Seda v. Conway

774 F.Supp.2d 534

Angel M. SEDA, Petitioner,

v.James CONWAY, Superintendent, Attica Corr. Fac., Department of Correctional Services, Respondent.

No. 07–CV–6609 (VEB).

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

March 7, 2011.Order Granting Motion for Certificate of Appealability in Part April 8, 2011.

Norman P. Effman, Warsaw, NY, for Petitioner.Raymond C. Herman, Buffalo, NY, for Respondent.

DECISION AND ORDER

VICTOR E. BIANCHINI, United States Magistrate Judge.I. Introduction

Proceeding pro se, Angel Seda (“Seda” or “Petitioner”) filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state custody pursuant to a judgment of conviction following a jury trial on charges of burglary in the second degree (N.Y. Penal Law § 140.25[2] ) (one count) and attempted burglary in the second degree (N.Y. Penal Law §§ 110.00, 140.25[2] ) (one count). Following a hearing, Seda was sentenced on December 17, 2004, as a persistent felony offender to two consecutive indeterminate terms of imprisonment of 22 years to life.

Petitioner's conviction was unanimously modified on direct appeal December 22, 2006, so that Petitioner's sentences would run concurrently with each other. The conviction was otherwise affirmed. People v. Seda, 35 A.D.3d 1162, 825 N.Y.S.2d 888 (App.Div. 4th Dept.2006). Permission to appeal to the state's highest court was denied on March 5, 2007. People v. Seda, 8 N.Y.3d 927, 834 N.Y.S.2d 517, 866 N.E.2d 463 (N.Y.2007). Petitioner's application for reconsideration was denied on May 25, 2007.

In his Petition for a Writ of Habeas Corpus, Seda challenges the effectiveness of his trial attorney and his sentencing under New York's discretionary persistent felony offender statute, N.Y. Penal Law § 70.10.

During the pendency of the petition, Seda retained counsel, Norman Effman, Esq. Attorney Effman filed a Reply Memorandum of Law (Docket No. 16) in response to Respondent's Answer and Memorandum of Law in Opposition to the Petition (Docket Nos. 6 & 7). The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1). (Docket No. 9).

II. Standard of Review under 28 U.S.C. § 2254(d)

When a petitioner “in custody pursuant to the judgment of a State court” seeks habeas review of “any claim that was adjudicated on the merits in State court,” a habeas writ may issue only if the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1), (2). A state court decision is “contrary to” federal law as determined by the Supreme Court if either (a) “the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law,” or (b) “the state court considers facts that are materially indistinguishable from a relevant Supreme Court case and arrives at an opposite result.” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). An “unreasonable application” of clearly established federal law occurs if (a) “ ‘the state court identifies the correct governing legal rules from the [Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case,’ ” or (b) the “state court invokes a Supreme Court case and unreasonably extends its legal principle to a new context where it should not apply, or fails to extend it where it should apply.” Williams, 529 U.S. at 407, 120 S.Ct. 1495.III. Analysis of Petitioner's Habeas ClaimsA. Ground One: “Ineffective Assistance of Trial Counsel”

1. Overview of the Strickland Standard

In order to prevail on a Sixth Amendment ineffectiveness claim, a defendant must prove (1) that trial counsel's representation “fell below an objective standard of reasonableness” measured under “prevailing professional norms,” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and (2) that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,” id. at 694, 104 S.Ct. 2052. In Strickland, the Supreme Court said that “[j]udicial scrutiny of a counsel's performance must be highly deferential” and that “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” 466 U.S. at 689, 104 S.Ct. 2052. Thus, a defendant must overcome the “presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)); accord, e.g., Bell v. Cone, 535 U.S. at 698, 122 S.Ct. 1843. A divided Second Circuit panel recently reiterated that court's previous holding that application of the New York state standard, e.g., People v. Baldi, 54 N.Y.2d 137, 146, 444 N.Y.S.2d 893, 429 N.E.2d 400 (1981), is not “contrary to,” 28 U.S.C. § 2254(d)(1), the principles set forth in Strickland, which has been deemed to be the “clearly established” Supreme Court law for evaluating claims of ineffective assistance of trial counsel. Rosario v. Ercole, 601 F.3d 118, 126 (2d Cir.2010) (“ Rosario I ”) (“We emphasize again that the New York state standard for ineffective assistance of counsel is not contrary to Strickland.”) (citing Eze v. Senkowski, 321 F.3d 110, 123–24 (2d Cir.2003); contrasting with Henry v. Poole, 409 F.3d 48, 70 (2d Cir.2005) (recognizing that “in the absence of a contrary decision by this Court en banc, or an intervening Supreme Court decision, we are bound to follow the precedents ... that the N[ew] Y[ork] Court of Appeals standard is not ‘contrary to’ Strickland ”)).

