982 F.2d 798 (2nd Cir. 1992), 205, Claudio v. Scully

Docket Nº:205, Docket 92-2263.
Citation:982 F.2d 798
Party Name:Angel CLAUDIO, Petitioner-Appellant, v. Charles SCULLY, Superintendent, Greenhaven Correctional Facility, Respondent-Appellee.
Case Date:December 28, 1992
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 798

982 F.2d 798 (2nd Cir. 1992)

Angel CLAUDIO, Petitioner-Appellant,

v.

Charles SCULLY, Superintendent, Greenhaven Correctional

Facility, Respondent-Appellee.

No. 205, Docket 92-2263.

United States Court of Appeals, Second Circuit

December 28, 1992

Argued Oct. 22, 1992.

Page 799

William E. Hellerstein, New York City (Proskauer Rose Goetz & Mendelsohn, of counsel), for petitioner-appellant.

John M. Castellano, Asst. Dist. Atty., Queens County, Kew Gardens, NY (Richard A. Brown, Dist. Atty., Tammy J. Smiley, Asst. Dist. Atty., of counsel), for respondent-appellee.

Before: OAKES, NEWMAN and PIERCE, Circuit Judges.

OAKES, Circuit Judge:

Angel Claudio appeals from a judgment of the United States District Court for the Eastern District of New York, Edward R. Korman, Judge, denying a petition for a writ of habeas corpus. The district court determined that Claudio's Sixth Amendment right to counsel was not violated by his attorney's failure to raise an ineffective assistance of counsel claim under the New York Constitution during a pre-trial appeal to the New York Court of Appeals. For the reasons set forth below, we reverse, with directions. There was a reasonable probability that the neglected claim would have succeeded on appeal and counsel's failure to raise the claim fell outside the range of reasonably competent assistance.

BACKGROUND

On May 15, 1980, at approximately 4:15 a.m., Steven Zweikert was shot to death during a robbery as he returned home from his high school prom. Four days later, as a result of an anonymous tip, police investigating the incident went to Claudio's home and asked that he accompany them to the police station for questioning. Claudio, who was sixteen years old, complied after his stepmother agreed to accompany him. At the station, Claudio told the police that he had been on his front stoop the night of the incident and had gone to bed around midnight. Claudio allowed himself to be photographed and was then taken home by the police.

On May 21, 1980, Claudio, and his cousin, David Erasquine, consulted the phone book to find legal help. They called the firm of Heller and Heller and left a message. Mark Heller returned their call and agreed to meet with them the next day in Brooklyn Criminal Court, where Heller had some business. As agreed, Heller met with Claudio and Erasquine and talked about Claudio's situation. Heller requested and received one dollar as a token retainer and explained that his fee would be approximately $5,000.

Heller then drove Claudio and his cousin to the Queens County District Attorney's Office in order for Claudio to surrender. Although there is conflicting testimony as to the circumstances surrounding this decision, Justice Kenneth Browne of the New York Supreme Court, Queens County, found Claudio's testimony to be more credible than Heller's. The findings were that Heller told Claudio to surrender and did not explain the seriousness of the charges that Claudio might face or his available defenses. The judge believed Claudio's testimony that he was told by Heller that, if he surrendered, he might receive probation and serve no jail time at all.

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At the District Attorney's office, Heller, having left Claudio and Erasquine in a downstairs hallway, met with District Attorney Santucci and was told that there would be no plea bargain even if Claudio confessed. Heller did not share this information with Claudio but simply told him that he was still negotiating. After Heller's meeting with Santucci, Heller was approached by Assistant District Attorney Del Vecchio, who requested that Claudio give a statement. Heller, at first, refused, saying that they should "[j]ust book him and arraign him." Del Vecchio replied, "I want to talk to him, we can't book him and arraign him on nothing." Indeed, Santucci, Del Vecchio, and the other assistant district attorneys testified that without a confession, they had lacked sufficient evidence to charge Claudio with the Zweikert murder.

On Heller's recommendation, Claudio eventually gave his statement, confessing to the Zweikert murder. Heller actively participated in the questioning and in the District Attorney's press conference that was held afterward.

