims to the highest state court before presenting them to the federal court. Baldwin v. Reese, 541 U.S. 27, 29 (2004). The federal constitutional basis for the claim must be explicitly identified at that time. Duncan v. Henry, 513 U.S. 364, 365-66 (1995).
On direct appeal, Petitioner asserted a claim that the expert testimony was unnecessary and prejudicial, but he did not provide a constitutional ground for this claim; that is, he did not argue that the alleged evidentiary error was of a constitutional magnitude. (ECF No. 69-2 at S.R. 37.) Because Petitioner failed to explicitly identify the federal constitutional basis for this claim and only asserted that the testimony was unnecessary as a matter of state law, the claim is technically unexhausted. However, “a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.” Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989)). “In such cases, although the claim is technically unexhausted, the district court may deem the claim to be exhausted but procedurally barred from habeas review.” Weston v. Capra, 2022 WL 1811161, at *9 (S.D.N.Y. Apr. 13, 2022), report and recommendation adopted, 2022 WL 2914506 (S.D.N.Y. July 25, 2022), appeal dismissed, 2022 WL 18207319 (2d Cir. Dec. 15, 2022), cert. denied, 215 L.Ed.2d 78, 143 S.Ct. 831 (2023).
In New York, where a petitioner has already made the one request for leave to appeal to which they are entitled, a petitioner cannot again seek leave to appeal those same claims. N.Y. Court Rules § 500.10(a). Here, Petitioner already appealed the expert testimony issue on direct appeal, and the Appellate Division found the claim meritless, holding the trial court “providently exercised its discretion in permitting an expert to explain coded language.” (ECF No. 69-2 at S.R. 120.) Petitioner's claim can therefore be deemed exhausted but procedurally barred because no state remedy remains available on this claim.
It is the petitioner's burden to demonstrate that an exception applies to the procedural bar. Wainwright v. Sykes, 433 U.S. 72, 91 (1977). A petitioner can generally overcome a procedural default by demonstrating cause for his failure to preserve the claim and prejudice resulting therefrom, or by demonstrating that failure to consider the claims would result in a miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Petitioner has shown neither here.
First, Petitioner did not show cause and prejudice. To establish “cause,” a petitioner must show “that some objective factor external to the defense impeded his efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Petitioner has not pointed to any factor that explains his failure to raise this claim in his direct appeal, during which Petitioner was represented by the Office of the Appellate Defender. “Where a petitioner is unable to show cause . . . the court need not consider actual prejudice.” McCleskey v. Zant, 499 U.S. 467, 502 (1991). Regardless, as described below, Petitioner cannot show prejudice because this claim is meritless.
Additionally, Petitioner has not demonstrated that failure to consider the claim will result in a fundamental miscarriage of justice. A “fundamental miscarriage of justice” is a finding reserved for the “extraordinary case where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Carrier, 477 U.S. at 496. A petitioner typically cannot meet this bar unless they come forward with reliable evidence of their innocence that was not presented at trial. Calderon v. Thompson, 523 U.S. 538, 559-60 (1998). Petitioner has not presented any evidence to demonstrate that he did not commit the crimes of which he was convicted and does not argue that he is actually innocent. As such, Petitioner has not shown that the miscarriage of justice exception applies here. This Court is therefore foreclosed from reviewing Petitioner's claim as to the expert testimony being “unnecessary.”
b. The Unnecessary Testimony Claim is Meritless
Regardless of the procedural default, Petitioner's claim that Malone's testimony was “unnecessary,” and that this evidentiary error was of a constitutional magnitude, fails on the merits. The ruling that Petitioner challenges here was based on state evidentiary law. To determine whether a state court's evidentiary ruling based on state law is an error of constitutional magnitude, a federal habeas court must determine whether the ruling erroneously applied state law, and if so, whether prejudice to the defendant resulted from the error. Dawson v. Phillips, 2008 WL 818539, at *13 (S.D.N.Y. Mar. 25, 2008). This analysis begins with state law “because the proper application of a presumptively constitutional state evidentiary rule could not be unconstitutional.” Hernandez v. Filion, 2004 WL 286107, at *10 (S.D.N.Y. Feb. 13, 2004).
Here, as already determined by the Appellate Division on Petitioner's direct appeal, the admission of the expert testimony was not erroneous under New York law. In New York, “expert testimony is properly admitted if it helps to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror.” People v. Diaz, 20 N.Y.3d 569, 575 (2013) (quotation marks and citation omitted). Here, the trial court reasonably found that the common words and practices of drug dealers was beyond the knowledge of the typical juror, and that an expert in the field could help to clarify for the jury what different words and practices typically mean. As the Appellate Division correctly held: “it was permissible for the People to employ expert testimony to establish the coded language's ‘fixed meaning . . . within the narcotics world.'” People v. Ruiz, 166 A.D.3d 544, 545 (1st Dept. 2018) (citing People v. Inoa, 25 N.Y.3d 466, 474 (2015)). While the CI could have testified about specific code words used between him and Petitioner, the Government was not required to rely solely on this lay testimony when “preferable” expert testimony was available. Id. (citations omitted).
