Maynard v. Brown

Filing 12

REPORT AND RECOMMENDATIONS that for the foregoing reasons, Maynard's petition should be denied. Additionally, because Maynard has failed to make a substantial showing of the denial of a constitutional right, he should be denied a certificate of appealability re: 1 Petition for Writ of Habeas Corpus filed by Jeremiah Maynard. Objections to R&R due by 3/30/2009 (Signed by Magistrate Judge Frank Maas on 3/11/09) Copies sent by chambers.(cd)

UNITED STATES DISTRICT COURT S O U T H E R N DISTRICT OF NEW YORK - - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- x J E R E M IA H MAYNARD, P e t i t io n e r , - against : : : : S U P E R IN T E N D E N T WILLIAM D. BROWN, : R e sp o n d e n t. - - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- x F R A N K MAAS, United States Magistrate Judge. I. I n tr o d u c tio n J e re m ia h Maynard ("Maynard") brings this habeas corpus proceeding p u rsu a n t to 28 U.S.C. § 2254 ("Section 2254") to challenge his conviction, on two counts o f Rape in the First Degree, following a jury trial in Supreme Court, Bronx County. On M ay 22, 2003, Justice John Barone, before whom the case was tried, sentenced Maynard to two consecutive five-year terms of imprisonment, to be followed by five years of postre le a se supervision. In his habeas petition ("Petition" or "Pet."), Maynard, a deaf-mute from in f a n c y, claims that he was denied the effective assistance of counsel because he could n o t communicate effectively with his attorney. In particular, Maynard contends that he w a s unable to understand the charges against him, explain his version of events to his a tto rn e y, or make an informed decision regarding his right to testify in his own defense. USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: 03/11/2009 0 7 Civ. 10480 (WHP)(FM) R E P O R T AND R E C O M M E N D A T IO N T O THE HONORABLE W I L L I A M H. PAULEY III

(P e t. ¶ 12(a)). For the reasons that follow, Maynard's petition should be denied. Additionally, Maynard should be denied a certificate of appealability because he has f a ile d to make the substantial showing of the denial of a constitutional right required by 2 8 U.S.C. § 2253(c)(2). II. B a c k g ro u n d M a yn a rd is a deaf-mute who communicates primarily through American S ign Language ("ASL"). (Pet. ¶ 12(a); Pet'r's Mem. at 8).1 On July 13, 2001, Maynard w a s indicted on two counts each of Rape in the First Degree, Rape in the Second Degree, S e x u a l Abuse in the First Degree, and Endangering the Welfare of a Child. (A. 5). These c h a rg e s stemmed from two incidents in which Maynard allegedly raped Melody A., a th irte e n -ye a r-o ld girl in his neighborhood.2 A. P r e -tria l Proceedings O n January 24 and 25, 2002, the Honorable Phylis Skloot Bamberger c o n d u c ted a pretrial hearing pursuant to People v. Rodriguez, 79 N.Y.2d 445 (1992), to

"Pet'r's Mem." refers to Maynard's memorandum of law in support of his Petition; "A." refers to the appellant's state court appendix; "Bock Aff." refers to the affidavit of Norman P. Bock, Esq., sworn to on August 7, 2008, in support of the Petition; "Lawrence Aff." refers to the affidavit of Maynard's mother, Enid Lawrence, in support of Maynard's motion to vacate his judgment of conviction, sworn to on March 7, 2005; "Maynard Aff." refers to Maynard's own affidavit in support of that motion, sworn to on March 10, 2005; "Resp't's Aff." refers to the Respondent's affidavit in opposition to the Petition; "Resp't's Mem." refers to the Respondent's memorandum of law. Pursuant to New York Civil Rights Law § 50-b(1), the Respondent's papers do not use the full name of the victim. I have adopted the same procedure to protect her privacy. 2
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d e te rm in e whether Melody A. knew Maynard sufficiently well that her prior show-up id e n tif ic a tio n of him would not taint an in-court identification. (A. 30-59). A sign la n g u a g e interpreter was present in the courtroom both days. (Id. at 31, 45). At the h e a rin g , Melody A. testified that she had seen Maynard in her neighborhood "[a]bout s e v e n ty times." (Id. at 41, 49). Melody A. also testified that she and Maynard had waved to each other and that he wrote notes to her. (Id. at 42, 50). In light of this testimony, Justice Bamberger was understandably perplexed b y defense counsel's request for a Rodriguez hearing and engaged in the following co llo q u y with Maynard's retained defense counsel, Kirk Palma, Esq. ("Mr. Palma"): T H E COURT: M r. Palma, have you been able to communicate with yo u r client? Y e s, I have. Y o u use the sign language interpreter when you talk w ith him? I use his mother. O k a y. The reason why I'm asking these questions . . . [i s ] [i]n light of the testimony that I heard here . . . I'm q u i te dismayed that this is an issue which you didn't c o n c e d e , that they knew one another. J u d g e , from communicating with my client, my client s a ys he doesn't know her and he's never seen her. When she walked in the courtroom yesterday, I asked h im does he know her and he said no. W e ll, all right.

