Anderson v. Keane

• Decision Date: 17 September 2003
• Docket Number: No. 97 Civ. 3182(CM)(GAY).,97 Civ. 3182(CM)(GAY).
• Citation: 283 F.Supp.2d 936
• Parties: Walter Lee ANDERSON, Petitioner, v. John KEANE, Superintendent, Sing Sing Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

283 F.Supp.2d 936

Walter Lee ANDERSON, Petitioner, v. John KEANE, Superintendent, Sing Sing Correctional Facility, Respondent.

No. 97 Civ. 3182(CM)(GAY).

United States District Court, S.D. New York.

September 17, 2003.

COPYRIGHT MATERIAL OMITTED

Jonathan C. Scott, Scott & Scott, LLP, Smithtown, NY, for Walter Lee Andersen.

Bridget Rahilly Steller, Office of the District Attorney, County of Dutchess, Poughkeepsie, NY, for John Keane.

MEMORANDUM ORDER DENYING PETITIONER'S WRIT OF HABEAS CORPUS

MCMAHON, District Judge.

Petitioner Walter Lee Anderson was convicted of Murder in the Second Degree by a petit jury in Dutchess County Court on May 25, 1989. According to the testimony of multiple eyewitnesses, Petitioner repeatedly stabbed Carol Kantor in the chest and thigh with a kitchen knife outside of her car in a parking lot in Poughkeepsie, New York on the evening of October 2, 1988. Anderson's conviction was affirmed by the Appellate Division, Second Department two years after the jury verdict. People v. Anderson, 175 A.D.2d 806, 573 N.Y.S.2d 288 (2d Dept.1991).

In 1997, Anderson commenced this proceeding for a writ of habeas corpus, asserting that his conviction was constitutionally flawed for a variety of reasons, including ineffective assistance of trial counsel. On May 30, 2000, he amended his petition to include a claim of ineffective assistance of appellate counsel. Both the petition and the amended petition were referred to The Hon. George A. Yanthis, United States Magistrate Judge, for Report and Recommendation.

I have reviewed the Report and Recommendation of Judge Yanthis, United States Magistrate Judge, dated May 27, 2003 (in which Judge Yanthis dealt with the claims asserted in the original petition); the Supplemental Report and Recommendation of Judge Yanthis (which deals only with the claim of ineffective assistance of appellate counsel) dated June 3, 2003; Petitioner's Objections to both Reports, lodged by his attorney of record, Jonathon C. Scott Esq., on June 12, 2003; and a letter submitted by Petitioner himself, dated June 19, 2003, in which he outlines his own version of his ineffective assistance of appellate counsel argument.

In all respects, Judge Yanthis's thorough and well-reasoned May 27, 2003 Report and Recommendation (the "Original Report") is adopted by the Court as its own opinion as to the issues discussed therein. Indeed, neither Attorney Scott's Objections nor Petitioner's supplemental objections (if I may call them that) identifies any error in Judge Yanthis's original Report. Accordingly, I turn to the Supplemental Report and Recommendation, which deals only with the issue of ineffective assistance of appellate counsel, and the objections lodged thereto by Petitioner and his lawyer.

Familiarity with Judge Yanthis's Original Report—which contains an extended discussion about petitioner's heinous crime and the prior procedural history of the case—is assumed.

Background Information about the Supplemental Report and Recommendation

In May 2000, Petitioner amended his then-pending petition for a writ of habeas corpus to include a claim of ineffective assistance of appellate counsel. Because he had not yet exhausted that claim, this action was placed on the suspense calendar to permit exhaustion.

Petitioner filed a pro se Writ of Error Coram Nobis in December 2000. He alleged that appellate counsel had failed to raise a key issue on appeal—namely, the submission to the jury of a so-called "annotated" verdict sheet. The verdict sheet in question is attached to this opinion. It is "annotated" in the sense that it includes the words "Intentional Killing" after the name of the crime charged in Court 1 of the Indictment, Murder in the Second Degree.

