Jamison v. Bradt
Filing
9
DECISION AND ORDER denying petition for writ of habeas corpus and dismissing the petition. Signed by Hon. Michael A. Telesca on 7/12/11. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
JESSE JAMISON,
DECISION AND ORDER
No. 09-CV-00747T
Petitioner,
-vsMARK BRADT,
SUPERINTENDENT
Respondent.
________________________________
I.
Introduction
Pro se Petitioner Jesse Jamison(“Petitioner”) has filed a
timely petition for a writ of habeas corpus under 28 U.S.C. § 2254
challenging the constitutionality of his custody pursuant to a
judgment entered July 25, 2001, in New York State, County
Court,
Monroe County (Hon. Elma A. Bellini), convicting him, after a jury
trial, of Murder in the Second Degree (N.Y. Penal Law (“Penal Law”)
§ 125.25 [4]).
For the reasons stated below, habeas relief is denied and the
petition is dismissed.
II.
Factual Background and Procedural History
On November 5, 2000, Shalonda Beveritt-Jamison, Petitioner’s
wife, left for work at 6:30 a.m., leaving her children, including
Cedreuna Williams (“Cedreuna” or “the victim”), in the care of
Petitioner.
At approximately 11:30 a.m., Petitioner was awakened
by Cedreuna’s three-year-old sister, Reneisha.
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Reneisha told
Petitioner that Cedreuna had wet her pants.
Petitioner requested
that Reneisha tell her five-year-old sister Rayonia to get Cedreuna
a clean pair of pants.
Petitioner proceeded to the bedroom
Cedreuna shared with her sisters and put Cedreuna across his lap to
“whoop her,” but saw that she had again wet her pants.
Petitioner
“whooped her five times” and told her to go to bed.
Petitioner
left the room, but came back a short time later to discover that
Cedreuna had again soiled her pants. Petitioner had Rayonia change
Cedreuna and wash her up in the bathroom.
T.T. 454, 513-515.
When Cedreuna returned to the bedroom, Petitioner was waiting
for her.
Petitioner struck Cedreuna on her bottom causing her to
fall forward and strike her middle against the bottom wooden
portion of her oak bunk-bed and then fall backward striking her
head on the floor.
the air.
Cedreuna started to scream, holding her legs in
While she lay on the floor, Petitioner continued to try
to hit her bottom, but struck other areas of her body because she
was moving around.
When Petitioner finished hitting Cedreuna, he
picked her off the floor, put her in her bed, and left to go to a
friend’s house.
T.T. 454-455, 513-517.
When
wife
Petitioner’s
returned
home
from
work
at
approximately 4:00 p.m. that day, she found Cedreuna’s lifeless
body laying next to her oak bunk-bed. Petitioner arrived home from
his friend’s house shortly thereafter and asked what was wrong with
Cedreuna.
Petitioner told his wife that he did not know why
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Cedreuna was on the floor.
called
911.
When
police
Petitioner tried CPR, while his wife
and
emergency
personnel
arrived,
Petitioner told them that he had “whooped [Cedreuna]” and put her
to bed.
T.T. 285-288, 328-329.
Petitioner told Officer Randy
Holmes of the Rochester Police Department (“RPD”) that he spanked
Cedreuna an hour before calling 911 and that when he went to check
on her he found her unresponsive.
T.T. 366-367.
Petitioner told
Sergeant Annie Craven Walker of the RPD that he beat Cedreuna for
wetting her clothes, that she went to sleep thereafter, but then
came downstairs and played a game before going back upstairs.
He
further explained to Sergeant Craven Walker that he was home with
the children all day.
T.T. 391, 402.
Petitioner told Officer
Charles LoFaso of the RPD that he spanked Cedreuna at approximately
12:00 to 12:30 p.m. and put her to bed.
He said he checked on her
at 1:00 p.m. and had one of the other girls in the home check on
her at 2:00 p.m.
a nearby store.
At 2:00 p.m., Petitioner left to get a drink at
T.T. 416.
Eventually, Petitioner provided Investigator Evelyn Baez of
the RPD with a full account of what occurred on November 5, 2000,
which included striking Cedreuna with such force that she fell
forward striking the wooden bed, then falling backward hitting her
head.
Petitioner further acknowledged that he did not stay at the
house after striking Cedreuna and that he did not return until
after his wife had returned from work.
