Miller v. Boucaud
Filing
21
DECISION AND ORDER dismissing petition for a writ of habeas corpus. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/8/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
ALFRED MILLER,
Petitioner,
DECISION AND ORDER
No. 09-CV-6598(MAT)
-vs-
ANTHONY BOUCAUD,
Respondent.
_____________________________________
I.
Introduction
Alfred Miller (“Miller” or “Petitioner”) has filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging
that he is being held in state custody in violation of his federal
constitutional rights. Petitioner is incarcerated as the result of
a judgment entered on March 10, 2004, in the Monroe County Court of
the State of New York, following a jury verdict convicting him of
Attempted Robbery in the Third Degree (N.Y. Penal Law (“P.L.”)
§§ 110.00, 160.05) (two counts); Robbery in the Second Degree (P.L.
§ 160.10(1)); and Petit Larceny (P.L. § 155.25). For the reasons
set forth below, the request for a writ of habeas corpus is denied,
and the petition is dismissed.
II.
Factual Background and Procedural History
A.
The Trial
The following is a summary of the testimony presented at
Miller’s trial.
-1-
On June 1, 2003, Scott Chapman (“Chapman”) was helping his
then-girlfriend Jaimen Brill (“Brill”) move into her apartment on
Tracy Street. At about 2:45 a.m., he and Brill went out to her
roommate’s car to retrieve a tool so they could finish assembling
a bed. As they were walking the approximately 100-yard-distance to
the car, Miller approached them and asked if they had any money.
Thinking it was “like a panhandle type of thing”, Chapman “kind of
just brushed him off” and said “no, we don’t have anything.” The
couple
continued
walking
down
the
street.
However,
Miller
persisted, stating, “Come back[,] and what you got, I’m speaking to
you, my time is valuable. . . .” It made Chapman somewhat nervous,
so he gave the keys to Brill and told her to “walk a little bit
quicker and – and hop in the car.” See T.147-49.1
Miller then got into a red Dodge Neon, which Chapman recalled
had a missing left taillight. After following Chapman and Brill to
her roommate’s car, Miller positioned his car so that it was
blocking them in. See T.193-96. Miller got out and started yelling
at Chapman and Brill again, stating that he needed money and saying
something along the lines of “I’m not some – some punk, get down on
the street and let me check you out. . . .” T.154. Miller then
began making gestures which conveyed to Chapman and Brill that he
might have a gun. In addition, Miller repeatedly threatened to go
back to his car and retrieve his gun.
1
Numerals preceded by “T.” refer to pages from the trial transcript.
-2-
At that point, Chapman was facing Miller on the sidewalk,
Brill having managed to get into the driver’s seat of her friend’s
car. Miller followed Chapman as he walked over to the passenger’s
side and got in the car. Miller “started slamming on the window
with his fists . . . so hard [they] thought he was going to break
the glass, screaming that he would fuck [them] up, he would kill
[them], he would go to his car and get his gun.” T.159. As soon as
Chapman got into the car, he called 911 on his cell phone.
Miller finally ceased his assault on their car, returned to
his own vehicle, and drove away. Chapman noted that Miller’s car
had the license plate “BNU 1116”. T.16.
The second incident at issue occurred just shy of two hours
later. At about 4:15 a.m., Thomas Herrington (“Herrington”) was
delivering bundles of newspapers to the ET Plus, a convenience
store located on the corner of Clifford and Portland Avenues. As
Herrington was sorting papers in the back of his car, he “sensed
that there was something there.” Herrington moved around to the
rear of the car and “there was a guy standing there asking for
change or cigarettes or something like that.” T.217. Herrington
told the man that he did not have either item.
Herrington then grabbed several bundles of newspapers and
headed towards the store. He heard the man ask him again for money,
and
Herrington
repeated
that
he
did
not
have
anything.
As
Herrington turned around, he could hear the “click” of his car door
-3-
being opened. Herrington dropped the newspapers and turned around
to
see
Miller,
his
back
turned
to
Herrington,
facing inside
Herrington’s car. Herrington grabbed Miller, pulled him out of the
car, and demanded to know what he was doing.
