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finding Petitioner must have first exhausted his ineffective assistance of counsel claim in state court in order to claim ineffective assistance of counsel as cause for procedural default
Summary of this case from Igbinosun v. StateOpinion
00 Civ. 0865 (MBM)
September 8, 2003
RAMON ZELAYA, for Petitioner pro se, Coxsackie, N.Y.
ROBERT T. JOHNSON, for Bronx County, Bronx, N.Y.
RAFFAELINA GIANFRANCESCO, Assistant District Attorney, Bronx, N.Y.
ALLEN H. SAPERSTEIN, for Respondent, Bronx, N.Y.
OPINION AND ORDER
Ramon Zelaya petitions pro se pursuant to 28 U.S.C. § 2254 (2000), challenging his state court judgment of conviction for two counts of attempted murder and for one count of criminal sale of a controlled substance in or near school grounds. In a Report and Recommendation dated August 12, 2002 ("Report"), Magistrate Judge Theodore H. Katz recommended that the petition be dismissed as barred by an independent and adequate state procedural default. For the reasons set forth below, the Report is modified, relief is denied, and the petition is dismissed.
I.
The relevant facts are set forth in detail in the Report and are summarized briefly as follows.
On March 4, 1997, petitioner Zelaya pleaded guilty to two counts of attempted murder in the second degree and one count of criminal sale of a controlled substance in or near school grounds. (Report at 2) Zelaya had been released on bail on the controlled substance charge when he was arrested and charged with the two attempts at murder. (Id.) At the plea allocution, the trial court informed Zelaya that it was required to impose consecutive sentences and that, as a result, the eight to eighteen year sentence agreed upon at plea bargaining was the minimum sentence that petitioner could receive. (Id. Pet. Ex. B at 4) The trial court apparently based this statement on New York Penal Law § 70.25(2-b), which requires a consecutive sentence for a violent felony committed while a defendant is released on bail. (Report at 2) However, this provision of New York law does permit concurrent sentences if the trial court finds mitigating circumstances that suggest concurrent sentences would be in the interest of justice. (Id.) The trial court did not inform Zelaya of this mitigating circumstances provision, and neither Zelaya nor his attorney at the plea allocution, Victor Schurr, raised the issue. (Id. at 3)
Zelaya tried twice — unsuccessfully — to kill the same person.
The next day, on March 5, 1997, Zelaya moved pro se to vacate his plea on the ground that he was not guilty and had pleaded guilty only because of pressure from his attorney. (Id.) The trial court denied Zelaya's motion but did appoint a new attorney, Gerald Silver, to represent petitioner at sentencing. (Id.) On May 30, 1997, Zelaya was sentenced to three consecutive sentences for a total prison term of eight to eighteen years. (Id.; Sentencing Tr. at 7-8) At sentencing, Silver did not object to the trial court's failure to inform Zelaya at the plea allocution about the mitigating circumstances provision. (Sentencing Tr. at 7) However, Silver did provide the court with a letter from Schurr which described the circumstances of the plea, and Silver told the court that he was "fully aware of the facts surrounding the taking of the plea." (Id. at 2, 7)
Zelaya then appealed his conviction to the Appellate Division, First Department, arguing that his guilty plea was not knowing or voluntary because the trial court informed him that he was receiving the mandatory minimum sentence without advising that he could receive concurrent sentences upon a showing of mitigating circumstances. (Report at 3-4) The Appellate Division affirmed the conviction, holding that Zelaya's claim was unpreserved for appellate review and declining to review it in the interests of justice. People v. Zelaya, 253 A.D.2d 686, 686, 677 N.Y.S.2d 472, 472 (1st Dep't 1998). On December 23, 1998, Zelaya was denied leave to appeal to the New York Court of Appeals. People v.Zelaya, 92 N.Y.2d 1041, 1041, 684 N.Y.S.2d 506, 506 (1998).
