Opinion
CV 98-4 145 (RR)
September 18, 2001
TERRENCE SMOOT, Petitioner, Pro Se
HONORABLE CHARLES J. HYNES KINGS COUNTY DISTRICT ATTORNEY, Attorney for Respondent
Memorandum and ORDER
Terrence Smoot, proceeding pro se, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1994 Supp. 1998). On November 28, 1995, Smoot pleaded guilty in New York Supreme Court, Kings County, to Manslaughter in the First Degree, N.Y. Penal Law § 125.20 (McKinney 1998) in satisfaction of all charges filed in Indictment No. 15784/94. As part of his plea agreement, Smoot waived his right to appeal, as he had also done on July 31, 1995, when he pleaded guilty to Criminal Possession of a Controlled Substance in the Fifth Degree, N Y Penal Law § 220.06[1] (McKinney 1995). On December 7, 1995, Smoot was sentenced as a second violent felony offender to a term of twelve and one-half to twenty-five years for manslaughter and a concurrent term of two to four years for possession of a controlled substance.
Presently incarcerated, Smoot petitions this court to vacate his manslaughter conviction on the grounds that unduly suggestive identification procedures violated his right to due process. Respondent opposes the petition as procedurally barred from federal review. In reply, petitioner cites his counsel's ineffectiveness as cause to excuse his procedural default. He further asserts that he was improperly denied counsel at a line.-up and that his post-arrest admissions to the authorities were coerced.
The court has carefully considered the submissions of the parties as well as the record of proceedings in the state court and concludes that petitioner's claims are procedurally barred by his guilty plea and waiver of any statutory right to appeal. In any event, his claims are without merit. Accordingly, Smoot' s petition for a writ of habeas corpus is denied.
Factual Background
1. The Shooting of Thomas Singletary
On October 29, 1994, at a dice game in Brooklyn, petitioner Terrence Smoot drew a gun, pointed it at Thomas Singletary, and demanded money. A struggle ensued during which Smoot's gun discharged, and a bullet struck Singletary in the stomach, causing a wound from which he would eventually die.
Later that same night, investigating police officers showed six-person photo arrays to two men who had participated in the dice game. Upon viewing these pictures, Selwin Foster, who had left the game prior to the shooting, identified Smoot as one of the players. Michael Woolerey, who was present at the time of the shooting, identified Smoot as the gunman.
Smoot was arrested on December 29, 1994 and taken to a police precinct where he was advised of his rights, questioned, and placed in a six person line-up. Upon viewing that line-up, Michael Woolerey again identified Smoot as the man who had shot Singletary. Afterward, Smoot made further inculpatory statements to the police.
Soon thereafter, Smoot was indicted on charges of Murder in the Second Degree, N.Y. Penal Law § 123.25(1)(A)(3) (McKinney 1998); two counts of Robbery in the First Degree, N.Y. Penal Law § 160.15(1), (2) (McKinney 1999); Robbery in the Second Degree, N.Y. Penal Law § 160.10(1) (McKinney 1999); Criminal Possession of a Weapon in the Second Degree, N Y Penal Law § 265.03 (McKinney 2000); and Criminal Possession of a Weapon in the Third Degree, N.Y. Penal Law § 265.02 (4) (McKinney 2000).
2. Motion to Suppress Identification Testimony
Smoot moved, inter alia, to suppress both the identification testimony of Michael Woolerey and his own post-arrest statements. An evidentiary hearing was held before Justice John M. Leventhal, who concluded that suppression was not warranted.