A scuffle ensued, and Herrington saw two men starting to get
out of a red Dodge Neon parked behind Herrington’s car. Herrington
pushed Miller away, got into his car, and closed the door. As
Herrington put the car into drive, Miller opened the back door and
started removing bundles of newspapers. T.223. Miller then went
over to the Dodge Neon, got in on the driver’s side, and drove
away. Herrington noted that the license plate number was “BNU 11
something”. Herrington observed the Dodge Neon, which had a broken
tail light, turn up Miller Street.
Having lived in that area for 25 years, Herrington knew that
there were only two ways to exit Miller Street–Portland Avenue or
Bay Street. Herrington proceeded up Portland to try to intercept
the Dodge Neon, which had stopped on Second Street in between
Pennsylvania Avenue and Central Park. Herrington then used a pay
phone at the corner of Second Avenue and Central Park to call 911.
At about 4:30 a.m., Rochester Police Officer Michael Jones
stopped Petitioner, who was driving a red four-door Dodge Neon with
New York license plate number “BNU116” at an intersection. T.249,
262. There were two passengers in the car: Keisha Brown was seated
in the front passenger seat, and Aries Spencer was seated in the
-4-
rear passenger seat. T.252, 254. On the top of the rear passenger
seat were
two
bundles
of
newspapers.
T.252,
262.
The
police
contacted Herrington and drove him back to the ET Plus, where he
positively identified Miller as the man who had been “nose to nose”
with him during the robbery. T.230.
A few hours later, Chapman and Brill went to a Rochester
police
station
and
viewed
three
individuals
during
a
showup
identification. Chapman and Brill positively identified Miller but
did not recognize the other two people. T.163, 202.
Miller testified at trial, acknowledging that he had had
encounters with Chapman, Brill, and Herrington on June 1, 2003.
Sometime after midnight, Petitioner drove Brown’s red Dodge Neon to
Tracy Street in Rochester to speak with his supervisor from work,
whom he referred to as “Aaron”. T.277-79. When Petitioner arrived
at what he said was Aaron’s house, he left Brown in the Neon with
the engine running. T.281.
While on Aaron’s porch, Petitioner saw Brill and Chapman
looking into Brown’s car. T.281-82. Petitioner then tried to
approach Brill and Chapman, who walked away quickly. Upon returning
to Brown’s car, Petitioner discovered that he could not locate a
container of change that he had kept in the car. T.284. Petitioner
yelled at Brill and Chapman to come back. T.284. Petitioner then
jumped into the Neon drove up to the couple to talk to them, but
-5-
they argued with him. T.285. Petitioner denied threatening anyone
with a gun or possessing a gun. T.286.
After leaving Tracy Street, Petitioner and Brown drove to an
after-hours party. When they left, they gave Spencer a ride. T.287,
290. On the way, they stopped at the ET Plus to put air in the
car’s tires but could not could not locate any quarters for the air
compressor. T.306. Petitioner asked Herrington if he had a quarter
and in response, Herrington “was kind of short” with him. T.288-89,
306. According to Petitioner, the two men started arguing, and
Herrington “just dropped the papers” and drove away in his car.
T.289-90. Petitioner went inside to use the bathroom, and when he
returned, Brown told him that Spencer had put the newspapers in the
Dodge Neon. T.307.
Petitioner surmised that Herrington must have had the paper
route in the Central Park area of Rochester, so he suggested that
they return
the
papers
to
him.
T.291.
While
driving
around,
Petitioner spotted Herrington and called out to him, “Hey, we got
your
papers,
do
you
want
your
papers?”
T.292.
In
response,
Herrington retorted, “No, you’re going to get it now.” T.292.
C.
The Verdict and Sentence
The jury returned a verdict convicting Miller of all charges
submitted for its consideration2–two counts of attempted third
2
Prior to trial, the trial court had reduced the attempted first
degree robbery charge to attempted third degree robbery. As the result
of defense counsel’s motion for a trial order of dismissal, the trial
-6-
degree robbery, one count of second degree robbery, and one count
of petit larceny.
