Hall v. Bezio
Filing
16
DECISION AND ORDER denying petition for writ of habeas corpus and dismissing the petition. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/26/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
RANDY J. HALL,
DECISION AND ORDER
No. 11-CV-0085(MAT)
Petitioner,
-vsNORMAN BEZIO, SUPERINTENDENT,
GREAT MEADOW CORRECTIONAL FACILITY
Respondent.
________________________________
I.
Introduction
Pro se Petitioner Randy J. Hall (“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 August 17, 2005, in New York State, County Court,
Steuben County, convicting him, after a jury trial, of Attempted
Murder
in
the
Second
Degree
(N.Y.
Penal
Law
(“Penal
Law”)
§§ 110.00, 125.25(1)), Assault in the Second Degree (Penal Law
§
120.05(2)),
Burglary
in
the
Second
Degree
(Penal
Law
§ 140.25(2)), Criminal Possession of a Weapon in the Second Degree
(Penal Law § 265.03(2)), Criminal Mischief in the Fourth Degree
(Penal Law § 140.00(1)), Petit Larceny (Penal Law § 155.25), and
Tampering with Physical Evidence (Penal Law § 215.40(2)).
II.
Factual Background and Procedural History
Petitioner, along with co-defendant Jose Gomez (“Gomez”), was
indicted by a Steuben County Grand Jury and charged with Attempted
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Murder in the Second Degree (Penal Law §§ 110.00, 125.25(1)), three
counts of Assault in the Second Degree (Penal Law § 120.05(2)),
Burglary in the Second Degree (Penal Law § 140.52(2)), Criminal
Possession of a Weapon in Third Degree (Penal Law § 265.02(1)),
Criminal Mischief in the Fourth Degree (Penal Law § 140.00(1)),
Petit Larceny (Penal Law § 155.25), and Tampering with Physical
Evidence (Penal Law § 215.40(2)).
Petitioner was also charged
individually with one count of Criminal Possession of a Weapon in
the Second Degree (Penal Law § 265.03(2)).1
The charges arose from
a shooting and a stabbing incident that occurred in the City of
Corning, New York on September 23-24, 2004.
See Ind. No. 2004-316
at Resp’t Ex. A.
Prior
to
trial,
Petitioner’s
counsel
moved
to
suppress
statements Petitioner made to police following the crimes.
After
conducting a suppression hearing at which Officer Allan Salyerds
and Investigator Wilford Peters of the Corning Police Department
(“CPD”)
and
Petitioner
testified,
the
trial
court
denied
Petitioner’s motion in a written decision dated March 25, 2005.
See Decision and Order of the Steuben county court (Hon. Latham),
dated 03/25/05 (hereinafter “the Suppression Decision”) at Resp’t
Ex. A.
1
The trial court subsequently dismissed this count, and it was never
submitted to the jury. T.T. 1308, 1675.
-2-
On June 20, 2005, Petitioner and Gomez proceeded to a joint
trial in the Steuben county court before the Hon. Joseph W. Latham
and a jury.
A.
The Trial
1.
The People’s Case
In the summer of 2004, Manley Morrow (“Morrow”) was selling
cocaine out of the home where he was staying.
Gomez was Morrow’s
cocaine supplier. Trial Trans. [T.T.] 654-655, 1060-1061. In June
or
July
of
2004,
Joe
Comfort
(“Comfort”)
and
P.K.
Rossman
(“Rossman”) went to the home where Morrow was staying to buy drugs.
Morrow gave Comfort $200 worth of cocaine, and Comfort told Morrow
that his money was outside in his car.
Morrow accompanied Comfort
outside, and Comfort quickly entered his car and drove away without
paying for the drugs. T.T. 658-659, 672-673, 1066-1067. Following
this incident, Gomez and Morrow discussed what had happened and
agreed that Comfort “needed to be taken care of.”
T.T. 660-661,
1067.
On September 23, 2004, Eric Gridley (“Gridley”), who had been
living with Morrow that summer and who had witnessed Comfort’s drug
theft, saw Comfort at a party held at Schreiber’s home in honor of
his girlfriend Yvette Vann’s (“Vann”) birthday and her friend
Kristy Neally’s (“Neally”) birthday.
T.T. 661-663, 670-671.
