Walker v. Dalsheim

• Decision Date: 17 August 1987
• Docket Number: No. 84 CIV. 5378 (PKL).,84 CIV. 5378 (PKL).
• Citation: 669 F. Supp. 68
• Parties: Harold E. WALKER, Petitioner, v. Stephen DALSHEIM, Respondent.
• Court: U.S. District Court — Southern District of New York

669 F. Supp. 68

Harold E. WALKER, Petitioner, v. Stephen DALSHEIM, Respondent.

No. 84 CIV. 5378 (PKL).

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

August 17, 1987.

Harold E. Walker, pro se.

Charles C. Davis, Jr., Asst. Atty. Gen., New York City, for respondent.

ORDER

LEISURE, District Judge:

WHEREAS, the petitioner, appearing pro se, brought this petition for habeas corpus challenging his conviction on November 19, 1982 in the Supreme Court of the State of New York, New York County, on a plea of guilty for Attempted Criminal Use of a Firearm in the First Degree; and

WHEREAS, the Hon. Sharon E. Grubin, United States Magistrate, acting pursuant to 28 U.S.C. § 636, issued a Report and Recommendation ("Report") with regard to the petition on July 24, 1987; and

WHEREAS, Magistrate Grubin did recommend in her Report that the petition be dismissed without prejudice; and

WHEREAS, petitioner filed an objection to the Report on August 6, 1987; and

WHEREAS, with respect to petitioner's objections to Magistrate Grubin's Report, this Court has conducted a de novo review of the entire record; and

WHEREAS, this Court finds Magistrate Grubin's findings and recommendations to be consistent with the law in this Circuit regarding the exhaustion of state remedies in the context of petitions for habeas corpus; therefore,

IT IS HEREBY ORDERED that Magistrate Grubin's Report is adopted in its entirety; and

IT IS HEREBY ORDERED that this petition be dismissed without prejudice.

SO ORDERED.

REPORT AND RECOMMENDATION TO THE HONORABLE PETER K. LEISURE

SHARON E. GRUBIN, United States Magistrate:

Pro se petitioner Harold E. Walker seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction on November 19, 1982 in the Supreme Court of the State of New York, New York County, on a plea of guilty for Attempted Criminal Use of a Firearm in the First Degree (N.Y.Penal Law §§ 110.00, 265.09). Petitioner was sentenced as a predicate felony offender on December 14, 1982 to a term of imprisonment of four to eight years.

As discussed below, I respectfully recommend that your Honor dismiss this petition without prejudice because petitioner has failed to exhaust state remedies.

PROCEDURAL BACKGROUND

Petitioner pursued his appeal pro se to the Appellate Division, First Department, after his court-appointed attorney was granted leave by that court to withdraw on the ground that any appeal of the conviction would be frivolous. In his pro se brief to the Appellate Division petitioner argued that (1) he had been denied effective assistance of trial and appellate counsel, (2) his guilty plea was invalid because the allocution did not include a correct statement of the underlying facts, and (3) his guilty plea was invalid because there was not evidence sufficient to establish the New York statutory predicate for criminal use of a firearm. On March 15, 1984 the Appellate Division unanimously affirmed petitioner's conviction in a memorandum decision which held, in its entirety, as follows:

"We have reviewed this record and agree with appellant's assigned counsel that there are no non-frivolous points which could be raised on this appeal."

99 A.D.2d 987, 472 N.Y.S.2d 867. On June 20, 1984 the Court of Appeals of the State of New York denied petitioner leave to appeal (see Certificate Denying Leave, June 20, 1984, submitted herein with Respondent's Affidavit in Opposition dated August 5, 1985). Petitioner did not seek any post-conviction collateral review in the state courts.

THE CLAIM HEREIN

This petition presents the single claim of ineffective assistance of trial counsel¹ on the basis of the following allegations of incompetence on the part of three attorneys of the Legal Aid Society who represented petitioner at the trial level: (1) failure to investigate alleged improper post-arrest police behavior; (2) failure to request a preliminary hearing; (3) failure to present petitioner before a grand jury or at arraignment; (4) failure to consult with petitioner on a timely basis; (5) failure to demand discovery and file timely pretrial motions; and (6) failure to object to improper sentencing. Petitioner raised each of these specific allegations of attorney incompetence in his direct appeal to the state courts.