On October 7, 1999, Zelaya filed the present petition ("Pet.") with this court, again arguing that the trial court's failure to inform him of the mitigating circumstances provision rendered his guilty plea unknowing and involuntary. (Pet. at 3) Respondent filed an affidavit in opposition, arguing that Zelaya's claim was procedurally barred and that Zelaya had failed to show cause and prejudice for this default. (Report at 4) Zelaya then submitted an affidavit ("Aff.") and memorandum of law ("Mem."), in which he alleged that the following facts excused his failure to make a contemporaneous objection. (Id.) First, Zelaya claimed that Schurr was ineffective in two ways: (1) by failing to inform petitioner of the mitigating circumstances provision, and (2) by failing to object when the trial court told petitioner that it was required to impose consecutive sentences without explaining the mitigating circumstances provision. (Id. at 4-5) Second, Zelaya claimed that Silver was not aware of the relevant facts of petitioner's plea allocution at the time of sentencing because Silver had tried and failed to obtain a transcript of that proceeding. (Id. at 5)
Pursuant to an order from Magistrate Judge Katz, respondent submitted another affidavit and memorandum of law, arguing that Zelaya could not claim ineffective assistance of counsel as cause when he had failed to exhaust that claim in state court. (Id.) Zelaya responded in a reply affidavit and memorandum of law ("Reply") in which he claimed that he was (1) not required to exhaust his claim that the plea transcript was not reasonably available to Silver at the time of sentencing, and (2) procedurally barred from exhausting his ineffective assistance claim. (Reply at 4-5) Magistrate Judge Katz issued his Report on August 12, 2002, recommending that the relief be denied and the action dismissed because of Zelaya's state procedural default. (Report at 11) In reaching this conclusion, Magistrate Judge Katz found that Zelaya's claim of ineffective assistance of counsel remained unexhausted and thus could not serve as cause to excuse the procedural default. (Id. at 9)
In the Report, Magistrate Judge Katz states that Zelaya's argument in this reply affidavit is "that he could not exhaust his claim because there were no facts outside the record on which he could bring a motion to vacate judgment in state court." (Report at 5) However, that argument comprised only three sentences of Zelaya's reply memorandum of law. (Reply at 5) The bulk of Zelaya's argument consisted of the claim that he was not required to exhaust a claim that his attorney could not have reasonably known the factual basis of his underlying habeas claim at the time of sentencing. (Id. at 4-5)
Zelaya filed an objection ("Objection") to the Report on August 19, 2002. He objects to "the Magistrate Judge's entire report and the recommendation thereof in this matter" and lists four specific grounds of opposition. (Objection at 1) First, he contends that the Report failed to address two causes for his procedural default, and he asks that the matter be recommitted to Magistrate Judge Katz so that these claims may be addressed. (Id. ¶ 1) Second, Zelaya argues that the exhaustion requirement does not apply to these two allegedly unaddressed causes. (Id. ¶ 2) Third, he objects to the Magistrate Judge's failure to hold an evidentiary hearing to allow him to present evidence establishing cause. (Id. ¶ 3) Finally, Zelaya objects to the Magistrate Judge's failure to appoint an attorney for his petition. (Id. ¶ 4)
II.
A district court reviewing a magistrate judge's report may adopt those portions of the report to which no specific objection is raised, provided the findings are not clearly erroneous. See Thomas v. Arn, 474 U.S. 140, 149 (1985). With respect to those parts of the report to which any party objects, the court must make a de novo determination. See United States v. Raddatz, 447 U.S. 667, 673-76 (1980).Zelaya states in the first sentence of his Objection that "petitioner is objecting to the Magistrate Judge's entire report and the recommendation thereof in this matter." (Objection at 1) By contrast, the body of the motion suggests that Zelaya has accepted, without objection, Magistrate Judge Katz's rejection of his ineffective assistance of counsel and actual innocence arguments. However, because Zelaya has not explicitly waived any objection to the Report and instead asserts that he is objecting to the entire Report, I will conduct de novo review.
Zelaya first objects to the Report because, he contends, Magistrate Judge Katz considered only two of his four arguments in favor of excusing the procedural default. (Objection ¶ 1) He admits specifically that the Report did consider two of his arguments in favor of lifting the procedural bar: (1) his ineffective assistance of counsel argument, and (2) his claim of actual innocence. (Id.) Zelaya then requests that "[t]his matter . . . be recommitted to Magistrate Judge Katz with instructions to address the remaining procedural arguments." (Id.) At no point in the Objection does Zelaya contest Magistrate Judge Katz's rejection of his ineffective assistance of counsel and actual innocence arguments.
III.
I agree with Magistrate Judge Katz's conclusion that Zelaya's petition is barred by a state procedural default. Federal courts may not review a state court conviction that rests on an independent and adequate state procedural default unless a petitioner can show cause and prejudice or a fundamental miscarriage of justice. Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Harris v. Reed, 489 U.S. 255, 262 (1989). If the state court says clearly and unambiguously that its judgment rests independently on a state procedural bar, no federal court may review the procedurally-barred claim. Fama, 235 F.3d at 809; Harris, 489 U.S. at 263.