The trial court sentenced Petitioner, as a second felony
offender, to indeterminate sentences of two to four years on the
attempted robbery convictions, a determinate sentence of ten years
to be followed by five years of post-release supervision on the
second
degree
robbery
conviction,
and
a
one-year
determinate
sentence on the petit larceny conviction. All sentences were
ordered to be served concurrently with each other.
D.
The Direct Appeal
Represented by new counsel on appeal, Petitioner asserted that
(1) the police precinct showups were unduly suggestive; (2) the
trial erroneously denied the defense motion to sever certain counts
in
the
indictment;
cross-examined
Decision
and
and
Petitioner
Order
dated
(3)
about
the
his
September
prosecutor
post-arrest
28,
2007,
impermissibly
silence.
the
By
Appellate
Division, Fourth Department, of New York State Supreme Court
unanimously affirmed the conviction. People v. Miller, 43 A.D.3d
1381 (4th Dept. 2007).
Petitioner’s appellate counsel sought leave to appeal to the
New York Court of Appeals on the ground that the showups conducted
at the police station were suggestive. See Respondent’s Exhibit
court reduced the fourth degree grand larceny charge to petit larceny.
T.313.
-7-
(“Resp’t Ex.”) D. On January 24, 2008, a judge of the Court of
Appeals denied leave to appeal. People v. Miller, 9 N.Y.2d 1036
(2008).
E.
Collateral Motions
Petitioner filed a pro se application for a writ of error
coram nobis dated December 9, 2008, challenging appellate counsel’s
representation. Coram nobis relief was summarily denied by the
Appellate Division.
Petitioner then filed a pro se motion to vacate the judgment
pursuant to New York Criminal Procedure Law (“C.P.L.”) § 440.10 ,
dated August 19, 2009. See Resp’t Ex. G. Petitioner contended that
his trial counsel was ineffective in failing to (1) object to the
prosecutor’s questions regarding Petitioner’s post-arrest silence;
(2)
properly
raise
the
claim
that
the
showup
identification
procedure at the police station was unduly suggestive; (3) request
a circumstantial evidence charge; (4) assert that the evidence was
legally insufficient to establish guilt; (5) investigate a conflict
between the prosecutor and Petitioner due to the fact they had a
fight
when
they
previously
attended
school
together;
and
(6) investigate or question Brown or Spencer, who had been with
Petitioner at time of his arrest.
By Decision and Order dated May 13, 2010, the trial court
(Marks, J.) denied the motion. See Resp’t Ex. I. The trial court
found that Petitioner’s first five claims were procedurally barred
-8-
under C.P.L. § 440.10(2)(c) because Petitioner could have raised
those record-based claims on appeal but unjustifiably failed to do
so. The sixth claim was denied pursuant to C.P.L. § 440.30(1) due
to
Petitioner’s
failure
to
submit
sworn
allegations
of
fact
supporting each element of the claim. In any event, the trial court
held–without
addressing
individually–that
each
of
Petitioner
counsel’s
had
alleged
received
errors
“meaningful
representation” from his trial attorney. Also without addressing
each of counsel’s alleged errors individually, the trial court
found that defense counsel’s representation “did not fall below an
objective standard of reasonableness, nor did the [Petitioner]
prove that he was prejudiced by trial counsel’s representation[.]”
Resp’t Ex. I at 4-5 (citing Strickland v. Washington, 466 U.S. 668,
688 (1984)). The Appellate Division denied leave to appeal on
March 4, 2011.
F.
The Federal Habeas Petition
This timely habeas petition followed in which Petitioner
asserts
the
following
grounds
for
relief:
1)
he
received
ineffective assistance of trial counsel; 2) the prosecutor engaged
in misconduct by cross-examining Petitioner about his failure to
provide
to
the
police
the
exculpatory
version
of
events
he
presented at trial. Petitioner contends that his trial counsel was
ineffective for all the reasons claimed in his motion to vacate
judgment. In addition, he asserts that counsel erroneously failed
-9-
to perform an adequate investigation into Petitioner’s assertions
concerning the reason why Petitioner was on Tracy Street on June 1,
2003.