In a detailed written decision issued on September 28, 1995, see People v. Smoot, 634 N.Y.S.2d 367, 166 Misc.2d 862 (Kings Co. 1995), Justice Leventhal ruled that no suggestive procedures were used at the time Woolerey first identified Smoot from a photo spread. Id. at 371. He reached the same conclusion as to the line-up. Id. at 371-72. Although Smoot claimed that an age discrepancy among the line-up participants rendered that procedure unfair, Justice Leventhal found, after viewing photographs of the line-up, that any discrepancy was "not readily discernible." Citing the long established principle that due process does not demand that line-up participants be identical in size or appearance, id. at 371 (and cases cited therein), Justice Leventhal found that "[t]he other participants in the line-up had the same general physical characteristics as [Smoot]." Id. Moreover, the participants were seated during the line-up to minimize any possible height or weight differences. Id. at 370. Further, their heads were covered with surgical mask hoods to conceal the fact that Smoot had changed his hairstyle since the time of the Singletary shooting. Id. at 371. Under these circumstances, the court found that the line-up procedures were "not unduly suggestive." Id. at 371-72.
Apparently, Smoot, who was then 21 years old, was the youngest participant in the line-up. The other men were 25, 29, 30, 37, and 40.Id. at 370.
In denying Smoot's motion to suppress his post-arrest admissions, Justice Leventhal ruled that the voluntariness of the statements had been established "beyond a reasonable doubt." Id. He expressly found that Smoot had been advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and thereafter "knowingly and voluntarily waived" these rights. Id.
3. Manslaughter Plea and Sentence
On November 28, 1995, pursuant to an agreement that Smoot, a second violent felony offender, would receive a sentence of twelve and one-half to twenty-five years, petitioner pleaded guilty to the lesser crime of first-degree manslaughter in satisfaction of all charges relating to the death of Thomas Singletary. Before this plea was entered, defense counsel stated that he had discussed the agreement with petitioner as well as his mother. See Plea Minutes at 2. Under oath, Smoot confirmed this discussion and stated that he wished to plead guilty to manslaughter.Id. at 3. When the court asked if Smoot understood that a guilty plea was "an admission that the charges are true, " petitioner replied that he did. Id. at 4.
Smoot then explained that although he pointed a gun at Singletary understanding the potential consequences of his action, his intent was to rob the deceased, not to kill him. Id. at 5-6. A struggle ensued during which Smoot's gun "accidentally" went off, fatally wounding Singletary.Id. at 5-7.
Smoot stated that he was pleading guilty of his own free will and not because of any threats or force. Id. at 8-9. He specifically acknowledged that his admissions to the court were all true. Id. at 8. Finally, Smoot reviewed a written waiver of his right to appeal with his attorney and signed it in open court. Id. at 9-10. Smoot's understanding of this waiver was confirmed by the court.
THE COURT: . . . in signing the piece of paper, you agree to waive your right to appeal from the plea you just have taken [and] from sentence to be imposed. In addition, I know you had a pretrial hearing at which you contested the legality of the arrest and certain evidence seized. As a result of your waiving your right to appeal, essentially you are accepting that judge's decision as final.
Do you understand that?
THE DEFENDANT: Yes, I do.
Id. at 10.
At sentencing on December 7, 1995, defense counsel again noted on the record that he had reviewed the agreed-upon sentence with petitioner and his mother and that there were no objections. See Sentencing Minutes at 3. When asked if he wished to make a statement in his own behalf, Smoot replied that he did not. Id. In imposing the agreed-upon sentence, the court reiterated Smoot's waiver of any right to appeal. Id. at 4.
4. Subsequent Procedural History
Six months later, on June 13, 1996, Smoot filed a pro se notice of appeal from his convictions for manslaughter and drug possession. In urging the state court to accept his untimely filing, Smoot explained that he had relied on his attorney's representation that he would file a notice of appeal within the time required by law. The district attorney opposed the untimely filing on the grounds that as to both the drug and manslaughter convictions, Smoot had waived his right to appeal. By summary order, the Appellate Division, Second Department, denied Smoot's motion to appeal out of time. See People v. Smoot, No. 96-05442, 96-05443 (2d Dep't Sept. 19, 1996).