At
some point, Comfort, Schreiber, and Rumsey left the party. Gridley
subsequently left the party, and told Morrow that he had seen
-3-
Comfort.
Gridley and Morrow then went to a dance club to find
Gomez. T.T. 665-666.
Gridley told Gomez that he had seen Comfort,
and Gomez, who was with Petitioner, ordered Gridley to show him
where he had seen Comfort.
to Schreiber’s house.
Gridley escorted Gomez and Petitioner
T.T. 667-668, 675-676.
By the time Petitioner and Gomez arrived at Schreiber’s house,
the only people home were Neally and Vann’s young son.
889-890.
When
Petitioner
and
Gomez
asked
for
T.T. 887,
Schreiber and
Comfort, Neally invited Gomez and Petitioner inside to await their
return.
T.T. 890-891.
returned to the house.
Vann and her friend, Michelle, then
About thirty minutes after Petitioner and
Gomez arrived, Schreiber, Comfort, and Rumsey returned to the
house. Schreiber saw Petitioner in the bedroom, preparing lines of
cocaine, and asked who he was.
At that time, Gomez, who had been
in the bathroom, entered the bedroom.
T.T. 723-724, 896.
Gomez approached, Schreiber asked him who he was.
When
Gomez asked
Schreiber if he was Comfort, to which Schreiber responded in the
negative.
Moments later, Gomez punched Schreiber in the head, and
a fight ensued.
Gomez, who was armed with a knife, stabbed
Schreiber under his left arm, in his left hip, and in his buttocks.
T.T. 727-728, 731-732, 992-993.
At some point during the fight,
Gomez also stabbed Rumsey in his leg.
bathroom to treat his wound.
Rumsey retreated into the
T.T. 940-941.
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Meanwhile, Comfort, who had seen Gomez attack Schreiber,
grabbed a lamp in an effort to join the fight.
Before Comfort
could intervene, Petitioner, who had a gun, shot Comfort in the
shoulder.
T.T. 729-730, 993-994.
Comfort tried to grab the gun
from Petitioner’s hand, but Petitioner shot off Comfort’s finger.
As Petitioner continued shooting the gun, Comfort kicked a door
into
Petitioner
and
ran
out
of
the
house.
T.T.
994-995.
Petitioner chased Comfort outside to Comfort’s vehicle, still
firing his gun at Comfort.
T.T. 942, 997-998.
Chad Smith
(“Smith”), who lived across the street from Schreiber, heard the
gun shots and saw people come out of Schreiber’s house bleeding.
Smith called the police.
T.T. 687-687.
Petitioner and Gomez fled
the scene.
Petitioner and Gomez went to Carl Humphries’ (“Humphries”)
home nearby.
They broke Humphries’ door panel and entered his
house, waking him.
T.T. 1093-1096, 1104.
knife in the kitchen sink.
T.T. 1097.
Gomez washed the bloody
Petitioner and Gomez then
started to leave the house, but returned and told Humphries that
the police were outside.
T.T. 1098-1099, 1145, 1155.
A short time
later, Humphries looked outside and saw a taxicab.
He informed
Gomez and Petitioner that there was a cab outside, and Gomez and
Petitioner left Humphries’ house and got into the cab.
1100, 1146.
T.T. 1099-
Thereafter, the police stopped the cab, at which time
Petitioner and Gomez opened the back doors and ran out of the cab.
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T.T. 1100, 1114.
Gomez.
The police chased and caught Petitioner and
T.T. 1114-1117, 1146, 1149, 1156.
knife from Gomez’s person.
underneath
a
vehicle
in
T.T. 1157.
the
The police recovered a
A gun was recovered from
area where
Petitioner
had
fled.
T.T. 1119.
Petitioner was taken to the police station, placed in an
interrogation room and handcuffed to a ring on a wall.
Salyerds sat in the room with Petitioner.
T.T. 1184.
Officer
At one
point, Investigator Peters entered the room and asked Petitioner
his name.
an
Petitioner stated, “I don’t have to answer that without
attorney.”
T.T.
1221,
1222.
Investigator
Peters
told
Petitioner that pedigree questions, such as name, address, and date
of birth can be asked in the absence of an attorney.
Peters then left the room.
Investigator
T.T. 1222.
Officer Salyerds was still in the room with Petitioner playing
a computer card game when Petitioner began crying and said that he
stabbed someone at a party.
Officer Salyerds asked Petitioner if
he wanted to make a statement, and Petitioner said that he did.
T.T. 1186.
Officer Salyerds informed Petitioner of his Miranda
rights by reading them from a written form and by providing
Petitioner
the
form
to
initial
and
sign.
T.T.
1186-1187.
Petitioner circled “yes” to each question asking if he understood
his rights.
He also circled “yes” to the question asking if he
wished to speak to a lawyer. Officer Salyerds told Petitioner that
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because of his response to that question, Petitioner could not give
a statement.
statement.
Petitioner then stated that he wanted to give a
Officer Salyerds told him that he would have to cross
out his original response to that question, circle “no”, and
initial the change.
Petitioner did so and signed the statement.
T.T. 1189.
Petitioner
then
told
intoxicated at a party.
Officer
Salyerds
that
he
had
been
He stated further that a fight broke out
and he stabbed someone, after which he ran off, threw the knife
away, and was captured by the police.
statement
was reduced
to writing.
T.T. 1190.
T.T.
1191-1192.
Salyerds gave the statement to Investigator Peters.
Investigator
Peters
subsequently
went
interrogation room to speak with Petitioner.
Petitioner’s
Officer
T.T. 1223.
back
into
the
Investigator Peters
read Petitioner’s statement back to him and asked Petitioner about
the shooting.
T.T. 1223-1224.
Petitioner initially claimed that
he did not know who had been shooting or who was the target of the
shooting.
Petitioner then told police that he had shot the gun
after finding it on the floor.
Petitioner then described how he
removed the safety and placed a round into the chamber of the gun.
T.T. 1224-1225.
Petitioner, however, refused to discuss where he
had actually obtained the gun, where the gun was then located, and
Gomez’s identity. T.T. 1226. Petitioner prepared a second written
statement.
T.T. 1226-1231.
-7-
In his second statement, Petitioner claimed that he had been
drinking at a club with some friends.
Petitioner left the club and
followed his friends to a house where there about four girls.
As
Petitioner was getting ready to leave the house, four men arrived
and “all hell broke loose.”
the
fight,
but
everyone
Petitioner did not know who started
was
swinging
and
throwing
punches.
Petitioner pulled out a knife with a black rubber handle.
After
swinging the knife around, Petitioner fell to the ground and “ended
up with a gun.”
He took off the gun safety, chambered a round, and
fired three or four times.
He was not pointing the gun at anyone
in particular, but rather just shot in the general area of the
fight.
Petitioner ran out of the house and tossed the gun away
before he was stopped by the police an hour later.
Petitioner
stated that he did not know any of the people in the house and had
no “beef” with any of them.
weapon.
According to him, no one else had a
T.T. 1228-1231.
After Gomez was arrested, Humphries saw a photograph of Gomez
and Petitioner in the newspaper.
Humphries noticed that Gomez was
wearing his jacket and shirt, and Petitioner was wearing one of his
jackets.
Humphries testified that he did not give Gomez or
Petitioner permission to take his clothing.
2.
T.T. 1101-1102, 1105.
Petitioner’s Case
The defense presented no witnesses, and Petitioner did not
testify.
-8-
B.
Verdict and Sentence
On June 30, 2005, the jury acquitted Petitioner of two counts
of second-degree assault, but found him guilty of attempted seconddegree murder, one count of second-degree assault, second-degree
weapons possession, second-degree burglary, tampering with physical
evidence,
fourth-degree criminal
mischief,
and
petit
larceny.
T.T. 1774-1775.
On August 17, 2005, Petitioner was adjudicated a second felony
offender and was sentenced to prison terms of 23 years for the
attempted murder count, 7 years for the assault count, 15 years for
the weapons possession count, and 12 years for the burglary count,
plus five years of post release supervision for each of those
counts.
He was also sentenced from 1 ½ to 3 years for the evidence
tampering count and one year each for the criminal mischief and
petit larceny counts.
The sentences were set to run concurrently.
Sentencing Mins. [S.M.] 3-4, 13-15.
C.
Petitioner’s Direct Appeal
Through
counsel,
Petitioner
appealed
his
judgement
of
conviction in the Appellate Division, Fourth Department on the
grounds that: (1) Petitioner was denied his due process rights when
the trial court refused to charge the jury on the justification
defense; (2) the trial court improperly denied Petitioner’s motion
to suppress his statements to the police; (3) the trial court
improperly denied Petitioner’s motion to sever his trial from co-
-9-
defendant Gomez; and (4) the trial court limited Petitioner’s right
to effective representation when it granted the People’s motion to
prohibit
summation.
counsel
from
arguing
See Resp’t Ex. B.
the
justification
defense
in
The Appellate Division, Fourth
Department unanimously affirmed the judgment of conviction on
February 1, 2008.
People v. Hall, 48 A.D.3d 1032 (4th Dep’t 2008)
(Resp’t Ex. D); lv. denied, 11 N.Y.3d 789 (2008) (Resp’t Ex. E).
Petitioner filed a motion seeking to reargue his direct appeal,
which was denied on December 31, 2008.
Hall, 57 A.D.3d 1530
(4th Dep’t 2008) (Resp’t Exs. G, H).
D.
Petitioner’s Motion to Vacate the Judgment
On or about October 27, 2008, Petitioner filed a motion,
pursuant to N.Y. Crim. Proc. Law (“CPL”) § 440.10 on the following
grounds:
(1)
prosecutorial
assistance of trial counsel.
misconduct;
and
See Resp’t Ex. J.
court denied Petitioner’s motion.
(2)
ineffective
The Steuben county
The court found that, with
respect to the issues raised on direct appeal, those claims were
procedurally barred under CPL § 440.10(2)(a). The Court found that
the remaining issues could have been raised on direct appeal, but
unjustifiably were not and were therefore procedurally barred by
CPL § 440.10(2)(c).
See Resp’t Ex. K.
Petitioner moved for
reargument, which was denied on March 13, 2009.
See Resp’t Ex. M.
Leave to appeal the denial of his motion was summarily denied, and
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his application for leave to appeal the denial of his motion for
reargument was dismissed.
See Resp’t Exs. N, O.
E.
The Habeas Corpus Petition
The
instant
habeas
corpus
petition
followed,
wherein
Petitioner seeks relief on the following grounds: (1) his trial
counsel was ineffective because counsel convinced Petitioner not to
testify at trial and failed to advise him about the necessity of
testifying to establish a justification defense; (2) the trial
court improperly denied his motion to suppress his statements to
the police because Petitioner had requested to speak with an
attorney; and (3) the trial court improperly refused to instruct
the jury on the justification defense. See Pet. ¶ 12, Grounds OneThree (Dkt. No. 1); Traverse (Dkt. No. 13).
For the reasons stated below, habeas relief is denied and the
petition is dismissed.
III. Exhaustion Requirement
“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).
-11-
IV.
General Principles Applicable to Habeas Review
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
1.
Trial Court Improperly Denied Motion to Suppress
At ground two of the petition, Petitioner argues, as he did on
direct appeal, that he was denied his right to a fair trial because
the trial court improperly denied his motion to suppress his
statements to the police.
Petitioner argues that he did not make
“conflicting statements” to Officer Salyerds during the interview,
that he requested counsel, and that Officer Salyerds ignored his
request.
See Pet. ¶ 12, Ground Two; Appendix at 5-7.
The
Appellate Division, Fourth Department rejected this claim on the
merits.2
See Hall, 48 A.D.3d at 1033-34.
Because this claim was
2
The Appellate Division, Fourth Department, found, in part, as follows:
“[Petitioner] further contends that the court erred in refusing to suppress the
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adjudicated on the merits, AEDPA applies.
Under that standard,
Petitioner’s claim is meritless.
Prior to trial, the Steuben county court conducted a Huntley
hearing
at
Petitioner
which
Officer
testified
Petitioner’s arrest.
with
Salyerds,
respect
Investigator
to
the
events
Peters,
and
surrounding
See Hearings Mins. of 03/25/05.
Officer
Salyerds testified that he read Petitioner his Miranda rights from
a written form, and after each right, Petitioner circled “yes” to
indicate that he understood each right. H.M. 12. Officer Salyerds
testified that the last item on the form asked Petitioner if he
wished to speak with an attorney and Petitioner circled the answer
“yes.”
Officer Salyerds testified that he then told Petitioner
that, since he had indicated that he wanted a lawyer, the interview
would not take place.
Petitioner, who had previously asked to
speak with Officer Salyerds about the incident, immediately told
Officer Salyerds that he did not mean to indicate that he wanted a
lawyer
and
that
he
wanted
to
talk.
Officer
Salyerds
told
Petitioner that, in order to conduct the interview, Petitioner had
to correct the form, which Petitioner did by crossing out his
initial answer, circling “no” to the question, and initialing the
statement that he made to the police because he had invoked his right to counsel.
We reject that contention . . . . [A]lthough [Petitioner] initially circled ‘yes’
on the Miranda form indicating that he wanted to talk to an attorney, he said
‘never mind’ and ‘that’s not what I meant’ when the officer questioned about his
response on that form. [Petitioner] then immediately circled ‘no’ next to that
question, placed his initials next to it, and signed the form. The officers
testified that [Petitioner] never requested an attorney. We thus conclude under
these circumstances that [Petitioner] knowingly and voluntarily waived his
Miranda rights.”
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correction.
H.M. 13-14, 21-22.
Officer Salyerds also testified
that at no time during the interview did Petitioner state that he
wanted a lawyer or that he wanted to stop the interview.
H.M. 15.
At the close of that hearing, the Steuben county court denied
Petitioner’s suppression motion.
Resp’t Ex. A.
the
account
See Suppression Decision at
The court credited Officer Salyerd’s testimony over
Petitioner
offered,
and
found
that
Petitioner’s
original indication that he wanted an attorney was the result of a
mistake that Petitioner immediately corrected. See Resp’t Ex. A at
128-129.
The county court found further that Petitioner did not
unequivocally invoke his right to counsel.
Id. at 129.
The
Appellate Division affirmed, concluding, in pertinent part, “that
[Petitioner] knowingly and voluntarily waived his Miranda rights.”
Hall, 48 A.D.3d at 1033-34.
In
a
habeas
corpus
proceeding,
state
court
factual
determinations are presumed correct, and a petitioner bears the
burden of rebutting such factual determinations 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, 124 S. Ct. 962, 157 L. Ed. 2d 798
(2003).
Petitioner attempts to rebut the presumption by asserting
that he never made “conflicting statements” to Officer Salyerds
-14-
during the interview, that he expressly requested counsel, and that
Officer Salyerds ignored that request.
Traverse at 4.
This sort
of inquiry, however, presents a credibility issue decided against
Petitioner at the suppression hearing.
were
based
upon
a
development
of
The trial court’s findings
the
record
by
means
of
a
suppression hearing involving the testimony of multiple witnesses,
including Petitioner.
As such, Petitioner has failed to rebut the
presumption with clear and convincing evidence.
Habeas corpus
relief on a claim that was adjudicated on the merits by a state
court is precluded unless the adjudication itself was contrary to
or unreasonably applied clearly established federal law, or was
“based on an unreasonable determination of the facts . . . .” 28
U.S.C. § 2254(d).
Applying this standard to the state courts’ adjudication on
the admissibility of Petitioner’s statements, habeas corpus relief
is
not
warranted.
The
state
courts
concluded
on
the
facts
presented that Petitioner knowingly and voluntarily waived his
rights, and
present.
agreed
This
to
speak
Court
finds
with police
ample
without
support
for
an
attorney
the
courts’
conclusions and that such rulings were not based on an unreasonable
determination of the facts.
The Supreme Court held in Miranda v. Arizona, 384 U.S. 436,
467 (1966), in order “to permit a full opportunity to exercise the
[Fifth
Amendment]
privilege
against
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self-incrimination,”
an
“accused must be adequately and effectively apprised of his rights
and the exercise of those rights must be fully honored.”
To prove
that a defendant validly waived his Miranda rights, the government
must establish: (1) that the relinquishment of the defendant’s
rights was voluntary, “in the sense that it was the product of a
free and deliberate choice rather than intimidation, coercion, or
deception”; and (2) that at the time of the waiver, the defendant
had a “full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it.”
Moran v. Burbine, 475 U.S. 412, 421 (1986).
The determination of
whether the defendant knowingly and voluntarily waived his Miranda
rights
is
made
circumstances.
(1979).
upon
an
inquiry
into
the
totality
of
the
See Fare v. Michael C., 442 U.S. 707, 724-25
The facts in the instant case do not reveal any evidence
of coercion or intimidation.
The record supports the finding that
Petitioner understood his rights and indicated his willingness to
speak without a lawyer present.
Accordingly, the Court cannot find that the state courts’
adjudication of this claim contravened or unreasonably applied
clearly established Supreme Court law.
state
courts’
determination
was
Nor can it be said that the
based
on
an
unreasonable
determination of the facts in light of the evidence presented in
the state court proceeding. Petitioner’s claim is meritless and is
therefore dismissed.
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2.
Trial Court Improperly Denied Request for Justification
Instruction
At ground three of the petition, Petitioner argues that the
trial court improperly denied his request to instruct the jury on
the justification defense.
Petitioner claims that the evidence
adduced at trial was sufficient to allow the jury to consider the
defense, and the trial court denied him his right to a fair trial
by refusing to permit the jury to consider it.
Ground Three; Attachment at 8-9.
See Pet. ¶ 12,
This claim, which Petitioner
failed to properly raise in the state courts, is unexhausted.
Because Petitioner no longer has a state court forum in which to
exhaust this claim, the Court deems it exhausted but procedurally
defaulted.
To fulfill the exhaustion requirement, a habeas petitioner
must have afforded the state courts a fair opportunity to consider
his federal claim.
Picard v. Connor, 404 U.S. 270 (1971).
This
means that 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.
117, 119 (2d Cir. 1991).
See Grey v. Hoke, 933 F.2d
In this case, Petitioner raised the
instant claim on direct appeal, but failed to include the claim in
his leave application to the New York Court of Appeals. See Resp’t
Ex. E.
In his leave application, Petitioner argued that “[t]he
trial court’s verdict committed reversible error by failing to
suppress
[Petitioner’s]
statements
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made
under
custodial
interrogation.”
Id.
Petitioner’s failure to seek leave on the
basis that the trial court improperly denied his request for a
justification instruction renders the claim unexhausted. See Grey,
933 F.2d at 120 (where leave application argued one claim but
omitted two others, petitioner “did not fairly apprise the court”
of the omitted claims, rendering them unexhausted).
Respondent
argues that the record-based claim should be deemed exhausted but
found
to
be
procedurally
barred
from
habeas
review
because
Petitioner has no means to exhaust the claim in state court.
Resp’t Mem. of Law at 24.
The Court agrees.
See
See Grey, 933 F.2d at
120-21 (“[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.’”) (quoting Harris v. Reed, 489 U.S. 255, 263 n.9 (1989));
Spence
v.
Superintendent,
219
F.3d
162,
170
(2d
Cir.
2000)
(“Because [petitioner] failed to raise his claim in the ordinary
appellate process and can now no longer do so, it is procedurally
defaulted.”));
CPL § 440.10(2)(a), (c) (court must deny motion to
vacate where claim was determined on the merits on direct appeal;
barring new record-based claims that could have been raised on
direct appeal but unjustifiably were not).
Because this claim is procedurally barred, it may only be
reviewed if Petitioner establishes cause for the default and
resulting prejudice, or that a fundamental miscarriage of justice
-18-
will result from the Court’s failure to review the claim.
See
e.g., Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001); accord
Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (“If a habeas
applicant fails to exhaust state remedies by failing to adequately
present his federal claim to the state courts so that the state
courts would deem the claim procedurally barred, we must
deem the
claim [ ] procedurally defaulted.’”) (quoting Aparicio, 269 F.3d at
90; alteration in Carvajal).
Petitioner
has
not
alleged
cause
for
the
default,
and,
consequently, the Court need not consider prejudice resulting
therefrom.
See McCleskey v. Zant, 499 U.S. 467, 494 (1991)
(failure to make a showing of either cause or prejudice defeats the
petitioner’s ability to overcome the procedural default on this
basis); Murray v. Carrier, 477 U.S. 478, 496 (1986) (adhering to
the cause-and-prejudice test “in the conjunctive”).
Moreover,
for
purposes
of
the
miscarriage-of-justice
exception, Petitioner has made no showing that he is “‘actually
innocent’ (meaning factually innocent) of the crime for which he
was convicted.”
Carvajal, 633 F.3d at 108 (citing Bousley v.
United States, 523 U.S. 614, 622, 623, 118 S. Ct. 1604, 140 L. Ed.
2d 828 (1998); footnote omitted).
that
the
trial
court
Accordingly, Petitioner’s claim
improperly
denied
his
request
for
a
justification instruction is procedurally defaulted from habeas
review and is dismissed on that basis.
-19-
3.
Ineffective Assistance of Trial Counsel
At ground one of the petition, Petitioner claims, as he did in
his motion to vacate, that he received ineffective assistance of
trial counsel because “trial counsel convinced [him] not to testify
at trial through subtle yet intimidating insinuations, rather than
properly communicating with Petitioner about the necessity of
testifying
in
order
to
properly
raise
justification.” See Pet. ¶ 12, Ground One;
Traverse at 1-3.
the
defense
of
Attachment at 3-4;
The Steuben county court rejected Petitioner’s
claim on a state procedural ground, pursuant to CPL § 440.10(2)(c)
and did not reach the merits of the claim.
See Resp’t Ex. N.
Despite the state court’s ruling, the parties do not maintain that
the claim is procedurally barred from habeas review.
See Resp’t
Mem.
supporting
of
Law
at
n.
8;
Traverse
at
1-2.
In
its
memorandum, Respondent explains that, “[ s]ince Petitioner’s claim
is based on allegations regarding advice he had received from his
trial attorney, the basis of his claim would necessarily entail
facts that do not appear on the record and, therefore, could not
have been raised on direct appeal.”
Citing Garcia v. Lewis, 188
F.3d 71, 77-82 (2d Cir. 1999), which holds that for a state ground
to be adequate, a finding of procedural default must be supported
by a “fair or substantial basis” in state law, Respondent asserts
that, “it does not appear that the state court’s procedural bar
finding
here
was
adequate
to
procedurally
-20-
bar
[Petitioner’s]
claim.”
Resp’t Mem. of Law at n. 8.
Petitioner proffers, in sum
and substance, the same argument in his Traverse.
1-2.
See Traverse at
Indeed, the alleged conversations between Petitioner and his
attorney underlying this claim are matters dehors the record;
however, the facts underlying this claim relate to the viability of
the justification defense at trial.
That particular issue was
addressed at trial and was subsequently raised on direct appeal and
determined to be meritless.
See Hall, 48 A.D.3d at 1033.
To this
extent, the underlying facts related to the instant ineffective
assistance of counsel claim are, arguably, set forth in the record
such that Petitioner could have raised his ineffective assistance
of
counsel
claim
on
direct
appeal.
In
this
respect,
CPL
§ 440.10(2)(c) is “adequate” to procedurally bar the claim from
habeas review.
See e.g., Alston v.
Donnelly 461 F.Supp.2d 112
(W.D.N.Y. 2006) (“where an ineffective assistance of counsel claim
is record-based, C.P.L. § 440.10(2)(c) constitutes a procedural
rule that is “firmly established and regularly followed” and thus
“adequate.”)
(citing cases).
In any event, because the parties
have argued the merits of the claim, the Court reviews and disposes
of the claim on the merits.
To the extent the claim was never
adjudicated on the merits, the Court reviews it de novo.
See
Torres v. Berbary, 340 F.3d 63, 68 (2d Cir. 2003) (“[i]f there is
no . . . adjudication [on the merits], the deferential standard
[under
AEDPA]
does
not
apply,
-21-
and
‘we
apply
the
pre-AEDPA
standards, and review de novo the state court disposition of the
petitioner’s federal constitutional claims.’”) (citing Aparicio v.
Artuz, 269 F.3d 78, 93 (2d Cir. 2001)).
As discussed below,
Petitioner’s claim is meritless.
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
Strickland v. Washington, 466 U.S. 668, 686-88 (1984).
result.
Deficient
performance requires showing that “counsel’s representation fell
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).
-22-
Initially, the Court points out that Petitioner has provided
no documentary proof –- in affidavit form or otherwise -- either in
the state courts or in the instant habeas proceeding establishing
how counsel advised him regarding the issue of whether he should
testify or how the decision was ultimately made that he would not
testify at trial.
Rather, he simply explains that, at some point
before trial, he engaged in two “private conversations” with his
attorney and, at the second conversation, “trial counsel convinced
[him] to not testify at trial through subtle yet intimidating
insinuations, rather than properly communicating with [him] about
the necessity of testifying in order to properly raise the defense
of
justification.”
Pet.,
Attachment
at
3-4.
According
to
Petitioner, trial counsel’s advice demonstrates counsel’s “failure
to understand the applicable law.”
Id. at 4.
Notably, when
Petitioner raised this claim in his motion to vacate, he did not
provide any information detailing the conversations he had with his
attorney.
In this respect, Petitioner has failed to offer any
evidence that substantiates the truth of his allegations.
In any
event, even assuming the truth of the allegations, Petitioner
cannot demonstrate that his testimony, had he testified, would have
altered the jury’s verdict.
As discussed below, Petitioner’s
inability to make a successful showing of prejudice within the
meaning of Strickland is fatal to his claim.
-23-
New York law permits a person, under certain conditions, to
use physical force upon another person when and to the extent he
reasonably believes such force to be necessary to defend himself
from what he reasonably believes to be the use or imminent use of
unlawful physical force by the other person. Penal Law § 35.15(1).
This justification defense is not available, however, where the
other person’s conduct “was provoked by the actor with intent to
cause physical injury to another person,” or the actor was the
“initial aggressor” and did not subsequently withdraw from the
encounter and effectively communicate such withdrawal to the other
person.
Id. at § 35.15(1)(a), (b).
Where the person seeking to
invoke the defense uses deadly force, his conduct is not justified
unless he “reasonably believes that [the] other person is using or
about to use deadly physical force.”
Id. § 35.15(2).
Even in that
case, however, “the actor may not use deadly physical force if he
. . . knows that with complete personal safety, to oneself and
others he . . . may avoid the necessity of so doing by retreating.”
Id.
Petitioner has failed to state, with any particularity, how
his testimony would have established a justification defense, such
that there is any probability –- let alone a reasonable one -– that
the
outcome
testified.
assertions,
of
his
Rather,
claiming
trial
he
that
would
have
sets
forth
he
would
-24-
been
a
different
series
have
of
testified
had
he
conclusory
that
“he
subjectively believed that deadly physical force was about to be
used
against
him
and
his
codefendant,
that
his
belief
was
objectively reasonably, he did not initiate the altercation, Joe
Comfort appeared to have a deadly weapon,
Joe comfort appeared to
be attempting to use deadly force and that Petitioner could not
retreat with complete safety as to himself and others.”
at 3.
Traverse
These unsubstantiated, self-serving statements are directly
contradicted by the strong evidence at trial which established that
Petitioner and Gomez went to Schreiber’s home in search of Comfort,
looking for a fight, and used their weapons to initiate a violent
confrontation with three unarmed men.
Moreover, as Respondent
correctly points out, the jury heard testimony that just prior to
Petitioner
shooting
Comfort,
Comfort
tried
to use
a
lamp
intervene in the fight between Gomez, Schreiber, and Rumsey.
Resp’t Mem. of Law at 43.
to
See
This circumstance alone (assuming the
lamp constituted a deadly weapon under the circumstances) –without evidence that Petitioner satisfied his duty to retreat or
was under no such duty –- was not sufficient to establish a
justification defense.
There was no evidence presented at trial
that Petitioner attempted to retreat or to help Gomez retreat, and
Petitioner does not now point to any such evidence.
In fact, the
evidence established that, after Comfort tried to use the lamp to
intervene, Petitioner escalated the fight by firing his gun at
Comfort several times and then chasing Comfort out of the house
-25-
while still firing the gun.
T.T. 942, 997-998.
Petitioner claims
that, had he testified, he would have offered “contradicting
testimony about what was made to look as if he chased Joe Comfort”;
however, he has not endeavored to explain how he would have done
so.
After
all,
Comfort’s
testimony
was
corroborated
by
the
physical evidence which established that Petitioner chased Comfort
out of the house while still firing the gun.
Finally, the Court
notes that, after Petitioner was taken into custody, he made
statements to police in which he recounted several versions of the
events surrounding the shooting.
The jury had the opportunity to
examine these statements at trial, and Petitioner has not explained
how or if his testimony at trial would have altered or added to
said statements.
Thus, Petitioner has failed to make a successful
showing of prejudice under Strickland.
Petitioner’s ineffective
assistance of counsel claim is meritless and is dismissed on that
basis.
VI.
Conclusion
For the reasons stated above, the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 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).
-26-
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:
March 26, 2012
Rochester, New York
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