MR. PALMA: T H E COURT:

M R . PALMA: T H E COURT:

M R . PALMA:

THE COURT:

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M R . PALMA:

If my client had stated to me that he knew her, I w o u l d n ' t waste the Court's time by asking for a h e a rin g . A ll right. I'll accept your representation.

T H E COURT:

(Id . at 58-59). During the hearing, Justice Bamberger did not question Maynard to d e ter m in e whether he believed that he had been able to communicate effectively with his a tto rn e y despite the fact that his mother, rather than an ASL interpreter, had served as th e ir intermediary. The Justice also did not inquire as to the extent of any physical or c o g n itiv e deficits that Maynard may have had. (Id. at 58-59). At the conclusion of the hearing, Justice Bamberger found that there was no R o d rig u ez issue. (Id. at 59). Thereafter, between February and October 2002, the court a d jo u rn e d the case nine times for various reasons, including the defense's claimed need f o r the testimony of a police witness who was overseas on military duty. (Id. at 69-127, 1 2 9 ). An ASL interpreter was present on each court date. (Id. at 70, 96, 105, 110, 113, 1 2 1 , 123, 127, 128). Ultimately, the case proceeded to trial before Justice Barone despite th e witness' absence. (Id. at 132). B. T ria l 1. P e o p le ' s Case

T h e People's proof at trial would have permitted a reasonable juror to find a s follows:

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In 1998, Melody A., then twelve years old, was living with her g ra n d p a re n ts , Mary Avery and Clyde Balkaransingh ("Balkaransingh"), at 1560 Grand C o n c o u r se in the Bronx.3 (Id. at 148-49). That summer, she saw Maynard for the first tim e while she was outside her building with her family. (Id. at 149). Maynard, who liv ed around the corner from Melody A., began clapping and smiling at Melody A.'s b ro th e r, who was learning to ride a bike. (Id. at 149-50). Melody A.'s family waved g o o d b ye to Maynard as they left. (Id. at 150). Two or three weeks later, Melody A. saw Maynard while she and her family w e re in a park across the street from their apartment building. (Id. at 150-51). She a p p ro a c h e d the bench where Maynard was sitting and tried to speak to him. (Id. at 151). In response, Maynard removed a pen and paper from his pocket and began to write. (Id.). When Melody A. asked Maynard his name, he wrote, "Allen." (Id.). Melody A. saw Maynard around the neighborhood about seventy times over th e course of the next year. (Id. at 154). On one occasion, Maynard rang the doorbell of M e lo d y A.'s apartment while she was home from school and signaled for her to come to the door. (Id. at 249). Using a pen and paper given to him by Melody A.'s grandmother, M a yn a rd wrote that Melody A.'s friend was waiting for her around the corner. (Id. at 2 5 0 -5 1 ). Balkaransingh would not allow Melody A. to go downstairs with Maynard and s h u t the door. (Id. at 298, 313). Soon thereafter, when Balkaransingh left to go to work, Melody A. testified that she typically referred to her grandparents as her mother and father. (Id. at 201, 226). 5
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h e saw Maynard outside the building. (Id. at 305). Balkaransingh cautioned Maynard not to come back to the apartment, using words and a hand signal to indicate that he should n o t press the doorbell. (Id. at 305, 311). Maynard appeared annoyed and responded by d ra w in g his finger across his throat in a threatening gesture. (Id. at 305-06). Sometime between April 5 and 16, 1999, Melody A. was walking home f ro m school when she again encountered Maynard. (Id. at 159). By then, she was th irte e n years old, and Maynard was thirty-seven. (Id.). Maynard motioned for Melody A . to approach, then wrote on a piece of paper, "do you want to help me move some f u rn itu re ? " (Id. at 160). After Melody A. wrote back, "yes," Maynard took a key from h is pocket and opened a metal door to his building. (Id.). They walked down some steps to the back of the basement where Maynard used a key to open a second door. (Id.). Maynard then grabbed Melody A.'s arm, pushed her against the wall, pulled down her p a n ts , and began vaginally raping her. (Id.). Melody A. tried to push Maynard away, but co u ld not. (Id. at 161). After the rape, Melody A. went home, threw away her underwear, a n d washed up, telling no one about the incident for fear that she would be blamed. (Id. at 162-63). T h e second rape occurred between April 26 and May 7, 1999, as Melody A. was coming home from school. (Id. at 164). On this occasion, she entered the elevator of h e r building and pressed the button for the third floor, but the elevator went down instead. (Id. at 167). Maynard was standing outside the elevator when it reached the basement.

