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finding that although appellate counsel raised two grounds for appeal, both of which were found unpreserved, appellate counsel was not ineffective under Strickland
Summary of this case from Bethea v. WalshOpinion
01-CV-250 (JG)
August 1, 2002
Charles Washington, No. 95-A-4716, Sullivan Correctional Facility, Fallsburg, NY, Petitioner Pro Se.
Charles J. Hynes, District Attorney, Karol B. Mangum, Sholom J. Twersky, Assistant District Attorneys, Kings County, Brooklyn, NY, for Respondent.
MEMORANDUM AND ORDER
After a jury trial that commenced on May 8, 1995, a Kings County jury found petitioner Charles Washington guilty of manslaughter in the first degree, in violation of New York Penal Law § 125.20, and criminal possession of a weapon in the third degree, in violation of New York Penal Law § 265.02[4]. Washington was sentenced as a persistent violent felony offender to consecutive prison terms of twenty-five years to life on the manslaughter conviction and ten years to life on the weapon possession conviction. Washington petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming that: (1) he was denied the effective assistance of trial counsel because trial counsel failed to impeach the medical examiner with his autopsy report and because trial counsel failed to challenge the government's exhibition of a "chase tape," which allegedly recorded the police chase of Washington before he was arrested; (2) he was denied the effective assistance of appellate counsel; and (3) he was improperly denied the right to appeal the trial court's decision denying his motion to set aside the verdict. For the reasons set forth below, the petition is denied.
BACKGROUND A. The Facts
On the evening of May 17, 1993, petitioner Washington went home to his apartment at 511 Van Siclen Avenue in Brooklyn to retrieve some personal belongings. Washington shared this apartment with his wife, his mother-in-law, and his twenty-one year old stepdaughter, Angelina Maria Moore. He entered the living room, where Moore was sitting in a chair. At approximately 10:30 p.m., he shot Moore twice, once in the back and once in her head, killing her. Washington then fled from the apartment. (Tr. at 33-36, 41, 305.)
"Tr." refers to the trial transcript of People v. Washington, Indictment No. 6309/93, Supreme Court of the State of New York, Kings County, which began on May 8, 1995.
On May 28, 1993, in an unrelated incident, Washington was apprehended after a car chase arising from a traffic infraction. While in custody on that matter, and after having been read his Miranda rights, he admitted to the police that he had shot his stepdaughter. He made no mention at that time that he had shot her in self-defense, as he later contended at trial. The .38 caliber revolver was recovered from inside the stolen vehicle that he had been driving. (Tr. at 100, 109-115, 135-140, 222-23, 352-53.)
Washington was charged with one count of murder in the second degree, in violation of New York Penal Law § 125.25[1], one count of criminal possession of a weapon in the second degree, in violation of New York Penal Law § 265.03, and two counts of criminal possession of a weapon in the third degree, in violation of New York Penal Law § 265.02[4].
As mentioned, Washington presented a case of self-defense at trial. He testified that Moore was a habitual user of cocaine, hashish and marijuana, and that on the night of the incident she had asked him for $150 to pay a drug debt. He claimed that when he refused, she rose from her chair and lunged at him with a knife. Washington testified that he was reading a book as this happened, and he held the book up to block the knife. The knife became embedded in the book, and then fell under the table. Moore fell back in her chair. She then threatened to kill Washington and lunged in her chair to retrieve the knife. Once she straightened in her chair, Washington defended himself by shooting her once in the left chest. His wife then grabbed his arm, which caused the gun to fire a second shot. This shot hit Moore in the head. The knife then fell from Moore's hand and landed on the floor between her legs. (Tr. at 401-03, 406-08.)
Washington's version of the facts was undermined by several prosecution witnesses. Police Officer O'Malley, who was among the first officers to arrive at the scene, testified that he found no weapons in the apartment and saw no signs of a struggle. (Tr. at 62-64.) Detective Abraham Rochester of the Crime Scene Unit testified that he searched the crime scene thoroughly and found no weapons. (Tr. at 195, 203.) Detective Mark Brooks testified that he did not see any signs of a struggle. (Tr. at 379.)
