214 F.3d 315 (2nd Cir. 2000), 97-2885, Clark v Stinson

Docket Nº:Docket No. 97-2885
Citation:214 F.3d 315
Party Name:PAUL CLARK, Petitioner-Appellant, v. JAMES STINSON, Superintendent, Respondent-Appellee.
Case Date:June 01, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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214 F.3d 315 (2nd Cir. 2000)

PAUL CLARK, Petitioner-Appellant,

v.

JAMES STINSON, Superintendent, Respondent-Appellee.

Docket No. 97-2885

United States Court of Appeals, Second Circuit

June 1, 2000

Argued: October 18, 1999

Appeal from a judgment of the United States District Court for the Eastern District of New York (Trager, J.) denying a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 alleging ineffective assistance of appellate counsel.

Affirmed.

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RUTH M. LIEBESMAN, Law Office of Ruth M. Liebesman, Esq., New York, NY, for Petitioner-Appellant.

Page 317

LORI GLACHMAN, Assistant District Attorney, Kings County, Brooklyn, NY (Charles J. Hynes, District Attorney, Kings County, Roseann B. MacKechnie, Thomas M. Ross, Assistant District Attorneys, on the brief), for Respondent-Appellee.

Before: MINER, WALKER and KATZMANN, Circuit Judges.

MINER, Circuit Judge:

Petitioner-Appellant Paul Clark appeals from a judgment of the United States District Court for the Eastern District of New York (Trager, J.) denying his 1997 petition for a writ of habeas corpus brought under 28 U.S.C. § 2254. Clark was sentenced in 1982 in a New York state court to thirty-three and one-third years to life in prison, a jury having found him guilty of murder, attempted murder, and criminal possession of a weapon. Clark's petition alleges ineffective assistance of appellate counsel, contending that if not for his attorney's failure to raise several meritorious issues on appeal -- including Clark's absence from a portion of his pre-trial Wade hearing -- his conviction would have been reversed. The district court dismissed the petition and denied Clark's motion for a certificate of appealability. This Court granted a certificate of appealability, certifying four questions: 1) whether the petition was filed timely under 28 U.S.C. § 2244(d)(2); 2) whether the one-year limitation imposed by 28 U.S.C. § 2244(d) violates the Suspension Clause; 3) whether the state court's denial of Clark's coram nobis petition was contrary to, or an unreasonable application of, clearly established federal law, see 28 U.S.C. § 2254(d)(1); and 4) whether Clark was denied effective assistance of counsel on appeal by his attorney's failure to challenge Clark's exclusion from a portion of his Wade hearing. Because respondent-appellee the State of New York (the "State") now concedes the petition was timely, we do not reach the merits of the first or second issues. Because we find no constitutional infirmity in Clark's absence from a portion of his Wade hearing, we affirm.

BACKGROUND

On March 1, 1982, after a week-long jury trial in the Supreme Court, Kings County, New York, Clark was found guilty of two counts of murder in the second degree, attempted murder in the second degree, and criminal possession of a weapon in the second degree in connection with the shooting death of seventeen-year-old Keith Thomas at a block party in Brooklyn on August 23, 1980. At trial, the State established the following: that Clark and co-defendant Mark Taylor exchanged combative words with Thomas and his cousin, seventeen-year-old Albert McLaurin; that Clark then demanded that Taylor pass him a pistol which he used to shoot Thomas, who was struck once in the back of the head and once in the shoulder; that Clark grabbed the gold chains from Thomas' neck as he lay on the ground; and that Clark proceeded to chase and shoot at McLaurin, who managed to get away.

One week prior to trial, the court conducted a Wade hearing to consider the admissibility of certain evidence.1 At the hearing, two eyewitnesses to the shooting were called to identify the defendant. One of those witnesses was McLaurin. He had made photo identifications of Clark and Taylor on two occasions prior to the hearing, and he was expected to make in-court identifications of both defendants at trial. Clark was excluded from the hearing during McLaurin's testimony, pursuant to the following colloquy:

The Court: Counsel, do you waive production of your client?

[Co-defense counsel]: My client is presently in my office and will be available as soon as we are ready to proceed.

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[Counsel for Clark]: I want to make the same application, your Honor.

The Court: Your[] client --

[Counsel for Clark]: He is incarcerated.

The Court: Suppose we keep him downstairs.

[Counsel for Clark]: Yes.

