Williams v. Bradt
Filing
24
DECISION AND ORDER dismissing the petition with prejudice. Signed by Hon. Michael A. Telesca on 2/21/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
DAVID WILLIAMS,
Petitioner,
DECISION AND ORDER
No. 10-CV-0790(MAT)
-vs
MARK BRADT,
Respondent.
___________________________________
I.
Introduction
Petitioner
David
Williams
(“Williams”
or
“Petitioner”),
represented by counsel, seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2254 on the basis that he is being unconstitutionally
detained in Respondent’s custody. Williams is incarcerated pursuant
to a judgment entered against him in New York State Supreme Court,
Monroe
County,
on
October
18,
2005,
following
a
jury
trial
convicting him of criminal sexual act in the first degree, sexual
abuse in the second degree, and endangering the welfare of a child.
II.
Factual Background and Procedural History
A.
The Trial
1.
The Prosecution’s Case
In early 2004, the victim, Z.O., and his half-brother, W.N.
lived in Umatilla, Florida, with their mother, T.N., and her
boyfriend. The family had a friend named Don Green (“Green”) whom
-1-
the boys regarded as a substitute grandfather. T.97, 137.1 Green
had introduced Z.O. to Petitioner at a cookout approximately one
year before, during one of Petitioner’s vacations in Florida. T.97,
136-37, 150.
Petitioner invited Z.O. to visit him at his home in Henrietta
in the summer of 2004, and Z.O.’s mother gave her son permission to
go. Although Z.O. had known Petitioner for a year before the
planned
trip,
W.N.
had
only
recently
met
Petitioner.
T.150.
Petitioner admitted that he initially only asked Z.O. to visit.
T.313.
On July 6, 2004, Petitioner flew to Florida to escort Z.O. to
Rochester. T.313. Until that point, Z.O. had believed that he was
going to visit New York City, not upstate New York. T.67-69, 102,
138. W.N. testified that he and his mother decided that W.N. should
accompany Z.O., and Petitioner acquiesced and bought W.N. a ticket.
T.313.
Once
they
arrived
in
Henrietta,
the
boys
stayed
with
Petitioner in an RV trailer on the rear of his property and used
the main house for showering. T.79, 81-82, 138.
W.N. stated that
they stayed in the trailer because Petitioner’s house “was a mess”
and “really cluttered[.]” T.139.
1
Citations to “T.__” refer to pages from the transcript of Petitioner’s
trial.
-2-
Not long after they arrived, Petitioner took Z.O. on a weeklong
trip
to
boy-scout
camp
while
W.N.
was
left
alone
on
Petitioner’s property, where the neighbors checked in on him
occasionally. T.152. When Petitioner and Z.O. returned, they slept
together every night in the same bed in the trailer. T.143. Z.O.
slept naked. W.N. slept alone in a separate area in the trailer.
T.80-82, 92, 120.
One
day,
while
Z.O.
was
showering
in
the
main
house,
Petitioner came into the bathroom, took off his clothes, got into
the shower with Z.O. and repeatedly touched Z.O.’s testicles. When
he asked Z.O. for permission to fellate him, Z.O. said no, but
Petitioner did so anyway. T.82-85, 85-87. After performing oral sex
on Z.O., Petitioner told the boy not to tell anybody about the act,
especially Z.O.’s brother, mother and her boyfriend. T.88.
Z.O. testified about a different occasion in the trailer when
Petitioner attempted to sodomize Z.O., who was in bed. T.89-92.
Z.O stated that Petitioner “tried to put his dick in [Z.O.’s] butt”
but he did not penetrate Z.O. T.90-91. Z.O. recounted another
incident on June 28, 2004, in which Petitioner pulled down Z.O.’s
pants. T.93-94.
Z.O.
did
not
tell
W.N.
about
sexual
abuse
committed
by
Petitioner. When the boys called their mother, Z.O. did not say
that anything inappropriate had occurred. T.121-22, 150.
-3-
On July 25, 2004, acting on an anonymous tip that the boys
might be runaways, two deputy sheriffs from the Monroe County
Sherriff’s Department visited Petitioner’s property. The officers
spoke with W.N. and Z.O. and inspected the interior of the trailer.
Z.O. did not tell the officers about his sexual activities with
Petitioner. T.125-26, 240. Satisfied that everything was fine, the
deputies left.
Three days later, on July 28, 2004, Tyler Barrus, a Sheriff’s
Department
Investigator
(“Inv.
Barrus”),
was
involved
in
the
follow-up investigation regarding Petitioner. Along with Robert
Barnes, a county Child Protective Services worker, Inv. Barrus
visited Petitioner’s property. T.170, 173, 238-39. When Inv. Barrus
knocked on the door to the main house, W.N. answered the door and
invited the men inside. Neither Petitioner nor Z.O. was home at the
time. Inv. Barrus and Barnes explained to W.N. that they were
investigating possible criminal activity on Petitioner’s property.
T.176-77, 243-44. W.N. proceeded to show them around the house,
which was in “complete disarray” with every “surface . . . covered
with something.” T.177. He then took them to the trailer and
allowed them to look around inside. T.145-46, 177-79, 240-41. Inv.
Barrus asked W.N. to have Petitioner contact him when he returned.
T.179-80.
About twenty minutes later, Petitioner called Inv. Barrus and
agreed to come to the police station. When Petitioner arrived about
-4-
fifteen minutes later, Inv. Barrus offered Petitioner something to
eat or drink, and to use the bathroom, but he refused these offers.
T.232-33.
Inv.
Barrus
brought
Petitioner
to
an
empty
office,
and
explained that he was investigating allegations that Petitioner had
engaged in sexual relationships with minors. T.182-83. Inv. Barrus
then read Petitioner the Miranda warnings from a form. T.184.
Petitioner stated that he understood his rights and was willing to
waive them and speak with the investigator. T.186-88.
Petitioner stated that he lived alone and had arranged with
the boys’ family to have the boys visit him from Florida. T.190.
About an hour into the interview, Petitioner admitted that he had
taken a shower with the younger brother and had touched penis.
T.191. At that point, Inv. Barrus arranged to have the boys brought
to the station. T.191-92, 246, 249-50.
When the boys arrived, Investigator Barrus left Petitioner
alone for about fifteen minutes and went to speak with Z.O. T.192.
Z.O. answered the investigator’s questions and signed a handwritten
statement; this was the first time that Z.O. had told anyone of his
sexual contact with Petitioner. T.108-112, 192.
After his conversation with Z.O., Inv. Barrus returned to
Petitioner and asked if he had engaged in any other sexual contact
with Z.O. or any other minors. After about an hour and a half,
Petitioner admitted that he had put his mouth on Z.O.’s penis on
-5-
several occasions. T.193. Petitioner also had tried to put his
scrotum in Z.O.’s mouth while he was sleeping one night. T.194.
With regard to the shower incident, Petitioner explained that Z.O.
became “curious” as to body parts and had “gotten a boner.” T.195.
This led to Z.O. “wondering what it would feel like to have
somebody’s mouth on his penis and Mr. Williams accommodated that by
putting his mouth on [Z.O.]’s penis.” T.195.
Throughout their conversation, Petitioner did not mention to
Inv.
Barrus
that
he
had
any
medical
concerns
or
problems.
Petitioner exhibited no symptoms of illness and had declined offers
to eat, drink or use the bathroom. T.214, 229, 253.
Inv. Barrus transcribed Petitioner’s statements onto a form.
T.194-95, 196-97. In this written confession, Petitioner stated
that as soon as the boys arrived in Henrietta, Z.O. followed
Petitioner into the shower and asked questions of a sexual nature.
