Walker v. Miller, 96 Civil 3429 (LMM) (AJP).

• Decision Date: 24 March 1997
• Docket Number: No. 96 Civil 3429 (LMM) (AJP).,96 Civil 3429 (LMM) (AJP).
• Citation: 959 F.Supp. 638
• Parties: Vincent WALKER, Petitioner, v. David MILLER, Respondent.
• Court: U.S. District Court — Southern District of New York

959 F.Supp. 638

Vincent WALKER, Petitioner, v. David MILLER, Respondent.

No. 96 Civil 3429 (LMM) (AJP).

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

March 24, 1997.

Vincent Walker, Eastern NY Correctional Facility, Napanoch, NY, pro se.

Sheryl Feldman, Asst. Dist. Atty., NY County, New York City, for Defendant.

MEMORANDUM AND ORDER

McKENNA, District Judge.

Upon consideration of the Report and Recommendation of Magistrate Judge Peck dated March 11, 1997, and petitioner's Objection in Reply to Report [and] Recommendation dated March 17, 1997 (asking that the petition be dismissed without prejudice for failure to exhaust all state remedies), the mixed petition is dismissed, without prejudice.

SO ORDERED.

REPORT AND RECOMMENDATION

PECK, United States Magistrate Judge:

To the Honorable Lawrence M. McKenna, United States District Judge:

Petitioner Vincent Walker seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that: (1) his waiver of the right to counsel during interrogation by the police was not voluntary (Petition, dated 3/14/96, at pp. 1-4); (2) he was not proven guilty beyond a reasonable doubt at trial (Petition at pp. 5-12); (e) he received ineffective assistance of counsel by reason of his counsel's failure to: (a) call and/or investigate witnesses; (b) move to prevent the assistant district attorney from trying the case because the ADA was a witness to the videotaped confession; (c) effectively cross-examine witnesses; (d) pursue a Rosario violation; (e) present the facts as to an affirmative defense; (f) object and request curative and additional jury instructions; and (g) file a notice of appeal (Petition, unnumbered pages after p. 12).

For the reasons set forth below, Walker's petition is a "mixed" petition containing both exhausted and unexhausted claims, and I therefore recommend that Walker's habeas petition be denied.

PROCEDURAL BACKGROUND

Proceedings in State Court

On April 4, 1989, petitioner Walker was convicted of second degree murder in Supreme Court, New York County, and on May 7, 1990 was sentenced to fifteen years to life imprisonment. (Petition, ¶¶ 1-4.) See People v. Walker, 181 A.D.2d 636, 636, 582 N.Y.S.2d 108, 108 (1st Dep't 1992). The state at trial presented evidence that Walker and two accomplices robbed David Berquist, and that Walker was present when his accomplices stabbed and shot Berquist. (See, e.g., Appendix to State Br. (hereafter, "App.") at Al-3, A15-18, A29.)

Walker appealed his conviction to the Appellate Division, First Department, on the sole ground that his pretrial statements should have been suppressed. People v. Walker, 181 A.D.2d at 636, 582 N.Y.S.2d at 108. (See also Petition ¶ 9; App. AS-37.) By decision dated March 31, 1992, the First Department unanimously affirmed Walker's conviction, holding that Walker was not in custody when he made his first statement and that his first and subsequent statements to the police were admissible. People v. Walker, 181 A.D.2d at 636-37, 582 N.Y.S.2d at 108-09. The Court of Appeals denied leave to appeal. People v. Walker, 79 N.Y.2d 1055, 584 N.Y.S.2d 1023, 596 N.E.2d 421 (1992).

Two years later, Walker moved to set aside his conviction pursuant to N.Y.C.P.L. § 440.10,¹ alleging that his trial counsel had rendered ineffective assistance. (App.A88-116.) Walker alleged that counsel did not adequately investigate the case or call his co-defendant Collozo to testify for him. (App. A91, A93-95, A103.) The bulk of his C.P.L. § 440.10 motion, including its "addendum," continued to challenge the voluntariness of his confession (and his attorney's alleged failure to adequately challenge the confession's validity) (See generally App. A88-133.) On May 7, 1995, Justice Schlesinger denied Walker's motion. (App.A141-45.) The state court found that defense "[c]ounsel's skillful cross-examination of police witnesses was precisely designed to raise issues" before the jury as to the truthfulness and voluntariness of Walker's statements to the police, and that defense "[c]ounsel had a trial strategy which was lucidly presented to the jury in summation." (App.A144.) The state court concluded that "there is no indication that counsel's representation was inadequate." (App. A145.) Walker's motion, pursuant to N.Y.C.P.L. § 460.15, for leave to appeal to the First Department was denied on September 21, 1995. (App.A146-60, A168.)

