Miller v. Warden of Sing Sing Corr. Facility, 13-cv-4576 (BMC)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtCOGAN, District Judge.
Decision Date20 July 2018
Docket Number13-cv-4576 (BMC)

JAMES MILLER, Petitioner,

13-cv-4576 (BMC)


July 20, 2018


COGAN, District Judge.

Petitioner pro se seeks habeas corpus relief under 28 U.S.C. § 2254 from his conviction for second-degree burglary and fourth-degree grand larceny. The facts will be set forth as necessary to address each of petitioner's points of error, but to summarize, this was an apartment burglary in which petitioner's fingerprints were found in an armoire in the victims' apartment from which some of the victims' property was stolen. Petitioner did not know the victims and they did not know him. The fingerprints were the only evidence linking him to the crime.

As shown below, petitioner's arguments challenging his conviction are all procedurally barred. Accordingly, the petition is denied.

I. Right to Choose Counsel

In a motion dated about six months before trial, petitioner moved pro se for the appointment of new counsel. The motion generally stated that petitioner's appointed counsel had failed to return his calls or provide him with documents and had not responded to advice that petitioner had given him establishing that petitioner was innocent.1 For unknown reasons, the

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motion was not received by the court until about four months prior to trial.2 However, at no time after the date of the motion did petitioner call the motion to the court's attention. To the contrary, petitioner continued with his original counsel through a suppression hearing (in which petitioner prevailed - his post-arrest statements to the police were suppressed), the trial, and sentencing, never alerting the trial court that he had requested new counsel.

On direct appeal, petitioner contended that the trial court's failure to rule on the motion had deprived him of his Sixth Amendment right to counsel. The Appellate Division disagreed, holding that "[a] properly interposed constitutional claim may be deemed abandoned or waived if not pursued. Here, the defendant's conduct subsequent to the making of his pro se motion evinces his satisfaction with counsel and an abandonment of his unresolved constitutional application." People v. Miller, 102 A.D.3d 813, 814, 957 N.Y.S.2d 890 (2d Dep't) (citations and internal quotation marks omitted), leave to app. denied, 21 N.Y.3d 1017, 971 N.Y.S.2d 500 (2013).

New York's doctrine of abandonment constitutes a procedural bar to addressing petitioner's constitutional claim on federal habeas corpus review. See Scott v. Graham, No. 16-cv-2372, 2017 WL 2820061, at *14-15 (S.D.N.Y. June 29, 2017); Davila v. Duncan, No. 00-cv-1029416, 2001 WL 1029416, at *5 (S.D.N.Y. Sept. 6, 2001). A federal court should not address the merits of a petitioner's habeas claim if a state court has rejected the claim on "a state law ground that is independent of the federal question and adequate to support the judgment." Lee v. Kemna, 534 U.S. 362, 375 (2002) (emphasis omitted) (quoting Coleman v. Thompson, 501 U.S.

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722, 729 (1991)). When a state court rejects a petitioner's claim because he failed to comply with a state procedural rule, that procedural rule may constitute an adequate and independent state law ground for the state court's decision. See Coleman, 501 U.S. at 729-30; see, e.g., Murden v. Artuz, 497 F.3d 178, 193 (2d Cir. 2007). State law procedural grounds are only adequate to support the judgment - and therefore foreclose federal review - if they are "firmly established and regularly followed" in the state. Murden, 497 F.3d at 192 (quoting Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006)).

It is well established under New York law that to preserve a claim, a defendant must not only move for the relief he seeks but must call the motion to the trial court's attention before taking substantial action that indicates that he is no longer interested in the motion. See, e.g., People v. Rodriguez, 50 N.Y.2d 553, 557-58, 429 N.Y.S.2d 631, 632-33 (1980) (where defendant moved to dismiss on Speedy Trial grounds and the trial court conducted a hearing on the motion but did not decide it prior to trial, defendant was deemed to have abandoned the motion). Numerous cases in the Appellate Divisions have specifically held that if a criminal defendant files a motion and then takes no action to pursue it, but instead goes forward with his trial, the motion is deemed abandoned. See People v. Diallo, 88 A.D.3d 511, 511-12, 930 N.Y.S.2d 194, 196 (1st Dep't 2011) (pro se motions asserting constitutional Speedy Trial claims); People v. Ramos, 35 A.D.3d 247, 247, 825 N.Y.S.2d 222, 223 (1st Dep't 2006) (motion to proceed pro se); People v. Berry, 15 A.D.3d 233, 234, 788 N.Y.S.2d 849, 850 (1st Dep't 2005) (pro se suppression motion deemed abandoned); People v. Smith, 13 A.D.3d 1121, 1122, 786 N.Y.S.2d 879, 880 (4th Dep't 2004) (motion to suppress deemed abandoned); People v. Boccaccio, 288 A.D.2d 898, 898, 732 N.Y.S.2d 385, 386 (4th Dep't 2001) (same); People v . Brown, 284 A.D.2d 191, 191, 726 N.Y.S.2d 263, 263 (1st Dep't 2001) (same); People v.