B. Procedural History
On May 16, 1995, the jury convicted Washington of manslaughter in the first degree and criminal possession of a weapon in the third degree.
On May 29, 1995, Washington moved pro se, pursuant to New York Criminal Procedure Law § 330.30(1), to set aside the verdict on the grounds that: (1) the prosecutor's misconduct upon cross-examining him deprived him of a fair trial; and (2) he received ineffective assistance of trial counsel because, inter alia, trial counsel refused to subpoena the audio-cassette tape of the medical examiner's autopsy report in order to impeach him at trial.
On June 22, 1995, the court denied Washington's motion orally, stating that a written decision would be forthcoming. The court informed the parties that the defendant and his attorney would get a copy of the decision, as would the Assistant District Attorney. (Sentencing Tr. at 2.) That same day, the court issued a written decision denying Washington's motion. The court held that trial counsel's performance, when viewed in its totality and as of the time of the representation, did not fall below an acceptable level. Washington did not seek review of this decision.
On June 22, 1995, Washington was sentenced as a persistent violent felony offender to consecutive prison terms of twenty-five years to life on the manslaughter conviction and ten years to life on the weapon possession conviction.
On September 23, 1997, Washington moved pro se pursuant to New York Criminal Procedure Law § 440.10 to vacate his judgment of conviction on the ground that his indictment was based upon police officers' perjured testimony. On December 2, 1997, the court denied his claim as procedurally barred because it could be brought on direct appeal.
In March 1998, Washington's assigned appellate counsel appealed to the Appellate Division, Second Department, raising two grounds: (1) the court improperly denied Washington's motion to suppress the gun and his statement; and (2) Washington was denied a fair trial due to prosecutorial misconduct on summation and during his cross-examination. On September 14, 1998, the Appellate Division affirmed Washington's judgment of conviction, holding that both claims were unpreserved for appellate review. See People v. Washington, 677 N.Y.S.2d 491, 492 (2d Dep't 1998).
On September 29, 1998, Washington applied for leave to appeal to the New York Court of Appeals. He then supplemented his application with a letter dated November 5, 1998. On December 22, 1998, the New York Court of Appeals denied his application. See People v. Washington, 684 N.Y.S.2d 505 (1998).
On October 7, 1998, Washington brought a second pro se § 440.10 motion to vacate his judgment of conviction, raising the grounds of ineffective assistance of trial and appellate counsel. Washington claimed that his trial counsel failed to impeach the medical examiner with his autopsy report and failed to challenge the government's exhibition of the alleged "chase tape" before the jury.
The court denied Washington's motion on January 27, 1999. Regarding his ineffective assistance of trial counsel claim, the court held that: (a) to the extent it was based on facts in the record, it was barred because Washington unjustifiably failed to raise those contentions in his direct appeal; (b) to the extent his claim was based upon alleged facts not in the record, it was barred because Washington unjustifiably failed to raise those contentions in his first § 440.10 motion. Finally, the court held, as it did regarding his first § 440.10 motion, that Washington had received meaningful representation from trial counsel. The court declined to rule on Washington's ineffective assistance of appellate counsel claim because it should have been brought on an application for a writ of error coram nobis.
On March 5, 1999, Washington sought leave to appeal the denial of his second § 440.10 motion to the Appellate Division. On June 25, 1999, the Appellate Division denied his application. On September 7, 1999, Washington moved for reargument, which was denied on October 12, 1999. On January 24, 2000, the New York Court of Appeals dismissed his application for leave to appeal.
On March 23, 2000, Washington moved pro se, for the third time, to vacate his judgment of conviction pursuant to § 440.10. In this motion, he claimed for the first time — five years after the date of his conviction — that the trial court had failed to provide him with a copy of its decision denying his § 330.30 motion. He also raised numerous other claims of trial error. The court held that his allegation concerning the § 330.30 motion failed to state a basis for relief under § 440.10, and it denied the remainder of his claims as procedurally barred in that they were either raised on direct appeal and rejected, or else could have been raised on direct appeal. On September 12, 2000, the New York Court of Appeals dismissed Washington's application for leave to appeal.
On November 17, 2000, Washington filed the instant petition for a writ of habeas corpus. In his opposition, respondent noted Washington's failure to exhaust his ineffective assistance of appellate counsel claim. By order dated July 2, 2001, I granted Washington leave to return to state court to exhaust this claim, and I held his petition in abeyance in the meantime. On August 1, 2001, Washington properly presented his ineffective assistance of appellate counsel claim by motion for a writ of error coram nobis. He raised two grounds: (1) appellate counsel erred in raising an unpreserved claim in his appellate brief; and (2) appellate counsel failed to raise the claim that Washington had received ineffective representation at trial. On November 19, 2001 the Appellate Division denied Washington's motion. See People v. Washington, 732 N.Y.S.2d 900 (2d Dep't 2001) (ruling that Washington failed to establish that he was denied the effective assistance of appellate counsel) (citing Jones v. Barnes, 463 U.S. 745)). By order dated February 11, 2002, the Appellate Division denied a motion by Washington for leave to reargue the application for a writ of error coram nobis.
Washington has now exhausted each of his grounds for habeas corpus relief. For the reasons set forth below, his petition is denied.
DISCUSSION The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law as determined by the Supreme Court if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case."Id. Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (citing Williams, 529 U.S. at 411). Interpreting Williams, the Second Circuit has added that although "[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." Id. (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted)).
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated inSellan v. Kuhlman, 261 F.3d 303 (2d Cir. 2001):
[f]or the purposes of AEDPA deference, a state court `adjudicate[s] a state prisoner's federal claim on the merits when it (1) disposes of the claim `on the merits,' and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.Id. at 312.
Washington's Claims
Washington raises three claims in the instant petition: (1) he was denied effective assistance of trial counsel; (2) he was denied effective assistance of appellate counsel; and (3) he was improperly denied the right to appeal the trial court's decision denying his motion to set aside the verdict. As detailed below, each of Washington's claims is either procedurally defaulted or without merit because the state court's decision was neither contrary to nor an unreasonable application of clearly established Federal law. See Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (citing Williams, 529 U.S. at 411)).
Ineffective Assistance of Trial Counsel
Washington's first claim is that he was denied the effective assistance of trial counsel because trial counsel failed to impeach the medical examiner with his autopsy report and because trial counsel failed to challenge the government's exhibition of a "chase tape," which allegedly recorded the police chase of Washington before he was arrested.
The standard for determining whether a petitioner received ineffective assistance of counsel is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). To satisfy this standard, a petitioner must establish two elements. First, he must show that counsel's performance was deficient, falling below an objective standard of reasonableness that is measured against "prevailing professional norms." See id. at 688. Second, he must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In assessing the reasonableness of counsel's performance, "judicial scrutiny of counsel's performance must be highly deferential," and the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the petitioner must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689; see also Bell v. Cone, 122 S.Ct. 1843, 1852 (2002).
The Procedural Bar
In his habeas petition, Washington raises the same two grounds to support his ineffective assistance of trial counsel claim that he raised in his second § 440.10 motion. In denying that motion, the state court held that Washington unjustifiably failed to raise those contentions in his direct appeal, and therefore his claim was procedurally barred.
Ordinarily, federal courts may not review state court decisions that rest on an adequate and independent state procedural ground unless the petitioner can show both cause and prejudice or a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 749-50 (1991); Harris v. Reed, 489 U.S. 255, 262 (1989); see also Lee v. Kemna, 122 S.Ct. 877, 885, 888 (2002) (noting the existence of a "small category" of "exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question" (citation omitted)).
A petitioner may establish cause by showing "that the factual or legal basis for a claim was not reasonably available to counsel, or that some interference by officials made compliance impracticable." McCleskey v. Zant, 499 U.S. 467, 493-94 (1991). To satisfy the prejudice requirement, the alleged error must have worked to the petitioner's actual and substantial disadvantage. See Amadeo v. Zant, 486 U.S. 214, 222 (1988). If the petitioner cannot show cause and prejudice, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. A fundamental miscarriage of justice requires a showing of "clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner [guilty]." Sawyer v. Whitley, 505 U.S. 333, 335 (1992).
