Frazier v. Kelly, 98-CV-6049FE.

• Decision Date: 18 November 1999
• Docket Number: No. 98-CV-6049FE.,98-CV-6049FE.
• Citation: 112 F.Supp.2d 253
• Parties: Joseph FRAZIER, Petitioner, v. Walter KELLY, Superintendent, Attica Correctional Facility, Respondent.
• Court: U.S. District Court — Western District of New York

112 F.Supp.2d 253

Joseph FRAZIER, Petitioner, v. Walter KELLY, Superintendent, Attica Correctional Facility, Respondent.

No. 98-CV-6049FE.

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

November 18, 1999.

COPYRIGHT MATERIAL OMITTED

Joseph Frazier, Attica, NY, pro se.

Howard Broder, Rochester, NY, for Joseph Frazier, plaintiff.

Donna Milling, Erie County District Attorney's Office, Buffalo, NY, for Walter R. Kelly, defendant.

DECISION AND ORDER

FELDMAN, District Judge.

Preliminary Statement

Petitioner Joseph Frazier (hereinafter "Frazier"), petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this matter by the undersigned. For the reasons set forth below, Frazier's petition for a writ of habeas corpus is denied.

Factual Background

On September 12, 1995, following a jury trial in Erie County Court, Frazier was found guilty of Burglary in the First Degree. The charges against Frazier arose from allegations that Frazier and co-defendant Timothy Brady (hereinafter "Brady") burglarized the home of victim Cynthia Baldi (hereinafter "Baldi") on October 13, 1993. Prior to trial, Brady entered a plea of guilty and agreed to cooperate with the prosecution. Both Brady and Baldi testified against Frazier at his trial.

Frazier was tried twice. The first trial ended in a deadlocked jury. In the second trial, the jury rejected Frazier's alibi defense and he was convicted on all counts. Frazier was sentenced as a second felony offender to a term of ten to twenty years incarceration and is currently in the custody of the State of New York. The Fourth Department of the Appellate Division affirmed Frazier's conviction on direct appeal. People v. Frazier, 233 A.D.2d 896, 649 N.Y.S.2d 542 (4th Dep't 1996). At both his trial and on his direct appeal, Frazier was represented by attorney Robert Boreanaz, Esq. (hereinafter "Boreanaz").

On December 4, 1997, Frazier, utilizing new counsel, filed a Motion for a Writ of Coram Nobis with the Appellate Division Fourth Department. The sole basis for the coram nobis application was Frazier's allegation that Boreanaz had an actual conflict of interest in representing Frazier and that the trial court's failure to probe or inquire into the conflict was per se reversible error. In seeking the writ, Frazier argued that had the trial judge's conduct in dealing with the claimed conflict been raised as an issue on his direct appeal, his conviction would have been reversed. Thus, according to Frazier, the failure of Boreanaz to raise the conflict issue in his direct appeal denied him the effective assistance of appellate counsel. The specific relief sought in Frazier's coram nobis application was to vacate the Appellate Division's Order affirming his conviction and allow Frazier to file a new appeal along with a supplemental record on appeal to be considered de novo by the Fourth Department.

The allegations in Frazier's coram nobis application are, in sum and substance, identical to the constitutional violations alleged by Frazier in the instant habeas petition. The claimed conflict of interest arises from the fact that a member of Boreanaz's law firm also represented an individual identified by Brady as someone who aided he and Frazier in the burglary of Baldi's home. Brady testified that David Latona (hereinafter "Latona") assisted their burglary plans by "setting up Baldi" and thereafter driving him and Frazier to and from Baldi's residence. Latona did not participate in the actual burglary, but instead, waited in his car which he parked on a corner near Baldi's residence. Criminal charges were never filed against Latona regarding his alleged involvement in the Baldi burglary.

Prior to the first trial, Boreanaz disclosed to the trial judge and the prosecutor that an attorney in his law office had represented Latona. Boreanaz informed the court that based "on my investigation [I] don't see there is a conflict that exists now." Boreanaz told the court that Latona was not an "integral part" of the crime or whether his client "participated in the crime" and that it was not necessary for him to impeach Latona's credibility at trial. Finally, Boreanaz told the court that he did not intend on calling Latona as a witness, but if Latona "becomes a witness, then we certainly have a problem." The court agreed with Boreanaz, stating: "Well if he becomes a witness he's going to have a problem. Up until then, I don't think you have a problem."

