DENIS R. HURLEY, District Judge.
Daniel Monko ("petitioner" or "Monko"), proceeding pro se, petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, vacating his judgment of conviction rendered on May 7, 1987 in the County Court in the State of New York, County of Suffolk for two counts of Rape in the First Degree, one count of Burglary in the Second Degree and one count of Forgery in the Second Degree. For the reasons set forth below, the petition is denied.
The crimes underlying Petitioner's conviction were the September 21, 1985 rape of Suzanne Harwell, the September 28, 1985 removal of a bicycle from a garage, and signing a statement under oath as "Daniel Crawford" when in custody of the police. The Indictments were consolidated for purposes of trial.
Petitioner first approached Ms. Harwell in the parking lot outside a nightclub called "Shadows" during the early morning of September 21, 1985 asking her for assistance with respect to his car, but was rejected. Later, when Ms. Harwell was walking home, petitioner ran up to her, grabbed her from behind, pulled her by her hair into the nearby woods, and hit her repeatedly with a piece of plywood on her left arm. Petitioner then pushed Ms. Harwell into his car and drove off. When they reached an open field shielded by bushes, he first forced vaginal penetration with Ms. Harwell in the front seat of the car, and later again on the open field.
Ms. Harwell did not immediately report the incident to the police. After returning home, she spoke with her parents, cleaned up, and she went to work. Later she spoke with a friend who encouraged her to go to a hospital. She then left work early and, with her parents, went to a local hospital where she was examined and a rape kit performed.
On September 28, 1985, Monko was seen removing a bicycle from a residence. He was restrained and, when the police arrived, he was arrested for burglary. During the arrest process, Monko identified himself, and signed a fingerprint card with the name "Daniel Crawford."
Petitioner was arrested, indicted and subsequently convicted of two counts of rape in the first degree, one count of burglary in the second degree, and one count of forgery in the second degree. Monko did not dispute having intercourse with Ms. Harwell, but claimed that it was consensual.
Prior to trial, petitioner sought a Sandoval
The trial court permitted the prosecutor's cross-examination of petitioner as to his larcenies on the ground they were demonstrative of petitioner's inability to act within the framework of society and his propensity to place his own self-interest above those of society. The prosecution was precluded, however, from referencing the California Kidnaping and sexual perversion charges and petitioner's flight from several charges on the grounds of undue prejudice.
On August 8, 1986, Petitioner was found guilty of two counts of Rape in the first degree, one count of burglary in the second degree, and one count of forgery in the second degree. He was sentenced on May 7, 1987, as a persistent felony offender as follows: an indeterminate term of incarceration of twenty-five to life on the two counts of rape in the first degree; an indeterminate term of twenty-five years to life on the count of burglary in the second degree; and an indeterminate term of fifteen years to life on the count of forgery in the second degree.
Thereafter, Petitioner appealed to the Appellate Division, Second Judicial Department, which affirmed Petitioner's convictions. See People v. Monko, 162 A.D.2d 553 (2d Dept. 1990). Petitioner's leave to appeal was subsequently denied by the New York Court of Appeals. See People v. Monko, 76 N.Y.2d 861 (1990). In April 1992, the Appellate Division denied Petitioner's motion to reargue his appeal. On January 22, 1999, Petitioner filed a motion to vacate his conviction, pursuant to New York Criminal Procedure Law ("CPL") §440.10 before the County Court of Suffolk County, which was denied in April 1999, as was Petitioner's motion to reargue the application. On October 28, 2005, Petitioner filed a motion for a Writ of Error Coram Nobis with the Appellate Division, arguing the ineffective assistance of appellate counsel. The Appellate Division denied Petitioner's application, People v. Monko, 44 A.D.3d 878 (2d Dept. 2007), as did the Court of Appeals, People v. Monko, 9 N.Y.3d 1036 (2008).
On April 15, 1997, Petitioner filed this action seeking a writ of habeas corpus. On March 18, 1998, the petition was dismissed as untimely. Thereafter, on April 7, 2008, the Court granted Petitioner's motion to vacate and reinstated the petition due to intervening authority by the Court of Appeals for the Second Circuit, see Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), rendering the petition timely. On July 15, 2008, Petitioner moved to amend the petition to assert only the following two grounds: 1) "Trial court's SANDOVAL ruling denied Petitioner's constitutional right to present defense, due process of law, and right to a fair trial;" and 2) "Petitioner was denied his six amendment rights to effective assistance of counsel on direct appeal." (Amended Petitioner, DE 33-2, at pp. 6-7). The motion to amend was granted. By affirmation filed on January 23, 2009, petitioner sought permission to withdraw the Sandoval issue (ground one). (Reply Affirmation, DE 50, at ¶ 4.) That application was granted by Order filed April 24, 2009.