DISCUSSION

A person in state custody must exhaust his state remedies before seeking federal habeas corpus review.² This rule is based on considerations of comity between the federal and state courts, ensuring that the state courts have an opportunity to consider and correct any violations of their prisoners' federal constitutional rights. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Klein v. Harris, 667 F.2d 274, 282 (2d Cir.1981). In order to exhaust state remedies for federal habeas corpus purposes, a petitioner not only must have raised in the state courts the factual and the legal premises of the claims he asserts in federal court, Daye v. Attorney General of the State of New York, 696 F.2d 186, 191 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984), but also must have employed the proper state law procedural vehicle so that the state courts were afforded the opportunity to consider the claims raised on their merits, Dean v. Smith, 753 F.2d 239 (2d Cir.1985). In Dean, the Second Circuit held that state court remedies had not been exhausted where the petitioner had presented his claim to the wrong state court by employing the wrong procedural vehicle. See also Martinez v. LeFevre, No. 84-4672 (S.D. N.Y. Nov. 13, 1986) Available on WESTLAW, DCT database ("It is clear that an attempt to exhaust state remedies by recourse to incorrect procedure under state rules cannot succeed.").

Petitioner herein employed an incorrect procedural vehicle in the New York courts in raising his claim of ineffective assistance on his direct appeal. The proper procedural vehicle under New York law for raising a claim of ineffective assistance of trial counsel is generally not a direct appeal but a motion to the trial court to vacate the judgment under New York Criminal Procedure Law Section 440.10. This is so because normally the appellate court has no basis upon which it would be able to consider the substance of such a claim until a record of the relevant facts has been made at the trial court level. Thus, in People v. Brown, 28 N.Y.2d 282, 321 N.Y.S.2d 573, 270 N.E.2d 302 (1971), where a defendant argued to the New York Court of Appeals that he had been denied effective assistance of trial counsel, the Court of Appeals noted that the issue had not been presented to the trial court and held:

"This kind of evaluation must be made and determined in the court in which the record is made and does not lie within the compass of appellate review by a court limited to properly preserved questions of law."

28 N.Y.2d at 287, 321 N.Y.S.2d at 577, 270 N.E.2d at 305. See also People v. Ramos, 63 N.Y.2d 640, 643, 479 N.Y.S.2d 510, 512, 468 N.E.2d 692 (1984); People v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149 (1978); People v. Roberts, 89 A.D.2d 912, 912, 453 N.Y.S.2d 727, 729 (2d Dep't 1982) (mem.).

In Sanchez v. LeFevre, No. 86-1356 (S.D. N.Y. May 22, 1986) Available on WESTLAW, DCT database, a habeas corpus petitioner argued that his trial counsel had rendered ineffective assistance because he had not challenged the purported probable cause for his arrest and subsequent lineup identification. The petitioner, like petitioner here, had raised this issue solely on his direct appeal. Judge Goettel of this court held:

"This issue was not properly presented to the state court since there never was a hearing to determine defense counsel's reasons for not making a suppression motion. It appears that the New York Appellate Court (which customarily affirms without opinion) could not substantively rule on the appellate issue presented. Consequently, this issue in the petition should not be considered."

Slip Op. at 4. In the recent decision of United States ex rel. LaSalle v. Smith, 632 F.Supp. 602 (E.D.N.Y.1986), Judge Korman thoroughly addressed this issue. The petitioner there had argued on his direct appeal to the Appellate Division that trial counsel's assistance had been ineffective. Judge Korman held that the petitioner's failure to seek an evidentiary hearing in the trial court pursuant to Section 440.10 of the New York Criminal Procedure Law had made it impossible for the Appellate Division, which affirmed the conviction without opinion, to resolve the claim and dismissed the petition for failure to exhaust state remedies. 632 F.Supp. at 603. Judge Korman explained:

"While petitioner raised the issue of the competency of counsel on the direct appeal from the judgment of conviction and in his application for leave to appeal to the New York Court of Appeals, and while petitioner need not be compelled to make repetitious applications for relief, the relief petitioner sought by way of appeal in this case was simply the wrong remedy given the nature of his claim. The appropriate procedural vehicle, as the Court of Appeals held in People v. Brown 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149 (1978), was a `collateral or post-conviction hearing brought under C.P.L. 440.10.' Surely, the same considerations of policy and practicality which underly sic the `exhaustion' doctrine are as much implicated when a petitioner chooses the wrong procedure to press his claims as when he fails to make any effort to obtain relief."

632 F.Supp. at 605 (footnote omitted). The court further explained:

"While petitioner raised his claim of ineffective assistance of counsel on direct appeal to the Appellate Division and in his application for leave to appeal to the New York Court of Appeals, `the state statutory scheme and the Court's own policies militated against reviewing the issue at this procedural state,'.... This being the case, `the mere presentation' of

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