Smoot thereafter moved for reconsideration, submitting that his counsel's failure to file a timely notice of appeal was constitutionally ineffective. That motion was summarily denied. See People v. Smoot, No. 96-05442, 96-05443 (2d Dep't Jan. 14, 1997). Smoot's motion for leave to appeal to the New York Court of Appeals was also summarily rejected on the grounds that the order challenged was not appealable. See People v. Smoot, 89 N.Y.2d 1101, 660 N.Y.S.2d 395 (1997) (Levine, J.).
In papers dated December 2, 1997, which were received by the United States District Court for the Southern District of New York on February 18, 1998, and transferred to this court on June 10, 1998, Smoot petitions for a writ of habeas corpus vacating his manslaughter conviction.
Discussion
A liberal reading of Smoot's papers indicates that he challenges his conviction on the grounds that the state court erred in failing to suppress (1) his line-up identification by Michael Woolerey, because (a) the procedures employed were suggestive, and (b) petitioner was without counsel; and (2) his post-arrest statements, which were coerced. These claims are barred by Smoot's own guilty plea and, in any event, are without merit.
I. The Effects of Smoot's Guilty Plea
Because Smoot pleaded guilty to manslaughter, neither Woolerey' s line-up identification nor any of petitioner's post-arrest statements were ever used against him at a trial. Generally, a petitioner who pleads guilty may not challenge his conviction by pointing to constitutional violations in the procurement of evidence. See Tollett v. Henderson, 411 U.S. 258, 264 (1973). An exception to this rule is made, however, if the applicable state law permits a defendant to appeal specified constitutional issues; in such a case, those same issues may also be pursued in a subsequent federal habeas corpus petition. See Lefkowitz v. Newsome, 420 U.S. 283, 293 (1975).
Section 710.70 of New York's Criminal Procedure Law (McKinney 1995) allows a defendant who pleads guilty to appeal from an adverse suppression ruling: "An order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty." See United States ex rel. Newsome v. Malcolm, 492 F.2d 1166, 1169-70 (2d Cir. 1974) (distinguishing Tollett v. Henderson due to absence of statute analogous to § 710.70); Oquendo v. Scully, No. CV 89-1208 (RR), 1990 WE 88620, *3 (E.D.N.Y. June 11, 1990) (holding that petitioner who could challenge adverse suppression ruling on appeal despite guilty plea due to § 710.70 could raise same claim in collateral federal challenge).
In this case, Smoot did move the state trial court to suppress (1) the Woolerey line-up identification on the ground that suggestive procedures were employed, and (2) his own post-arrest statements as involuntary. These claims conceivably come within § 710.70. Nothing in the record before this court, however, indicates that Smoot moved to suppress the Woolerey identification on the grounds that it occurred in the absence of defense counsel. Accordingly, this claim is barred from federal review byTollett v. Henderson.
In considering Smoot's § 710.70-based claims, this court notes that the right to appeal afforded by that statute can be waived. See People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 972, (1989); accord People v. Hansen, 95 N.Y.2d 227. 230 n. 1, 715 N.Y.S.2d 369, 372 n. 1 (2000). In this case, as a part of his plea agreement, Smoot expressly waived his right to appeal from his conviction, including any right to appeal the adverse suppression rulings. In a footnote to his reply papers, Smoot indicates an intent to challenge the voluntariness of his guilty plea. See Traverse at 5. To date, he has not done so. Certainly, he has submitted nothing to this court to suggest that his waiver of the right to appeal was not knowing and voluntary. This court has carefully reviewed the plea minutes and finds nothing therein to suggest that either the guilty plea or waiver of appeal were not validly entered. Specifically, (1) the waiver was in writing and signed by Smoot, (2) Smoot discussed the waiver with his attorney, (3) the trial court reviewed the waiver with petitioner and emphasized its application to the adverse suppression ruling, and (4) Smoot stated under oath that he understood the effect of the waiver.