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T.T. 454-455, 513-517.
Dr. Thomas Smith, a Deputy Medical Examiner for the Monroe
County
Medical
Cedreuna.
Examiner’s
Office,
performed
the
autopsy
on
The external examination revealed bruising above her
right and left eyebrows, on her forehead, and on her back and
buttocks.
T.T. 543-546, 552.
The internal examination revealed
that Cedreuna’s abdomen was full with more than a cup of blood.
T.T. 559.
After further investigation, Dr. Smith observed tearing
in the mesentery area, the omentum, the small bowel and observed
three separate lacerations to the liver.
T.T. 560-562.
Dr. Smith
testified that all of these internal injuries were caused by blunt
force trauma to the abdomen and that they occurred within a couple
hours of death.
T.T. 562, 564, 572.
Dr. Smith testified further
that the cause of death was “internal injuries due to blunt trauma
to the abdomen.”
T.T. 569.
Dr. Smith also testified that the
internal injuries suffered by Cedreuna were not consistent with
spanking.
T.T. 570.
A jury trial was conducted before the Hon. Bellini, at the
close of which Petitioner was found guilty of Murder in the Second
Degree
and
subsequently
imprisonment.
On
sentenced
to
fifteen
years
to
life
T.T. 715; Sentencing Mins. [S.M.] 16.
November
23,
2007,
the
Appellate
Division,
Fourth
Department unanimously affirmed the judgment of conviction, and
leave to appeal was denied.
People v. Jamison, 45 A.D.3d 1438 (4th
Dep’t 2007); lv. denied, 10 N.Y.3d 766 (2008).
-4-
On or about January 13, 2009, Petitioner filed a motion for a
writ
of
error
Department.
coram
nobis
in
the
Appellate
Division,
Fourth
That motion was denied on March 20, 2009, and leave to
appeal was denied.
People v. Jamison, 60 A.D.3d 1439 (2009), lv.
denied, 2009 N.Y. Slip Op 98509U (2009).
This habeas corpus petition followed, wherein Petitioner seeks
relief on the following grounds: (1) incorrect jury instructions;
(2)
the
verdict
was
against
the
weight
of
the
evidence;
(3) ineffective assistance of appellate counsel; and (4) cumulative
trial court error deprived him of a fair trial.
Attach., Grounds Five-Seven (Dkt. No. 1);
See Pet. ¶ 22A-D,
Mem. in Support (Dkt.
No. 2); Reply (Dkt. No. 8).
III. General Principles Applicable to Habeas Review
A.
The AEDPA Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), a federal court may grant habeas relief to a state
prisoner only if a claim that was “adjudicated on the merits” in
state court “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,” 28 U.S.C. § 2254(d)(1), or if it “was based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceeding.” § 2254(d)(2).
A state
court decision is “contrary to” clearly established federal law “if
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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.”
362, 413 (2000).
Williams v. Taylor, 529 U.S.
The phrase, “clearly established Federal law, as
determined by the Supreme Court of the United States,” limits the
law governing a habeas petitioner’s claims to the holdings (not
dicta) of the Supreme Court existing at the time of the relevant
state-court decision.
Williams, 529 U.S. at 412;
accord Sevencan
v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540
U.S. 1197 (2004).
A
state
court
decision
is
based
on
an
“unreasonable
application” of Supreme Court precedent if it correctly identified
the governing legal rule, but applied it in an unreasonable manner
to the facts of a particular case.
also id. at 408-10.
Williams, 529 U.S. at 413;
see
“[A] federal habeas court is not empowered to
grant the writ just because, in its independent judgment, it would
have decided the federal law question differently.”
Artuz, 269 F.3d 78, 94 (2d Cir. 2001).
Aparicio v.
Rather, “[t]he state
court’s application must reflect some additional increment of
incorrectness such that it may be said to be unreasonable.”
Id.
This increment “need not be great; otherwise, habeas relief would
be limited to state court decisions so far off the mark as to
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suggest judicial incompetence.” Francis S. v. Stone, 221 F.3d 100,
111 (2d Cir. 2000) (internal quotation marks omitted).
Under AEDPA, “a determination of a factual issue made by a
State court shall be presumed to be correct.
The [petitioner]
shall have the burden of rebutting the presumption of correctness
by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1);
see
also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) (“The
presumption of correctness is particularly important when reviewing
the trial court’s assessment of witness credibility.”), cert.
denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003).
