Summary
denying ineffective assistance of counsel claim based upon trial counsel's failure to arrange for DNA testing
Summary of this case from Steward v. GrahamOpinion
98 CIV. 7962 (DLC)
May 31, 2000
Robert Smith, Pro Se, for petitioner.
Mary C. Farrington, Assistant District Attorney, New York, NY, for respondent.
OPINION AND ORDER
On November 6, 1998, Robert Smith ("Smith") filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2554 challenging his conviction following trial for rape, sodomy, assault, and unlawful imprisonment. In the course of a collateral attack on the conviction in state court, Justice Arlene Silverman ordered DNA testing of semen samples taken after the rape from the victim. The testing excluded the petitioner as the donor. Smith's collateral attacks in state court were rejected, and on November 15, 1999, Magistrate Judge Kevin Fox recommended that the petition be dismissed. Based on the analysis which follows, this petition is dismissed.
The petition was received by the Court's Pro Se Office on September 28, 1998, but was not filed until November 6, 1998.
BACKGROUND
The evidence at trial, which took place in July 1990, included the following. The victim testified that after a sexual liaison with her boyfriend on Saturday, February 10, 1990, she showered and later went to Smith's apartment that same night with her boyfriend and a woman friend. Smith and his friend William Webb ("Webb") were there, and all of the group drank alcohol and used drugs, including crack cocaine. After awhile only the victim, Smith, and Webb remained in the apartment. Smith then attacked the victim, beating, raping, and sodomizing her over the course of several episodes. The victim testified that she did not know whether Smith had ejaculated.
The victim tried unsuccessfully to escape from the apartment. At approximately 4:00 p.m. on Sunday, the building manager, who was walking past the apartment, heard screaming and investigated. The manager forced open the apartment door and heard a woman scream, "Let me out of here. Let me out of here. I'm going to die if you don't let me out of here." The victim ran past the manager and onto the street. Smith told the manager that nothing was going on and that the woman was crazy.
The victim used a telephone on the street to call the police and when they arrived, she reported that she had been beaten and raped. The police saw that she had been crying, that her nose was bleeding, that her face was swollen and puffy and that her clothes were in disarray. When she led them to Smith's apartment, Webb was there with another man, but Smith was not. The police arrested Smith in a nearby apartment, where he was crouching down in a closet holding a bottle of wine and wearing only a pair of pants.
An examination at the hospital confirmed that the victim had lacerations on her face and pelvic area. There were multiple tears or lacerations on the lining of her vagina, some of which were bleeding. The doctor concluded that they had resulted from forceful trauma or penetration and were consistent with rape. Forensic testing showed the presence of sperm on the victim's underwear and on the rectal and vaginal slides prepared at the hospital. No testing had been done, however, to link the semen to the defendant.
Smith called two witnesses on his behalf and also took the stand himself. One witness testified that he had stayed at Smith's apartment on Saturday night and that there were no women there. The second witness testified that he lives next door and did not hear anything through the common door that separates the two apartments. He added that at 8:00 a.m. on Sunday morning he met Smith and the victim on the street in front of the apartment building and bought wine for them. When he returned at approximately 4:00 p.m., he met Smith in the building's hallway and went with him out onto the street, where they saw the victim. Smith said, "Oh she must have called the cops on me." When he later returned to his apartment he discovered Smith inside a closet holding a wine bottle.
Smith testified that he had spent Saturday night at home with only male friends. He remembered the victim coming to his apartment early Sunday morning to smoke crack with him. According to Smith, the victim had wanted to have sex, but he rebuffed her because his gonorrhea made intercourse too painful. The fact that he suffered from gonorrhea was corroborated by medical records. His recollection of what occurred during the day was confused, but Smith recalled that the victim eventually returned to his apartment complaining that she had been given bad drugs, at which point he had hit her and her nose began to bleed. The victim fell several times. At this point the manager forced her way into the apartment. Smith explained that he had hidden in the closet because the building manager had threatened to have him arrested if she discovered him drinking alcohol on a Sunday.
Smith was convicted on all counts and sentenced on October 1, 1990, to concurrent prison terms of seven to twenty-one years for each of the rape and sodomy counts, two and one-third to seven years for the assault count, and one year for the unlawful imprisonment. On appeal, Smith claimed that (1) he was denied effective assistance of counsel for the failure to conduct DNA testing of the semen samples collected at the hospital and for the failure to call two potential defense witnesses; (2) the trial court erred in limiting argument on the state's failure to conduct DNA testing; (3) the state denied him exculpatory evidence by refusing to conduct DNA testing; and (4) the verdict was based on insufficient evidence. The Appellate Division affirmed the conviction in a published opinion, 612 N.Y.S.2d 13 (1st Dep't 1994), and leave to appeal was denied by the Court of Appeals.
