Ballew v. Walker, No. 97-CV-0349E(Sr) (W.D.N.Y. 2/9/2001)

• Decision Date: 09 February 2001
• Docket Number: No. 97-CV-0349E(Sr).,97-CV-0349E(Sr).
• Parties: JAMES BALLEW, Petitioner, v. HANS G. WALKER, Superintendent of Auburn Correctional Facility, Respondent.
• Court: U.S. District Court — Western District of New York

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JAMES BALLEW, Petitioner, v. HANS G. WALKER, Superintendent of Auburn Correctional Facility, Respondent.

No. 97-CV-0349E(Sr).

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

February 9, 2001.

Attorneys For The Plaintiff: Pro Se, Auburn, N Y 13021.

Attorneys For The Defendant: Donna Millings, Esq., Buffalo, N Y 14202.

MEMORANDUM ORDER

JOHN T. ELFVIN, Judge.

Ballew petitioned pro se for a writ Of habeas corpus pursuant to 28 U.S.C. § 2254 April 30, 1997. Petitioner states that his conviction was obtained in violation of (1) his Fourth Amendment right to be free from unreasonable search and seizure, (2) his Fifth Amendment right against self incrimination, (3) his Sixth Amendment right to counsel and (4) his Fourteenth Amendment right to due process and equal protection. The undersigned referred the petition to Magistrate Judge Carol E. Heckman pursuant to 28 U.S.C. § 636 (b)(1)(B) May 6, 1999 for a determination of the merits of the factual and legal issues raised by plaintiff and a recommended disposition. Judge Heckman filed her Report and Recommendation ("the R&R") December 20, 1999 recommending that the petition be denied. Petitioner timely filed his objections thereto March 8, 2000 and such objections were submitted on the papers April 28, 2000 and are presently before this Court for disposition.

Familiarity with the facts which are more fully recounted in the R&R is presumed, although relevant facts will be briefly recounted. Petitioner was out on bail pending appeal of a previous conviction — for which appeal he was represented by Paul V. Hurley, Esq. — when he became a suspect in a case of a missing woman, one Vynn Anne Ryan, whom the police believed had been injured. State Court Records ("SCR") September 28, 1984 Order at 8-10. Pursuant to N.Y. Crim. Proc. Law § 530.80 Assistant District Attorney John DeFranks and Lieutenant Slade of the New York State Police convinced the bailbondsman to revoke petitioner's bail so that he could be brought in for questioning on the missing woman case. Id. at 10. Before petitioner had been taken into custody, DeFranks telephoned Hurley and informed him that petitioner was going to be taken into custody for questioning regarding the missing woman. SCR April 6, 1984 Stipulation between Hurley and DeFranks. Hurley states that he asked to be called when petitioner was picked up; however, DeFranks stated that Hurley made no such request. Ibid. Petitioner was subsequently taken into custody based on the withdrawal of the bail bond and brought to the State Police Barracks for questioning regarding the missing woman. SCR September 28, 1984 Order at 10. Petitioner was read his rights, stated that he did not want or need an attorney and subsequently made several incriminating statements and drew a map showing the location of the missing woman. Id. at 10-11. Subsequently petitioner asked to speak with Hurley and questioning ceased. Id. at 11. The police later recovered Ryan's body. Id. at 13. Petitioner was convicted January 11, 1985 in Erie County Court of inter alia, murder, attempted rape, robbery and kidnapping. He appealed to the Appellate Division of the New York Supreme Court for the Fourth Department which unanimously confirmed his conviction May 11, 1990.¹ The New York Court of Appeals denied leave to appeal August 10, 1990.