With relief under the “contrary to” clause not available to Seda under these circumstances, given the Second Circuit's most recent pronouncement in the Rosario cases, the remaining issue, then, is whether Petitioner can obtain relief on the ground that the state court's adjudication of his claim involved an “unreasonable application” of Strickland. The Second Circuit has stated that the level of “unreasonableness” that must be shown under 28 U.S.C. § 2254(d)(1) “falls somewhere between merely erroneous and unreasonable to all reasonable jurists.” Brown v. Alexander, 543 F.3d 94, 100 (2d Cir.2008) (quoting Overton v. Newton, 295 F.3d 270, 277 (2d Cir.2002)). As the Circuit further explained in Eze v. Senkowski, 321 F.3d at 121, an unreasonable application of Supreme Court precedent means more than that the state court incorrectly applied the precedent; it had to apply the facts in an “objectively unreasonable manner.” Id. There must be “some increment beyond error is required,” although it “need not be great; otherwise habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.” Id. (internal citations omitted).

2. Analysis of Trial Counsel's Alleged Errors

a. Failure to Request a Suppression Hearing

Petitioner's prior attorney had already filed an omnibus motion to which the prosecutor had responded. Accordingly, the defense had been afforded discovery and a bill of particulars. After reviewing those documents, trial counsel reasonably decided not to pursue the motion for a suppression hearing because the prosecution was not offering any physical evidence or statements by Seda obtained as a result of his arrest. In any event, Petitioner has not demonstrated that there was substantial merit to a suppression motion: Petitioner was not arrested in his apartment, but in a common area-a stairwell. There was no indication he had any expectation of privacy in the stairwell. Given the lack of merit to the motion, the Court cannot say that trial counsel was unreasonable in not filing it. See United States v. Nersesian, 824 F.2d at 1322 (“[F]or purposes of effective assistance, not every possible motion need be filed, but rather, only those having a solid foundation.”) (citing United States v. Afflerbach, 754 F.2d 866, 870 (10th Cir.), cert. denied, 472 U.S. 1029, 105 S.Ct. 3506, 87 L.Ed.2d 636 (1985)). Furthermore, Petitioner was not prejudiced by trial counsel's failure to file a motion that had little to no chance of success.

b. Failure to Move for Severance

Seda argues that trial counsel was ineffective in failing to move for severance of the indictment. Under New York State law, severance of charges that are properly joinable as the same or similar in law, C.P.L. 200.20(2)(c), may be ordered in the discretion of the trial judge. However, Seda has not demonstrated that the circumstances warranted severance under New York State law since there were not differing levels of proof for the two burglaries or a substantial likelihood that the jury would be unable to consider separately the proof as it related to each offense. In addition, there was no indication that Seda had important testimony to give on one count, and a genuine need to refrain from testifying on the other or that there was a substantial risk of prejudice. N.Y.Crim. Proc. Law § 200.20(3); People v. Oliveira, 2 A.D.3d 122, 767 N.Y.S.2d 437 (App.Div. 1st Dept.2003) (“The court properly exercised its discretion in denying defendant's motion, made pursuant to CPL 200.20(3), for a severance of counts relating to offenses that had been properly joined as “the same or similar in law”. The evidence as to the two incidents was capable of being easily segregated by the jury. There was no significant variance in the quantity of proof; on the contrary, the evidence of guilt as to both incidents was overwhelming. Defendant's assertion of a need to testify as to one incident but not the other...