As presently constituted, petitioner asserts he entitled to habeas relief because his appellate counsel was ineffective (1) for failing to challenge the trial court's admission of the "prompt outcry" testimony of Harwell's parents; (2) because instead of raising the nine issues that were raised on appeal, counsel should have focused on the admission of the prompt outcry testimony and the Sandoval ruling; and (3) for failing to include the transcript of Part II of the persistent felony offender hearing.
A federal court is empowered to "entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(b)(1). In order to obtain relief, an individual in custody must demonstrate, inter alia, that he has: (1) exhausted all of his State remedies; (2) asserted his claims in his State appeals such that they are not procedurally barred from federal habeas review; and (3) if his appeals were decided on the merits, overcome the deferential standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Philbert v. Brown, 2012 WL 4849011, at *5 (E.D.N.Y. Oct. 11, 2012).
Under the AEDPA, a writ of habeas corpus shall not be granted on a claim that was "adjudicated on the merits" in the state court unless that state court's decision was "contrary to," or involved an "unreasonable application" of "clearly established Federal Law" as determined by the United States Supreme Court or "was based on an unreasonable determination of the facts" in light of the evidence presented to the state court. 28 U.S.C. § 2254 (d); Thaler v. Haynes, 559 U.S. 43, 47 (2010). "A state court adjudicates a petitioner's federal constitutional claims on the merits when it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment." Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002) (internal quotation marks omitted).
"Clearly established federal law refers to the holdings, as opposed to the dicta, of the [United States] Supreme Court's decisions as of the time of the relevant state-court decision." Howard v. Walker, 406 F.3d 114, 122 (2d Cir. 2005) (internal quotation marks omitted). A decision is "contrary to" established federal law if it either "applies a rule that contradicts the governing law set forth in" a United States Supreme Court case, or it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent." Penry v. Johnson, 532 U.S. 782, 792 (2001) (internal quotation marks and citations omitted). A decision is an "unreasonable application of" clearly established Supreme Court precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. (internal quotation marks and citation omitted).
Under the AEDPA, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (internal quotation marks omitted).
The Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the assistance of Counsel for his defense." U.S. Const. amend. VI. Claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court held that to prevail on an ineffective assistance of counsel claim, a petitioner must establish that his counsel performed deficiently and that the deficiency caused actual prejudice to his defense. Id. at 687; see Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002).
Under the first prong, the court must "indulge a strong presumption that counsel's conduct falls within the range of reasonable professional assistance." Strickland, 466 U.S. at 689. The petitioner may prove the deficiency prong by establishing that his attorney's conduct fell "outside the wide range of professionally competent assistance," id. at 690, and establish prejudice by showing a "reasonable probability" exists that, but for the deficiency, "the result of the proceeding would have been different." Id. at 694. "A reasonable probability is one sufficient to undermine confidence in the outcome of the trial or appeal." Dunham, 313 F.3d at 730. Also, the Second Circuit has instructed that a reviewing court should be "highly deferential" to counsel's performance, because "`it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.'" Pratt v. Greiner, 306 F.3d 1190, 1196 (2d Cir. 2002) (quoting Strickland, 466 U.S. at 689).
Moreover, appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. 259, 288 (2000). And courts should not "second-guess reasonable professional judgments and impose. . . a duty to raise every `colorable' claim suggested by a client." Jones v. Barnes, 463 U.S. 745, 754 (1983). "In assessing the attorney's performance, a reviewing court must judge his conduct on the basis of the facts of the particular case viewed as of the time of counsel's conduct, . . . and may not use hindsight to second-guess his strategy choices." Mayo v. Henderson, 13 F.3d 528 (2d Cir. 1994) (internal quotation marks and citations omitted).
Having been appropriately exhausted, the three instances of ineffective assistance of appellate counsel advanced by petitioner, as previously identified, will now be addressed.
The Court will first evaluate whether the prompt-outcry issue was "significant and obvious," such that appellate counsel's failure to raise it on direct appeal was "objectively unreasonable," and that absent such failure "there was a reasonable probability that Petitioner's appeal would have been successful." Strickland, 466 U.S. at 686-96 (1984).