Walker's Present Federal Habeas Petition

Walker's present habeas petition raises three grounds for habeas relief. First, Walker asserts that his waiver of his right to counsel during his interrogation by the police was not voluntary, knowing or intelligent, and therefore that his statements to the police should not have been admitted at trial. (Petition at pp. 1-4.) Second, Walker alleges that he was not proven guilty beyond a reasonable doubt at trial. (Petition at pp. 5-12.) Third, Walker alleges that he received ineffective assistance of counsel by reason of his counsel's failure to: (a) call and/or investigate witnesses; (b) move to prevent the assistant district attorney from prosecuting the case because the ADA was a witness to his videotaped confession; (c) effectively cross-examine witnesses; (d) pursue a Rosario violation; (e) present the facts as to an affirmative defense; (f) object and request a curative and additional jury instructions; and (g) file a notice of appeal. (Petition at pages after p. 12.)

ANALYSIS

WALKER'S HABEAS PETITION SHOULD BE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO EXHAUST STATE COURT REMEDIES AS TO MANY OF HIS CLAIMS

Because (as discussed below) Walker has failed to exhaust his state court remedies with respect to most of the grounds of his federal habeas petition, I recommend that the Court dismiss his entire habeas petition without prejudice.

A. Prior to the Antiterrorism and Effective Death Penalty Act, the Court Was Required to Dismiss "Mixed" Petitions Containing Both Exhausted and Unexhausted Claims

This section discusses the law as to "mixed" petitions in effect prior to enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA").

A federal court may not consider the merits of a state prisoner's petition for a writ of habeas corpus until the petitioner has exhausted the state remedies available to him. 28 U.S.C. § 2254(b).² While pre-amendment Section 2254 did not directly address the problem of "mixed" habeas petitions, that is, those containing both exhausted and unexhausted claims, the Supreme Court adopted a rule of total exhaustion in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The Supreme Court held:

Because a rule requiring exhaustion of all claims furthers the purposes underlying the habeas statute, we hold that a district court must dismiss such "mixed petitions," leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court.

Id. at 510, 102 S.Ct. at 1199.³ The Supreme Court explained that the complete "exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203. "A rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error." Id. at 518-19, 102 S.Ct. at 1203. The Supreme Court further noted that the total exhaustion rule will not impair the prisoner's interest in obtaining speedy federal relief "since he can always amend the petition to delete the unexhausted claims." Id. at 520, 102 S.Ct. at 1204.⁴

The Second Circuit held, prior to the AEDPA, that "[p]assing on the merits of claims in a habeas petition containing unexhausted claims runs counter to Rose v. Lundy. ..." Levine v. Commissioner of Correctional Services, 44 F.3d 121, 125 (2d Cir. 1995), cert. denied, ___ U.S. ____, 117 S.Ct. 1112, 137 L.Ed.2d 313 (1997); accord, e.g., Boyd v. Hawk, 94 Civ. 7121, 1996 WL 406680 at *3 (S.D.N.Y. May 31, 1996); Ehinger v. Miller, 928 F.Supp. 291, 293 (S.D.N.Y.1996).

The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:

First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. .... Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.

Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981) (citing cases) accord, e.g., Boyd v. Hawk, 1996 WL 406680 at *3; Ehinger v. Miller, 928 F.Supp. at 293.

The exhaustion requirement is not satisfied unless the federal claim has been "fairly presented" to the state courts. e.g., Daye v. Attorney General 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). The Second Circuit has held that a federal habeas petitioner must have put the state appellate court "on notice" that a federal constitutional claim is at issue. e.g., Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir.1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir.1984). Both Grady and Petrucelli quote the test used in Daye for determining what constitutes adequate notice. Grady v. LeFevre, 846 F.2d at 864; Petrucelli v. Coombe, 735 F.2d at 688. In Daye, the Second Circuit en banc stated:

[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing...