Aller v. Lape, 09-CV-1192

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
PartiesFILBERTO ALLER, Petitioner, v. WILLIAM LAPE, Warden Coxsackie Correctional Facility, Respondent.
Docket Number09-CV-1192
Decision Date12 May 2011

FILBERTO ALLER, Petitioner,
v.
WILLIAM LAPE, Warden Coxsackie Correctional Facility, Respondent.

09-CV-1192

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: May 12, 2011


NOT FOR PRINT OR ELECTRONIC PUBLICATION

MEMORANDUM & ORDER

KIYO A. MATSUMOTO, UNITED STATES DISTRICT JUDGE:

Petitioner Filberto Aller ("petitioner") is incarcerated pursuant to a judgment of conviction imposed in Supreme Court, Queens County. Alleging that his state custody violates his federal and constitutional rights due to the ineffective assistance of his appellate counsel on his direct appeal, petitioner seeks relief by means of a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. Section 2254. (ECF No. 1, Petition ("Pet."); ECF No. 2, Memorandum of Law in Support of Writ of Habeas Corpus dated Mar. 19, 2009 ("Pet'r Mem.") at 1, 3.) For the reasons set forth below, the petition is denied.

BACKGROUND

I. Petitioner's 2004 Trial

Petitioner's criminal convictions arise from a jury trial in New York State Supreme Court, Queens County on the charges of rape, sodomy, sexual abuse, robbery, and unlawful

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imprisonment. Jury selection for petitioner's criminal trial took place over two days and proceeded through four rounds. (Trial Transcript ("Tr.") at 24, 79, 112, 142.)

Petitioner was present during the first round of jury selection on January 26, 2004. (Id. at 23-68, 32.) After voir dire concluded in that round, the trial court instructed petitioner's counsel and the assistant district attorneys to step into chambers when they were "ready" to do so. (Id. at 68.) Once inside chambers, in the presence of the court, the clerk of the court, the court reporter, and one another, both sides made their respective for-cause and peremptory challenges. (Id. at 69-75.) Petitioner was not present in chambers during the exercise of these challenges. (See id. 68-75; Pet'r Mem. at 3.) However, following the in camera challenges, in open court and in the presence of petitioner, the clerk of the court asked the challenged jurors to stand and exit the court. (Tr. at 75.) Again in open court and in the presence of petitioner, the clerk then asked if the sole remaining juror was acceptable to both sides, and after both parties responded affirmatively, the single juror was sworn in. (Id.) Jury selection then concluded for the day. (Id.)

On January 30, 2004, the second, third, and fourth rounds of jury selection were conducted. (Id. at 79, 112, 142.) Petitioner was present when all prospective jurors were

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questioned during these rounds. (See id. at 77-187.) Once each round of voir dire concluded, the court stated "Counsel, consult" and instructed counsel to step into chambers when they were "ready." (Id. at 110, 138, 177-78.) Inside chambers, and outside petitioner's presence but in the presence of the court, the clerk of the court, the court reporter, and one another, the attorneys each made for-cause and peremptory challenges. (Id. at 110-12, 138-41, 178-83.) Following each round of in camera challenges, the clerk excused the challenged jurors in petitioner's presence and in open court. (Id. at 112, 141-42, 183-84.) In each round, after excusing the challenged jurors in petitioner's presence, the clerk asked whether the remaining seated jurors were acceptable to both sides and, after affirmative responses were given, swore in the jurors. (Id. at 112, 142, 184.)

Petitioner's case was tried before the jury in February 2004. (Id. at 300.) On February 11, 2004, petitioner was convicted of Rape in the First Degree (N.Y. Penal Law § 130.35(1)), two counts of Sodomy in the First Degree (N.Y. Penal Law § 130.50(1)), four counts of Sexual Abuse in the First Degree (N.Y. Penal Law § 130.65(1)), Robbery in the Third Degree (N.Y. Penal Law § 160.05), and Unlawful Imprisonment in the Third Degree (N.Y. Penal Law § 135.10). (Id. at 896-900.) On March 24, 2004, petitioner was sentenced to determinate prison

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terms of fifteen years for the first-degree rape and sodomy convictions, and five years for the first-degree sexual abuse convictions, as well as indeterminate prison terms of one to three years for third-degree robbery and first-degree unlawful imprisonment, all to run concurrently. (ECF No. 8, Respondent's Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus dated Oct. 9, 2009 ("Resp't Mem.") at 1-2.) Petitioner is currently incarcerated pursuant to this sentence. (Resp't Mem. at 2.)