Under these circumstances, the court holds that because Smoot pleaded guilty and waived any right to appeal conferred on him by state law, he is now barred from collaterally challenging his conviction based on evidence never used against him. The petition for a writ of habeas corpus is dismissed.
II. The Merits of Smoot's Claims
Even if Smoot's claims were not procedurally barred by his guilty plea, petitioner would not be entitled to habeas relief since his claims lack merit.
A. Procedural Default
In reaching this conclusion as to the merits, the court does not ignore the further procedural bars noted by respondent. Specifically, Smoot's claims appear to have been defaulted in the state courts since the Second Department rejected them not on their merits, but on the grounds that Smoot's appeal was untimely. When constitutional claims are rejected on adequate and independent state law grounds, including procedural default, a federal court presented with a collateral challenge cannot reach the merits unless petitioner demonstrates either (1) actual innocence or (2) cause to excuse his default and ensuing prejudice. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Coleman v. Thompson, 501 U.S. 722, 730 (1991)); accord Garcia v. Lewis, 188 F.3d 71, 76-78 (2d Cir. 1999).
Not surprisingly given his guilty plea, Smoot does not attempt to demonstrate actual innocence. Instead, as "cause" to excuse his default he accuses his attorney of constitutional ineffectiveness in failing to file a timely notice of appeal. When Smoot made this same argument to the Second Department in moving for reconsideration of the denial of his untimely filing, his claim was summarily rejected.
A habeas petitioner seeking to excuse a procedural default on Sixth Amendment grounds carries a heavy burden. He must show both (1) that counsel's omission was objectively unreasonable, and (2) that, as a result of the omission, his case was prejudiced. See Strickland v. Washington, 466 U.S. 668, 688, 694 (1984); accord Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000) (holding that Strickland test applies to claims of ineffective assistance based on counsel's failure to file notice of appeal).
To satisfy the first prong of the Strickland test, Smoot submits that he expressly told his attorney that he wished to appeal his manslaughter conviction and that counsel agreed to file the necessary notice. While the law does consider it "professionally unreasonable" for an attorney to disregard a client's "specific instructions . . . to file a notice of appeal," Roe v. Flores-Ortega, Ortega, 528 U.S. at 477 (and cases cited therein), an evidentiary hearing would be necessary before this court could accept Smoot's representations as fact.
Even if Smoot could satisfy the first Strickland requirement, he would further have to demonstrate ensuing prejudice i e he would have to show that "counsel's deficient performance . . . actually cause[d] the forfeiture of the . . . [right to] appeal." Id. at 484. "As with all applications of the Strickland test, the question whether a given defendant has made the requisite showing [of prejudice] will turn on the facts of a particular case." Id. at 486. In cases where an appeal lies as of right, this burden can be satisfied by showing "a reasonable probability" that but for counsel's deficient conduct, petitioner would himself "have timely appealed." Id. at 484. But in a case such as this, where Smoot waived his right to appeal at the time of his guilty plea, the court cannot assume that petitioner's own timely filing would be enough to secure him an appeal. Under these circumstances, Smoot would also have to show a reasonable probability that a timely filed appeal would have been entertained despite his waiver. Absent such a showing, counsel's purported omission would "not have deprived [Smoot] of anything." Id. at 484.
The court will not hold a hearing on the first prong of Strickland, nor invite Smoot to file further submissions on the second prong because, even if he could clear these procedural hurdles, his claims would fail for lack of merit.
B. Standard of Review
This court's review of the merits of Smoot's claims is governed by the standards articulated in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 100 Stat. 1214, 1220 (1996), which significantly amended the federal habeas corpus statute, 28 U.S.C. § 2254. Subsection (d) of § 2254 provides:
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.