There is also no reason to believe that exclusion of Malone's testimony would have created reasonable doubt in the minds of the jurors. Malone's testimony was only one component of the Government's case, which additionally included, inter alia, testimony of DEA Agents involved in the investigation and arrest of Petitioner, photographs of heroin samples given by Petitioner to the CI, and photographs of heroin the DEA Agents found in Petitioner's car upon his arrest. The Government also relied on testimony from the CI about his conversations and dealings with the Petitioner, including unambiguous testimony that the Petitioner in fact sold him heroin and provided him with heroin samples. Additionally, Aranda raised doubts as to the accuracy of the transcripts and pointed out that there were common phrases used for drugs and heroin that the CI and Petitioner did not use. The inclusion of Malone's testimony, therefore, was not likely unduly prejudicial to Petitioner. Accordingly, Petitioner has failed to show that allowing Malone's testimony - even if the testimony was unnecessary as a matter of state law - was an error of constitutional magnitude requiring habeas relief.
c. The Confrontation Claim is Procedurally Barred
Petitioner claims that the sequence of Malone's testimony violated his constitutional right to confront the CI, because Malone testified after the CI and therefore Petitioner could not question the CI about Malone's testimony. The Appellate Division rejected this claim on direct appeal as unpreserved as a matter of state law. Ruiz, 166 A.D.3d at 545. As an alternative holding, the Appellate Division found the claim meritless, noting that Petitioner was free to ask the CI about the recorded conversations and defense counsel had the opportunity to re-call the CI after Malone testified but chose not to.
A habeas court cannot review a federal issue where the state court relied upon a state law ground that is independent of the federal question and adequate to support the judgment. Coleman, 501 U.S. at 729. “This rule applies whether the state law ground is substantive or procedural.” Id. This Court “must defer to the state court's determination of” this issue of state procedural law. Maula v. Freckleton, 972 F.2d 27, 28 (2d Cir. 1992). Accordingly, this Court must defer to the Appellate Court's finding that this claim is unpreserved as a matter of state law and thus is procedurally barred.
Petitioner has not shown that an objective, external factor impeded his efforts to comply with the State's procedural rule and in fact he failed to raise any explanation of cause for why he failed to preserve this claim. See Coleman, 501 U.S. at 750. Petitioner also cannot show prejudice because, as discussed below, this claim is meritless. Further, Petitioner failed to demonstrate how failure to consider the claim would result in a miscarriage of justice, as he has provided no evidence of actual innocence.
d. The Confrontation Claim is Meritless
This claim also fails on the merits. The Sixth Amendment's Confrontation Clause states that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. Amen. VI. The Confrontation Clause guarantees an opportunity “not only to cross-examination, but to effective cross-examination.” United States v. James, 712 F.3d 79, 103 (2d Cir. 2013). However, the Confrontation Clause does not guarantee the right to “cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” United States v. Yurofsky, 55 Fed.Appx. 13, 15 (2d Cir. 2002) (citation omitted).
Here, Petitioner argues that his counsel was unable to effectively cross-examine the CI because Malone testified after the CI, and therefore his counsel could not ask the CI about the accuracy of Malone's expert statements. However, Malone testified about transcripts of recorded conversations between Petitioner and the CI that had been admitted into evidence before Petitioner's counsel cross-examined the CI, and Petitioner's counsel had the opportunity to, and in fact did, cross examine the CI regarding those conversations. The CI also testified about Petitioner's use of the code word “trabajo” to refer to heroin during their conversations, and Petitioner's counsel had the opportunity to cross-examine the CI about that testimony, the use of code words between the CI and Petitioner, and the context of the CI's conversations with Petitioner. It is unclear what more could have been achieved by questioning the CI about the expert witness's testimony because the CI was not qualified as an expert and could only talk about his own experiences. Petitioner also has not provided any reason to believe the CI would have contradicted the expert's testimony had he been asked about it. Moreover, Petitioner's counsel had the opportunity to cross-examine the expert witness and did perform an effective cross examination of the expert himself.
Accordingly, it is simply not the case that Petitioner was deprived of his opportunity to effectively cross-examine the CI, and Petitioner's Confrontation Clause claim is meritless.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Petition be denied in its entirety and that the case be dismissed.
NOTICE
The parties shall have fourteen days from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). A party may respond to another party's objections after being served with a copy. Fed.R.Civ.P. 72(b)(2).
The parties shall have fourteen days from the date of service of any objections to serve and file any response. Any objections and any responses to such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and served on the other parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Torres. The failure to file timely objections shall result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).