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(Id . at 168). He pulled the door open and pointed a gun at Melody A.'s head, signaling f o r her to walk to the back of the room and stand against the wall. (Id.). Maynard then p u t the gun on a table behind him and vaginally raped Melody A. (Id. at 169). When M a yn a rd left, Melody A. put on her clothes and went home. (Id. at 170-71). Once again, sh e washed up and threw away her underwear. (Id. at 171). Melody A. did not report this in c id e n t either4 and did not go to a nearby hospital because she thought she was too young to go alone. (Id. at 171-72, 211). Soon after the second incident, Melody A. was involved in an altercation at s c h o o l during which she used a razor to cut the face of a student who had been harassing h e r. (Id. at 188-90). She consequently was sent to the Tryon Girls Center in upstate New Y o rk for twelve months. (Id. at 190-91). Approximately two weeks before her release, M e lo d y A. told Marie Gault, her youth aide at the Center, that she was afraid to return to h e r neighborhood because of Maynard. (Id. at 192). Gault, in turn, reported the rape to h e r supervisor, and Melody A.'s grandparents were informed. (Id. at 193, 322). When M e lo d y A. returned home, her grandparents called the police, who interviewed her about b o th incidents. (Id. at 193-94, 196). Melody A. later identified Maynard as her assailant w h ile canvassing the neighborhood with a police detective. (Id. at 197). The police a rr e s te d him immediately after the identification. (Id. at 198). As Melody A. explained, when she was six years old, she told her grandmother that her mother's friend had "touched" her. (Id. at 212-13, 245). After the police became involved, Melody A.'s mother moved away and did not call for years. (Id. at 245-46). At that point, Melody A. began living with her grandparents. (Id. at 246-47). 7
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A s part of its case, the People offered the expert testimony of Dr. Don L e w itte s ("Dr. Lewittes"), a clinical psychologist, regarding Child and Adolescent Sexual A b u se Syndrome. (Id. at 336-40). As Dr. Lewittes explained, a sexually-abused child o f ten delays disclosing the abuse because she may not know how to seek help and is c o n c e rn e d about the potential adverse consequences. (Id. at 338, 340, 343-44). A child a lso may try to "emotionally help" herself by washing her body or disposing of materials a ss o c ia te d with the sexual act. (Id. at 341). The delay in a child's outcry may be greater if she fears for her safety because the perpetrator lives nearby. (Id. at 347). 2. D e f e n s e Case

M a yn a r d did not testify at trial. (Pet. ¶ 11). The defense nevertheless c h a lle n g e d Melody A.'s account of both rapes through other witnesses. Charles Chesson ("Chesson"), the superintendent of Maynard's co-op b u ild in g , testified that, consistent with building policy, only he had a key to the locked ro o m s in the basement. (A. 367-68). Chesson conceded, however, that he began working a t the building after the incidents and had no personal knowledge as to the practices of the p re v io u s superintendent. (Id. at 372-73). Chesson also conceded that there were times w h e n Maynard would roam the basement looking for items such as televisions to fix. (Id. at 373). Maynard's neighbor of ten years, Minnette Parkes ("Parkes"), testified that th e basement was a heavily-trafficked area and that, as far as she knew, only the