Last year, the Supreme Court provided some guidance for lower courts in applying these standards, particularly subpart (1). In Williams v. Taylor, 529 U.S. 362, 412 (2000), Justice O'Connor, writing for the court, stated that the phrase "clearly established Federal law, as determined by the Supreme Court of the United States, " should be understood to refer to "the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision, " The Court then identified two circumstances under which a state court decision could be deemed "contrary to" clearly established Federal law: when the state court (1) "arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law, " or (2) "decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Id. As to the alternative "unreasonable application" clause, the Court held that habeas relief was warranted only "if the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. The Court ruled that reasonableness was to be assessed objectively rather than subjectively. See id at 409-10. Moreover, whatever difficulty there might be in defining the term "unreasonable," courts were cautioned that "an unreasonable application of federal law" did not equate with "an incorrect application of federal law." Id. at 410. Thus, "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; see also Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000) (cautioning that while "[s]ome increment of incorrectness beyond error is required . . . 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" (quotations omitted)).
Applying these principles to this case, it is apparent that Smoot's claims must be rejected on their merits.
C. The Claims
1. Suggestive Procedures at the Line-Up Identification
Smoot asserts that the Woolerey line-up identification violated due process. Identification evidence violates due process only if it is the product of procedures "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968). Absent such suggestive procedures, however, courts "are content to rely upon the good sense and judgment of American juries" to weigh identification testimony "that has some questionable feature," Manson v. Braithwaite, 432 U.S. 98, 116 (1977).
Even where suggestive procedures taint a pre-trial identification, a witness may still be allowed to make an in-court identification provided there is an independent basis for that identification. See Neil v. Biggers, 409 U.S. 188, 199 (1972) (factors relevant to determining whether a witness has an independent basis for making an in-court identification include: (1) the opportunity the witness had to view the perpetrator at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the perpetrator, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation). Because the state court found no suggestive procedures employed in the Woolerey identifications, it did not engage in a Neil v. Biggers analysis. Nevertheless, the record strongly suggests that this is not a case that would have warranted total preclusion of the witness's testimony. Woolerey was a participant in the dice game and thus had some time to observe the man who joined the game, argued with Singletary, and eventually shot him. Indeed, he unhesitatingly identified Smoot as the shooter from a six-person photo array the night of the killing. He was also unequivocal in his line-up identification two months later. Further, Woolerey's identification was strongly corroborated by that of Selwin Foster who also placed Smoot at the dice game.
After conducting an evidentiary hearing at which it heard from various witnesses and reviewed both the photo spread from which Woolerey made his first identification and photographs of the challenged line-up, the state court expressly found no evidence of any suggestive procedures.
Smoot insists that the line-up procedures were suggestive: (1) because the other participants were all older than he, and (2) because the other participants all wore hoods and masks while he only wore a hood. These assertions, unsupported by any evidence presented to this court, are contrary to the express findings of the state court. Justice Leventhal ruled that "[a]ny discrepancies in age" among the participants were "not readily discernible by a visual inspection of the line-up photos." People v Smoot 634 N.Y.S.2d at 371. He further found that "[e]ach participant in the line-up wore a surgical mask hood to cover up his hair as the defendant had braided hair at the time of arrest." Id. (emphasis added). Indeed, he found that the line-up participants "had the same general physical characteristics as the defendant, " such that "neither the defendant nor any of his characteristics was highlighted or accentuated." Id. Smoot has failed to show that these conclusions are unreasonable in light of the evidence before the state court. Neither can he show that they are contrary to clearly established Supreme Court precedent. Due process does not, after all, require line-up participants to be the same age or to have identical physical characteristics. It requires only that a defendant not stand out in such a way as to encourage his identification by any witness. See United States v. Maldonado-Rivera, 922 F.2d 934, 974 (2d Cir. 1990) (and cases cited therein); see also United States v. Fernandez, 456 F.2d 638, 641-42 (2d Cir. 1972) (stating that photo spread would not be impermissibly suggestive if two out of eleven persons depicted matched the robber's characteristics).