A state
court’s findings “will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in the
state-court proceeding.”
Miller-El v. Cockrell, 537 U.S. 322, 340
(2003).
B.
Exhaustion and Procedural Default
“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to a judgment of a State court shall not
be granted unless it appears that . . . the applicant has exhausted
the remedies available in the courts of the State. . . .” 28 U.S.C.
§ 2254(b)(1)(A);
843-44 (1999);
see, e.g., O’Sullivan v. Boerckel, 526 U.S. 838,
accord, e.g., Bossett v. Walker, 41 F.3d 825, 828
(2d Cir.1994), cert. denied, 514 U.S. 1054 (1995). “The exhaustion
requirement is not satisfied unless the federal claim has been
‘fairly presented’ to the state courts.” Daye v. Attorney General,
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696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S.
1048 (1984).
However, “[f]or exhaustion purposes, ‘a federal
habeas court need not require that a federal claim be presented to
a state if it is clear that the state court would hold the claim
procedurally barred.’”
Grey v. Hoke, 933 F.2d 117, 120 (2d Cir.
1991) (quoting Harris v. Reed, 489 U.S. 255, 263, n.9, 109 S. Ct.
1038, 103 L. Ed. 2d 308 (1989) (other citations omitted).
Under
such circumstances, a habeas petitioner “no longer has ‘remedies
available in the courts of the State’ within the meaning of 28
U.S.C. Section 2254(b).”
“remedies
available”
Id.
in
the
When a petitioner no longer has
state
courts,
because
he
is
procedurally barred by state law from raising such claims, the
habeas
court
defaulted.
may
deem
the
claims
exhausted
but
procedurally
Id. at 120-21 (quoting Pesina v. Johnson, 913 F.2d 53,
54 (2d Cir. 1990)).
The procedural bar that gives rise to the finding that the
claim should be deemed exhausted works a forfeiture and precludes
litigation of the merits of the claim absent a showing of cause for
the procedural default and prejudice resulting therefrom or by
demonstrating that failure to consider the claim will result in a
fundamental miscarriage of justice (i.e., actual innocence).
Wainwright v. Sykes, 433 U.S. 72, 87-91 (1977);
Whitley, 505 U.S. 333 (1992).
-8-
See
see also Sawyer v.
C.
The Adequate and Independent State Ground Doctrine
The Supreme Court has “made clear that the adequate and
independent state ground doctrine applies on federal habeas,” such
that “an adequate and independent finding of procedural default
will bar federal habeas review of the federal claim, unless the
habeas petitioner can show ‘cause’ for the default and ‘prejudice
attributable thereto,’ or demonstrate that failure to consider the
federal
claim
justice.’”
will
result
in
a
‘fundamental
miscarriage
of
Harris v. Reed, 489 U.S. 255, 262 (1989) (citations
omitted).
IV.
Petitioner’s Claims
1.
Claims Three
Defaulted
and
Four
are
Unexhausted
and
Procedurally
In grounds three and four of the petition, Petitioner contends
that: (1) he was denied a fair trial by the trial court’s allegedly
incorrect jury instruction; and (2) the verdict was against the
weight of the evidence.
These
claims,
which
See Pet. ¶ 22C-D; Mem. in Support at 7-9.
were
not
raised
in
Petitioner’s
leave
application to the New York Court of Appeals, are unexhausted for
purposes of federal habeas review.
933
F.2d
at
119.
Nonetheless,
See Resp’t App. F; see Grey,
as
discussed
below,
because
Petitioner no longer has a state court forum within which to raise
these claims, the Court deems them exhausted but procedurally
defaulted.
See id.
-9-
Petitioner raised both of these claims on direct appeal.1
Resp’t App. A.
See
However, Petitioner failed to pursue these claims
in his application for leave to appeal to the New York Court of
Appeals, and thus failed to properly exhaust them by presenting
them to the state’s highest court.
See Resp’t App. F;
Grey, 933
F.2d at 119 (“Under 28 U.S.C. § 2254(b), applicants for habeas
corpus relief must ‘exhaust [ ] the remedies available in the
courts of the State.’ In doing so, a petitioner must present his
federal constitutional claims to the highest court of the state
before a federal court may consider the merits of the petition.”)
