Quail v. Farrell
| Decision Date | 25 April 2008 |
| Docket Number | No. 07 Civ. 6050 (VM).,07 Civ. 6050 (VM). |
| Parties | Charles QUAIL, Petitioner v. J. FARRELL, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Charles Quail, Wallkill, NY, Pro Se.
DECISION AND ORDER
Pro se petitioner Charles Quail ("Quail"), seeks a writ of habeas corpus pursuant to 28 U.S.C § 2254. Quail raises six claims in his petition: (1) a violation of due process resulting from prosecutorial misconduct during his trial; (2) ineffective assistance of trial counsel for failure to preserve the issue of prosecutorial misconduct for appeal; (3) ineffective assistance of appellate counsel for failing to raise issues that Quail specifically requested; (4) ineffective assistance of appellate counsel for failing to include certain issues in an application for leave to appeal to the New York Court of Appeals; (5) ineffective assistance of trial counsel relating to the failure of trial counsel to raise the issue of Quail's mental competence; and (6) a denial of due process for the failure of the trial court to raise the issue of Quail's mental competence.
Quail also moves for appointment of counsel pursuant to 18 U.S.C. § 3006A(g). For the reasons described below, Quail's petition and his motion for appointed counsel are DENIED.
On January 16, 2004, Quail was convicted in New York State Supreme Court (the "State Court") after a non-jury trial of one count of Manslaughter in the First Degree and one count of Possession of a Weapon in the Fourth Degree, and was sentenced to concurrent terms of incarceration of twelve years and one year, respectively. Quail had initially agreed to plead guilty to Manslaughter in the First Degree in exchange for a promised sentence of ten years' imprisonment. However, on Quail's motion, the guilty plea was vacated, as he was not advised that the plea agreement he had entered into included a five-year period of post-release supervision.
On direct appeal of his conviction to the New York State Supreme Court, Appellate Division, First Department ("Appellate Division") Quail argued that: (1) the State failed to disprove justification beyond a reasonable doubt, (2) the sentence of 12 years' incarceration was excessive for a 58-year-old disabled veteran with no prior criminal record, and (3) the sentencing court violated the Ex Post Facto Clause of the United States Constitution by imposing a DNA databank fee on Quail, because the incident leading to Quail's incarceration preceded the effective date of the statute mandating the fee. On October 11, 2005, the Appellate Division modified Quail's sentence by vacating the DNA databank fee, but upheld the conviction, finding that it "was based on legally sufficient evidence" and "the evidence disproved defendant's justification defense beyond a reasonable doubt." People v. Quail, 22 A.D.3d 292, 801 N.Y.S.2d 735 (App.Div. 1st Dep't.2005). On October 23, 2005, Quail sought leave to appeal to the New York Court of Appeals ("Court of Appeals") the three issues raised before the Appellate Division; the application was denied on December 27, 2005. See People v. Quaik 6 N.Y.3d 757, 810 N.Y.S.2d 425, 843 N.E.2d 1165 (N.Y.2005).
On or about April 11, 2006, Quail filed a pro se motion in the State Court pursuant to N.Y.Crim. Proc. Law § 440.10 ("§ 440 Motion"), in which he sought to vacate his conviction on grounds of prosecutorial misconduct, based on the introduction of false testimony, and ineffective assistance of trial counsel. On June 8, 2006, the State Court denied the entirety of Quail's § 440 Motion, noting that he "offers nothing to support his allegation that the testimony was false, much less that the prosecutor knowingly elicited false testimony." (See Order dated June 8, 2006, attached as Ex. 7 to Resp't Mem. 3.) Quail did not file an application seeking leave to appeal that decision to the Appellate Division.
On August 16, 2006, Quail filed a motion in the Appellate Division for a writ of error coram nobis, making a claim of ineffective assistance of appellate counsel. (See Petitioner's motion for a writ of error coram nobis, attached as Ex. 8 to Resp't Mem. 1-9.) The Appellate Division denied the motion on May 29, 2007. (See Order, attached as Ex. 12 to Resp't Mem.) Quail has not sought leave to appeal that decision to the Court of Appeals.