In New York, evidence that a victim of sexual assault promptly complained about the incident is admissible as an exception to the hearsay rule to corroborate the allegation that an assault took place. People v. McDaniel, 81 N.Y.2d 10, 16 (1993) ("The prompt outcry rule — an exception to the inadmissibility of the prior consistent statements of an unimpeached witness — permits evidence that a timely complaint was made, but does not allow further testimony as to the details of the incident."). "A complaint is timely for purposes of the prompt outcry exception if made at the first suitable opportunity." Id. at 17 (citations and internal quotation marks omitted). Historically, the doctrine evolved from the common-law requirement of "hue and cry," where all victims were required to prove they immediately alerted the community that a crime had occurred. Id. The contemporary rationale for permitting prompt outcry evidence is that some jurors would inevitably doubt the veracity of a victim who failed to promptly complain of a sexual assault, since they regard such conduct as "natural" for an "outraged female." People v. Rice, 75 N.Y.2d 929, 931(1990).
There are, however, two limitations on the admissibility of such evidence. McDaniel, 82 N.Y.2d at 17. One is that "the complaint must have been made promptly after the crime, and another is that only the fact of a complaint, not its accompanying details, may be elicited." Id. For example, detailed description of the perpetrator as related to another by the complainant may not be admitted at trial under the prompt-outcry exception to hearsay. See Rice, 75 N.Y.2d, at 932. Neither can a prompt-outcry witness testify at trial regarding the manner in which the complainant was sexually assaulted. See People v. Derrick, 96 A.D.2d 600, 600 (1983) (the trial court erroneously admitted the testimony as to a conversation with one of the complainants, in which the complainant described the manner in which she had been orally sodomized by the defendant). However, the witness can go beyond solely answering "yes" to the question of whether a complaint was made, and the prosecutor can elicit the nature of the complaint. See McDaniel, 81 N.Y.2d at 18 ("the prosecutor was entitled to elicit the nature of the complaint, which was not apparent from the context"). For example, testimony that the victim "reported being bothered, attacked, molested" did "not exceed the allowable level of detail" under prompt-outcry exception. Id.
Petitioner argues that the second limitation was violated when complainant's parents "were permitted to testify about prejudicial details leading up to the alleged rape, as related to them by their daughter." (See Amended Petition, DE 33-2, at 18).
At trial, Harwell's mother gave the following relevant testimony:
Trial Tr. at 208-10.
Thereafter, Harwell's father testified in relevant part as follows:
Trial Tr. at 231.
Based on the transcript provided, the testimony of complainant's parents was properly admitted under prompt-outcry exception at trial. The testimony did not go into the details of the sexual assault, but rather provided a cursory description of the events leading up to the incident of rape. Like the challenged testimony in McDaniel, where the mother of complainant related that "her daughter reported being bothered, attacked, molested," 81 N.Y.2d at 18, here, complainant's parents related that their daughter reported being attacked and raped. Therefore, the testimony here is likewise found to "not exceed the allowable level of detail" under the prompt-outcry exception. Id.
The testimony here is distinguishable from those cases in which the court held the permissible bounds of prompt outcry testimony were exceeded. Cf. Rice, 75 N.Y.2d, at 932 (detailed description of the perpetrator was improperly admitted); Derrick, 96 A.D.2d at 600 (witness was erroneously permitted to relate a detailed description of oral sodomy at trial). Here, complainant's parents' testimony that Harwell reported to them that she was both beaten and raped fell within this permitted sphere as enunciated in the foregoing cases. Additionally, the parents properly testified as to their own observations of Harwells' physical appearance and emotional demeanor. Since the testimony of complainant's parents was not erroneously admitted, appellate counsel's choice to not raise this issue on direct appeal was not "objectively reasonable." Strickland v. Washington, 466 U.S. 668,686 (1984).
Viewed through the prism of the AEDPA's deference standard, this Court cannot say that the New York court's rejection of Monko's claim that his appellate counsel was ineffective for failing to challenge the admissibility of the prompt outcry testimony on appeal is contrary to, or an unreasonable application of, clearly established Supreme Court law.
Turning to the second assert ground for habeas relief, to wit: appellate counsel should have focused on the admissibility of the prompt outcry testimony and the Sandoval ruling rather than the nine issues raised on appeal,
It is important to note that appellate counsel did in fact challenge the
The final claim to be addressed is Monko's assertion that appellate counsel was ineffective for failing to include the transcript of Part II of the Persistent Felony Offender Hearing.