As a basis for cause, Washington argues that he could not have included the trial court's denial of his § 330.30 motion in his direct appeal because the court never sent him a copy of its decision. In response, the state cites to the June 22, 1995 sentencing minutes, where the judge told Washington that his motion was denied and that a written decision would be mailed to him and his attorney. (Sentencing Tr. at 2.) According to Washington, he never received the decision from the court, and in fact, did not obtain a copy until nearly three and one-half years later, when the state mailed him one.
Even assuming that Washington's version of the facts is true, his failure to timely receive a copy of the written decision does not constitute cause because he knew that the court had denied his motion orally and that a copy of the written version was supposed to be provided to him and the prosecutor. Thus, with reasonable efforts, Washington could have sought to obtain a copy himself. His failure to do so does not constitute cause. See McCleskey v. Zant , 499 U.S. 467, 497-98 (1991) ("[C]ause . . . requires a showing of some external impedimentpreventing counsel from constructing or raising the claim.") (citingMurray v. Carrier , 477 U.S. 478, 492 (1986) (emphasis added)); cf. Barnes v. Thompson, 58 F.3d 971, 975 (4th Cir.), cert. denied , 516 U.S. 972, 116 S.Ct. 435 (1995) (When a petitioner can obtain the information contained in unproduced documents through a reasonable and diligent investigation, the State's failure to produce documents is not cause); Zeitvogel v. Delo, 84 F.3d 276, 279-80 (8th Cir. 1996) (where information not produced was reasonably available through other means, state's failure to produce it was not cause). Nor do I find that a fundamental miscarriage of justice will result if I decline to entertain Washington's claim. Accordingly, his first claim is denied because it is procedurally defaulted.
In any event, the claim is without merit. Nothing in the record suggests that trial counsel's performance fell below an objective standard of reasonableness. Moreover, because there was overwhelming evidence in this case that Washington killed Moore, and that he was not acting in self-defense, there is no reasonable probability that absent any error on the part of trial counsel, the verdict would have been different. See Strickland, 466 U.S. at 695 ("the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt").
Ineffective Assistance of Appellate Counsel
Washington's second claim is that he was denied the effective assistance of appellate counsel. Washington raised this claim in his application for a writ of error coram nobis, which the Appellate Division denied on the merits. See People v. Washington, 732 N.Y.S.2d 900 (2d Dep't 2001) (citing Jones v. Barnes, 463 U.S. 745)). Because his claim is now properly exhausted, it is ripe for habeas review. For the reasons stated below, I deny it on the merits.
An order of the Appellate Division denying an application for a writ of error coram nobis is not appealable to the Court of Appeals. See Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995).
A criminal defendant is afforded the constitutional right to the effective assistance of counsel on any appeal granted him as a matter of right. Douglas v. California, 372 U.S. 353, 357-58 (1963). In order to meet the constitutional standard of effective assistance, appellate counsel need not raise all issues suggested by his client. See Jones v. Barnes, 463 U.S. 745, 751 (1983). An examination of the appellate brief filed on Washington's behalf reveals that counsel provided the objectively reasonable representation necessary to meet the federal standard. Because there was substantial evidence in this case that Washington killed Moore, and that he was not acting in self-defense, there is no reasonable probability that any error in his appellate counsel's performance caused actual prejudice to him. At the very least, I conclude that the Appellate Division's decision did not involve an unreasonable application of clearly established federal law. See Bell, 122 S.Ct. 1843, 1852 (stating that for a habeas petitioner to succeed, "he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance"; rather, he must show that the state court "applied Strickland to the facts of his case in an objectively unreasonable manner").
Failure to Receive Trial Court Decision in Writing
Finally, Washington claims that he was improperly denied the right to appeal the trial court's decision denying his § 330.30 motion because the trial court did not provide him with a written copy of that decision. As explained above, even assuming that Washington needed a copy of the written decision in order to appeal the court's ruling, his claim is undermined by the fact that he failed to request a copy despite being told at his sentencing that his motion had been denied and that the written decision was forthcoming. In any event, Washington's claim does not implicate a federal constitutional right that is cognizable on a petition for a writ of habeas corpus.
CONCLUSION
Because Washington has not established any constitutional violations, his petition for a writ of habeas corpus is denied. Moreover, I decline to issue a certificate of appealability because he has not presented a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
So Ordered.