On June 18, 2007, Quail timely filed this petition for a federal writ of habeas corpus. See 28 U.S.C. § 2244(d)(2). Quail subsequently moved for appointment of counsel pursuant to 18 U.S.C. § 3006A(g).
As a starting point, the Court notes that Quail is a pro se litigant. As such, his submissions must be held "to less stringent standards than formal pleadings drafted by lawyers." Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (citation omitted). The Court must read Quail's submissions "liberally and interpret them to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (citation omitted).
A petitioner in custody pursuant to a judgment of a state trial court is entitled to habeas relief only if he can show that his detention violates the United States Constitution or federal law or treaties of the United States. See 28 U.S.C. § 2254(a). Before seeking federal relief, however, a petitioner generally must have exhausted all available state court remedies. See 28 U.S.C. §§ 2254(b)-(c). To do so, a petitioner must have fairly presented his federal claims to the highest available state court, setting forth all of the factual and legal allegations he asserts in his federal petition. See Daye v. Attorney Gen., 696 F.2d 186, 191-92 (2d Cir.1982). If a claim has not been presented to a state court but the opportunity to do so has lapsed due to a state procedural bar, the claim is procedurally defaulted but may be "deemed exhausted" for the purposes of the statutory requirement. See Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir.1994). In such procedural default federal habeas court may review a petitioner's claims only if the petitioner demonstrates (1) cause for the default and resulting prejudice, or (2) that the failure to consider the claims will "result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see also Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); Day v. Taylor, 459 F.Supp.2d 252, 256 (S.D.N.Y.2006).
As to the first part, "cause" is defined as "some objective factor external to the defense" that impeded the defendant's efforts to raise the claim. McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). To demonstrate prejudice, a petitioner must show more than that errors "created a possibility of prejudice, but [instead] that they worked to his actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); see also Day, 459 F.Supp.2d at 256. As to the second part, excusing a procedural default because it would result in a fundamental miscarriage of justice requires a petitioner to show through "new reliable evidence" that "it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Schlup v. Delo, 513 U.S. 298, 324, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).
Quail alleges that he has suffered a violation of his right to due process under the Fourteenth Amendment because the prosecutor at trial permitted false testimony and offered false evidence into the proceedings against him. Quail raised this due process claim before the State Court in his § 440 Motion, but never appealed the State Court's denial of his motion, and the opportunity to do so lapsed on February 28, 2007. See 22 N.Y.C.R.R. 600.8 (). Therefore, Quail's claim of prosecutorial misconduct is procedurally barred. See Ruiz v. Artuz, No. 99 Civ. 4476, 2002 WL 31045856, at *6-7 (S.D.N.Y. June 13, 2002) ().
Because Quail's claim of prosecutorial misconduct is procedurally barred, in order for this Court to reach the merits of Quail's claim he must show either cause and prejudice to excuse the failure to appeal the adverse decision of his § 440 Motion, or that a fundamental miscarriage of justice would occur were this Court not to review his claim. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Murray v. Carrier, 477 U.S. 478, 485, 495-96, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).
Quail fails to allege either cause or prejudice, or that a fundamental miscarriage of justice would occur from the failure to entertain his claims. Additionally, because Quail made the § 440 Motion pro se and did not have a right to counsel beyond his first appeal, ineffective assistance of counsel cannot serve as the cause of his procedural default. See Chalk v. Kuhlmann, 311 F.3d 525, 528-29 (2d Cir.2002). The Court finds that Quail has not met any of the burdens that would excuse his failure to appeal the adverse decision of the State Court on his § 440 Motion. Accordingly, Quail's claim based on prosecutorial misconduct is denied.
Quail's petition raises several claims of ineffective assistance of counsel, including: (1) trial counsel's failure to preserve the issue of prosecutorial misconduct for appeal; (2) appellate counsel's failure to raise all issues requested by Quail; and (3) appellate counsel's failure to appeal all...
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