Prior to the second trial, Boreanaz again addressed the court about "the Latona issue with respect to prior representation by Mr. Greenman [a member of Boreanaz's firm]." In response, the trial judge again stated that "if he [Latona] is called then there is going to be a conflict." Neither the court, the prosecutor, Boreanaz or Frazier engaged in any further inquiry regarding the claimed conflict. Latona was never called as a witness at either of Frazier's trials.

On February 4, 1998, the Appellate Division denied without opinion Frazier's coram nobis writ. People v. Frazier, 247 A.D.2d 942, 670 N.Y.S.2d 649 (4th Dep't. 1998). A week later, on February 11, 1998, Frazier filed the instant habeas corpus petition alleging solely ineffective assistance of appellate counsel in violation of his Sixth Amendment rights. The Respondent agrees that the issue raised in the habeas petition has been exhausted in the New York State Courts.¹

Discussion

Like his application for a writ of coram nobis, Frazier's habeas corpus petition is limited to a single issue: whether the failure of Boreanaz to raise the claimed conflict in his appellate brief violated Frazier's Sixth Amendment right to the effective assistance of appellate counsel. According to Frazier, New York law requires a trial judge confronted with an alleged conflict of interest to inquire about the conflict to ensure that "the defendant's decision to proceed with his attorney is an informed decision." People v. Gomberg, 38 N.Y.2d 307, 313-14, 379 N.Y.S.2d 769, 342 N.E.2d 550 (1975) ("What is required is that when two or more defendants are represented by the same attorney, the trial court ascertain, on the record, whether each defendant has an awareness of the potential risks involved in that course and has knowingly chosen it"); People v. Lombardo, 61 N.Y.2d 97, 102, 472 N.Y.S.2d 589, 460 N.E.2d 1074 (1984) (Gomberg inquiry appropriate where defense counsel previously represented prosecution's "chief witness"). Because the Gomberg inquiry is required in conflict cases, Frazier argues that had Boreanaz raised the issue on appeal, reversal of his conviction would certainly have resulted.

It is true that the failure to raise a meritorious argument based on purely state law may form the basis of a federal habeas petition alleging ineffective assistance of appellate counsel. "The claim whose omission forms the basis of an ineffective assistance claim may be either a federal-law or state-law claim, so long as the `failure to raise the state ... claim fell outside the wide range of professionally competent assistance.'" Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.1994) (quoting Claudio v. Scully, 982 F.2d 798, 805 (2d Cir.1992)). Regardless of whether the neglected appellate issue is based on federal or state law, the burden is clearly on Frazier to show "that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Id.

The Merits of the Appellate Conflict Issue

1. Merits under New York State Law: Based on the record before the Court, Frazier's argument that Boreanaz's failure to include the "conflict" issue in his brief on appeal establishes constitutionally inadequate adequate counsel suffers from several flaws. First, Frazier's argument assumes that Boreanaz suffered from an actual or potential conflict of interest, an assumption not borne out by the record before this Court. This was not a case where Boreanaz was simultaneously representing co-defendants. See e.g. People v. Gomberg, 38 N.Y.2d at 312, 379 N.Y.S.2d 769, 342 N.E.2d 550 (right to counsel may be impaired where lawyer simultaneously represents conflicting interests of multiple defendants). Nor was Boreanaz representing Frazier and a prosecution witness. See, e.g., People v. Lombardo, 61 N.Y.2d at 102, 472 N.Y.S.2d 589, 460 N.E.2d 1074 (potential conflict arises when lawyer represents defendant and chief prosecution witness). In the aforementioned situations, a potential conflict of interest worthy of enhanced judicial scrutiny has occurred.

Here, however, the record simply reflected that a member of Boreanaz's law firm had, at some point in time, represented an individual who was not charged with participating in the relevant offense and who was not going to be either a prosecution or defense witness. Further, the trial court was notified, in the presence of both the district attorney and the defendant, that defense counsel had "investigated" the matter and had determined that there was no existing conflict. The trial judge had the right to rely upon counsel's representations. See People v. Gomberg, 38 N.Y.2d at 314, 379 N.Y.S.2d 769, 342 N.E.2d 550 (given that it may be assumed that defense counsel will not deliberately violate the Code of Professional Responsibility, court may appropriately "place great weight upon counsel's representation that there is no conflict" of interest).

Put simply, the record before this Court fails to establish that Boreanaz operated under an actual or potential conflict of interest.² Moreover, at oral argument petitioner's counsel specifically repudiated any need for Frazier to establish through discovery or other fact-finding hearing, the nature or extent of Boreanaz's law firm's relationship and representation of Latona.³ Frazier's hypothesis that had Latona been interviewed by the "defense team," he would have provided evidence favorable to the...