Zelaya appealed his case in state court on the ground that his guilty pleas were rendered involuntary by the trial court's statement that it was required to impose consecutive sentences without mentioning the possibility of concurrent sentences in the case of mitigating circumstances. Zelaya, 253 A.D.2d at 686-87, 677 N.Y.S.2d at 472. This argument also forms the sole basis for Zelaya's present petition.
The Appellate Division rejected Zelaya's claim because it was not preserved for appellate review. Zelaya, 253 A.D.2d at 686-87, 677 N.Y.S.2d at 472. In other words, the Appellate Division found that Zelaya could not appeal the trial court's failure to inform him about the mitigating circumstances provision because he did not make a timely objection on the record to that alleged error. See Id.; People v. Hamlet, 227 A.D.2d 203, 204, 642 N.Y.S.2d 254, 254 (1st Dep't 1996). The Appellate Division's opinion subsequently stated that, "were [they] to review this claim," Zelaya's appeal would also fail on the merits. Zelaya, 253 A.D.2d at 686-87, 677 N.Y.S.2d at 472.
As Magistrate Judge Katz explained in the Report, the Appellate Division's discussion of the merits of the case does not lift the procedural bar that was explicitly created at the beginning of the opinion. Glenn v. Bartlett, 98 F.3d 721, 725 (2d Cir. 1996). Accordingly, it appears that Zelaya's current claim was denied by a state court on an independent and adequate state procedural ground — his failure to comply with New York's contemporaneous objection rule. Cf. Garcia v.Lewis, 188 F.3d 71, 77-79 (2d Cir. 1999) (finding that failure to comply with New York's contemporaneous objection rule was both an independent and an adequate ground).
Zelaya's petition may be heard despite the procedural default only if he can show cause for the default and actual prejudice resulting from an alleged violation of federal law. Coleman v. Thompson, 501 U.S. 722, 750 (1991). If the cause and prejudice standard is not met, no federal writ may issue except in the extraordinary case where a constitutional violation has probably resulted in the conviction of one who is actually innocent. Murray v.Carrier, 477 U.S. 478, 496 (1986). For the reasons discussed below, I agree with Magistrate Judge Katz's conclusion that Zelaya has shown neither cause and prejudice nor a likelihood of actual innocence, and therefore his procedural default should not be excused.
IV.
To demonstrate cause, Zelaya must show that some objective external factor prevented his lawyer from making a contemporaneous objection at the plea allocution to the trial court's failure to inform petitioner of the mitigating circumstances provision. See Bloomer v. United States, 162 F.3d 187, 191 (2d Cir. 1998). Ineffective assistance of counsel can constitute cause, but only if it amounts to a constitutional violation of a defendant's Sixth Amendment right to effective assistance of counsel for his defense. See Murray, 477 U.S. at 488.
Zelaya claims that he has asserted three types of "cause" for his state procedural default: (1) the factual basis for the defaulted claim was not reasonably available to his attorney at sentencing, (2) interference by a state official made compliance with the contemporaneous objection rule impracticable, and (3) the default was the result of ineffective assistance of counsel. (Objection ¶ 1; Aff. ¶ 16; Reply at 4) Cf. Murray, 477 U.S. at 488. In his objections to the Report, Zelaya claims that Magistrate Judge Katz failed to consider the first two types of cause. (Objection ¶ 1) Indeed, petitioner is correct that the Report discusses primarily the ineffective assistance of counsel claim and does not address the other two claims in detail. (Report at 8-9) Accordingly, I begin by addressing Zelaya's other two arguments for cause.