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s u p e r in t e n d e n t had a key to the locked rooms located there. (Id. at 387-89). Parkes also te stif ie d that Maynard had difficulty communicating, even through the use of a pen and p ap er, and often wrote incomprehensible "scrambled" sentences. (Id. at 386, 394-95). If s h e wanted Maynard to do some work for her, she would physically demonstrate the task. (Id. at 386). Finally, Winnett Chambers, Maynard's neighbor of fourteen years, agreed th a t Maynard had extremely limited writing skills and could not write full sentences. (Id. at 398-99). She also opined that Maynard probably would not have been able to write th e word "furniture." (Id. at 405). C. C o n v ic tio n and Sentencing On the second day of deliberations, the jury found Maynard guilty of two c o u n ts of Rape in the First Degree. (Id. at 502). Thereafter, on May 22, 2003, Justice B a ro n e sentenced Maynard to two consecutive five-year prison terms, to be followed by fiv e years of post-release supervision. (Id. at 14). D. S u b seq u en t Procedural History 1. C o lla te ra l Motion

F o llo w in g his sentencing, Maynard retained Norman Bock, Esq. ("Mr. B o c k " ), who also represents him in this proceeding. On March 21, 2005, Mr. Bock m o v ed to vacate Maynard's conviction pursuant to Section 440.10 of the New York C rim in a l Procedure Law ("CPL"), alleging that Mr. Palma had provided ineffective

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assistan ce at trial. (Resp't Aff. Ex. 1). In his papers, Mr. Bock claimed that because Mr. P alm a failed to use a competent ASL interpreter for out-of-court conferences, Maynard w a s unable to (a) comprehend the nature of the charges against him, including the d if f e re n c e between First and Second Degree Rape; (b) relate his version of events to his a tto rn e y; or (c) understand and make an informed decision regarding his right to testify in h is own defense. (Resp't Aff. Ex. 1 ¶ 5). Mr. Bock further revealed that Maynard had a d m itte d to him that he had sex with Melody A. but stated that it was consensual and that h e had paid her money. (Id. ¶ 14). Mr. Bock contended that if Maynard had testified to th e se facts, which Maynard allegedly never conveyed to Mr. Palma, it might "well have le d to a dramatically different result" ­ namely his conviction on the lesser-included c rim e of Rape in the Second Degree. (Id. ¶ 63, 74). On December 20, 2005, Justice Barone denied the motion on two grounds. (Resp't's Mem. Ex. 5). First, with respect to the reasonableness of Mr. Palma's actions, J u s tic e Barone noted that Maynard had admitted to Mr. Bock that he had sex with a th irte e n -ye a r old girl. (Id. at 1). Although second-degree (statutory) rape is a lesser o f f e n se , the Justice concluded that "[t]he failure of the defendant to take the stand in his o w n defense in order that he might admit guilt of a felony . . . constitute[d] an issue of tr ia l tactics." (Id.). The Justice noted further that "the decision to call defendant as a w itn e ss would [have been] a highly questionable one, even if [the] defense were aware of d e f e n d a n t's contentions." (Id.).

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T u rn in g to the issue of prejudice, Justice Barone observed that it was " c erta in ly questionable" whether Maynard's admission that he was guilty of a lesser f e lo n y would have helped him and "purely speculative to assert that a jury would, based o n such testimony, have then disbelieved the young complainant and convicted the d ef en d an t of the lesser charge." (Id. at 2).5 M a yn a rd sought leave to appeal the denial of his Section 440.10 motion to th e Appellate Division, First Department. On May 16, 2006, that court denied his a p p lic a tio n , stating that no question of law or fact was presented that warranted review. (Resp't Mem. Ex. 9). 2. D ire c t Appeal

O n July 11, 2005, Maynard appealed his conviction to the Appellate D iv is io n , contending that Dr. Lewittes' expert testimony and Balkansingh's description of th e "threatening gesture" were improperly introduced, and that the trial court had erred by f a ilin g to grant him an adjournment to secure the testimony of the police officer on m ilita ry leave. (Resp't Mem. Ex. 2). On June 27, 2006, the Appellate Division u n a n im o u s ly affirmed Maynard's judgment of conviction. See People v. Maynard, 818 N .Y .S .2 d 56 (1st Dep't 2006). In its decision, the court concluded that the admission of te stim o n y regarding Maynard's threatening gesture was not an abuse of discretion
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Justice Barone further concluded that Maynard's motion had to be denied pursuant to CPL § 440.10(2)(b) because sufficient facts appeared on the record to allow review of the issue on direct appeal. (Id.). 11