The Court: And, we will continue the hearing, and as soon as we are finished with this one witness, we will bring both of the defendants back. Counsel agreed yesterday at a side bar conference that we would continue the hearing at this point without the presence of their clients in the courtroom because they wanted to make certain that any identification that took place would not be re[i]nforced by their presence here at the defense table. You have all agreed; is that correct?

[Co-defense counsel]: That's correct.

[Counsel for Clark]: That is correct, your Honor.

The Court: Call your next witness, counselor.

After McLaurin finished testifying, Clark was brought into the courtroom and was present for the testimony of the second identifying witness, Deborah Ligon. At the direction of the court, Clark also attended his Sandoval hearing.2

After the jury's guilty finding, Clark was sentenced to prison terms totaling thirty-three and one-third years to life. On appeal, new counsel for Clark argued that 1) an improper comment was made in the state's summation, 2) the reasonable doubt charge was erroneous and confusing, 3) there was insufficient proof of specific intent to steal with regard to the felony murder count, and 4) Clark's sentence was excessive in light of his youth and criminal history. Clark's conviction was affirmed by the Appellate Division. See People v. Clark, 512 N.Y.S.2d 1019 (2d Dep't 1987). Leave to appeal to the Court of Appeals was summarily denied. See People v. Clark, 70 N.Y.2d 873 (1987).

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104 132, 110 Stat. 1214, was signed into law. AEDPA established a one-year period of limitation for state court prisoners to petition for a writ of habeas corpus in federal court, see 28 U.S.C. § 2244(d), the accrual date running from, inter alia, "the date on which the judgment became final by the conclusion of direct review." 28 U.S.C.A. § 2244(d)(1)(A) (West Supp. 1999).

Early in January of 1997, Clark filed a petition in state court for a writ of error coram nobis, contending that he was deprived of effective assistance of appellate counsel because the four issues raised on appeal were frivolous, while four meritorious issues that would have resulted in reversal of his conviction were not raised. One of the issues that Clark claims should have been raised on appeal was his absence from the Wade hearing during the time when testimony was taken from McLaurin. Clark's petition was denied by the Appellate Division on May 5, 1997. See People v. Clark, 657 N.Y.S.2d 979 (2d Dep't 1997).

On August 1, 1997 -- more than ten years after his state court conviction was affirmed on direct review and more than fifteen months after the passage of AEDPA -- Clark filed in the United States District Court for the Eastern District of New York the petition for a writ of habeas corpus that is at issue in this appeal. The State moved to dismiss for failure to file timely in accordance with 28 U.S.C. § 2244(d)(1).

In an Order dated October 20, 1997, the district court (Trager, J.) found that Clark could have reasonably believed his petition

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was filed timely due to the uncertainty regarding the new law. The court nonetheless found that none of the arguments that Clark contended should have been raised on direct appeal appeared to have any merit, foreclosing his claim that appellate counsel was ineffective. The court concluded that because "petitioner ha[d] not made a substantial showing of the denial of a constitutional right," a certificate of appealability would not issue. See 28 U.S.C.A. § 2253(c)(2) (West Supp. 1999). Accordingly, judgment dismissing Clark's petition and denying issuance of a certificate of appealability was entered on October 23, 1997.

Clark filed his notice of appeal with this Court on November 25, 1997. A panel of this Court granted his motion on February 3, 1999, certifying the following four issues:

(1) whether [Clark's] petition for habeas corpus relief was timely filed within the meaning of 28 U.S.C. § 2244(d)(2), including any period of tolling; (2) whether the one-year filing limitation imposed by 28 U.S.C. § 2244(d) violates the Suspension Clause of the United States Constitution, art. I, § 9, cl. 2; (3) whether the decision by the state Appellate Division denying [Clark's] coram nobis petition was contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court, 28 U.S.C. § 2254(d)(1), see O'Brien v. DuBois, 145 F.3d 16, 21 (1st Cir. 1998); and (4) whether [Clark] was denied effective assistance of counsel on his direct state appeal by appellate counsel's failure to raise the issue of [Clark's] absence from a portion of his Wade hearing.

This appeal followed.

DISCUSSION

We review the denial of a writ of habeas corpus de novo. See Bobb v. Senkowski, 196 F.3d 350, 352 (2d Cir. 1999) (citing English v. Artuz, 164 F.3d 105, 108 (2d Cir. 1998)).

While we agree with the district court that Clark's petition was timely filed, the State no longer raises any objection to the time of filing, rendering that issue moot. The State concedes on appeal that our intervening decision in Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), is...

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