(quoting Pesina, 913 F.2d at 54).
The
claims,
however,
must
be
deemed
exhausted
because
Petitioner would face an absence of corrective process were he to
return to state court in an attempt to exhaust them.
appellate review is no longer available to him;
State
he cannot again
seek leave to appeal the claims in the Court of Appeals because he
has already made the one request for leave to appeal to which he is
entitled. See N.Y. Court Rules § 500.20.
Moreover, collateral
review of the claims is also barred because the issues were
previously determined on the merits on direct appeal.
§ 440.10 [2][a];
See CPL
see also CPL § 440.10 [2][c] (barring review if
1
With respect to Petitioner’s jury instruction claim, the Fourth
Department determined that the claim was unpreserved for appellate review,
and, in any event, meritless. Jamison, 45 A.D.3d at 1440. With respect to
Petitioner’s weight of the evidence claim, the Fourth Department determined
that the claim was meritless. Id.
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a claim could have been raised on direct review);
933 F.2d at 120-21.
accord, Grey,
The state procedural rules that give rise to
the constructive exhaustion of these claims also render them
procedurally defaulted.
See, e.g., Ramirez v. Att’y General of
N.Y., 280 F.3d 87, 94 (2d Cir. 2001) (“Even if a federal claim has
not been presented to the highest state court or preserved in lower
state courts under state law, it will be deemed exhausted if it is,
as a result, then procedurally barred under state law.”) (citing
Grey, 933 F.2d at 120-21).
This Court, however, may reach the merits of Petitioner’s
claims, despite the procedural default, if he can demonstrate cause
for the default and prejudice, or that failure to consider the
claims will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750.
See
Liberally construing Petitioner’s
pleadings, he alleges ineffective assistance of trial counsel as
cause
for
the
procedural
default.
A
claim
of
ineffective
assistance of counsel may establish cause for a procedural default.
See Edwards v. Carpenter, 529 U.S. 446, 451 (2000);
Zant, 499 U.S. 467, 494 (1991);
152, 168 (1982).
McCleskey v.
United States v. Frady, 456 U.S.
However, a claim of ineffective assistance of
counsel may not be used, as here, to establish cause for the
procedural default when it has not been raised as an independent
claim in the state courts. Murray v. Carrier, 477 U.S. 478, 488-90
(1986);
see e.g., Ross v. Burge, 03 Civ. 3867, 2008 U.S. Dist.
-11-
LEXIS 20141, *20-22 (S.D.N.Y. March 21, 2008) (finding Petitioner’s
ineffective assistance of trial counsel claim cannot serve as cause
for a procedural default because it was never presented to the
state court as an independent claim).
Moreover, Petitioner has
failed to demonstrate that this Court’s failure to review the
claims will result in a miscarriage of justice. See Dunham v.
Travis, 313 F.3d 724, 730 (2d Cir. 2002).
Accordingly, his claims
are dismissed as procedurally defaulted.
Finally, to the extent Petitioner’s weight of the evidence
claim (Ground Four of the petition) could be construed as an
insufficiency of the evidence claim, that claim, although properly
exhausted in the state courts, is procedurally barred from habeas
review.
On direct appeal, the Fourth Department rejected this
claim on a state procedural ground because Petitioner failed to
properly preserve the issue for appellate review.
A.D.3d at 1438-40.
preservation
rule
See Jamison, 45
The state court’s reliance on New York’s
(codified
at
N.Y.
Crim.
Proc.
Law
(“CPL”)
§ 470.05 [2]) is an adequate and independent state bar that
precludes this Court’s review of the claim.
188 F.3d 71, 79-82 (2d Cir. 1999);
7, 9 (2d Cir. 1990).
See Garcia v. Lewis,
Velasquez v. Leonardo, 898 F.2d
Liberally construing Petitioner’s pleadings,
he alleges ineffective assistance of trial counsel as cause for the
default.
As discussed above, however, Petitioner failed to raise
ineffective assistance of trial counsel as a stand-alone claim in
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the state courts and he therefore cannot rely upon it to establish
cause for the procedural default.
Moreover, he has failed to
demonstrate that this Court’s failure to review the claim will
result in a fundamental miscarriage of justice.
Thus, to the
extent Petitioner’s weight of the evidence claim could be construed
as
an
insufficiency
of
the
evidence
claim,
that
claim
is
procedurally defaulted from review by this Court.