III. Exhaustion
A federal court may not consider the merits of a claim unless
the petitioner has first given the state the “‘opportunity to . .
. correct’ alleged violations of its prisoners’ federal rights.”
Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry,
513 U.S. 364, 365 (1995)). To fulfill the exhaustion requirement,
a petitioner “must ‘fairly present’ his claim in each appropriate
state court
(including
a
state
supreme
court with
powers
of
discretionary review), thereby alerting that court to the federal
nature of the claim.” Id. at 29; see also Duncan, 513 U.S. at
365-66. “In New York, to invoke ‘one complete round of the State's
established appellate review process’, a criminal defendant must
first appeal his or her conviction to the Appellate Division, and
then must seek further review of that conviction by applying to the
Court of Appeals for a certificate granting leave to appeal.”
Galdamez
v.
Keane,
394
F.3d
68,
74
(2d
Cir.
2005)
(quoting
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).
A.
Ineffective Assistance of Trial Counsel Claims
Respondent
concedes
that
Petitioner
has
exhausted
the
following individual ineffective assistance of trial counsel claims
by raising them in his C.P.L. § 440.10 motion: (1) failure to
-10-
object to the prosecutor’s questions regarding Petitioner’s postarrest silence; (2) failure to argue that the precinct showup was
unduly suggestive; (3) failure to request a circumstantial evidence
charge; (4) failure to raise the claim that the evidence was
legally insufficient in violation of Petitioner’s due process
rights; (5) failure to investigate whether the prosecutor was
biased against Petitioner due to the fact they had a fight when
they previously attended school together; and (6) failure to
investigate
or
question
Brown
or
Spencer, who
had
been
with
Petitioner at time of his arrest. Petitioner raised these claims in
constitutional terms by citing Strickland v. Washington, 466 U.S.
668, supra, in his C.P.L. § 440.10 motion, and also presented them
in federal constitutional terms in his application for leave to
appeal to the Appellate Division.
Petitioner, however, did not exhaust the claim that trial
counsel was ineffective assistance for failing to investigate the
reason why Petitioner was on Tracy Street on June 1, 2003. Although
Petitioner did not raise this claim in his C.P.L. § 440.10 motion,
he may file a second C.P.L. § 440.10 motion asserting it. However,
the Court declines to exercise its discretion to stay the petition
and allow Petitioner to return to state court to satisfy the
exhaustion requirement. See Rhines v. Weber, 544 U.S. 269, 277-78
(2005) (holding that it would be an abuse of discretion to stay a
mixed petition where the petitioner has not shown “good cause” for
-11-
failing to exhaust all available state court remedies earlier; and
the unexhausted claim is “plainly meritless”). Here, Miller has not
shown good cause for his failure to exhaust his claim earlier, and
absent such cause, the Court would abuse its discretion in granting
a stay. See id.
Under 28 U.S.C. § 2254(b)(2), district courts now have the
authority to deny a petition containing unexhausted claims “on the
merits”. See 28 U.S.C. § 2254(b)(2). That is the course the Court
elects
to
follow
in
this
case,
since
Miller’s
unexhausted
ineffective assistance claim is without merit under any standard of
review,3 as discussed further below.
B.
Prosecutorial Misconduct Claim
Respondent argues that Petitioner has failed to exhaust his
claim that the prosecutor engaged in misconduct by cross-examining
Petitioner concerning his post-arrest silence. Although appellate
counsel raised this claim in constitutional terms in his Appellate
3
The Second Circuit has not yet established a standard for denying
unexhausted claims under 28 U.S.C. § 2254(b)(2), but all four districts
in New York have applied the “patently frivolous” test for dismissing
such claims. See, e.g., Love v. Kuhlman, No. 99 Civ. 11063, 2001 U.S.
Dist. LEXIS 22572 (S.D.N.Y. Dec. 12, 2001); Cruz v. Artuz, No. 97 Civ.