Petitioner objects to the R&R on the following grounds: (1) that he was denied his Sixth Amendment right to counsel because he was represented by Hurley in a case that was pending in the Clarence Town Court at the time he was arrested, in addition to the case for which Hurley represented him on appeal, (2) that he was denied his Sixth Amendment right to counsel because his attorney had been notified that his bond was being revoked and had entered the case by asking to be called when petitioner had been picked up, (3) that he was denied his Sixth Amendment right to the effective assistance of trial counsel by counsel's inadequate argument of his denial-of-counsel claims (4) that he was denied his Sixth Amendment right to the effective assistance of appellate counsel because his appellate counsel refused to argue that he had been represented by counsel in the case pending in the Clarence Town Court as opposed to the appeal of the prior case, (5) that he was illegally arrested because he was brought in for questioning on the missing-woman case by revoking his bail when there had been no probable cause to arrest him in connection with her disappearance, (6) that he was denied his Fourteenth Amendment right to due process and his Sixth Amendment right to compulsory process by the refusal of the trial court to grant him funds to hire a private investigator and expert witnesses pursuant to N Y County Law § 722(c) and (7) that the Magistrate Judge's ruling on his Fifth Amendment right to remain silent was erroneous.

Concerning petitioner's contention that he was denied his Sixth Amendment right to counsel because he had been represented by counsel at the time he was arrested in that (1) Hurley was representing him in a case that was pending in the Clarence Town Court in addition to the appeal in another case and (2) Hurley had asked to be notified when petitioner had been picked up. Objections to the R&R at ¶¶ 5-8. In a petition for habeas corpus, the court may only consider whether the petitioner's federal constitutional rights, not his state constitutional rights, were violated. Coleman v. Thompson, 501 U.S. 722, 730 (1991). "Text, context and history of the Sixth Amendment lead to the conclusion that the framers were addressing themselves to judicial proceedings, where a person is obliged to defend himself in a process fraught with the technicalities and procedural niceties of the criminal law." United States Cone, 354 F.2d 119, 123 (2d Cir. 1965). There is no Sixth Amendment right to counsel at the time of arrest. United States v. Gouveia, 467 U.S. 180, 190 (1984). It is "firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him." Kirby v. Illinois, 406 U.S. 682, 688 (1972). Adversarial judicial criminal proceedings are commenced through a "formal charge, preliminary hearing, indictment, information, or arraignment." Id. at 689.

"The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the `criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable." Id. at 689-690.

The Sixth Amendment right to counsel is offense-specific, it "does not prohibit the questioning of an individual regarding other crimes, as to which the right has not yet attached." United States v. Mapp, 170 F.3d 328, (2d Cir. 1999). To "exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public's interest in the investigation of criminal activities." Maine v. Moulton, 474 U.S. 159, 180 (1985). "The concept that professional criminals have `house counsel' because of prior escapades and that therefore Government agents knowing the identity of prior counsel have an obligation of constitutional or even ethical dimension to contact counsel before questioning them, is hardly appealing." United States v. Masullo, 489 F.2d 217, 223 (2d Cir. 1973).

At the time petitioner was questioned regarding the missing woman, formal criminal judicial proceedings had not yet been commenced against him in that matter and accordingly he had no right to counsel under the Sixth Amendment. However, petitioner has also raised a claim of ineffective assistance of both trial and appellate counsel based on their failure to rely on state constitutional law to support his denial-of-counsel claims. Objections to the R&R at ¶¶ 8, 15. Accordingly, in examining his claim of ineffective assistance of counsel under the Sixth Amendment, this Court must also address the right to counsel under New York law.

"The New York Court of Appeals has consistently interpreted the right to counsel under the NewYork Constitution more broadly than the Supreme Court has interpreted the federal right to counsel." Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). At the time petitioner was arrested, the law of New York was that a defendant could not waive his right to counsel outside the presence an attorney, if the police knew that the defendant was represented by counsel on an unrelated pending charge, or if the officers knew of the unrelated pending charge and the defendant did in fact have counsel on such charge. People Bartolomeo, 53 N.Y.2d 225, 231 (1981)² A defendant, however, does not have an absolute right to counsel simply because he is represented by counsel on an unrelated case which is on appeal. People v. Robles, 72 N.Y.2d 689, 695 (1988); People v. Colwell, 65 N.Y.2d 883, 885 (1985). The decision to have the advice or assistance of counsel rests with the client, not the lawyer. Bing, at 349.

Petitioner contends that he was deprived of the effective assistance of trial counsel based on Hurley's failure to seek to suppress evidence on the grounds that (1) he was representing petitioner in a case pending in Clarence Town Court and (2) that he had entered the underlying case by telling DeFranks to call him after petitioner had been arrested. Objections to the R&R at ¶ 15. Petitioner...