Zelaya first argues that the factual basis for his defaulted claim was not reasonably available to Silver at sentencing. Specifically, Zelaya claims that Silver did not obtain a transcript of the plea allocution before sentencing and thus could not have known about the trial court's failure to mention the mitigating circumstances provision at the earlier proceeding. (Aff. ¶¶ 11-13) According to Zelaya, Silver met with him on the day of sentencing and told petitioner that "he was having a hard time finding the pre-sentence investigation officer and securing all the minutes of [Zelaya's] prior court proceedings." (Id. ¶ 11) Silver never told Zelaya whether he was able to obtain the transcript of the plea allocution. (Id. ¶ 12) Silver also never told Zelaya about the mitigating circumstances provision or the trial court's failure to inform petitioner about that provision at the plea allocution. (Id. ¶ 13) Indeed, Silver told Zelaya that "his only function was to argue at sentencing that [Zelaya] be given the sentence agreed upon." (Id. ¶ 11)
These allegations do not amount to "a showing that the factual or legal basis for [Zelaya's] claim was not reasonably available to counsel."Murray, 477 U.S. at 488. Even if Silver did not receive a transcript of the plea allocution, the factual predicate for Zelaya's claim — that the trial court failed to inform petitioner of the mitigating circumstances provision — was reasonably available to Silver. If, as Zelaya alleges, Silver could not obtain the transcript of the plea allocution because of state interference, he should have raised those difficulties at sentencing. Had he done so, the trial court could have ensured that Silver received the transcript before he represented Zelaya at the sentencing hearing. Instead, Silver did not mention any problem with the plea transcript at sentencing and informed the court that he was "fully aware of the facts surrounding the taking of the plea." (Sentencing Tr. at 7) Because Silver could have secured a copy of the plea transcript through reasonable efforts, the transcript was reasonably available to him and is not the kind of newly-discovered factual basis that serves as cause to excuse a procedural default. However, Zelaya's argument about the allegedly missing plea transcript might be characterized an argument that Silver provided ineffective assistance by failing to use reasonable diligence to obtain the plea transcript. Cf. Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003) ("[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." (quoting Strickland v. Washington, 466 U.S. 668, 691 (1984))). Accordingly, I will analyze this argument in more detail below, in conjunction with Zelaya's claim that Schurr provided ineffective assistance of counsel.
Zelaya claims that Silver requested the transcript and never received it, but he supports this claim with conjecture and speculation, not evidence. The following statement from Zelaya forms the entire basis for this allegation: "I also vaguely recall and recollect that Silver informed me that he was having a hard time finding the pre-sentence investigation officer and securing all the minutes of my prior court proceedings." (Aff. ¶ 11) However, I need not make a determination about that factual matter to resolve Zelaya's petition.
Zelaya argued initially that his procedural default should be excused because of the presence of only two kinds of cause, ineffective assistance of counsel and a factual basis that was not reasonably available to his attorney. (Aff. ¶ 16) However, he later alluded to a third type of cause — state interference — in documents that were before Magistrate Judge Katz. (Reply ¶ 6) Specifically, Zelaya claims that the trial court impeded his defense by failing to provide Silver with a transcript of the plea allocution. (Id.) However, Zelaya cannot blame the state or the trial court for the absence of the transcript because Silver failed to raise the issue with the court at sentencing. Rather, Silver himself was responsible if he proceeded with the sentencing without first getting the transcript, as Zelaya alleges. Therefore, Zelaya has failed to make an adequate showing that interference by state officials prevented Silver from complying with the contemporaneous objection rule.
Having disposed of Zelaya's first two arguments for cause, I now turn to the argument that his procedural default should be excused because of the ineffectiveness of his successive attorneys, Schurr and Silver. In order to claim ineffective assistance of counsel as cause, Zelaya must first have exhausted that claim in state court. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). The preferred way to attack the effectiveness of counsel is by a collateral or postconviction proceeding under N.Y. Crim. Proc. Law § 440.10 (McKinney 2003), which allows for the necessary evidentiary exploration of the record. Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994); Otero v. Stinson, 51 F. Supp.2d 415, 418-19 (S.D.N.Y. 1999). Zelaya did not raise any claim of ineffective assistance of counsel on his direct appeal, and he has not brought a § 440.10 motion to attack his conviction on that ground. (Report at 9) Therefore, Zelaya's ineffective assistance of counsel claim remains unexhausted and may not be used to establish cause for the procedural default of his underlying claim.
Zelaya argues that he is unable to exhaust his ineffective assistance of counsel claim because he is procedurally barred from bringing the relevant § 440.10 motion. (Mem. at 4) If Zelaya is correct, he will still be barred from claiming ineffective assistance of counsel as cause for the procedural default of his habeas claim unless he can also show cause for the default of his ineffective assistance claim. See Edwards, 529 U.S. at 453. In any event, the state courts should be allowed to pass first on the question of whether Zelaya is procedurally barred from bringing a § 440.10 claim for ineffective assistance of counsel. See Walker v. Miller, 959 F. Supp. 638, 644 n. 6 (S.D.N.Y. 1997); Otero, 51 F. Supp.2d at 419 n. 3.