2.
Grounds One, Two, and Four-Six are Meritless
In grounds one, two, four, five, and six of the petition,
Petitioner
argues
appellate counsel.
that
he
received
ineffective
assistance
of
The gravamen of Petitioner’s claim is that
appellate counsel raised weak issues on direct appeal, while
foregoing stronger issues, namely, ineffective assistance of trial
counsel.
See Pet. ¶ 22A, B, D, Attach., Grounds Five and Six; Mem.
in Supp. at 9-24.
Petitioner raised this issue in his coram nobis
application, which was summarily denied by the Fourth Department.
See Jamison, 60 A.D.3d 1439;
see Sellan v. Kuhlman, 261 F.3d 303
(2nd Cir. 2001) (holding that a summary denial constitutes an
adjudication on the merits).
As discussed below, this claim is
meritless.
When claiming ineffective assistance of counsel, at the trial
or appellate level, Petitioner must show that the representation
was fundamentally defective, and that, but for counsel’s errors,
there is a reasonable probability that the result of the proceeding
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would have been different. Strickland v. Washington, 466 U.S. 668,
687 (1984);
see also Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.
1994), cert. denied, 513 U.S. 820 (1994). Appellate counsel is not
required to raise all colorable claims on appeal and may winnow out
weaker arguments and focus on one or two key claims that present
“the most promising issues for review.”
U.S. 745, 751-53 (1983).
See Jones v. Barnes, 463
Appellate counsel’s “[f]ailure to make a
meritless argument does not amount to ineffective assistance of
counsel.”
United States v. Arena, 180 F.3d 380, 396 (2nd Cir.
1999), cert. denied, 531 U.S. 811 (2000).
The strong presumption
is that counsel has “rendered adequate assistance and [to have]
made all significant decisions in the exercise of reasonable
professional judgement.”
Strickland, 466 U.S. at 689-90.
Petitioner argues that appellate counsel’s assistance was
constitutionally deficient.
He asserts, generally, that appellate
counsel’s brief “excluded important issues . . . [and] made weak
arguments upon significant issues.”
Pet., Attach. at Ground Five.
He also asserts, more specifically, that appellate counsel was
ineffective for failing to raise ineffective assistance of trial
counsel on direct appeal.
In support of the latter contention, he
cites a myriad of alleged errors on the part of trial counsel.
Petitioner argues, inter alia, that trial counsel failed to object
to the allegedly incorrect jury instruction, failed to prepare a
defense, failed to interview expert witnesses for the defense,
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failed to call additional witnesses, and failed to investigate the
case.
As discussed below, this Court cannot find that appellate
counsel provided constitutionally deficient performance and that,
but for appellate counsel’s deficient performance, the outcome of
Petitioner’s appeal would have been different.
At the outset, the Court notes that, contrary to Petitioner’s
contentions,
appellate
counsel
did
submit
a
thorough,
well-
researched brief in which he persuasively argued four points on
direct appeal: (1) the evidence was insufficient to sustain a
conviction for murder in the second degree; (2) the proof submitted
to
the
grand
indictment;
jury
(3)
was
the
legally
jury
insufficient
instructions
to
support
regarding
the
depraved
indifference murder, before the grand jury and the petit jury, were
incorrect;
and
indifference
evidence.
(4)
murder
Petitioner’s
was
not
conviction
supported
See Resp’t App. A.
by
the
for
depraved
weight
of
the
Petitioner’s direct appeal was
perfected in April of 2007, after numerous decisions by the Court
of Appeals holding that depraved indifference murder cannot be
charged in the vast majority of one-on-one homicides.2
these
developments
in
the
law
since
Petitioner’s
Citing
June
2001
2
In 2006, the New York Court of Appeals decided People v. Feingold, 7 N.Y.3d
288, 294 (2006), which overruled People v. Register, 60 N.Y.2d 270 (1983). In
essence, Feingold held, contrary to Register, that in a one-on-one attack with
a deadly weapon intentionally directed at a particular person who then dies as
a result of the attack, depraved indifference murder will not lie; the proper
charge is either intentional murder (Penal Law § 125.25 [1]) or intentional
manslaughter (manslaughter in the first degree, Penal Law § 125.20 [1]).