Claudio was indicted for the crimes of murder in the second degree, attempted robbery in the first degree, and criminal possession of a weapon in the second degree. Following the indictment, the court appointed Albert A. Gaudelli to represent Claudio. Justice Browne held the pre-trial evidentiary hearing alluded to above and granted Claudio's motion to suppress his confession on the ground that his Sixth Amendment right to effective assistance of counsel had been violated by attorney Heller's conduct. The prosecution appealed the court's decision on the pre-trial motion, pursuant to New York Criminal Procedural Law § 450.20(8), and the Appellate Division reversed. People v. Claudio, 85 A.D.2d 245, 447 N.Y.S.2d 972 (2d Dept.1982). The Appellate Division determined that Claudio's right to counsel under the Sixth Amendment of the United States Constitution had not attached because adversarial judicial criminal proceedings had not commenced, citing United States v. Zazzara, 626 F.2d 135 (9th Cir.1980) and Brown v. United States, 551 F.2d 619 (5th Cir.1977). Claudio, 85 A.D.2d at 252, 447 N.Y.S.2d at 977.

Of particular importance to this case, the Appellate Division also addressed, sua sponte, the question whether Claudio's right to counsel had been violated under art. I, § 6 of the New York Constitution. 1 The court found that Claudio's right to counsel had attached according to a line of New York cases that "grew out of the need to protect suspects from prearraignment and preindictment police abuse." Claudio, 85 A.D.2d at 254, 447 N.Y.S.2d at 979. One of these cases, People v. Skinner, 52 N.Y.2d 24, 436 N.Y.S.2d 207, 417 N.E.2d 501 (1980), served as the primary basis for the Claudio court's finding. According to the Claudio court, Skinner stood for the proposition that "a person not yet in custody may not be questioned outside of the presence of his attorney about a matter under investigation when the interrogators know that he has retained an attorney to represent him in relation to the very subject being investigated." Claudio, 85 A.D.2d at 255, 447 N.Y.S.2d at 979. The Claudio court applied the Skinner rule to the facts of this case and determined that it was "clear that Claudio's right to counsel under [the New York] State Constitution had attached prior to his confession." Id. at 256, 447 N.Y.S.2d at 979.

However, the court decided that Claudio's constitutional rights had not been violated since the state constitutional right to counsel before the initiation of formal proceedings did not include a right to effective counsel. In reaching this conclusion, the Claudio court focussed exclusively on whether the police and prosecutors had a duty to determine if Claudio had received competent legal help before they questioned him. The court reasoned that it would be impractical and improper to require a law enforcement officer to judge

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the competency of legal advice, and, therefore, that Claudio did not have a meritorious claim under the New York Constitution. Claudio, 85 A.D.2d at 260, 447 N.Y.S.2d at 981.

On appeal, the Court of Appeals affirmed the Appellate Division's decision that Claudio's Sixth Amendment right to counsel had not attached prior to his confession. People v. Claudio, 59 N.Y.2d 556, 466 N.Y.S.2d 271, 453 N.E.2d 500 (1983). Claudio's counsel did not raise the Article 1, § 6 New York right to counsel claim on appeal even though it was the subject of lengthy discussion by the Appellate Division and had been argued and briefed by the state. As a result, the Court of Appeals did not reach the issue. 2

Following the appeal, Claudio was tried before a jury, convicted on all the charges, and sentenced to a total of 35 years to life imprisonment. The conviction was affirmed by the Appellate Division, but the sentence was modified to 25 years to life. People v. Claudio, 130 A.D.2d 759, 515 N.Y.S.2d 845 (2d Dept.1987). Leave to appeal to the Court of Appeals was denied. People v. Claudio, 70 N.Y.2d 873, 523 N.Y.S.2d 501, 518 N.E.2d 12 (1987).

On October 13, 1989, Claudio filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of New York. The petition raised four issues, the first three of which are set out here as they are the same issues Claudio raises on appeal. First, Claudio contended that his Sixth Amendment right to counsel was violated when Attorney Gaudelli failed to raise the Article 1, § 6 ineffective assistance of counsel claim during his pre-trial appeal to the New York Court of Appeals. Second, Claudio asserted that Heller's conduct constituted a violation of his Sixth Amendment right to counsel. Third, Claudio argued that his Sixth Amendment right to compulsory process was violated by the trial court's decision not to allow him to examine District Attorney Santucci during trial.

The district court denied Claudio's petition on April 3, 1992 and issued a corrected memorandum and order granting a certificate of probable cause on April 30, 1992. Claudio v. Scully, 791 F.Supp. 985 (E.D.N.Y.1992). First, the court determined that Claudio had not been prejudiced by his counsel's failure to raise the Article 1, § 6 claim because there was no reasonable probability that the argument would have succeeded. Second, the court found that Claudio had no Sixth Amendment claim based on Heller's advice prior to his confession because the right to counsel under the United States Constitution had not attached. Finally, the court decided that the refusal to allow Claudio to call...

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