It is a quirk of New York criminal law that jurors are not allowed to take anything into the jury room that sets forth the elements of the charges against the defendant. So, for example, a New York State judge, unlike her federal counterpart, may not send a copy of the charge back to the jury room for use by the jurors during deliberations.¹ Similarly, the contents of any so-called "verdict sheet" are dictated by statute in CPL § 310.20(2):

2. A written list prepared by the court containing the offenses submitted to the jury by the court in its charge and the possible verdicts thereon. Whenever the court submits two or more counts charging a violation of the same section of a law defining an offense, the court my set forth the dates, names of complainants or specific statutory language, without defining the terms, by which the counts may be distinguished; provided, however, that the court shall instruct the jury in its charge that the sole purpose of the notations is to distinguish between the counts charging a violation of the same section of the law;.......

The only time that language other than the name of the charged offense may lawfully be added to the verdict sheet is when two or more counts charge a violation of the same section of the Penal Law. When that happens—and only when that happens— specific statutory language may be added to the verdict sheet in order to minimize juror confusion.

The record reveals that the defendant was originally indicted on two separate counts of Second Degree Murder in violation of Penal Law § 125.25—Intentional Killing and Depraved Indifference Murder —but the latter charge was not submitted to the jury, because the proof adduced at trial did not conform to the elements of that crime. The parenthetical "Intentional Killing" had been placed on an early draft of the verdict sheet—one that listed two separate counts of Second Degree Murder—to minimize juror confusion, because the jurors had heard about both Intentional Killing and Depraved Indifference Murder during the course of the trial. When the court declined to submit the charge of Depraved Indifference Murder to the jury, the reference to the second count was redacted but the descriptive phrase that had been added to the verdict sheet to allow the jurors to distinguish between the two murder counts was not removed. This violated § 310.20(2).

In his coram nobis petition, Petitioner contended that his appellate lawyer's failure to raise the issue of the annotated verdict sheet on appeal constituted ineffective assistance of counsel. He also castigated appellate counsel for failing to raise his claim of ineffective assistance of trial counsel for not objecting to the admission of the allegedly defective verdict sheet— this despite Petitioner's having submitted an affidavit from trial counsel which stated under oath that he did object to the admission of an annotated verdict sheet.

On April 9, 2001, the Appellate Division, Second Department denied the coram nobis petition, ruling that Petitioner had failed to establish that he was denied effective assistance of appellate counsel. The Appellate Division's decision contained no discussion of the point; it merely recited the conclusion that counsel's assistance had not been ineffective. People v. Anderson, 282 A.D.2d 542, 722 N.Y.S.2d 774, (2d Dept.2001).

Standard of Review under AEDPA

Petitioner filed his claim after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which mandates deference to state court decisions. See 28 U.S.C. § 2254(d). AEDPA deference only applies to a "state-court `adjudication on the merits,' not to a disposition `on a procedural, or other, ground.'" Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir.2003) (quoting Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir.2001)). To arrive at a decision "on the merits," the state court "need only dispose of petitioner's federal claim on substantive grounds, and reduce that disposition to judgment. No further articulation of its rationale or elucidation of its reasoning process is required." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir.2001).

Here, as in Aparicio, the Appellate Division summarily denied Petitioner coram nobis relief. Also, as in Aparicio, there is "nothing to indicate that the claims were decided on anything but substantive grounds." Id. Indeed, the Appellate Division's terse opinion makes that quite clear—it ruled that Petitioner had "failed to establish" ineffective assistance of counsel. Thus, because Petitioner's claims have been "adjudicated on the merits" by the Appellate Division, habeas review must be conducted under AEDPA's deferential standards.

Once it has been determined that AEDPA deference must be accorded to the state court decision, the federal court must "focus its review on whether the state court's ultimate decision was an `unreasonable application' of clearly established Supreme Court precedent." Id., at 94 (quoting Sellan, 261 F.3d at 311-312). In this case, the issue is whether the Appellate Division's conclusion that petitioner had failed to prove ineffective assistance of counsel constituted an unreasonable application of the Supreme Court's clearly established test for ineffective assistance of counsel, as articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In order to show ineffective assistance of counsel, petitioner must demonstrate that he was denied reasonably effective assistance and that he suffered prejudice as a result of counsel's deficiencies; that is, "but for counsel's unprofessional error, the result of the proceeding would be different." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The Strickland test applies on appeal as well, so that a petitioner who alleges ineffective assistance of appellate counsel must demonstrate that appellate counsel acted objectively unreasonably in failing to raise a particular issue on appeal, and absent counsel's deficient performance, there was a reasonable probability that petitioner's appeal would have been successful before the state's highest court. Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); Rivera v. Duncan, ...