2508, 2002 U.S. Dist. LEXIS 11150, 2002 WL 1359386 (E.D.N.Y. June 24,
2002); Toland v. Walsh, No. 02 Civ. 0399, 2008 U.S. Dist. LEXIS 24616,
2008 WL 820184 (N.D.N.Y. Mar. 26, 2008); Hammock v. Walker, 224 F.
Supp.2d 544 (W.D.N.Y. 2002) (Larimer, D.J.). A minority of courts in this
Circuit have denied such petitions when they do not raise even a
colorable federal claim. See Hernandez v. Lord, No. 00 Civ. 2306, 2000
U.S. Dist. LEXIS 10228, 2000 WL 1010975, at *4 n.7 (S.D.N.Y. July 21,
2000) (discussing cases applying this standard) (internal quotation marks
omitted). Under either of these standards, Petitioner’s claims are
meritless.
-12-
Division brief on direct appeal by citing relevant Supreme Court
authority, appellate counsel did not specifically mention this
claim in the application for leave to appeal to the Court of
Appeals. See Resp’t Ex. D. Instead, in the leave application,
appellate counsel discussed at length only the claim concerning the
suggestiveness of the precinct showup. Appellate counsel mentioned
that the appellate briefs were enclosed but did not specifically
request that the Court of Appeals review the other issues in those
briefs. Under the pertinent Second Circuit authority, that was
insufficient to fairly apprise the Court of Appeals that review was
sought as to all the issues contained in the Appellate Division
briefs. See, e.g., Ramirez v. Attorney Gen’l, 280 F.3d 87, 97
(2d Cir. 2001) (holding that citation to petitioner’s attached
Appellate Division brief referring only to “this issue” “was not,
therefore, a request ‘to consider and review’ other issues raised
in the referenced points of the brief”; noting that “[r]eferences
to attached briefs without more will preserve issues only if the
Court
of
Appeals
is
clearly
informed
that
the
reference
is
asserting issues in those briefs as bases for granted leave to
appeal”). As such, the prosecutorial misconduct claim was not
fairly presented, and it is unexhausted for purposes of habeas
review.
The prosecutorial claim nonetheless must be deemed exhausted
but procedurally defaulted because Miller is now procedurally
-13-
barred from fully exhausting the claim in state court. Miller has
already used the one direct appeal to which he is entitled.4
Collateral review of the claim is barred because it is a matter of
record
that
could
have
been
raised
on
direct
appeal,
but
unjustifiably was not. Returning to state court to exhaust the
claims by means of another C.P.L. § 440.10 motion, therefore, would
be futile. See N.Y. Crim. Proc. Law § 440.10(2)(c) (mandating
dismissal of C.P.L. § 440.10 motion if claim could have been raised
on direct review).
Petitioner’s procedurally defaulted prosecutorial misconduct
claim may be reviewed by this Court only if he can demonstrate
either: (1) cause for the default and actual prejudice resulting
therefrom, or (2) that the failure to consider the claims will
result
in
Carrier,
a
477
“fundamental
U.S.
478,
miscarriage
485,
495
of
justice.”
(1986).
The
Murray
v.
“fundamental
4
By statute, New York law used to specifically provide for only a
single application for direct review. Spence v. Superintendent, Great
Meadow Corr. Fac., 219 F.3d 162, 170 (2d Cir. 2000) (relying on former
New York Rules for the Court of Appeals § 500.10(a) (discussing leave
applications for criminal appeals)). Section 500.10 has since been
amended, and criminal leave applications are now addressed in N.Y. R. Ct.
§ 500.20. Although Rule 500.20 “does not specifically state that there
may be only one application for appeal, see N.Y. R. Ct. § 500.20, such
a restriction may be inferred,” since “[b]oth Rule 500.20(d) and CPL §
460.10(5) provide a 30–day window for any such application to be filed;
this time limit would be meaningless were multiple applications
permitted.” Colon v. Connell, No. 07 Civ. 7169(BSJ)(JCF), 2009 WL
2002036, at *6 n. 4 (S.D.N.Y. July 9, 2009); accord, e.g., Cunningham v.