b e c a u s e it "permitted the jury to draw reasonable inferences concerning [Maynard's] f u t u re intent and motive, and his relationship with the victim." Id. at 58. The court also f o u n d that the denial of the adjournment request was a proper exercise of judicial d is c re tio n since the date of the witness' return was uncertain, the proposed testimony re la te d to a "minor point," and the People had offered a "reasonable stipulation" that M ayn ard declined. Id. Finally, the court held that Maynard's claims regarding Dr. L ew ittes were unpreserved and, in any event, not meritorious because his opinions were " n o t offered to prove that the rapes actually occurred," and were subject to proper lim itin g instructions. Id. Maynard sought leave to appeal the affirmance of his conviction to the C o u rt of Appeals which denied that relief on August 24, 2006. See People v. Maynard, 7 N.Y.3d 815 (2006) (table). 3. H a b e as Petition

M a yn a rd timely filed his Petition on November 18, 2007. See 28 U.S.C. § 2244(d)(1)(A) (habeas petition is subject to one-year statute of limitations running from " th e date on which the judgment becomes final"); Valverde v. Stinson, 224 F.3d 129, 132 (2 d Cir. 2000) (conviction becomes final "when the ninety-day period to seek review f ro m the United States Supreme Court by way of certiorari expire[s]"). In his Petition, M a yn a rd alleges that because he communicates through ASL rather than written or s p o k e n English, he was unable to communicate effectively with his attorney, who never

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u s e d an ASL interpreter. (Pet. ¶ 12(a)). Maynard alleges that he therefore received in e f f e c tiv e assistance of counsel. (Id. at ¶ 12). Finally, Maynard asserts that he is " f ac tu a lly innocent of the charges" since the rapes did not involve the use of force. (Id. at ¶ 12(a)). III. D is c u ss io n A. S ta n d a rd of Review A habeas corpus petition is not a vehicle to relitigate every issue previously d e ter m in e d in state court. Herrera v. Collins, 506 U.S. 390, 401 (1993). Instead, a state p ris o n e r seeking habeas relief under Section 2254 must show by a preponderance of the e v id e n c e that he is "in custody in violation of the Constitution or laws or treaties of the U n ite d States." 28 U.S.C. § 2254(a). The petitioner thus has the burden of proving, by a p re p o n d e ra n c e of the evidence, that his rights have been violated. See Jones v. Vacco, 1 2 6 F.3d 408, 415 (2d Cir. 1997). Section 2254, as amended by the Antiterrorism and Effective Death Penalty A c t of 1996 ("AEDPA"), provides, in part, that: A n 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

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F e d e ra l law, as determined by the Supreme Court of the U n i te d States. 2 8 U.S.C. § 2254(d)(1) (emphasis added). As the Second Circuit has noted, the Supreme Court has "construed the a m e n d e d statute so as to give independent meaning to `contrary [to]' and `unreasonable.'" Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000). "Under the `contrary to' clause, a f e d e ra l habeas court may grant the writ 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 c a se differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under the "unreasonable application" c lau se , a federal habeas court should "ask whether the state court's application of clearly e sta b lis h e d federal law was objectively unreasonable." Id. at 409. This standard does not re q u ire that reasonable jurists all would agree that the state court was wrong. Id. at 4091 0 . Rather, the standard "falls somewhere between `merely erroneous and unreasonable to all reasonable jurists.'" Stinson, 229 F.3d. at 119 (quoting Francis S. v. Stone, 221 F .3 d 100, 109 (2d Cir. 2000)). S e c tio n 2254(d)(2) also authorizes the federal courts to grant a habeas writ w h e n a claim considered on the merits in state court "resulted in a decision that was based o n an unreasonable determination of the facts in light of the evidence presented in the S ta te court proceeding."