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conviction,
appellate
counsel
raised
four
claims
specifically
related to depraved indifference murder. Given the developments in
the law at the time of Petitioner’s appeal, it was not unreasonable
for appellate counsel to limit the issues in his brief to those
related to various aspects of depraved indifference murder.
It appears that Petitioner also faults appellate counsel for
raising unpreserved issues –- i.e., insufficiency of the evidence
and that the jury instruction was incorrect –- on direct appeal.
See Mem. in Support at 7-8.
To the extent he argues such, such an
argument is meritless. Appellate counsel may “raise an unpreserved
issue in the hope of convincing the appellate court to review the
unpreserved issue in the exercise of its interest of justice
jurisdiction.” Sutherland v. Senkowski, 02-CV-3833, 03-MISC-0066,
2003 U.S. Dist. LEXIS 23863, *35
(E.D.N.Y. Oct. 17, 2003).
Courts
in this Circuit have repeatedly held that appellate counsel is not
ineffective for raising an unpreserved issue.
See Prince v.
Ercole, 08-CV-5197 (JG), 2009 U.S. Dist. LEXIS 69724, *43-44
(E.D.N.Y. May 1, 2009);
Richburg v. Hood, 794 F. Supp. 75, 77
(E.D.N.Y. 1992) (“This court cannot conclude that the decision by
appellate counsel to raise an unpreserved issue on appeal and to
address this issue to the interest-of-justice jurisdiction of the
appellate
court
constituted
‘representation
.
.
.
below
an
objective standard of reasonableness.’”) (quoting Strickland, 466
U.S. at 687-88, 694).
Here, despite the lack of preservation, the
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Fourth Department reviewed both of Petitioner’s claims in the
interest of justice and found them to be meritless.
See Jamison,
45 A.D.3d at 1438-40.
Additionally, appellate counsel cannot be faulted for failing
to raise an ineffective assistance of trial counsel claim on direct
appeal because that claim itself is meritless.
Petitioner argues that trial counsel was ineffective for
failing
to
object
instructions.
to
the
court’s
allegedly
See Mem. in Support at 8.
incorrect
jury
To the extent Petitioner
claims that trial counsel was ineffective for failing to object to
the jury instructions based on the Court of Appeals 2006 decision
in Feingold (see footnote 5 above), that claim is meritless.
Petitioner was convicted in 2001, long before the Feingold decision
was rendered.
Thus, trial counsel could not have been expected to
object to a jury charge on a ground that was not to become the law
in this state until five years after Petitioner’s trial.
See
Haynes v. Ercole, No. 08-CV-3643, 2011 U.S. Dist. LEXIS 61293, *13
(E.D.N.Y. June 8, 2011) (counsel not ineffective for not predicting
Feingold);
Lisojo v. Rock, 09 Civ. 7928, 2010 U.S. Dist. LEXIS
31152, *10 (S.D.N.Y. Mar. 31, 2010) (On habeas review, defense
counsel’s performance is evaluated by the state of New York’s
depraved indifference murder case law at the time of trial), report
& rec. adopted, 2010 U.S. Dist. LEXIS 42262 (S.D.N.Y. Apr. 29,
2010);
Fore v. Ercole, 594 F.Supp.2d 281, 305 (E.D.N.Y. 2009)
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(“[T]rial
counsel
cannot
be
held
to
be
ineffective
when
he
reasonably relied on the interpretation of New York law regarding
depraved indifference murder as it was at the time of petitioner’s
trial.”).
Because
the
jury
instruction
that
was
given
at
Petitioner’s trial accurately conveyed the elements of depraved
indifference murder under Penal Law § 125.25 [4] as of the time of
Petitioner’s trial (under People v. Register), there was no basis
for trial counsel to object.
7 N.Y.3d 588 (2007);
T.T. 695-699;
Policano v. Herbert,
People v. Coleman, 70 N.Y.2d 817, 819 (1987).
Accordingly, it was not unreasonable for appellate counsel not to
have raised this non-meritorious issue on direct appeal.
Petitioner also faults appellate counsel for failing to raise
an ineffective assistance of trial counsel claim based on counsel’s
alleged failure to: (1) prepare a defense; (2) interview an expert
witness
for
the
defense;
(4) investigate the case.
(3)
call
additional
witnesses;
and
As Respondent correctly points out,
these claims are primarily based upon matters outside the record,
and, therefore would not have been appropriate for direct appeal.