Conway, 717 F. Supp.2d 339, 365 (W.D.N.Y.2010) (collecting cases). In
addition, Section 500.20(a)(2) provides that the leave letter must
indicate that “that no application for the same relief has been addressed
to a justice of the Appellate Division, as only one application is
available[.]” N.Y. R. CT. § 500.20(a)(2).
-14-
miscarriage of justice” exception requires a showing of actual, not
merely legal, innocence. Id. at 496; see also Schlup v. Delo, 513
U.S.
298,
325
Respondent’s
(1995).
Petitioner
opposition
did
memorandum
not
of
submit
law,
and
a
thus
reply
to
has
not
asserted that either cause or prejudice exists, or that there is
new, reliable evidence that he is factually innocent of the claims
of which he was convicted. As a result, Miller cannot overcome the
procedural default, and the prosecutorial claim is dismissed as
procedurally barred from habeas review.
IV.
The Adequate and Independent State Ground Doctrine
Respondent
following
claims
concedes
of
that
Petitioner
ineffective
has
assistance
of
exhausted
trial
the
counsel:
(1) failure to object to the prosecutor’s questions regarding
Petitioner’s post-arrest silence; (2) failure to argue that the
precinct showup was unduly suggestive; (3) failure to request a
circumstantial evidence charge; and (4) failure to raise the claim
that
the
evidence
was
legally
insufficient
in
violation
of
Petitioner’s due process rights; (5) failure to investigate whether
the prosecutor was biased against Petitioner due to the fact they
had a fight when they previously attended school together; and
(6) failure to investigate or question Petitioner’s companions at
time of his arrest. Respondent argues that because the C.P.L.
§ 440.10 court denied claims one, two, three, and four on the basis
-15-
of C.P.L. § 440.10(2)(c), they are procedurally barred under the
adequate and independent state ground doctrine.5
Where a state court’s judgment denying a claim is based on an
adequate and independent state procedural ground, federal habeas
review of that claim is usually prohibited. Coleman v. Thompson,
501 U.S. 722, 729-30 (1991); see also Harris v. Reed, 489 U.S. 255,
261 (1989). Here, the C.P.L. § 440.10 court’s rejection of these
claims under 440.10(2)(c) was “independent” as it was a clear
holding based solely on a state procedural rule and was not
intertwined with any federal question. See Cruz v. Berbary, 456 F.
Supp.2d 410, 419 (W.D.N.Y. 2006) (“[T]he state court’s unambiguous
and explicit invocation of CPL § 440.10(2)(a) and § 440.10(2)(c)
was ‘independent’ inasmuch as it did not implicate or depend on any
rule of federal law.”) (citing Williams v. Goord, 277 F. Supp.2d
309, 318 (S.D.N.Y. 2003) (holding that state court's decision
denying C.P.L. § 440.10 motion was “independent” because its
reliance
on
state
law
was
“apparent
from
the
face
of
the
opinion”)).
5
Respondent notes that the C.P.L. § 440.10 court also found that
Petitioner’s fifth claim–that trial counsel was ineffective because he
did not investigate a purported conflict between the prosecutor and
Petitioner–was barred under C.P.L. § 440.10(2)(c) because it could have
been raised on direct appeal. In reviewing the trial transcript, however,
Respondent failed to uncover facts in the record to support this claim.
Therefore, Respondent notes, Petitioner could not have raised this claim
on appeal. Accordingly, the C.P.L. § 440.10 courts reliance on C.P.L. §
440.10(2)(c) was unjustified, and Respondent correctly is not relying on
the adequate and independent state ground doctrine to argue that this
claim is procedurally barred. See Resp’t Mem. at 41 n.6.
-16-
The next question is whether the
procedural bar is adequate
for purposes of habeas review. This requires asking whether the
holding is based on a rule that is firmly established and regularly
followed by the state courts in cases similar to Petitioner’s. Ford
v. Georgia, 498 U.S. 411, 423–24 (1991); accord, e.g., Garcia v.