Petitioner stated that he did not want Z.O. in the shower with him,
but
Z.O.,
a
“very
curious
boy,”
insisted.
When
Z.O.
asked
Petitioner to touch Z.O.’s penis, Petitioner “would touch him to
show him what [he] was talking about.” Another time in the shower,
Z.O. asked Petitioner about “mouth action,” and Petitioner then
knelt in the shower and fellated him. Petitioner believed that he
performed
oral
sex
on
Z.O.
twice.
Regarding
their
sleeping
arrangements, Petitioner stated that he and the boys slept in the
three beds in his trailer because his house was being “remodeled.”
-6-
Z.O. would often come into Petitioner’s bed and when Petitioner
asked Z.O. to leave or tried to push him out, Z.O. resisted. When
they were in bed together, Z.O. would sometimes ask Petitioner to
touch
Z.O.’s
penis.
Once,
Z.O.
tried
to
put
his
mouth
to
Petitioner’s penis, but Petitioner refused to let him do so.
Petitioner described a past sexual relationship as “something
similar” that happened ten or fifteen years before with another
“very curious boy” who was interested in sex. Petitioner identified
this person by name. Petitioner attributed his activities to a
desire to provide sexual education for the boys, claiming that “the
main thing” for him was to always try to “answer these boys’
questions,” which he believed was the “right thing to do.” He
added, “If moms and dads are not teaching their kids the right way
about their sexual behavior, someone should.”
When this statement was completed, Petitioner reviewed it,
read it aloud, made corrections, initialed the corrections, and
then signed the statement. T.199. He had no apparent difficulty
reading the statement or signing it. T.200. About ten minutes
later, Inv. Barrus placed Petitioner under arrest. T.205.
Following the prosecution’s direct case, the trial court
granted the defense motion to dismiss two of the three counts of
first degree criminal sexual act, regarding two other occasions
when
Petitioner
allegedly
placed
T.260-61.
-7-
his
mouth
on
Z.O.’s
penis.
Inv. Barrus testified that Petitioner, who had longstanding
diabetes, did not appear sick or injured that day. T.202. Because
Inv. Barrus’s father had diabetes, he was familiar with the signs
and symptoms of diabetic shock (e.g., slurred speech and lack of
mental
orientation);
Inv.
Barrus
observed
none
of
these
in
Petitioner during the interrogation. T.202-03. Petitioner never
asked to consult an attorney or said that he no longer wanted to
speak to Inv. Barrus. T.204.
2.
The Defense Case
Petitioner testified in his own behalf that after he retired
he traveled regularly to Florida during the winter, and for several
years stayed in a trailer park in Altoona, where he became friends
with
Green.
T.270-71.
In
February
of
2004,
Green
introduced
Petitioner to Z.O. and his family. T.271-72, 306. After Green
introduced Petitioner to this family, Petitioner would visit them
every week. T.272.
At some point in early 2004, Petitioner suggested to Green and
the boy’s mother that Z.O. should come to visit him in New York,
where he could enroll in summer school classes because he was
failing school in Florida. Petitioner later extended the invitation
to W.N. as well, because W.N. wanted to see New York. T.311-13.
T.N.
with
agreed to allow her sons to visit and provided Petitioner
documentation
for
the
boys
necessary. T.274, 283.
-8-
to
obtain
medical
care,
if
On July 8, 2004, Petitioner flew from Rochester to Florida and
escorted the boys back to Rochester. T.275. Petitioner claimed that
his house had sustained water damage during the previous winter and
was being remodeled, so they all stayed in the trailer behind the
house. Petitioner testified that he and the boys each had their own
bed. T.275-77. During the boys’ visit, Petitioner took Z.O. on a
camping trip for several days, and he took both boys to an
amusement park, a mall and a carnival. Petitioner also bought them
skateboards and other gifts. T.105-06, 277, 282-83.
On July 28, 2004, Petitioner returned home with Z.O. from a
trip to the airport and found a message from Inv. Barrus to contact
him. T.283-85. Petitioner immediately called the investigator, who
asked Petitioner to come to the sheriff’s department. Inv. Barrus
told Petitioner that he needed some information and that their
meeting would last approximately half an hour. T.286.
At that time, Petitioner had been diabetic for over twenty
years, took daily medication for his condition, and monitored his
blood sugar. T.287-90. He had eaten a hamburger at approximately
11:00 a.m. that morning but did not eat anything else before 3:00
p.m., when he left for the police station. T.299, 321-22. When
Petitioner arrived at the station, he felt fine.
During his interrogation and while the investigator left him
alone for a period of time, Petitioner began to feel nauseous.
T.328. Petitioner claimed that he lapsed into a diabetic state and
-9-
as a result, he had almost no recollection of the interview. T.326.
In addition, he testified, he had no recollection at all of
preparing, reading, or signing his written statement. Although he
recognized his initials on the statement, the letters appeared to
him
to
be
written
in
an
unusually
sloppy
manner.
T.294-98.
Petitioner denied that he had any inappropriate contact with Z.O.
T.282-83, 293.
B.
The Verdict and Sentence
The jury returned a verdict on August 25, 2005, finding
Petitioner guilty of first degree criminal sexual act, second
degree sexual abuse, and endangering the welfare of a child.
T.444-47. The jury was unable to reach a verdict on the remaining
count of attempted first degree criminal sexual act, regarding
Petitioner’s
attempt
to
sodomize
Z.O.,
and
the
trial
court
dismissed this count. T.442-44.
At the sentencing hearing on October 18, 2005, Petitioner’s
trial counsel was unavailable, having moved out of state sometime
after the jury’s verdict. Petitioner was represented at sentencing
by his trial counsel’s partner, Dean Fero, Esq., who had not spoken
with Petitioner before that day. S.7-8.2 The trial court sentenced
Petitioner to concurrent, determinate prison terms, the longest of
2
Citations to “S.__” refer to pages of the transcript from the sentencing
hearing.
-10-
which was twelve years for the first degree criminal sexual act
conviction, plus five years of mandatory post-release supervision.
C.
The Direct Appeal
Represented by new counsel on direct appeal, Petitioner filed
a
brief
raising
specificity
as
to
five
arguments:
the
Petitioner’s
written
voluntarily;
(3)
the
date
and
confession
sentencing
(1)
the
time
of
was
not
court
indictment
lacked
the
offenses;
(2)
made
knowingly
and
improperly
considered
uncharged crimes; (4) Petitioner received ineffective assistance of
counsel at the sentencing hearing; and (5) the sentence was harsh
and excessive. On October 10, 2008, the Appellate Division, Fourth
Department, of New York State Supreme Court unanimously affirmed
the conviction. People v. Williams, 55 A.D.3d 1449 (4th Dept. 2008).
On March 18, 2009, the New York Court of Appeals denied leave to
appeal. People v. Williams, 12 N.Y.3d 789 (2009).
D.
The Application for a Writ of Error Coram Nobis
After his direct appeal was unsuccessful, Petitioner retained
new counsel, Brian Shiffrin, Esq., who filed an application for a
writ of error coram nobis arguing that appellate counsel had
provided constitutionally ineffective assistance. See Respondent’s
Exhibit (“Resp’t Ex.”) H, submitted in connection with Respondent’s
Answer. In particular, counsel alleged that appellate counsel had
been ineffective in failing to argue that (1) the warrantless entry
and search of Petitioner’s house and trailer was unlawful because
-11-
the consent procured from a 15 year-old minor, whom the police knew
was
only
a
guest,
was
invalid;
and
(2)
trial
counsel
was
ineffective for failing to seek a remedy for the prosecution’s
failure to disclose a handwritten statement by the victim to the
defense.