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F in a l ly, to the extent that a habeas petition challenges factual findings, S e c tio n 2254(e)(1) provides that: "a determination of a factual issue made by a State c o u rt shall be presumed to be correct" and "[t]he [petitioner] shall have the burden of re b u ttin g the presumption of correctness by clear and convincing evidence." " I f , after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody . . . violates the C o n s titu tio n , that independent judgment should prevail." Williams, 529 U.S. at 389. B. In e f f e c tiv e Assistance of Counsel T o prevail on an ineffective assistance of counsel claim, Maynard must d e m o n s tra te (a) that his counsel's performance "fell below an objective standard of rea so n ab len e ss" and (b) that there is a "reasonable probability that, but for counsel's u n p ro f e ss io n a l errors, the result of the proceeding would have been different." Strickland v . Washington, 466 U.S. 668, 688, 694. In connection with the first of these re q u ire m e n ts , Maynard must overcome the "strong presumption that counsel's conduct f a lls within the wide range of reasonable professional assistance." Id. at 689. As the S e c o n d Circuit has noted, "[t]he Strickland standard is rigorous, and the great majority of h a b e as petitions that allege constitutionally ineffective counsel founder on that standard." Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001). Maynard asserts that the state court's decision finding him not to have been d e p riv e d of the effective assistance of counsel was an unreasonable determination of the

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f a cts , as well as an unreasonable application of the law set forth in Strickland. (Bock Aff. ¶ 35). Specifically, Maynard contends that his counsel was ineffective because the failure to employ an ASL interpreter meant (a) Maynard could not communicate his version of e v e n ts so that his counsel could formulate an effective defense, (b) counsel never a d e q u ate ly explained the nature of the charges against him, and (c) he therefore was not a b le to make an informed decision about whether to testify. (Pet. ¶ 12(a)). In short, M ayn ard claims that Mr. Palma's performance was objectively unreasonable. Maynard f u rth e r alleges that he suffered prejudice because, had he testified or otherwise conceded th a t he had what he claims was a consensual sexual encounter with a minor, "there is m o re than a reasonable probability that a jury would have given the petitioner the benefit o f the doubt, and convicted him of only rape in the second degree, as opposed to rape in th e first degree, certainly a more favorable outcome." (Pet'r's Mem. at 16-17; see also id. a t 17 (suggesting that such a defense "might have led to a different and more favorable re s u lt" ) (emphasis added)). 1. R e a so n a b le n e ss of Counsel's Performance

" T h e Supreme Court has never decided what degree of interpretive a ss is ta n c e is constitutionally required for non-English speaking defendants." Sin v. F is c h e r, No. 01 Civ. 9376 (GEL), 2002 WL 1751351, at *2 (S.D.N.Y. Jul. 26, 2002) (c itin g United States v. Deist, 384 F.2d 889, 901 (2d Cir. 1967)); accord Ta v. Pliler, No. C V 03-76-RSWL, 2009 WL 322251, at *13 (C.D. Cal. Feb. 6, 2009). Nevertheless, the

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S e c o n d Circuit has held that non-English speaking defendants have a constitutional right to an interpreter during criminal trials. United States ex rel. Negron v. New York, 434 F .2 d 386, 387 (2d Cir. 1970). Thus, "[i]f the court is made aware that the defendant does n o t understand English, the court must inform the defendant that he has the right to an in te rp re te r at state expense if he cannot afford one." Suarez v. Stinson, No. 97 Civ. 3039 (D C ), 1999 WL 335373, at *6 (S.D.N.Y. May 26, 1999) (citing Negron, 434 F.2d at 3909 1 ). Although the Second Circuit has not directly addressed the right of hearingim p aired persons to interpretive assistance, see Phillips v. Miller, No. 01 Civ. 1175 (DF), 2 0 0 0 WL 33650803, at *10 (S.D.N.Y. Dec. 3, 2000), there is no reason to distinguish th e m from speakers of foreign languages. See People v. Doe, 602 N.Y.S.2d 507, 509 (C rim . Ct. N.Y. County 1993); People v. Rivera, 480 N.Y.S.2d 426, 433 (Sup. Ct. N.Y. C o u n ty 1984). Indeed, New York has a statute specifically requiring that deaf persons be p ro v id e d with qualified interpreters to interpret any legal proceedings in which they are a p a rty or a witness. See N.Y. Jud. Law § 390. Here, as the statute requires, an official sign language interpreter was p rese n t throughout the on-the-record court proceedings. (Pet'r's Mem. at 8-9). Maynard c o m p lain s, however, that Mr. Palma did not use a qualified interpreter to confer with him d u rin g or prior to the trial. (Id.). What he overlooks is the fact that Mr. Palma re p re se n ted Maynard as retained counsel. (Bock Aff. ¶ 16). If Maynard and his family

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h a d funds sufficient to retain a private attorney for trial (and later to retain appellate c o u n se l and obtain the assistance of experts), there is no reason to believe that they could n o t also have hired an ASL interpreter to assist Mr. Palma in his discussions with M a yn a rd . In these circumstances, it is far from clear that Maynard's constitutional rights w e re infringed merely because someone who was not a certified interpreter served that ro le . Maynard argues that his mother was an inadequate substitute because she la c k ed sufficient training and skill to translate his discussions with Mr. Palma. In that c o n n e ctio n , Maynard's mother alleges in her affidavit that she knows little ASL and often h as difficulty communicating with her son. (Lawrence Aff. ¶¶ 5-6). Tellingly, however, n e ith e r Maynard nor his mother has suggested in their affidavits that their discussions w ith Mr. Palma were so hamstrung that Maynard did not understand the charges in the in d ictm e n t, the differences between forcible and statutory rape, or that he had a right to te stif y on his own behalf. Indeed, both of their affidavits are totally silent as to the s u b s ta n c e of their discussions with Mr. Palma, stating only that no ASL interpreter was p re se n t. (See Lawrence Aff.; Maynard Aff.). From this omission alone, Justice Barone m ig h t reasonably have concluded, as he did, that Maynard's decision not to take the stand w a s tactical, rather than the result of failed communications between him and his counsel. See Elize v. United States, No. 02 Civ. 1350 (NGG), 2008 WL 4425286, at *7 (E.D.N.Y. S e p t. 30, 2008) (counsel's failure to provide non-trial interpretive aid did not amount to

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in e f fe c tiv e assistance, where petitioner failed to demonstrate any "disability borne of a la n g u a g e barrier"); Thai v. United States, No. 99 Civ. 7514 (CBA), 2007 WL 13416, at * 7 (E.D.N.Y. Jan. 2, 2007) (rejecting ineffective assistance claim based, in part, on lang u ag e difficulties because record contained no affidavits or other evidence to support c o n te n t io n that client was unable to communicate with attorney); Mui v. United States, N o . 99 Civ. 3627 (SJ), 2005 WL 323704, at *4 (E.D.N.Y. Feb. 7, 2005) ("[p]etitioner's claim that counsel did not communicate effectively with him is belied by Petitioner's ad m issio n that his sister translated during the attorney-client consultations."). M a yn a rd 's counsel attempts to fill this striking gap in the record through the submission of reports by two experts who did not participate in any aspect of Maynard's tria l or trial preparation. The first expert is Carol Lazorisak, Coordinator of the Deaf S tu d ies Program at LaGuardia Community College. Nearly nine months after the trial, M s . Lazorisak accompanied Mr. Bock to a meeting with Maynard at Rikers Island. (Lazorisak Aff. ¶ 3). During that meeting, she determined that Maynard's "primary la n g u a g e " was ASL, which she states is "a different language from English, with its own v o c a b u la r y, syntax, grammar, and culture." (Id. ¶¶ 5-6). Maynard also reported to Ms. L a z o risa k that "he understood some, but not all" of what Mr. Palma had communicated to h im in writing. (Id. ¶ 7). Significantly, Ms. Lazorisak's affidavit is devoid of any su g g e stio n that Maynard ever indicated to her that he was unaware during the trial that

19

th e re was a difference between first and second degree rape or that he had a right to t e s t i f y. A t best, Ms. Lazorisak's affidavit establishes that Maynard is a person of lim ite d intelligence, who would have had "difficulty understanding abstract legal co n ce p ts," such as the right to testify in his own defense, even if these concepts were c o m m u n ic a te d to him through ASL. (Id. ¶ 9). In this respect, her affidavit is consistent w ith the report of Maynard's second expert, Barbara S. Cohen, a licensed psychologist co n v ersa n t in ASL, who opines on the basis of her own interview that Maynard has an IQ o f 69 on the Wechsler Adult Intelligence Scale, which constitutes mild mental retardation. (See Resp't's Aff. Ex. 1 (Cohen Report 5)). However, not even Mr. Bock has suggested th a t Maynard's mental capacity is so limited that he was unable to assist in his defense or k n o w the difference between right and wrong. T h e only other "evidence" that Maynard was deprived of his right to present th e defense that his sexual relations with the thirteen-year old victim were consensual is M s . Lazorisak's averment that Maynard told her nearly a year after the trial that "he w a n te d to tell his story" at trial. (Lazorisak Aff. ¶ 10). Maynard also told Ms. Lazorisak th a t he had been sworn as a trial witness, but did not testify because "he was told by the in te rp re te r to `stop.'" (Id.; see also Bock Aff. ¶ 13). The suggestion that Maynard was s w o rn as a trial witness is, of course, inconsistent with the trial record. Moreover, one of th e central themes of Maynard's Petition is that the official court interpreter's interaction

20

w ith him was limited to translating the proceedings, a role which would not have given h e r an opportunity to direct him not to testify on his own behalf. Mr. Bock also tries to fill in the gaps about Maynard's communications w ith his trial counsel by noting in his own affidavit that he spoke with Mr. Palma, who " c o n f irm e d that he never used a sign language interpreter when conferring with [ M a yn a rd ] in his office," choosing instead to rely on "written notes and communications w ith the [Maynard's] family." (Bock Aff. ¶ 20). Mr. Bock does not reveal, however, a n yth in g further about his discussions with Mr. Palma nor what, if anything, Mr. Palma to l d him regarding the substance of his communications with Maynard. Mr. Bock also d o e s not suggest that Mr. Palma would have been unwilling to provide an affidavit re g a rd in g these subjects had he been asked. T h u s , while Maynard has established that no ASL interpreter was present d u rin g his out-of-court consultations with Mr. Palma, he has not demonstrated that the q u a lity of their discussions was adversely impacted. Indeed, when the issue was squarely ra is e d by Justice Bamberger at the pretrial hearing ­ a proceeding which was being tra n sla te d for Maynard by an official ASL interpreter ­ Maynard gave no indication that h e was confused, nor did he protest Mr. Palma's representation that they had been able to c o m m u n ic a te with the assistance of Maynard's mother.6 See Pham v. Beaver, 445 F.
6

In their memorandum of law opposing the Section 440.10 motion, the People represent that Mr. Palma represented to the prosecutor on September 20, 2005, that he, in fact, had no difficulty communicating with Maynard through his mother. (Ex. 4 (Mem. of Law at 3)). Since this statement does not appear in any affidavit or declaration, I have disregarded it. 21

S u p p . 2d 252, 257 (W.D.N.Y. 2006) (denying petition because neither counsel nor the p e titio n e r "ever complained that they were not able to communicate with or understand ea ch other"). In these circumstances, there is no reason to believe that Justice Barone's re jec tio n of Maynard's claim constituted an unreasonable application of the applicable la w .7 2. P r e ju d ic e

In any event, even if the Court were to assume that Maynard would have c h o se n to testify or otherwise affected Mr. Palma's defense strategy had they c o m m u n ica ted through an ASL interpreter, Maynard also must show prejudice to prevail o n his ineffectiveness claim. Here, Maynard is unable to do so for several reasons. F irst, as Justice Barone correctly noted, Maynard's proposed defense would h av e required him to confess to two sexual encounters with a young girl. He therefore w o u ld have bolstered a relatively weak case in which there was no physical evidence to c o rro b o ra te the victim's testimony and the victim's outcry was significantly delayed. To

In an effort to establish some constitutional violation, Maynard also suggests that the use of his mother as an interpreter was "improper on its face" because her presence "vitiated the attorney client privilege." (Bock Aff. ¶ 30). Both the federal and New York state cases agree that the privilege is waived if an attorney-client communication is disclosed to a third party. See, e.g., In re von Bulow, 828 F.2d 94, 101 (2d Cir. 1987); People v. Osorio, 75 N.Y.2d 80, 84 (1989). However, both jurisdictions also hold that the presence of an interpreter or other person needed to help transmit the client's information to the attorney does not destroy the privilege. See United States v. Kovel, 296 F.2d 918, 921-22 (2d Cir. 1961) (accountant); Stroh v. General Motors Corp., 623 N.Y.S.2d 873, 874-75 (1st Dep't 1995) (daughter present to help aged parent "recall, and perhaps relive," traumatic accident). The mere fact that Mr. Palma used Maynard's mother as an interpreter therefore does not constitute ineffective assistance. 22

7

s e ll his defense, Maynard also would have had to convince the jury that his sexual re la tio n s with a thirteen-year-old girl were consensual ­ a task that obviously would have b e e n difficult for any defendant and might well have proved Herculean for one who is m ild ly-reta rd e d . As Justice Barone correctly observed, it is "purely speculative to assert th a t a jury would, based on such testimony, have . . . disbelieved the young complainant a n d convicted the defendant of the lesser charge." (Resp't'