Lewis, 188 F.3d 71, 77 (2d Cir. 1999). C.P.L. § 440.10(2)(c) is a
procedural rule designed to prevent a defendant from using a
collateral motion to vacate the judgment to take a belated appeal
on an issue that was sufficiently apparent on the face of the
record. Sweet v. Bennett, 353 F.3d, 135, 139 (2d Cir. 2003) (citing
People v. Cooks, 67 N.Y.2d 100 (1986)). It is a firmly established
and regularly followed procedural rule in New York. See Cruz v.
Berbary, 456 F. Supp.2d at 419 (“The cases hold that both C.P.L.
§ 440.10(2)(a) and C.P.L. § 440.10(2)(c) can constitute ‘adequate
and independent’ state procedural grounds barring federal habeas
review.”) (citing, inter alia, Levine v. Commissioner of Corr.
Servs., 44 F.3d 121, 126 (2d Cir. 1995) (holding that C.P.L.
§
440.10(2)(c)
is
adequate
and
independent
state
ground)).
Therefore, the Court concludes, under the circumstances presented
here, the state law ground was adequate to support the decision of
the state court. As both prongs of the adequate and independent
state
ground
doctrine
are
satisfied,
Petitioner’s
first
four
individual ineffective assistance of trial counsel claims are
procedurally barred.
-17-
As discussed supra in Section III.B, Miller has not attempted
to demonstrate cause, prejudice, or actual innocence. Accordingly,
the first four of his ineffective assistance claims are subject to
an unexcused procedural default. The Court dismisses them without
reaching the merits.
V.
Merits of Petitioner’s Remaining Claims
An unexcused procedural default precludes review on the merits
of Petitioner’s prosecutorial misconduct claim, as well as his
first four ineffective assistance claims, as explained supra in
Sections III.A, III.B, and IV. The only claims remaining for this
Court’s consideration are three claims of ineffective assistance
based upon trial counsel’s (1) failure to investigate whether the
prosecutor was biased against Petitioner due to the fact they had
a fight when they previously attended school together; (2) failure
to investigate or question Brown or Spencer, who had been with
Petitioner at time of his arrest; and (3) failure to investigate
Petitioner’s stated reason for being on Tracy Street on the night
of the incident.
A.
The
Ineffective Assistance of Trial Counsel
performance
reasonableness
of
inquiry
trial
of
counsel’s
Strickland
actions
examines
under
“all
the
the
circumstances,” id. at 688, from the perspective of trial counsel
at the time, id. at 689. “Prejudice forms the second half of an
ineffective assistance claim[,]” and requires showing that there is
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“‘a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’”
Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) (quoting
Strickland, 466 U.S. at 694; other citation omitted).
The habeas
petitioner bears the burden of establishing both prongs of the
Strickland test.
417 F.3d at 319 (citation omitted).
The Court discusses trial counsel’s alleged errors in turn
below.
1.
Failure to failure to investigate alleged conflict
of interest on the part of the prosecutor
Petitioner contends that trial counsel was ineffective because
he failed to investigate a conflict between the prosecutor and
Petitioner arising from a fight they supposedly had they previously
attended school together. The Second Circuit has explained that the
type
of
situation
alleged
by
Petitioner
is
more
accurately
described as an alleged deprivation of a “disinterested prosecutor”
rather than as a conflict of interest. Wright v. United States, 732
F.2d 1048, 1056 n.7 (2d Cir. 1984). “The concept is not altogether
easy to define[,]” id. at 1056, and “[i]t is a bit easier to say
what a disinterested prosecutor is not than what he is[,]” id. The
Second
Circuit
noted
in
Wright
that
a
prosecutor
is
“not
disinterested if he has, or is under the influence of others who
have, an axe to grind against the defendant, as distinguished from
the appropriate interest that members of society have in bringing
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a defendant to justice with respect to the crime with which he is
charged.” Id.
Here, there is no suggestion that the prosecutor had any
“special interest” in securing Miller’s indictment and conviction.
Significantly, Miller failed in state court, and has failed here,
to substantiate the fight that allegedly took place between the
prosecutor and himself when they were schoolmates. He has not, and
cannot, show there was prosecutorial misconduct, much less an
appearance of impropriety. The Court concludes that trial counsel
was not ineffective in failing to investigate this baseless claim.