See Resp’t Mem. at 10-11;
see e.g., People v. Steven B., 81 A.D.3d
843, 843 (2d Dep’t 2011) (“The defendant’s claim[] that he was
deprived of effective assistance of counsel . . . rest[s] on matter
dehors
the
record
and,
thus,
may
not
be
reviewed
on
direct
appeal[.]”) (citing, inter alia, People v. Vincent, 80 A.D.3d 633
(2d Dep’t 2011)); see also Pearson v. Ercole, No. CV-06-5315(BMC),
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2007 U.S. Dist. LEXIS 54053, *42 (E.D.N.Y. July 25, 2007) (“It is
well established in New York practice that claimed errors that
require consideration of evidence outside of the record are not
properly raised on direct appeal.”) (citing, inter alia, People v.
Harris, 1 A.D.3d 881 (4th Dep’t 2003));
Rasmussen v. Artus,
No. 09-CV-0808(VEB), 2011 U.S. Dist. LEXIS 49800, *9 (W.D.N.Y.
May 10, 2011) (denying Petitioner’s ineffective assistance of
appellate counsel based on failure to raise ineffective assistance
of trial counsel claim where ineffective assistance of trial
counsel claim implicated matters outside the record and would not
have been appropriately raised on direct appeal). Moreover, to the
extent these claims implicate matters on the record, such claims
amount
to
nothing
more
than
a
hind-sight
dissatisfaction with counsel’s trial strategy.
expression
of
It is well-settled
that mere disagreement with strategic matters does not support a
claim for constitutionally ineffective assistance. See Trapnell v.
United States, 725 F.2d 149, 155 (2d Cir. 1983) (habeas court
should not “second guess matters of trial strategy simply because
the chosen strategy was not effective”).
Accordingly, it was
entirely reasonable for appellate counsel to decline raising an
ineffective assistance of trial counsel claim on any or some of the
afore-mentioned grounds.
In
sum,
the
Court
finds
that
Petitioner
has
failed
to
demonstrate that the state court’s adjudication of this claim
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contravened or unreasonably applied settled Supreme Court law.
Thus, Petitioner’s ineffective assistance of appellate counsel
claim is dismissed in its entirety.
3.
Ground Seven is Unexhausted But Procedurally Defaulted
In ground seven of the petition, it appears Petitioner is
raising a stand-alone claim based on cumulative trial court error.
See Pet., Attach., Ground Seven; Mem. in Supp. at 24;
5.
Reply at 2-
Because Petitioner raises this claim for the first time in the
habeas petition, it is unexhausted for purposes of federal habeas
review.
Nonetheless, because Petitioner no longer has a state
court forum within which to raise this record-based claim, the
Court deems it exhausted and procedurally defaulted. See Grey, 933
F.2d at 120; see also CPL § 440.10 [2][c] (barring review if a
claim could have been raised on direct review).
To the extent
Petitioner argues ineffective assistance of counsel as cause for
the default, such argument fails insomuch as he failed to raise
ineffective assistance of trial counsel as a stand-alone claim in
the state court (see discussion at footnote 1 above) and his standalone
ineffective
assistance
of
meritless (see section IV, 2 above).
appellate
counsel
claim
is
Moreover, Petitioner has not
demonstrated that this Court’s failure to consider the claim will
result in a fundamental miscarriage of justice.
Accordingly, the
Court dismisses Petitioner’s cumulative error claim as procedurally
defaulted.
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V.
Conclusion
For the reasons stated above, the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (D.t. No. 1) is denied,
and the petition is dismissed.
Because Petitioner has failed to
make “a substantial showing of a denial of a constitutional right,”
28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate
of appealability. See, e.g., Lucidore v. New York State Div. of
Parole, 209 F.3d 107, 111-113 (2d Cir. 2000).
The Court also
hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal from this judgment would not be taken in good faith and
therefore denies leave to appeal as a poor person.
Coppedge v.
United States, 369 U.S. 438 (1962).
Petitioner must file any notice of appeal with the Clerk’s
Office, United States District Court, Western District of New York,
within thirty (30) days of the date of judgment in this action.
Requests to proceed on appeal as a poor person must be filed with
United States Court of Appeals for the Second Circuit in accordance
with the requirements of Rule 24 of the Federal Rules of Appellate
Procedure.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
July 12, 2011
Rochester, New York
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