Torres v. Irvin
| Decision Date | 23 November 1998 |
| Docket Number | No. 97 Civ. 5078(DLC).,97 Civ. 5078(DLC). |
| Citation | 33 F.Supp.2d 257 |
| Parties | Luis TORRES, Petitioner, v. Frank IRVIN, Superintendent; Wende Correctional Facility; and The Attorney General of New York State, Respondents. |
| Court | U.S. District Court — Southern District of New York |
Deneen Hawkins, New York City, plaintiff pro se.
Mirna E. Martinez, Asst. Attorney General, Division of State Counsel, Litigation Bureau, New York City, for defendant.
Luis Torres, Alden, NY, petitioner pro se.
Dennis Vacco, Attorney General for the State of New York, Andrew C. Tsunis, Assistant Attorney General, New York City, for respondents.
On June 9, 1997, this Court's Pro Se Office received a writ of habeas corpus from Luis Torres ("Torres") challenging his convictions for possession of a controlled substance and conspiracy, which were entered following a trial held in New York State court in 1990. For the reasons discussed below the petition is denied.
Torres was arrested on June 1, 1989. A search of his apartment conducted pursuant to a warrant uncovered heroin, cocaine, drug paraphernalia, and almost $75,000 in cash. The affidavit supporting the warrant application included information from a confidential informant. Torres and others were indicted by a grand jury on May 17, 1990.
Torres moved to suppress the evidence uncovered in the search of his apartment. The trial court held a hearing pursuant to People v. Seychel, 136 Misc.2d 310, 518 N.Y.S.2d 754 (Sup.Ct.1987), to determine whether there was probable cause to issue the search warrant and whether the defendants were entitled to the affidavit without redaction of information that would reveal the identity of the confidential informant. Torres's counsel, Robert Dunn ("Dunn"), failed to appear at the Seychel hearing, despite being notified by the court and the prosecutor of the hearing date. Counsel for one of the co-defendants participated in the hearing by submitting questions that were placed by the prosecutor or the court to the informant. After concluding that there was a risk to the informant's safety, the court directed the prosecutor to redact from the search warrant only so much information as was necessary to protect the informant's identity.
Torres alleges that the trial judge and Dunn maintained an antagonistic relationship throughout the trial that prejudiced the jury and consequently deprived Torres of his constitutional right to a fair trial. Torres provides several examples in his petition: the court interrupted Dunn during his opening argument and warned him not to instruct the jury on legal principles; cut off cross examination, stating that "it's been asked six times;" and threatened to impose sanctions on counsel. Out of the jury's presence the court fined counsel $200.00 for tardiness and chastised Dunn for appearing at the restaurant where the jury was taken for dinner.
Before summations, the court discussed the proposed jury charge with counsel for all parties. At the end of the charging conference Dunn asked whether he could appear one hour late the following day, when the jury was to be charged, because he had an appearance in federal court. Dunn asked that co-counsel stand in for him and that the court apologize to the jury on his behalf. The court obtained Torres's consent and instructed Dunn to arrive as soon as possible.
The following morning the court informed the jury that
Mr. Dunn asked, and his client asked, to excuse him until he can be here in the next half hour or so, because of a problem that came up that he had to attend to. And his co-counsel will stand in for him, listening to the charge, until he's able to arrive. So don't be surprised at his not being here, he will be here as soon as possible and has asked me to proceed, as has his client.
Dunn returned before the court finished charging the jury. No objections were made by any defense counsel while Dunn was absent. After the jury was charged, counsel for a co-defendant objected to two examples in the charge. Dunn joined in those objections.
The jury found Torres guilty on one count of conspiracy and ten counts of possession of a controlled substance. On December 13, 1990, the court sentenced Torres to concurrent and consecutive sentences resulting in a total sentence of fifty years to life, and imposed a $1 million fine. An appeal filed by Torres, represented by new counsel, was denied by the First Department on February 13, 1996. Torres was denied leave to appeal by the Court of Appeals on June 4, 1996. Torres did not seek a writ of certiorari in the United States Supreme Court. On December 26, 1996, Torres filed a motion for a Writ of Error Coram Nobis pro se claiming ineffective assistance of appellate counsel. The First Department denied the writ on September 23, 1997.
Torres signed his federal habeas corpus petition on June 2, 1997, and it was received by the Court's Pro Se Office on June 9, 1997. Torres raises four issues in his petition: (1) he was denied effective assistance of counsel when his attorney was absent during the jury charge; (2) he was denied effective assistance of counsel when he was represented during the jury charge by counsel for a co-defendant who had a conflict of interest; (3) the conduct of the trial judge deprived Torres of a fair trial; and (4) the prosecutor's failure to provide Torres with an unredacted search warrant affidavit violated his Fourth Amendment rights and his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
On October 8, 1997, Torres's petition was referred to Magistrate Judge Andrew Peck for a Report and Recommendation. On October 21, 1997, Magistrate Judge Peck granted Torres permission to file an amended petition. The amended petition added claims of ineffective assistance of appellate counsel for failure to argue that (1) the prosecutor's refusal to turn over the complete search warrant affidavit violated Brady, and (2) that the trial court should have granted Torres's severance motion. On July 23, 1998, Magistrate Judge Peck issued his Report recommending that the petition and amended petition (collectively "the petition") be denied. The parties had ten days in which to object to the Report, and on August 3, 1998, the petitioner requested an extension of time to file objections. The Court extended Torres's time to object to September 21, 1998. Torres timely filed objections to the Report on September 15, 1998.
Rule 72 of the Federal Rules of Civil Procedure and the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(A), provide the standard for district court review of a federal Magistrate Judge's order. For dispositive matters, the District Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b). The Court shall make a de novo determination of those portions of the report to which objections are made. Id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997). Where there is no timely objection, "a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985) (citations omitted). See also Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y.1991) ().
Judge Peck rejected the respondents' assertion that Torres did not timely file his petition under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d). The respondents have not objected to Magistrate Judge Peck's finding that the petition was timely and the Court finds that there is no clear error apparent in Judge Peck's analysis.
Torres claims that he was denied effective assistance of trial counsel when his counsel, Dunn, was absent during a portion of the charge to the jury. Torres asserts that the counsel for a co-defendant who represented him in his own attorney's absence had a conflict of interest. Torres further asserts that he was "hesitant" to give consent to Dunn's absence, that none of the co-defendants' counsel agreed on the record to represent Torres, and that he did not know to which attorney he could turn for advice in Dunn's absence.
Before a criminal defendant may proceed without counsel the court must be sure that the defendant has "knowingly and intelligently" waived his constitutional right to counsel. United States v. Schmidt, 105 F.3d 82, 88 (2d Cir.1997). In this case, however, Torres was not without counsel; he was represented by counsel for a co-defendant. The court asked Torres whether he consented to representation by co-defendant's counsel, and Torres gave his consent on the record.
Torres contends that the representation by a co-defendant's counsel was unconstitutional because the court failed to conduct a searching inquiry of the risks inherent in joint representation before accepting Torres's consent to this representation. Even applying the law which governs joint representation for purposes of an entire trial, Torres's claim must fail. Where a trial court "knows or reasonably should know that a particular conflict exists," it must inquire into the conflict before allowing joint representation. Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). See also United States v. Stantini, 85 F.3d 9, 13 (2d Cir.1996). When an inquiry is required, a petition for a writ of habeas corpus must be granted where the trial court has failed to make such an inquiry. See Wood v. Georgia, 450 U.S. 261, 272 n. 18, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981); Stantini, 85 F.3d at 13. Where the court does not or should not know about a conflict, however, no inquiry is required. Cuyler, 446 U.S. at 346-47, 100 S.Ct. 1708. Instead, ...
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