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Brimage, 214 A.D.2d 454, 454-55, 631 N.Y.S.2d 2, 3 (1st Dep't 1995) (same). The Appellate Division's holding in this case therefore constitutes an independent and adequate state court ground that is firmly established and regularly followed.

Even if a claim is barred under state procedural rules, however, a federal court may still review the claim on the merits if the petitioner can demonstrate both cause for the default and prejudice from it, or if he can demonstrate that the failure to consider the claim will result in a miscarriage of justice. See Coleman, 501 U.S. at 749-50; Harris, 489 U.S. at 262. The latter avenue, a miscarriage of justice, is demonstrated in extraordinary cases, such as where a constitutional violation results in the conviction of someone who is actually innocent. See Murray v. Carrier, 477 U.S. 478, 496 (1986).

The first avenue, cause for the default and prejudice from it, can be demonstrated with "a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . or that 'some interference by state officials' made compliance impracticable, . . . [or that] the procedural default is the result of ineffective assistance of counsel." Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (quoting Murray, 477 U.S. at 488) (alteration in original). Although, in some circumstances, ineffective assistance of counsel may constitute "cause" sufficient to avoid a procedural default, Murray, 477 U.S. at 488-89, the ineffective assistance claim must itself have been exhausted in state court. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). To adequately exhaust a claim, a petitioner must "fairly present" the claim to the state court. Baldwin v. Reese, 541 U.S. 27, 29 (2004).

New York's rule of abandonment, particularly of a pro se motion for new counsel, is unlikely to qualify for any of the established reasons to avoid the procedural bar on federal habeas corpus review. The obvious concern of the rule is that a defendant, having interposed a

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request for relief, should not be permitted to keep it in his back pocket, to be reasserted on appeal only if he is unhappy with the result of his trial. Moreover, to the extent a defendant is unhappy with his assigned counsel and does not pursue a pro se application to change counsel, he may still contend that his counsel was ineffective in various ways if he had grounds to do so (as petitioner has asserted here and as discussed below). Petitioner never offered any cause to the Appellate Division for not having pursued his pro se motion - indeed, his appointed appellate counsel did not even address the state's abandonment argument. I therefore see neither cause, prejudice, or miscarriage of justice in upholding the Appellate Division's ruling that the motion had been abandoned.

II. Confrontation Clause/Ineffective Assistance Claim

A. Trial Record

At trial, the sole evidence connecting petitioner to the crime consisted of two witnesses who testified about fingerprint evidence. First, a police officer from the Evidence Collection Team with substantial training in fingerprint collection testified that he obtained two prints from inside an armoire in the victims' apartment and placed them on a print card. Second, a police department fingerprint expert, Rosemarie Simonetti, testified that she compared the print card with possible matches from a computer database (likely a database of prior arrestees, but she didn't say that) and concluded that petitioner's, which was in the database, matched.

She further testified that after she had reached her conclusion, as per her unit's practice, she gave both sets of prints to two other experts in her office, one for a blind confirmation and the other for a technical review, and each reviewer signed a confirmation slip. The blind confirmation consisted of reviewing the latent prints and ink prints Simonetti had selected to confirm that they matched, without knowing which fingers the prints were taken from. The

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technical reviewer did the same thing, except he knew which fingers were used, and confirmed that they matched. Defense counsel did not object to any of the fingerprint expert's testimony concerning these reviewers.

B. Direct Appeal

On direct appeal, petitioner contended that his rights under the Confrontation Clause had been violated by the fingerprint expert's testimony that two reviewers had confirmed her results after she had reached her opinion. He acknowledged that the point of error was not preserved at trial, but stated as follows:

[A]lthough defense counsel failed to object to the admission of this evidence, appellant asks the Court to reach this issue in the interest of justice.

In the alternative, the Court should reverse and grant a new trial because defense counsel was ineffective for failing to object to this

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