In the Report, Magistrate Judge Katz stated that "a procedurally barred claim cannot be used to show cause." (Report at 9) (citing Edwards v. Carpenter, 529 U.S. 446, 453 (2000)). This characterization ofEdwards is too broad, and I include the following language from Edwards to modify this aspect of the Report: "To hold, as we do, that an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted is not to say that that procedural default may not itself be excused if the prisoner can satisfy the cause-and-prejudice standard with respect to that claim." Edwards, 529 U.S. at 453 (emphasis in original).
Because Zelaya has not shown cause for his failure to comply with New York's contemporaneous objection rule, I need not consider also whether he would be prejudiced by his inability to assert his claim at this time. See McCleskey v. Zant, 499 U.S. 467, 502 (1991).
V.
Absent a showing of cause and prejudice, a state procedural default can be excused only if there has been "a fundamental miscarriage of justice."Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993) (quoting Murray, 477 U.S. at 495-96). A fundamental miscarriage of justice has occurred "where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496. To establish actual innocence, Zelaya must demonstrate that it is more likely than not that no reasonable juror would have convicted him, in light of all the evidence. Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002) (quotingBousley v. United States, 523 U.S. 614. 623 (1998)).
Zelaya has failed to establish a likelihood of actual innocence in this case. Although he did make off-hand and conclusory references to his innocence in his petition (Pet. at 5), Zelaya has not seriously argued that he is innocent of the crimes of which he was convicted on his own plea. Furthermore, Zelaya's petition is based on the claim that he should have been told about the possibility of receiving concurrent sentences upon a showing of mitigating circumstances. As Magistrate Judge Katz noted in the Report, "[i]mplicit in this claim is Petitioner's belief that there were mitigating circumstances to be argued with respect to his guilt, not that he is innocent." (Report at 11) Zelaya has not demonstrated a likelihood of actual innocence in this case, and the state procedural default of his claim is not excused.
VI.
Zelaya has objected also to Magistrate Judge Katz's failure to hold an evidentiary hearing to enable petitioner to develop evidence in support of his claims for cause. (Objection ¶ 3) Zelaya asserts that a hearing was necessary to determine the following issues of fact: (1) what Silver knew about the plea allocution, (2) what efforts Silver made to obtain the plea transcript, (3) whether Silver interviewed Schurr about the plea allocution, and (4) whether a state official interfered with Silver's attempts to make the relevant contemporaneous objection. (Id.)
As discussed above, Zelaya has asserted facts that amount to only one plausible claim for cause: ineffective assistance of counsel. In this case, Magistrate Judge Katz correctly determined that Zelaya had not exhausted his ineffective assistance of counsel claim. Because Zelaya's claim is unexhausted, the state courts must have the first opportunity to develop the facts that are relevant to that claim. See 28 U.S.C. § 2254(e)(2); Smalls v. Batista. 191 F.3d 272, 277 (2d Cir. 1999); Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994). Magistrate Judge Katz correctly refrained from holding a federal evidentiary hearing.
VII.
Zelaya has also raised an objection to Magistrate Judge Katz's failure to appoint counsel for his petition. (Objection ¶ 4) According to Zelaya, counsel should be appointed because "[p]etitioner is a lay person and is being forced to advance complicated arguments." (Id.) There is no constitutional right to representation by counsel in habeas proceedings.Green v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993). However, counsel may be provided for a habeas petitioner where "the interests of justice so require." 18 U.S.C. § 3006A(a) (2)(B).
To merit the appointment of counsel, Zelaya must advance a position that "seems likely to be of substance." See Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). As discussed above, Zelaya is procedurally barred from bringing his present petition, and the claim he asserts as cause to excuse that procedural bar remains unexhausted. Accordingly, Zelaya's petition is unlikely to be of substance. See Nevarez v. Artuz, No. 99 CIV 2401, 2000 WL 7-18450, at *6 (S.D.N.Y. Jun. 5, 2000) (finding that procedurally barred or unexhausted habeas claims are unlikely to be of substance). Therefore, the interests of justice do not require that counsel be appointed to represent Zelaya here.
* * *
For the reasons stated above, I agree with the Report's conclusion that Zelaya's petition is procedurally barred by the independent and adequate state grounds doctrine. The Report is modified, the writ is denied, and the petition is dismissed. Furthermore, a certificate of appealability will not issue because no jurist of reason would debate the ruling that Zelaya's petition is procedurally barred. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
SO ORDERED.