After the prosecution filed their opposition, Petitioner’s
counsel asked the Appellate Division to consider a recently-decided
federal case, Ramchair v. Conway, 601 F.3d 66, 73 (2d Cir. 2010)
(granting habeas relief based upon appellate counsel’s failure to
raise a Rosario3 claim). See Resp’t Exs. I & J. On December 30,
2009, the Appellate Division granted coram nobis relief and vacated
the order denying the direct appeal, stating, “Upon our review of
the trial court proceedings, we conclude that the issues [raised by
Petitioner] may have merit.” People v. Williams, 68 A.D.3d 1823,
1823-24
(4th
Dept.
2009)
(citation
omitted).
Accordingly,
the
Appellate Division, held, it would consider Petitioner’s appeal de
novo. Id.
The prosecution then moved for reargument and requested a stay
of the order directing Petitioner to perfect his new appeal,
arguing that the Appellate Division applied the incorrect standard
for granting coram nobis relief. Petitioner’s counsel opposed
reargument, asserting that the Appellate Division’s use of the
phrase “may have merit” did not reflect a misapprehension of the
3
People v. Rosario, 9 N.Y.2d 286 (1961).
-12-
proper standard for review, because the relief the court ordered in
granting the coram nobis application was an appeal de novo during
which the court would determine the merits of the issue that should
have been raised.
On
March
prosecution’s
19,
2010,
motion
for
the
Appellate
reargument,
Division
and
on
granted
upon
the
reargument,
vacated its December 31, 2009, order and denied the coram nobis
application. People v. Williams, 71 A.D.3d 1547 (4th Dept. 2010).
The Appellate Division held that Petitioner “failed to establish
that
the
representation
constitutionally
provided
deficient”,
that
by
she
appellate
counsel
“overlooked
a
was
clear-cut
dispositive issue”, or that she lacked “any strategic or other
legitimate explanation” for her decision not to argue the issues
raised in the coram nobis application. Williams, 71 A.D.3d at 1547
(citing People v. Borrell, 12 N.Y.3d 365, 369 (2009)). The New York
Court of Appeals subsequently denied leave to appeal.
D.
The Federal Habeas Proceeding
In his timely-filed, pro se habeas petition, Petitioner raised
the following five claims: (1) the police illegally entered his
house and trailer; (2) three counts in the indictment lacked
specificity as to the date and time of the offenses; (3) the
sentencing
Petitioner
court
improperly
received
considered
ineffective
uncharged
assistance
of
crimes;
(4)
counsel
at
sentencing; and (5) appellate counsel was ineffective for failing
-13-
to argue that trial counsel was ineffective for not seeking a
remedy regarding a handwritten statement by the victim that was not
turned over to the defense. In his memorandum of law, Petitioner
also asserts that appellate counsel was ineffective in failing to
argue that the suppression court’s ruling regarding the legality of
the police search of his house and trailer violated the Fourth
Amendment.
III. Exhaustion
It is well settled that a federal court may not consider the
merits of a claim unless that claim was fairly presented to the
“highest state court from which a decision can be had.” Daye v.
Attorney Gen’l of N.Y., 696 F.2d 186, 190 n.3 (2d Cir. 1982) (en
banc). Respondent concedes that Petitioner has exhausted all of his
habeas claims except his affirmative claim (ground one) that the
police illegally entered his house and trailer. The Court agrees.
Although Petitioner argued in his coram nobis application that
appellate counsel was ineffective for failing to argue this alleged
Fourth Amendment violation, he never raised the underlying Fourth
Amendment claim itself. Accordingly, the claim is unexhausted. See
Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (underlying
claims in coram nobis motion are not exhausted unless affirmatively
and separately raised in state court). In any event, as discussed
further infra, Petitioner’s Fourth Amendment claim is barred from
habeas review pursuant to Stone v. Powell, 428 U.S. 465 (1976).
-14-
IV.
General Legal Principles Applicable to § 2254 Petitions
A federal court may entertain a state prisoner’s habeas corpus
petition only to the extent that the petition alleges custody in
violation of the Constitution, laws, or treaties of the United
States. 28 U.S.C. § 2254(a). Accordingly, federal habeas corpus
relief does not lie for errors of state law that do not rise to the
level of federal constitutional violations. Estelle v. McGuire, 502
U.S. 62, 67 (1991) (citation omitted).
For federal constitutional claims adjudicated on the merits by
a state court, the deferential standard of review codified in the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) applies.
A habeas petitioner can only obtain habeas corpus relief by showing
that the state court decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or was based
on “an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d)(1)-(2).
V.
Analysis of the Petition
A.
Violation of the Fourth Amendment
Petitioner argues that the police conducted a warrantless
entry of his house and trailer that could not be justified by the
invitation given by his fifteen-year-old guest, W.N., and therefore
violated the Fourth Amendment’s proscription against unreasonable
-15-
searches and seizures. Where, as here, “the State has provided an
opportunity for full and fair litigation of a Fourth Amendment
claim,” federal habeas corpus review is unavailable with regard to
a contention that evidence recovered through an illegal search or
seizure was introduced at trial. Powell, 428 U.S. at 482; accord,
e.g., Graham v. Costello, 299 F.3d 129, 133-34 (2d Cir. 2002). The
Second Circuit has explained that all Stone v. Powell requires is
that the State provide the petitioner the “opportunity” to litigate
a Fourth Amendment claim. McPhail v. Warden, Attica Corr. Fac., 707
F.2d 67, 69-70 (2d Cir. 1983). As interpreted by the Second
Circuit, Powell may allow a petitioner to receive habeas review of
a Fourth Amendment claim if he can demonstrate either (1) that the
State failed to provide any “corrective procedures” by which Fourth
Amendment claims could be litigated; or (2) that the State had such
procedures in place, but that the petitioner was unable to avail
himself of those procedures “because of an unconscionable breakdown
in the underlying process.” Capellan v. Riley, 975 F.2d 67, 70 (2d
Cir. 1992).
Petitioner does not, and cannot, contend that New York failed
to provide appropriate corrective procedures to address his Fourth
Amendment claims. “[T]he federal courts have approved New York’s
procedure for litigating Fourth Amendment claims,” embodied in New
York’s Criminal Procedure Law §§ 710.20 to 710.70, as “facially
adequate.” Capellan, 975 F.2d at 70 n.1 (internal quotation and
-16-
citations omitted). It is undisputed that Petitioner took full
advantage of corrective procedures afforded to him under New York
law. The trial court held a hearing addressing the conduct of the
police in conducting a warrantless entry of Petitioner’s house and
trailer. H.75.4 The trial court held that the police entry into the
trailer and house pursuant to the consent given by W.N. was lawful
because W.N. permitted the entry. See H.75-78. Despite his status
as a minor, the trial court found, W.N. appeared to the police have
the requisite authority to do so and, in fact, actually lived there
as a guest during the relevant time periods. See H.75-78.
Nor
can
Petitioner
demonstrate
that
there
was
an
“unconscionable breakdown in the state’s [corrective] process[,]”
which “calls into serious question whether a conviction is obtained
pursuant to those fundamental notions of due process that are at
the heart of a civilized society.” Cappiello v. Hoke, 698 F. Supp.
1042,
1050
(E.D.N.Y.),
aff’d,
852
F.2d
59
(2d
Cir.
1988).
Petitioner’s argument amounts simply to a disagreement with the
suppression court’s and appellate court’s decisions on his Fourth
Amendment issues. This plainly does not amount to the “sort of
‘disruption or obstruction of a state proceeding[, Shaw v. Scully,
654 F. Supp. 859, 864 (S.D.N.Y.1987)]’ typifying an unconscionable
breakdown in the state court’s corrective procedures.” Capellan,
4
Citations to “H.__” refer to pages from the transcript of the suppression
hearing held on March 10, 2005.
-17-
975 F.2d at 71; see also id. at 72 (“To reiterate, to the extent
that Capellan claims that the Appellate Division erred in its
ruling . . . , this would not give us authority to review his
claims since a mere disagreement with the outcome of a state court
ruling is not the equivalent of an unconscionable breakdown in the
state’s corrective process.”).
B.
Lack of Specificity in the Indictment
Petitioner contends that counts one, five and six of the
indictment were insufficiently specific as to the date and time of
the offenses. The Appellate Division denied this claim, holding
that the indictment set forth a sufficiently specific eighteen–day
period during which the abuse allegedly occurred, and thus provided
adequate information regarding the charges to allow Petitioner to
prepare a defense. People v. Williams, 55 A.D.3d at 1450. In any
event, the Appellate Division concluded, “time was not a material
element of the crimes charged.” Id. This decision was neither
contrary
to,
nor
an
unreasonable
application
of,
clearly
established Supreme Court law.
Under New York law, “[n]o person shall be held to answer for
a capital or otherwise infamous crime”–such as the felony charges
in this case–“unless on indictment of a grand jury.” N.Y. CONST .,
art. I, § 6. See, e.g., People v. Grega, 72 N.Y.2d 489, 496 (1988).
However, the federal Constitution’s Fifth Amendment right to a
grand jury does not apply in a state prosecution. Peters v. Kiff,
-18-
407 U.S. 493, 496 (1972) (stating that the Fourteenth Amendment’s
general guarantee of due process is the appropriate measure of
grand jury indictments because the requirements of the Fifth
Amendment have not been applied to the states) (citation omitted).
Thus, “[t]he sufficiency of a state indictment cannot form the
basis for the issuance of a writ of habeas corpus unless the
indictment falls below basic constitutional standards[,]” which
“ensure a defendant the opportunity to prepare a sufficient defense
by requiring that an indictment inform the accused, in general
terms, of the time, place and essential elements of the alleged
crime.” Carroll v. Hoke, 695 F. Supp. 1435, 1438 (E.D.N.Y. 1988)
(citing, inter alia, United States ex rel. Mintzer v. Dros, 403
F.2d 42, 43 (2d Cir. 1967)), aff’d, 880 F.2d 1318 (2d Cir. 1989);
accord DeVonish v. Keane, 19 F.3d 107, 108-09 (2d Cir. 1994).
Although
the
counts
of
the
indictment
challenged
here
specified a period of time during which Petitioner allegedly
committed the crimes, rather than specific dates, the indictment
clearly
met
the
constitutional
standards
of
due
process,
“especially where, as here, the complaining victim was a child.”
Edwards v. Mazzuca, 00 Civ 2290, 2007 WL 2994449, at *5 (S.D.N.Y.
Oct. 15, 2007) (denying § 2254 relief and holding that indictment
specifying a seven-month period during which petitioner committed
several crimes in a single day was constitutionally sufficient);
Rodriguez v. Hynes, No. 94-CV-2010, 1995 WL 116290, at *4 (E.D.N.Y.
-19-
Feb. 27, 1995) (denying § 2254 relief; “[c]onsidering the fact that
young victims often do not remember the exact date of when an
alleged offense occurred, the time spans [nearly three months] in
the
indictment
[charging
sexual
abuse
of
a
minor]
are
not
unreasonable.”) (citation omitted). Notably, the challenged timespan in Petitioner’s indictment is considerably shorter than the
periods alleged in other cases where habeas relief was denied based
on lack of specificity in the indictment. See, e.g., Rodriguez v.
Hynes, 1995 WL 116290, at *4 (seven months), and Edwards v.
Mazzucca, 2007 WL 2994449, at *5 (three months).
The indictment here clearly met the applicable constitutional
standard by informing Petitioner “in general terms, of the time,
place and essential elements of the alleged crime[,]”
Carroll v.
Hoke, 695 F. Supp. at 1438. Most important, Petitioner has come
forward with no evidence showing how the lack of a specific date in
the indictment deprived him of a fair trial or impaired the
preparation of his defense, which did not depend on an alibi. The
state court’s adjudication of the lack-of-specificity claim was a
correct application of settled Supreme Court law.
C.
Improper Consideration of Uncharged Crimes by Sentencing
Court
Petitioner
claims
that
the
sentencing
court
improperly
considered uncharged crimes evidence, namely, depositions from two
men who asserted that Petitioner had molested them as children. The
Appellate Division rejected this claim as unsupported by the
-20-
record, holding that the sentencing court did not refer to other
sex abuse victims and expressly relied upon Petitioner’s lack of
remorse and failure to accept responsibility for his conduct.
Williams, 55 A.D.3d at 1451. This decision was neither contrary to,
nor based upon an unreasonable application of, Supreme Court law.
Unlike at trial, the judge at sentencing need not apply the
usual evidentiary rules and may consider a much wider range of
information. E.g., United States v. Romano, 825 F.2d 725, 728 (2d
Cir. 1987). For example, in rendering a sentence, a judge may
consider hearsay, evidence of uncharged crimes, dropped counts of
an indictment, and crimes charged that resulted in acquittal. Id.
However, a defendant does have a due process interest in the
procedures used during sentencing. Gardner v. Florida, 430 U.S.
349, 358 (1977) (citations omitted); see also Romano, 825 F.2d at
728.
Because “[d]ue process requires that the defendant not be
sentenced on the basis of materially false information,” United
States v. Alexander,
860 F.2d 508, 511 (2d Cir. ) (citing Townsend
v. Burke, 334 U.S. 736, 741 (1948)), the defendant is “entitled to
an effective opportunity to respond to the sentencing position
advanced by the government[.]” Alexander, 860 F.2d at 512 (citing
Romano, 825 F.2d at 728. Thus, in order to establish a due process
violation at sentencing, a defendant must demonstrate that the
sentencing court relied on materially false information that he had
-21-
no opportunity to correct. Dewall v. Superintendent, Mohawk Corr.
Fac., 05 Civ 5583, 2008 WL 3887603, at *13 (E.D.N.Y. Aug. 20, 2008)
(citing
Townsend
v.
Burke,
334
U.S.
at
440-41
(“[W]hile
disadvantaged by lack of counsel, this prisoner was sentenced on
the basis of assumptions concerning his criminal record which were
materially untrue. Such a result, whether caused by carelessness or
design, is inconsistent with due process of law, and such a
conviction cannot stand.”)).
This Court notes that Petitioner has not established that the
information provided by the two other alleged victims was untrue or
inaccurate.5 In any event, the state court did not refer to these
uncharged crimes when it imposed sentence. Nor did the state court
give any indication that it considered or relied upon this evidence
in formulating the sentence. Indeed, the depositions from the two
prior victims were not entered into the record. S.8-9. See Wicks v.
Miller, 05 Civ 5341, 2009 WL 4279442, at *6 (S.D.N.Y. Dec. 1, 2009)
(“[T]here is no evidence that the sentencing court relied on
anything
other
than
an
accurate
account
of
the
petitioner’s
criminal history, thereby avoiding a Townsend problem.”).
5
One previous victim had been referenced by Petitioner in his signed
confession. This individual stated that when he was a boy, Petitioner befriended
him at church and brought him home, where they slept in the same bed together;
on at least one occasion, this individual awoke to find Petitioner rubbing his
genitals. S.4. Another man provided a deposition, which had been disclosed during
discovery, stating that he was sexually abused by Petitioner for more than a year
beginning at age thirteen when he was a boy scout and Petitioner was a troop
leader. S.5. The prosecutor argued that Petitioner thus was a “classic pedophile”
who posed an “extreme danger” to other boys for the rest of his life. S.5-6.
-22-
The state court instead noted that Petitioner had failed to
express
any
remorse,
and
that
his
confession
to
the
police
evidenced a blame-the-victim mentality rather the assumption of
responsibility
for
his
crimes.
These
were
appropriate
considerations for the sentencing court under both state and
federal law. See, e.g., People v. De Fabritis, 296 A.D.2d 664, 664
(3d Dept. 2002); United States v. Volpe, 224 F.3d 72, 75-76 (2d
Cir.
2000).
Petitioner’s
sentencing
clearly
was
conducted
in
accordance with due process and was not afflicted by error, much
less any error of constitutional magnitude.
D.
Ineffective Assistance of Trial Counsel
Petitioner claims that he received ineffective assistance of
counsel at sentencing. The Appellate Division rejected this claim,
holding
that
the
sentencing–albeit
attorney
for
the
who
represented
first
Petitioner
time–provided
at
effective
representation by arguing for leniency based upon several specific
factors favorable to Petitioner. Williams, 55 A.D.3d at 1451. This
decision was neither contrary to, nor based on an unreasonable
application of, Supreme Court law. 28 U.S.C. § 2254(d)(1).
In order to establish ineffective assistance of trial counsel,
a petitioner must show both that his attorney provided deficient
representation
and
that
he
suffered
prejudice
as
a
result.
Strickland v. Washington, 466 U.S. 668, 686-88 (1984). Deficient
performance requires showing that “counsel’s representation fell
-23-
below an objective standard of reasonableness,” and that counsel’s
conduct
had
“so
undermined
the
proper
functioning
of
the
adversarial process” that the process “cannot be relied on as
having produced a just result.” Id. at 686, 688.
Prejudice requires a showing that there was a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694.
“A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. Although the Strickland standard is
two-pronged, a reviewing court need not address both “deficient
performance” and “prejudice” where the petitioner cannot meet one
of the two elements. See 466 U.S. at 697 (noting that where the
court can “dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice,” which will often be the case, the
court should do so).
Strickland’s standard on direct appeal is already “highly
deferential,” 466 U.S. at 689, but in the context of a federal
habeas proceeding under AEDPA, the habeas court must apply a
“doubly deferential judicial review” to a state court’s decision on
ineffectiveness claims. Knowles v. Mirzayance, __ U.S. __, 129 S.
Ct.
1411,
1420
(2009).
Where,
as
here,
the
state
court
has
adjudicated the merits of the petitioner’s claim, and 28 U.S.C. §
2254(d)(1) applies, “the question is not whether counsel’s actions
were reasonable”, but instead “is whether there is any reasonable
-24-
argument that counsel satisfied Strickland’s deferential standard.”
Harrington v. Richter, __ U.S. __,
131 S. Ct. 770, 788 (2011).
Petitioner claims that counsel’s presentation at sentencing
was
“perfunctory,”
“devoid
of
thought,
consideration
or
preparation,” and so poorly delivered that it was “essentially
unintelligible at points.” Habeas Petition, Supplement at 8A;
Memorandum at 34-36 (Dkt. #1). Petitioner also complains that
counsel never met with him before sentencing. Id. The Court has
reviewed
the
characterization
record
of
and
disagrees
counsel’s
delivery.
with
Petitioner’s
Counsel’s
argument,
although brief, clearly urged “leniency based upon various factors
favoring [Petitioner],” 55 A.D.3d at 1451, including Petitioner’s
age, poor health, lack of a criminal record, professional history,
and military record. S.7. Counsel also asked the trial court not to
consider the depositions of the two previous victims, describing
them as unsubstantiated hearsay and an inappropriate basis for
sentencing. Id.
Notably, Petitioner has not pointed to any information that
counsel should have put before the sentencing court on his behalf,
but instead merely states that he “deserved better.” Petitioner’s
Memorandum of Law (“Pet’r Mem.”) at 36 (Dkt. #1). A generalized
complaint such as this plainly does not suffice to demonstrate that
counsel’s performance was so deficient that it was objectively
unreasonable in light of prevailing professional norms. Moreover,
-25-
because this claim is not supported with specifics, Petitioner
cannot show, and has not shown, how the outcome of his sentencing
proceeding would have been different but for counsel’s alleged
errors. See Strickland, 466 U.S. at 699 (rejecting an ineffective
assistance
argument
where
defense
counsel
failed
to
present
mitigating character evidence when “the evidence that respondent
says his trial counsel should have offered at the sentencing
hearing would barely have altered the sentencing profile presented
to the sentencing judge”). Because Petitioner cannot fulfill either
the “performance” or the “prejudice” elements of Strickland under
a de novo standard of review, he necessarily cannot demonstrate
that
the
Appellate
Division’s
ruling
was
an
“unreasonable
application of” or “contrary to” Strickland for purposes of AEDPA.
E.
Ineffective Assistance of Appellate Counsel
Petitioner contends that his appellate counsel was ineffective
within in the meaning of Strickland, the test used with respect to
claims of ineffective appellate counsel, e.g., Claudio v. Scully,
982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 508 U.S. 912
(1993).
According to Petitioner, appellate counsel unreasonably
omitted an argument that trial counsel was ineffective for failing
to contest the discovery violation under the rule of People v.
Rosario, 9 N.Y.2d at 289, in regards to the missing handwritten
statement of Z.O. In addition, Petitioner contends, appellate
-26-
counsel was ineffective in failing to argue a Fourth Amendment
issue on appeal.
1.
Failure to Argue that Trial Counsel Was Ineffective
in Failing to Request a Sanction for a Rosario
Violation
Under the Rosario rule, the prosecutor is required to make
available
to
the
defendant
prior
to
trial
“[a]ny
written
or
recorded statement. . . made by a person whom the prosecutor
intends to call as a witness at trial, and which relates to the
subject matter of the witness’s testimony.” N.Y. CRIM . PROC . LAW §
240.45(1)(a). The prosecutor is not entitled to withhold material
on the ground that it would have been of little or no use to the
defense
or
that
a
witness’s
prior
statements
were
entirely
consistent with his testimony at trial. People v. Consolazio, 40
N.Y.2d 446, 454 (1976).
At trial, Z.O. testified during cross-examination that on July
28, 2004, in the presence of two police officers and his brother,
he had hand-written and signed a statement in which he disclosed,
for the first time, that Petitioner had touched him in a sexual
manner.
T.108-10.
During
the
ensuing
bench
conference,
the
prosecutor stated that he did not possess “any other statements” or
any “handwritten statements from” Z.O. T.111. Petitioner’s counsel
responded that he could “ask another question . . . to try and
clarify,” and the trial court permitted counsel to do so. T.111.
-27-
Upon further questioning, Z.O. repeated that he had written
the statement out by hand and had signed it at the police station.
T.112. Trial counsel did not ask Z.O. any further questions about
the content of the statement, or move to examine any of the
officers who were present when Z.O. allegedly wrote it. Nor did
trial counsel ask the trial court to impose any sanctions or give
any jury instructions to address the prosecution’s failure to
preserve and disclose the statement. The trial court did not take
any such remedial action sua sponte.
In
his
coram
nobis
application,
Petitioner
argued
that
appellate counsel was ineffective for failing to argue that trial
counsel was ineffective for not seeking a remedy for the Rosario
violation. Concluding that the omitted argument pertaining to the
Rosario
violation
concluded
that
“may
have
appellate
merit”,
counsel
had
the
Appellate
been
Division
ineffective
and
accordingly ordered a new appeal. People v. Williams, 68 A.D.3d at
1824 (citing People v. LeFrois, 151 A.D.2d 1046, 1046 (4th Dept.
1989)). On reargument, however, the Appellate Division reversed
itself, holding,
Defendant has failed to establish that the representation
provided by appellate counsel was constitutionally
deficient. Defendant has not demonstrated that appellate
counsel overlooked a clear-cut dispositive issue or the
absence of any strategic or other legitimate explanation
for the decision of appellate counsel not to raise the
issues raised by defendant in his motion papers[.]
-28-
People v. Williams, 71 A.D.3d at 1457 (citing People v. Borrell, 12
N.Y.3d 365 (2009) (holding that appellate counsel’s failure to
raise a particular sentencing issue did not deprive defendant of
his constitutional right to effective appellate representation,
where the argument not made by counsel was not so clear-cut that it
should have been apparent to any reasonable appellate counsel and
where defendant failed to demonstrate the absence of any strategic
or other legitimate explanations not to brief it)).
As an initial matter, the Court finds that the Appellate
Division applied the incorrect standard in its order granting coram
nobis relief. The case which it cited, People v. LeFrois, 151
A.D.2d 1046, in turn relied upon People v. Vasquez, 70 N.Y.2d 1
(1987). Vasquez, however, involved a situation where appellate
counsel had erroneously filed an “Anders brief,”6 even though the
defendant’s appeal was not frivolous. Appellate counsel had in fact
filed a brief stating that “one of the issues advanced by defendant
had substantial merit”, and therefore “counsel was duty bound to
advance it and to serve as an ‘active advocate in behalf of his
client’”. Vasquez, 70 N.Y.2d at 4 (quoting Anders v. California,
386 U.S. at 744). People v. LeFrois, like Williams’s case, did not
involve an Anders-type of situation, and it appears that Vasquez
was incorrectly cited in LeFrois. In this Court’s opinion, Vasquez
6
The rule in Anders v. California, 386 U.S. 738, 744 (1967), permits
appellate counsel to withdraw from representing a defendant if his appeal is
“wholly frivolous.”
-29-
is
inapposite
and
does
not
state
the
correct
standard
for
evaluating general claims of ineffective assistance of appellate
counsel.
After the prosecution’s motion for reargument, the Appellate
Division
subsequently
discusses
the
relied
correct
New
upon
York
People
Borrell,
standard
state
v.
for
which
judging
ineffective assistance of appellate counsel. See Borrell, 12 N.Y.3d
at 368 (“The essential inquiry in assessing the constitutional
adequacy of appellate representation is, then, not whether a better
result might have been achieved, but whether, viewed objectively,
counsel’s
competent
actions
are
appellate
consistent
attorney.
with
To
those
a
reasonably
meaningful,
be
of
appellate
representation need not be perfect, and representation may be
meaningful even where appellate lawyers have failed to brief
potentially meritorious issues[.]”) (citing People v. Stultz, 2
N.Y.2d
277,
284,
285
(2004)
(holding
that
the
“meaningful
representation” standard, announced in People v. Baldi, 54 N.Y.2d
137,
146–147
(1981),
in
the
context
of
evaluating
the
constitutional adequacy of trial representation, applies as well to
claims of ineffective assistance of appellate counsel)); internal
citation
omitted).
The
New
York
Court
of
Appeals
has
“often
tolerated errors by counsel where the overall representation was
nonetheless capable of characterization as ‘meaningful’[.]” Id.
(citing People v. Flores, 84 N.Y.2d 184, 187 (1994) (holding that
-30-
“[t]he totality of representation examined as of the time of
representation . . . supports [the] elementary conclusion” that the
defendant “was not denied his constitutional right to effective
assistance of counsel” despite counsel’s waiver, out of ignorance
of the law, of a Rosario violation), habeas corpus granted by
Flores v. Demskie, 215 F.3d 293 (2d Cir.) (trial counsel’s waiver
of Rosario claim was objectively unreasonable under Strickland, and
waiver prejudiced petitioner), cert. denied, 531 U.S. 1029 (2000)).
Several members of the Second Circuit “have cautioned that
there may be applications of the New York standard that could be in
tension with the prejudice standard in Strickland.” Rosario v.
Ercole, 601 F.3d 118, 124 (2d Cir. 2010) (citing Henry v. Poole,
409 F.3d 48, 70-71 (2d Cir. 2005) (questioning whether Baldi is
contrary to Strickland given the definition of “contrary to”
provided
in
Williams
v.
Taylor,
529
U.S.
at
405-06
(2000)).
However, a divided Second Circuit panel recently reiterated that
People v. Baldi, 54 N.Y.2d at 146, is not “contrary to,” 28 U.S.C.
§ 2254(d)(1), the principles set forth in Strickland, which has
been deemed to be the “clearly established” Supreme Court law for
evaluating claims of ineffective assistance of trial counsel.
Rosario, 601 F.3d at 126 (citing Eze v. Senkowski, 321 F.3d 110,
123-24 (2d Cir. 2003)).
Petitioner’s suggestion in passing that Baldi violates the
Supremacy Clause by affording defendants a “lesser degree of
-31-
protection of the right to effective assistance of appellate
counsel” is without merit given the Second Circuit’s pronouncements
in this area. See Henry, 409 F.3d at 70 (noting that in the absence
of a contrary decision by it sitting en banc, or an intervening
Supreme Court decision, it was bound to follow its prior precedents
that the New York Court of Appeals standard is not “contrary to”
Strickland). Thus, the only question before this Court is whether
the state courts’ application of Baldi in Petitioner’s case was an
“unreasonable application” of Strickland. See Rosario, 601 F.3d at
124-26.
In the appellate context, fulfilling the first prong of
Strickland requires the petitioner to demonstrate that his attorney
“omitted significant and obvious issues while pursuing issues that
were clearly and significantly weaker” on appeal. Clark v. Stinson,
214 F.3d 315, 322 (2d Cir. 2000). To satisfy the second prong of
Strickland,
the
petitioner
must
show
that
but
for
appellate
counsel’s deficient performance, there is a reasonable probability
that his appeal would have been successful before the state’s
highest court. Id. “The federal constitutional right to effective
assistance of counsel may be violated by an attorney’s failure to
raise a meritorious state law claim or defense.” Claudio v. Scully,
982 F.2d at 803-05 & n. 5. That suggests that this Court should
determine whether an appeal on grounds of ineffective trial counsel
would have succeeded before the New York Court of Appeals under
-32-
that New York state’s standards. Larrea v. Bennett, No. 01 CIV.
5813(SAS)(AJP), 2002 WL 1173564, at n.30 (S.D.N.Y. May 31, 2002)
citing Claudio, 982 F.2d at 803-05 & n.5; other citation omitted),
rep. & rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002),
aff’d, 368 F.3d 179 (2d Cir. 2004). Nevertheless, in adjudicating
a claim of ineffective state appellate counsel predicated on
ineffective trial counsel, the Second Circuit has applied the
Strickland standard to both trial counsel’s and appellate counsel’s
performance. Id. (citing Aparicio v. Artuz, 269 F.3d 78, 95, 99-100
(2d Cir. 2001); other citations omitted).
Assuming for the sake of argument that Strickland is more
stringent than Baldi’s “meaningful representation” requirement, as
Petitioner
urges,
the
Court
will
analyze
trial
counsel’s
performance under the federal standard in order to determine
whether appellate counsel was ineffective in failing to raise an
issue based upon trial counsel’s representation. The Court turns
first
to
the
prejudice
prong
of
Strickland
vis-à-vis
trial
counsel’s failure to request a sanction, which requires determining
the extent of the discovery violation. There are three categories
of Rosario errors:
The first includes cases involving delay in the
disclosure of Rosario material. Reversal is required in
such cases if the defense is substantially prejudiced by
the delay. The second includes cases in which the People
fail completely to provide the material to the defendant
even though they continue to possess it. Such failures
constitute per se reversible error requiring a new trial
preceded by disclosure of the material. Finally, there
-33-
are cases where Rosario evidence
destroyed and cannot be produced[.]
has
been
lost
or
People v. Martinez, 71 N.Y.2d at 940 (citations omitted).
Here, the non-disclosed material falls into the category of
statements that are lost or missing and cannot be produced. See id.
The New York Court of Appeals stated in Martinez that where Rosario
documents are lost or destroyed, “[i]f the People fail to exercise
care to preserve it and defendant is prejudiced by their mistake,
the court must impose an appropriate sanction.” 71 N.Y.2d at 937.
“When
evidence
is
lost,
the
trial
court
should
consider
the
circumstances surrounding the loss to determine an appropriate
remedy or whether any corrective action need be taken at all[.]”
People v. Valentine, 160 A.D.2d 325, 326 (1st Dept. 1990) (citing
People
v.
Kelly,
62
N.Y.2d
516,
520
(1984)).
Factors
to
be
considered by the trial judge dealing with a Rosario violation
“include the degree of negligence or bad faith on the part of law
enforcement personnel, the importance of the lost evidence, and the
sufficiency of other evidence adduced at trial[.]” Id. (citation
omitted).
Petitioner correctly does not argue that he would have been
entitled to a new trial or dismissal of the indictment under the
circumstances present here. See, e.g., People v. Haupt, 71 N.Y.2d
929, 930-31 (1988). He asserts, however, that he “was entitled to
an appropriate an effective [sic] remedy–whether it be striking
Z.O.’s testimony or an adverse inference instruction . . . .”
-34-
Petitioner’s Reply Memorandum of Law (“Pet’r Reply”) at 18. Based
upon Martinez, the Court concludes that there is no reasonable
possibility that the trial court would have granted a motion
seeking to preclude or strike Z.O.’s testimony. In Martinez, the
investigating officer’s contemporaneous notes were unable to be
produced at trial, and the trial court elected not to preclude the
officer’s testimony but instead to deliver an adverse inference
charge.7 The New York Court of Appeals held that the “relief was
appropriate”, given the prosecution “apparently [was] unaware of
the Rosario material until trial, if indeed there was any, and the
possibility that defendant was prejudiced by its destruction was
remote[,]” 71 N.Y.2d at 940, and was “overcome by the adverse
inference instruction[,]” id. As in Martinez, the prosecutor in
Petitioner’s
case
apparently
was
unaware
of
the
handwritten
statement allegedly written by Z.O. until Z.O. began testifying at
trial.
Thus,
the
facts
of
Petitioner’s
case
would
not
have
warranted the drastic remedy of precluding Z.O.’s testimony. See
People v. Thomas, 300 A.D.2d 2, 3 (1st Dept. 2002) (“The court
properly
exercised
its
discretion
when
it
denied
defendant’s
request to preclude the testimony of a police officer, and instead
7
A typical permissive adverse inference charge in this type of situation
would be to instruct the jury, after the witness’s testimony and during the final
charge, that the jury could draw an adverse inference against the prosecution for
their failure to produce the prior written statement, and that the jury could
infer that the statement would not support and might even contradict the
testimony of the witness. E.g., People v. Davis, 18 A.D.3d 1016, 1018-19 (3d
Dept. 2005).
-35-
gave
an
adverse
inference
instruction
as
a
sanction
for
inadvertently destroyed Rosario material.”).
The Court assumes for purposes of Petitioner’s claim that Z.O.
did
hand-write
a
statement,8
but
even
so,
Petitioner
must
demonstrate that he was prejudiced by its nondisclosure. See People
v. Wallace, 76 N.Y.2d 953, 955 (1990) (“Although the trial court
had discretion to determine the specific sanction to be imposed
[for a Rosario violation] it was an abuse of discretion to decline
to impose any sanction where, as here, defendant was prejudiced [by
destruction of officers’ written description of perpetrator].”)
(internal citation omitted). The notes arguably would have been
helpful in trial counsel’s formulation of his cross-examination of
the witness but, of course, it is impossible to know for certain
whether he would have obtained any strategic gains by using the
handwritten statement since it is unknown whether the statement was
consistent or inconsistent with the witness’s testimony and typed
statement.
Assuming arguendo that trial counsel should have requested an
adverse inference charge and that the trial court would have issued
8
With regard to the issuance of an adverse inference charge, the Court notes
that such an instruction is not automatically required. For instance, where “the
record does not demonstrate a ‘factual basis that the [material] in question
actually existed and also incorporated statements made by a witness concerning
the subject matter of the incident[,]’” People v. Young, 877 N.Y.S.2d 179, 180
(2d Dept. 2009) (quoting People v. Pines, 298 A.D.2d 179, 180 (1 st Dept. 2002);
other citations omitted)), the trial court may “properly decline[ ] to draw an
adverse inference based on the People’s alleged failure to disclose alleged
Rosario material[,]” Young, 877 N.Y.S.2d at 180 (citation omitted).
-36-
one, Petitioner nevertheless cannot fulfill Strickland because he
cannot demonstrate prejudice resulting from counsel’s omission. In
other words, he cannot show that there is a reasonable probability
that, but for the issuance of a permissive adverse inference
charge, the outcome of the trial would have been more favorable to
him, in view of the compelling evidence of Petitioner’s guilt.
Petitioner, in his knowing, voluntary, and uncoerced signed
confession to the police, admitted that he sexually abused the
victim in a manner consistent with the victim’s testimony. As noted
above, the eleven-year-old victim testified that Petitioner had
slept and showered naked with him, and repeatedly touched the boy’s
genitals
with
his
hand
and
mouth.
See
T.80-87,
89-92,
120.
Petitioner’s assertion that he had no recollection of dictating,
reading, or signing the statement because he purportedly was
drifting into a diabetic state during his interrogation, see
T.287-88, 292-96, was refuted by witnesses who testified that
Petitioner displayed no physical or cognitive difficulties or other
signs of insulin shock while at the police station. T.200-02,
250-53. Petitioner’s testimony that he could not recall any of the
confession, despite having memorialized it with his signature and
initials on the statement form, was patently incredible. Given this
evidentiary backdrop, there is no reasonable probability that the
jury would have rendered a more favorable verdict had an adverse
inference charge been given by the trial court. See Green v. Artuz,
-37-
990 F. Supp. 267, 274 (S.D.N.Y. 1998) (“Given the reasonable
explanation for the loss of notes and the fact that they had been
used in the writing of the buy report, petitioner in my view has
failed to show prejudice from counsel’s actions. It is highly
unlikely that the verdict would have been impacted had an adverse
inference charge been given by the court.”).
It follows, then, that appellate counsel was not unreasonable
in declining to argue that trial counsel was ineffective, as such
a claim was not significantly stronger than the issues raised by
appellate
counsel.
A
petitioner
must
do
more
than
simply
demonstrate that counsel omitted a non-frivolous argument, because
appellate
counsel
is
not
required
to
raise
all
potentially
colorable arguments. Jones v. Barnes, 463 U.S. 745, 754 (1983)).
Moreover,
Petitioner
cannot
show
that
he
was
prejudiced
by
appellate counsel’s omission. Even if appellate had argued the
ineffectiveness of trial counsel based upon failure to request a
Rosario sanction, this would not have affected the outcome of the
appeal, as the argument had no “reasonable probability of success,”
Claudio v. Scully, 982 F.2d at 803, in the New York Court of
Appeals. See Longo v. Greiner, No. 00-2142, 23 Fed. Appx. 86,
86-87, 2002 WL 24051, at *1 (2d Cir. Jan. 8, 2002) (unpublished
opn.) (holding that appellate counsel was not ineffective for
failing to argue that trial counsel unreasonably failed to object
to Rosario violation because “[e]ven if prejudice could have been
-38-
proven, and some sanction warranted, the issue was of so little
importance,
especially
given
that
other
witnesses
gave
substantially similar testimony, it is almost inconceivable that
the appellate court would have ordered retrial because of trial
counsel’s failure to object”).
Finally, as Respondent argues, the cases relied upon by
Petitioner in his reply memorandum of law, Flores v. Demskie, 215
F.3d 293 (2d Cir.), cert. denied, 531 U.S. 1029 (2000); Mayo v.
Henderson, 13 F.3d 528 (2d Cir.), cert. denied, 513 U.S. 820, 115
(1994), are inapposite. Although Mayo and Flores involved the
failure of appellate counsel to brief Rosario violations, those
cases did not involve lost or missing witness statements but rather
dealt with undisclosed police officers’ memo books that were in the
prosecutor’s possession and later produced. Thus, the Rosario
violations in Mayo and Flores were per se reversible error. See
People v. Martinez, 71 N.Y.2d at 940. Here, in contrast, trial
counsel’s failure to request a Rosario sanction did not cost
Williams the opportunity for a new trial because Z.O.’s statement
was unavailable. See Martinez, 71 N.Y.2d at 940. Ordering a new
trial as sanction would have been pointless, since the statement
still would not be available for use by Petitioner’s trial counsel
at a new trial. See Jeremiah v. Artuz, 181 F. Supp.2d 194, 200-01
(E.D.N.Y. 2002) (“Unlike . . .
cases[ ] where the remedy under
state law for lack of timely disclosure is a new trial without a
-39-
requirement of a showing of prejudice, here the police officer’s
notes had been destroyed and therefore were unavailable. A new
trial would be pointless, since the destroyed notes still would not
be available for use by counsel. In that situation, the per se
error rule does not apply.”) (citing People v. Haupt, 71 N.Y.2d
929, 930 (1988) (holding that “the defendant is not entitled to
dismissal
of
the
indictment
simply
because
the
People’s
inadvertence deprived him of statements made by witnesses who
testified at trial”)).
Appellate counsel did not act unreasonably in choosing not to
pursue this claim, which had little to no chance of success on
appeal. See Aparicio v. Artuz, 269 F.3d at 99 (“The failure to
include a meritless argument does not fall outside the ‘wide range
of professionally competent assistance’ to which Petitioner was
entitled.”) (quoting Jameson v. Coughlin, 22 F.3d 427, 429-30 (2d
Cir. 1994) (quotation and footnote omitted)). Moreover, the Court
cannot find that Petitioner’s appeal was prejudiced, since there is
no reasonable probability that had appellate counsel included this
non-meritorious issue, the result would have been the reversal of
his conviction. This claim therefore does not warrant habeas relief
under any standard of review.
2.
Failure to Argue that the Police Did Not Have
Consent to Enter
Petitioner
also
contends
that
appellate
counsel
was
ineffective in failing to argue that the police unlawfully entered
-40-
Petitioner’s home and trailer without valid consent. Relying upon
a survey of California, Montana, Georgia, Florida, and Indiana to
argue New York lacks a clear test as to whether the police may rely
on the consent of a teenager to enter a residence when the adult
residents are not at home. See Pet’r Reply at 23-25.
Respondent argues that New York law is clear that the police
may lawfully conduct a warrantless search of premises when they
have obtained the voluntary consent of a party with the requisite
degree of authority and control over it, which may be given by a
guest. People v. Lewis, 277 A.D.2d 1010, 1010-11 (4th Dept. 2000)
(“[T]he police entered defendant’s residence with the voluntary
consent of a guest who had been living there for approximately one
week, and thus possessed the requisite degree of authority and
control over the premises to consent to the entry[.]”) (citing,
inter alia, People v. Cosme, 48 N.Y.2d 286, 292 (1979)). The police
may rely in good faith on the “apparent capability of an individual
to consent” under circumstances reasonably indicating that this
person had authority to do so. People v. Adams, 53 N.Y.2d 1, 9
(1981).
Petitioner
has
not
established
that
these
standards
are
vitiated by the fact that the person giving consent is not an
adult. In People v. Hardgers, 222 A.D.2d 1038 (4th Dept. 1995), the
police properly relied in good faith on the “apparent capability”
of the defendant’s sixteen-year-old sister to consent to a search.
-41-
Petitioner attempts to distinguish Hardgers by arguing that the
Appellate Division in did not discuss a standard for determining
the apparent authority of minors to consent to a search, or cite to
other cases in which minors possessed this authority, and that the
case concerned a domestic dispute and gun possession instead of
sexual abuse. The Court finds these arguments unpersuasive.
The reasonableness of counsel’s assistance is reviewed in
light of both the facts and law that existed at the time of the
appeal;
here,
the
law
was
at
best
unsettled,
and
at
worst,
unsupportive of Petitioner’s position. Although the issue was
raised by trial counsel at the suppression hearing, there is no
requirement that appellate counsel press every non-frivolous or
colorable claim on appeal.
Petitioner’s
resort
to
a
multi-state
survey
of
other
jurisdictions’ case law severely undermines his claim of appellate
counsel’s ineffectiveness. Cf. Brown v. Greene, 577 F.3d 107, 110
(2d Cir. 2009) (“[C]ounsel cannot be deemed incompetent for failing
to
predict’
that
a
higher
court
would
overrule
its
earlier
precedent.”) (quoting Jameson v. Coughlin, 22 F.3d 427, 429-30 (2d
Cir. 1994)). Given that Petitioner is forced to look outside of New
York law to find support for his claim, he is hard-pressed to argue
that the omitted claim had any significant likelihood of success on
appeal. Because Petitioner is unable to demonstrate objectively
unreasonable
performance
by
appellate
-42-
counsel
or
prejudice
resulting
from
counsel’s
alleged
errors,
he
cannot
meet
Strickland’s test. A fortiori, he is cannot show that the Appellate
Division’s dismissal of his coram nobis application amounted to an
unreasonable application of Strickland.
VI.
Conclusion
For the reasons discussed above, the petition (Dkt. #1) is
dismissed with prejudice. Because Petitioner has failed to make a
substantial showing of a denial of a constitutional right, the
Court declines to issue a certificate of appealability. See 28
U.S.C. § 2253(c)(2).
SO ORDERED.
S/Michael A. Telesca
_________________________
______
____
MICHAEL A. TELESCA
United States District Judge
DATED:
February 21, 2012
Rochester, New York
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