2.
Failure to interview Brown and Spencer
Petitioner contends that trial counsel was ineffective in
failing to investigate or question Brown and Spencer, two of
Petitioner’s acquaintances who were with him at the time of his
arrest. To successfully assert an ineffective assistance of counsel
claim on the basis of a failure to investigate, “a petitioner must
do more than make vague, conclusory, or speculative claims as to
what evidence could have been produced by further investigation.”
Taylor v. Poole, 07-CV-6318-RJH-GWG, 2009 WL 2634724, at *14
(S.D.N.Y. Aug. 27, 2009) (collecting cases). Courts view claims of
ineffective assistance of counsel “skeptically” when the petitioner
provides the only evidence attesting to the import of a missing
witness’s testimony. Croney v. Scully, No. CV–86–4335, 1988 WL
69766, at *2 (E.D.N.Y. June 13, 1988) (citing United States v.
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Cockrell, 720 F.2d 1423, 1427 (5th Cir.) (“[C]omplaints of uncalled
witnesses are not favored, because the presentation of testimonial
evidence is a matter of trial strategy, and because allegations of
what a witness would have testified are largely speculative.”)
(quotation omitted), cert. denied, 467 U.S. 1251 (1984)). Thus, a
“[p]etitioner must show not only that the testimony would have been
favorable, but also that the witness would have testified at
trial.” Id. (citing Alexander v. McCotter, 775 F.2d 595, 602 (5th
Cir. 1985) (citations omitted)).
Here, Petitioner has failed to substantiate the basis for his
belief that defense counsel in fact failed to investigate or
interview these witnesses. Moreover, Petitioner has never come
forward with
a
sworn
statement
from
either
Brown
or
Spencer
detailing the substance of their allegedly exculpatory testimony.
Nor has Petitioner produced sworn statements from either Brown or
Spencer averring that, if subpoenaed, they would have testified
favorably for the defense. Petitioner thus has failed to show that
trial counsel was deficient or that he was prejudiced by counsel’s
alleged omission in regard to Brown and Spencer.
3.
Failure to investigate why Petitioner was on Tracy
Street on the night of the incident
Petitioner asserts that trial counsel prejudiced his defense
by allegedly not investigating the reason why Petitioner claimed to
be on Tracy Street on the night of June 1, 2003. As noted above,
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Petitioner testified that he was on Tracy Street after midnight to
stop by his supervisor’s home to discuss his work schedule. Even if
counsel had conducted an investigation and established that the
supervisor in fact lived on Tracy Street, it would not have changed
the
outcome
of
the
trial.
By
Petitioner’s
own
account,
his
supervisor was not at home at the time of the incident. Therefore,
the supervisor could not have offered any testimony to rebut the
victims’ testimony that Petitioner harassed them, demanded money,
gestured as if he had a gun, and threatened to harm them.
4.
Cumulative Effect of Trial Counsel’s Errors
“[T]he accumulation of non-errors does not warrant a new
trial.” United States v. Lumpkin, 192 F.3d 280, 290 (2d Cir. 1999)
(citation omitted). Here, as discussed above the deficiencies
attributed to Miller’s trial counsel were not in fact errors at
all. Thus, considering them in the aggregate does not change this
Court’s conclusion that Miller received effective assistance as
guaranteed by the Sixth Amendment.
VI.
Conclusion
For the foregoing reasons, the petition filed by Alfred Miller
(Dkt. #1) is dismissed. Because Miller 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). The Court certifies, pursuant to 28 U.S.C.
§ 1915(a)(3) and FED. R. APP. P. 24(a)(3), that any appeal from this
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Decision and Order would not be taken in good faith and therefore
the Court denies leave to appeal as a poor person. See Coppedge v.
United States, 369 U.S. 438, 445-46 (1962).
Any application for leave to appeal in forma pauperis must be
made to the Second Circuit Court of Appeals in accordance with FED.
R. APP. P. 24(a)(1), (4), & (5). See id. 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.
SO ORDERED.
S/Michael A. Telesca
___________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
Rochester, New York
August 8, 2012
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