By way of background, Monko was sentenced as a persistent felony offender (PFO) pursuant to N.Y. Penal Law § 70.10. In general, that statute provides that a defendant who stands convicted of a felony after having previously been convicted of two or more felonies may in the judge's discretion receive an indeterminate sentence corresponding to that of a class A-1 felony. The procedure to be followed in determining whether to impose a PFO sentence is set forth in the N.Y. Criminal Procedure Law § 400.20. "Pursuant to that provision, the prosecution must first prove beyond a reasonable doubt that the defendant is a PFO—that is, that he has previously been convicted of two or more qualifying felonies—before an enhanced sentence is authorized. . . . But the court is also directed to engage in a second inquiry, and to assess whether a PFO sentence is warranted before imposing such a sentence, taking into consideration the `history and character' of the defendant and the `nature and circumstances of his criminal conduct.'" Portalatin v. Graham, 624 F.3d 69, 74 (2d Cir. 2010) (citing N.Y. Crim. Proc. Law § 400.20(1), (5)). In undertaking the second inquiry, the court may schedule a hearing at which the prosecution and defendant are given an opportunity to present evidence as to whether a class A-1 sentence is warranted. The hearing on facts relating to the defendant's history and character and the nature and circumstances of his criminal conduct may guide the discretion of the sentencing court in determining whether the enhanced term is warranted under the second prong of the PFO law. See People v. Rivera, 5 N.Y.3d 61, 68 (2005). However, the hearing "does not grant defendants a legal entitlement to have those facts receive controlling weight in influencing the court's opinion." Id. If the sentencing court imposes a class A-1 sentence, its reasons for doing do must be set forth in the record. N.Y. Penal Law § 70.10(2).
In the present case, after it was determined that Monko had previously been convicted of two or more qualifying felonies, the trial court held a hearing on the second inquiry. Monko asserts that at this hearing he presented extensive evidence to challenge the PFO sentence, but appellate counsel did not submit the hearing transcript as part of the appeal, thus undercutting the argument that the sentence was unreasonable and rendering appellate counsel's assistance ineffective.
Even assuming counsel's failure to procure part II of the PFO hearing constituted deficient performance, there was no reasonable probability that petitioner's appeal would have been successful, i.e. that any deficient performance caused prejudice. Despite his presence at the PFO hearing, Petitioner merely names the type of evidence presented during the hearing, such as his education and employment records and efforts towards rehabilitation. He fails, however, to offer any detail as to how or what particular evidence presented at the hearing could have changed the outcome of the appellate review.
Moreover, the availability of the missing transcripts pertains to the sentencing decision of the trial court, the review of which by an appellate court is subject to review only under an abuse of discretion standard. See, e.g., People v. Pagan, 304 A.D.2d 980 (3d Dept. 2003); People v. Caputo, 13 A.D.2d 861 (3d Dept. 1961). From a review of the transcript of the trial court's decision on the PFO hearing and sentencing, it is apparent that the sentencing judge took account of petitioner's demonstrated intelligence in the sentencing decision, but was unpersuaded by his rehabilitative efforts and concerned with the danger he posed to the general public. In imposing sentence, the trial court stated in pertinent part:
May 7, 1987 Tr. at 31-33.
Since "the imposition of sentence is within the discretion and judgment of the sentencing court and an appellate court will not interfere with such discretion except under most extraordinary circumstances which do not here exist," id., and Monko had no "legal entitlement" to have facts deduced at the Part 2 hearing receive "controlling weight," Rivera, 5 N.Y.2d at 68, it is unlikely that the appellate court would have reduced petitioner's sentence, even if the transcript of part II of the PFO hearing were made available for review. Therefore, petitioner has failed to show that there was a reasonable probability that his appeal would have been successful absent counsel's failure to procure the missing transcript. See Strickland, 466 U.S. at 690. The Appellate Division's rejection of Monko's assertion that counsel's failure to include the transcript of Part 2 of the PFO hearing constituted ineffective assistance of counsel was not contrary to or an unreasonable application of federal law.
Having considered all of petitioner's arguments and finding them to be without merit, the petition for habeas corpus relief is denied. Additionally, no certificate of appealability will issue because Monko has failed to make a substantial showing of the denial of a constitutional right as required by U.S.C. § 2253(c)(2). The Clerk of Court shall enter judgment accordingly.