While the appeal was pending, Smith filed a Section 440.10 motion pro se on the grounds that his trial counsel had been ineffective for failure to arrange DNA testing and to call the two defense witnesses. Assigned counsel filed a second such motion, raising the same claims. It was denied and Smith did not appeal.
Smith filed a third such motion pro se, focused solely on the failure of the prosecution and the court to arrange for DNA testing. The court assigned counsel for Smith and ordered the testing, which when done, excluded Smith as a donor. At a hearing, the prosecution's expert confirmed the lab tests and added that Webb was also eliminated as a donor and that all of the DNA material obtained by the hospital came from one source. The DNA material had been collected from the victim's pantyhose, vagina and rectum, and possibly from her mouth and hair. An expert explained that sperm could travel from the vagina to rectum. The state was unable to locate the victim's boyfriend, and there is no evidence as to whether he is the source of the sperm that was analyzed. Justice Silverman denied the motion based on a claim of ineffective assistance of counsel on the ground that it had been rejected by the Appellate Division and in the denial of Smith's second Section 440.10 motion. She concluded that the DNA evidence was not newly discovered evidence since it could have been obtained prior to trial. Finally, she reasoned that Smith would have been convicted even if the DNA evidence had been available at trial given the other evidence introduced at trial.
Smith appealed the denial of his Section 440.10 motion. The decision was affirmed and leave to appeal to the Court of Appeals was denied on June 23, 1998. The Appellate Division ruled that the "DNA tests would not have probably resulted in a more favorable verdict" for Smith. People v. Smith, 665 N.Y.S.2d 648 (1st Dep't 1997).
Smith filed this petition on November 6, 1998. He raised four claims: (1) that he received ineffective assistance from trial counsel; (2) that the trial court erred in limiting argument regarding the absence of the DNA testing; (3) that the prosecution had an obligation conduct DNA testing; and (4) that the DNA evidence exonerates him. On January 15, 1999, this Court referred the petition to Magistrate Judge Fox for a Report and Recommendation. On November 15, 1999, the Magistrate issued his Report, recommending that the petition be dismissed ("Report"). Smith asked for an extension of his time to object to the Report and submitted his objections on March 1, 2000. Through a letter of March 9, 2000, the state asks the Court to accept the Report.
DISCUSSION
In reviewing the Report, this Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record."Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted). See also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (court may accept report if it is "not facially erroneous"). The Court shall make a de novo determination of those portions of the Report to which objection is made. See id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Section 2254, as amended by the AEDPA, provides for the following standard of review:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless 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). As the Supreme Court has recently elaborated,
[u]nder 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 United States Supreme Court] on a question of law or if the state court decides a case differently than [the United States Supreme Court] has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the United States Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). With respect to factual findings, Section 2254(e)(1) states that "a determination of a factual issue made by a State court shall be presumed to be correct" and that a petitioner is required to rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
A. Ineffective Assistance of Trial Counsel
Smith contends in his petition that his trial counsel was ineffective in that he failed to arrange for DNA testing and failed to call two potential defense witnesses. The Report found that these claims were procedurally barred whether one considered the record on the direct appeal or the Section 440.10 litigation. On direct appeal, the Appellate Division ruled that the remaining claims made by Smith which it had not yet discussed, and which included the claimed ineffectiveness of trial counsel, were "either unpreserved or without merit." Since a Section 440.10 motion is the "preferred avenue" for a claim of ineffective assistance, Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994), it is presumed that the appellate division considered this particular argument to be "unpreserved." Although Smith properly brought these claims in a collateral attack on his conviction, he did not appeal from the denial of that Section 440.10 motion. Consequently, the Report analyzed whether Smith had shown cause and prejudice, and found that he had offered no explanation sufficient to establish either.
Despite the conclusion that Smith was procedurally barred from claiming ineffective assistance of counsel, the Report also addressed the claim on the merits. Smith's counsel for the Section 440.10 litigation explained that trial counsel had not conducted the DNA testing because of concerns about the expense of the testing and the availability of the results by the time of the trial, as well as its admissibility. The Report found that there was no ineffective assistance since, as a strategic matter, it was reasonable not to conduct testing when the results might be harmful to Smith or even if helpful might well be inadmissible. Using similar reasoning, the Report found that it was a reasonable and strategic decision by trial counsel not to call the two witnesses, both of whom trial counsel had interviewed.
Smith argues that his claims are not procedurally barred since the verdict represents a fundamental miscarriage of justice. Since the Report was based on alternative analyses and Smith's objections do not raise the Report's alternative ground for dismissing the claimed ineffective assistance of counsel, the Court will review the Report for clear error. Finding none, this portion of the Report is adopted.
Smith adds a claim in his objections that his counsel was ineffective for failing to object to the following alleged violation of his Sixth Amendment right to confront the witnesses against him. Apparently, the Grand Jury testimony included his co-defendant's plea allocution that what had happened in Smith's apartment was "frightening". Wholly apart from whether this claim is properly presented, errors in the Grand Jury presentation are not cognizable in a federal habeas petition. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989). See also United States v. Eltayib, 88 F.3d 157, 173 (2d Cir. 1996) (noting that the guilty verdict of a petit jury cures any defect in the grand jury proceeding).
As to Smith's claim of a fundamental miscarriage of justice, when a
"state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred 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."Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996) (quotingColeman v. Thompson, 501 U.S. 722, 750 (1991)). In the context of a federal habeas petition, a fundamental miscarriage of justice means that the "`constitutional violation has probably resulted in the conviction of one who is actually innocent,'" Reyes v. Keane, 118 F.3d 136, 138 (2d Cir. 1997) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). In order to demonstrate actual innocence in a collateral proceeding, a petitioner must present "`new reliable evidence that was not presented at trial'" and "`show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.'"Lucidore v. New York State Div. of Parole, 209 F.3d 107, 114 (2d Cir. 2000) (quoting Schlup v. Delo, 513 U.S. 298. 299. 327-28 (1995)) (brackets in original). Further, actual innocence means factual innocence, not mere legal insufficiency. Rosario v. United States, 164 F.3d 729, 733 (2d Cir. 1998).
The facts to which petitioner points are insufficient to establish that his trial counsel's performance resulted in a miscarriage of justice. Even assuming that the evidence he points to could be characterized as "new reliable evidence," the facts Smith argues should have been presented at trial had he been represented effectively — the results of the DNA testing and the potentially exculpatory statements of two additional defense witnesses — are insufficient to establish his actual innocence. First, given the overall evidentiary strength of the prosecution's case, these facts do not present the situation in which the exclusion of petitioner as the source of semen recovered from the victim's body is dispositive of the trial issues. The jury was aware that the victim had had sex with her boyfriend prior to the sexual assaults and the police chemist testified at trial that no testing had been done to connect Smith to the semen recovered from the victim. As to the two witnesses defense counsel elected not to call, although the affidavits they submitted suggest that their trial testimony may have had some exculpatory value to petitioner, their statements were equally problematic to the extent that they conflicted with the petitioner's version of the events and even the theory of the defense. Defense counsel interviewed these witnesses prior to trial and thereafter determined not to call them. Because their testimony would have, at most, amounted to limited impeachment of the victim, the absence of such evidence is insufficient to establish actual innocence.
B. The Trial Court Rulings
Smith contends in his petition that the trial court erred in not allowing him to point out to the jury that the prosecution had failed to conduct DNA testing. The Appellate Division ruled that
the trial court appropriately exercised its discretion in precluding cross-examination of the police chemist as to the absence of a particular chemical test (i.e., DNA testing), while permitting cross-examination regarding the inability of the tests actually performed to connect defendant with the crimes charged, as well as argument thereon in summation. By such ruling, the trial court properly discouraged undue speculation, while keeping the proceedings within the reasonable confines of the issues and encouraging clarity, rather than obscurity in the development of proof.612 N.Y.S.2d at 14.
The Report recommends that this Court find no error since the trial court acted within its discretion to prevent jury speculation. Smith objects in a general fashion to the Report, but does not bring any specific objection to bear on this portion of the Report. Reviewing it for facial error, and finding none, the Report's recommendation is adopted.
C. The Prosecution's Failure to Conduct DNA Testing
Relying on Arizona v. Youngblood, 488 U.S. 51 (1988), the Report rejected Smith's contention that the prosecution had any obligation to perform DNA testing. Smith objects to this analysis, contending as he did before the state courts that the prosecutor had an obligation under Brady v. Maryland, 373 U.S. 83 (1963), to disclose exculpatory evidence to him, and that the failure to conduct the DNA testing amounted to a violation of that obligation.
Under Brady, 373 U.S. at 87, the government has a due process obligation to disclose without delay evidence in its possession that is material to either guilt or punishment. United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998). The prosecution is not, however, required to disclose evidence it does not possess or of which it is not aware, see United States v. Tillem, 906 F.2d 814, 824 (2d Cir. 1990), and there is no due process requirement that the government use any particular investigatory tool, including quantitative testing, to secure exculpatory evidence. Youngblood, 488 U.S. at 58-59. Because petitioner clearly does not contend that any exculpatory DNA evidence was within the prosecutor's possession, the fact that he couches the government's failure to perform DNA testing in terms of Brady does not convert a legitimate prosecutorial choice into a constitutional violation.
Moreover, the absence of a Brady violation is particularly clear where, as here, the evidence was equally available to the defense, which chose not to pursue this course of investigation.Cf. Morgan v. Salamack, 735 F.2d 354, 358 (2d Cir. 1984). The rationale underlying Brady is that the defendant should not be denied access to exculpatory evidence only known to the government. United States v. Zackson, 6 F.3d 911, 918 (2d Cir. 1993). See also United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982) (no obligation to disclose exculpatory evidence "if the defendant either knew, or should have known, of the essential facts permitting him to take advantage of any exculpatory evidence"). Defense counsel had knowledge of the semen samples and, as discussed above, strategically opted not to pursue DNA testing as a means of garnishing potentially exculpatory evidence. Smith is not therefore entitled to habeas corpus relief on this claim.
D. Newly Discovered Evidence
Finally, Smith contends in his petition that he is entitled to a new trial because the DNA test results eliminating him as a donor of the semen recovered from the victim amount to newly discovered evidence. The Report rejects this claim on the ground that it constitutes a claim of innocence, which is not a basis for habeas relief in the absence of an independent constitutional violation.
The Report finds that Smith's characterization of the DNA test results as "newly discovered evidence" is erroneous, because such physical evidence, although newly tested, is not newly discovered; its existence was known to petitioner prior to and during the trial.
Smith's objections to the Report principally address this issue. He argues that, as outlined above, the prosecution had aBrady obligation to conduct DNA testing, and that if it had done so, there would have been a different result at trial. In support of this contention, he points to the fact that the victim's testimony was inherently unreliable since she was, as she admits, under the influence of both drugs and alcohol at the time of the alleged rape. He also argues that one of the witnesses interviewed but not called by his attorney as a defense witness was the victim's boyfriend, and that that person would have denied having had sex with the victim before the attack. He further points to the fact that the semen found on the victim could not, in any event, be attributed to the boyfriend since the victim admitted that she took a shower after having had sexual relations with him.
Smith may thereby be arguing the existence of a second constitutional error. He contends that the trial court should have charged the jury that they could consider the victim's level of intoxication in deciding whether her testimony was reliable, a charge that his trial counsel had requested. Since this argument is first raised in Smith's objections, however, it will not be further addressed.
As the respondent points out, it is not altogether clear that the witness to whom Smith refers was the man the victim described in her testimony as her boyfriend. Among other things, he has a different surname.
Claims of newly discovered evidence that relate only to a petitioner's guilt or innocence do not warrant federal habeas relief absent an independent constitutional violation occurring in the state proceeding. See Herrera v. Collins, 506 U.S. 390, 400 (1993). Federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution — not to correct errors of fact. See id. As discussed above, the alleged violations of constitutional rights — petitioner's claims of ineffective assistance of counsel and Brady violations — are without merit, and thus the factual results of the DNA testing do not present a cognizable federal habeas corpus claim.
In any event, it is far from clear that the results of the DNA test constitute newly discovered evidence, since the physical evidence on which the testing was done was available to petitioner before and during the trial. Moreover, even assumingarguendo, that this evidence may be classified as newly discovered due to the advances in both DNA testing methodology and such evidence's increasing acceptance and admissibility, petitioner has failed to establish that its admission would probably lead to an acquittal. That Smith was eliminated as the source of the semen recovered from the victim was consistent with the victim's testimony that she had had intercourse with her boyfriend shortly before the crimes at issue, and that she was uncertain whether Smith had ejaculated during his sexual assaults upon her. Moreover, the victim's testimony about the assaults and rapes was corroborated by the doctor who examined her shortly after the events at issue, the responding police officers' testimony as to her demeanor and physical appearance, the testimony of the building manager, the actions of the victim herself — including her flight from petitioner's apartment and her immediate call to 911 from the street — and the petitioner's own conduct, which was consistent with guilt. In light of such evidence, Smith is unable to establish that had the jury been informed that the semen recovered from the victim's body was not his, such information would probably have resulted in his acquittal.
CONCLUSION
For the reasons stated, the petition for a writ of habeas corpus is denied. The Clerk of Court shall close the case. I find that the petitioner has not made a substantial showing of the denial of a constitutional right and appellate review is therefore not warranted. See Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). In addition, I find, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith.See Coppedge v. United States, 369 U.S. 438 (1962).
SO ORDERED:
Dated: New York, New York May 30, 2000
___________________________ DENISE COTE United States District Judge