The state court having reasonably concluded that the line-up identification did not violate clearly established principles of due process, Smoot's challenge to the Woolerey identifications is rejected on the merits.
2. Lack of Counsel at Line-Up
In his reply papers, Smoot challenges the Woolerey line-up identification because he was without counsel at this time. It does not appear that Smoot raised this claim in state court. Whether he did or not, however, the point merits little discussion since it is without merit. See 28 U.S.C. § 2254 (b)(2) ("An application for a writ of habeas corpus maybe denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State").
The Sixth Amendment right to counsel attaches only when a criminal action commences, whether by the filing of a formal complaint, indictment, or information, or by the holding of a preliminary hearing.See Meadows v. Kuhlmann, 812 F.2d 72, 76-77 (2d Cir. 1987) (and cases cited therein); accord DeShawn E. by Charlotte E. v. Safir, 156 F.3d 340, 349 (2d Cir. 1998). Thus, in United States v. Wade, 388 U.S. 218, 237 (1967), the Supreme Court ruled that an indicted defendant was entitled to counsel at a post-indictment line-up. But the Supreme Court has not recognized any right to counsel at line-ups held before the commencement of a criminal action. Nothing in the record indicates that a criminal action had been commenced against Smoot at the time of the Woolerey line-up identification. Although Smoot had been arrested and taken into police custody, no charges were filed against him nor was an arraignment conducted until after Woolerey made his identification. Under these circumstances, Smoot had no Sixth Amendment right to counsel at the time of the line-up. See LoPizzo v. LeFevre, 863 F. Supp. 96, 100 (E.D.N Y 1994) (Wexler, J.) (rejecting Sixth Amendment challenge to line-up by arrestee who had attempted to have his lawyer present, but had not yet been arraigned on charges relating to line-up); see also Collins v. Scully, 878 F. Supp. 452, 457-58 (E.D.N.Y. 1995) (Trager, J.) (rejecting Sixth Amendment challenge to line-up by defendant who, having been indicted on certain charges, was placed in line-up on other charges without counsel).
3. Coerced Post-Arrest Statements
In his reply papers, Smoot asserts that the trial court erred in not suppressing his post-arrest statements. He claims that police questioned him for several hours before giving him his Miranda rights. During that time, he was inebriated. Further, his repeated requests to call family so that they could arrange for counsel were denied. Instead, the police alternatively swore at petitioner or promised him leniency to coerce him into making inculpatory statements.
Smoot had ample opportunity to raise these claims in the state court, which held an evidentiary hearing to explore the voluntariness of petitioner's post-arrest statements. From the evidence that was adduced, the court found that Smoot was at the police precinct for a "few hours" before he received Miranda warnings. People v. Smoot, 634 N.Y.S.2d at 369. Nevertheless, it was only after those warnings were given, acknowledged by Smoot in writing, and waived that petitioner was interviewed. The statement Smoot then made was committed to writing, read back to petitioner, and signed by him. Id. Nothing in the record before this court suggests that these factual findings were unreasonable in light of the hearing evidence. Moreover, this court cannot say that such findings do not reasonably support the legal conclusion that defendant's statements were voluntary in light of established Supreme Court precedents.
Smoot's Fifth Amendment claim is rejected as without merit.
Conclusion
Smoot, having pleaded guilty to manslaughter and waived any right to appeal, is barred by his plea from collaterally challenging evidence that was never used against him. In any event, to the extent he complains that identification evidence was obtained in violation of due process and his Sixth Amendment right to counsel and that post-arrest statements were involuntary, Smoot's claims are procedurally barred by his failure to pursue a timely appeal and, in any event, without merit. The court hereby denies Smoot's petition for a writ of habeas corpus as well as a certificate of appealability. The Clerk of the Court is to mark this case closed.
SO ORDERED.
Dated: Brooklyn, New York September 18, 2001
REENA RAGGI UNITED STATES DISTRICT JUDGE