II. Post Conviction Proceedings in State Court

Petitioner appealed his conviction to the Appellate Division, Second Department, which affirmed the conviction on October 3, 2006 in People v. Aller, 821 N.Y.S.2d 657 (2d Dep't 2006). (Resp't Mem. at 2, 13.) Petitioner was represented by Barbara Lerner ("appellate counsel") on his direct appeal. (Resp't Ex. A, Brief for Defendant-Appellant ("Br. Def.-Appellant") at 26, People v. Aller, 821 N.Y.S.2d 657 (2d Dep't 2006).)1 On March 29, 2007, the New York Court of Appeals

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denied petitioner leave to appeal the decision of the Appellate Division. (Pet'r Mem. at 2; Resp't Mem. at 2, 14); People v. Aller, 834 N.Y.S.2d 509 (2007).

On June 27, 2007, petitioner filed an application for a writ of error coram nobis in the Appellate Division, Second Department, challenging the effectiveness of his appellate counsel on his direct appeal. (Resp't Ex. I, Notice of Motion for a Writ of Error Coram Nobis dated June 27, 2007.) On February 13, 2008, the Appellate Division denied petitioner's application. (Pet'r Mem. at 4; Resp't Mem. at 14); People v. Aller, 849 N.Y.S.2d 903 (2d Dep't 2008). Following this denial, petitioner sought discretionary leave to appeal the denial pursuant to New York Criminal Procedure Law Section 450.90(1). (Pet'r Ex. E, Letter from Robert DiDio, Esq. to the Hon. Judith Kaye dated Mar. 3, 2008.) On June 23, 2008, the Court of Appeals denied petitioner leave to appeal. (Pet'r Mem. at 4; Resp't Mem. at 14); People v. Aller, 862 N.Y.S.2d 338 (2008).

III. The Instant Habeas Petition

Less than one year after the Court of Appeals decision, petitioner filed the instant habeas petition on March 19, 2009, raising a single claim of ineffective assistance of appellate counsel. (Pet. at 7; Pet'r Mem. at 4; Resp't Mem. at 14.) Specifically, petitioner alleges that appellate counsel

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was ineffective for failing to raise on direct appeal the issue of whether petitioner's constitutional and federal rights were violated when trial counsel failed to object to the exercise of juror challenges outside of petitioner's presence. (Pet'r Mem. at 3, 6.) Respondent has moved for judgment on the pleadings and petitioner has opposed. (Resp't Mem. at 23; Pet'r Mem. at 8.)

STANDARD OF REVIEW

A Section 2254 habeas petition shall not be granted unless the petitioner "has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process."); Rosa v. McCray, 396 F.3d 210, 217 (2d Cir. 2005), cert. denied, 546 U.S. 889 (2005). A habeas petitioner's state remedies are considered exhausted when the petitioner has: "(i) presented the federal constitutional claim asserted in the petition to the highest state court (after preserving it as required by state law in lower courts) and (ii) informed that court (and lower courts) about both the factual and legal bases for the federal claim." Ramirez v. Attorney Gen. of N.Y., 280 F.3d 87, 94 (2d Cir.

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2001); see also Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995) ("To fulfill the exhaustion requirement, a petitioner must have presented the substance of his federal claims to the highest court of the pertinent state.") (internal quotation marks and citation omitted).

Where a claim has been exhausted, the state court's adjudication on the merits is entitled to deference on collateral review, Channer v. Brooks, 320 F.3d 188, 195 (2d Cir. 2003), and thus, a federal court may only grant habeas relief where the state court's adjudication of the federal claim resulted in a decision that was either: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "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).

A state court's decision is "contrary to" clearly established Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached by [the] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000) (O'Connor, J., delivering the opinion of the Court as to Part II). A state

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