REPORT AND RECOMMENDATION

KEVIN NATHANIEL FOX, Magistrate Judge.

TO THE HONORABLE GREGORY H. WOODS, UNITED STATES DISTRICT JUDGE.

BACKGROUND

Ramon Henriquez ("Henriquez"), proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, alleging that: (1) he was denied a fair trial when the court "refused to issue a missing witness charge after the prosecution failed to call three witnesses" to testify; (2) his counsel rendered ineffective assistance to him; and (3) he was deprived of a fair trial when the court "failed to appoint unconflicted counsel" and to conduct a minimal inquiry about his relationship with counsel before denying his request for new counsel. The respondent opposes the petition.

Henriquez was indicted for second-degree attempted murder, first-degree attempted assault, second-degree assault and third-degree criminal possession of a weapon. He filed a pro se motion for new counsel, asserting that counsel failed to visit him, inform him of any pretrial motions already made, investigate the case and make any bail application on his behalf. At the motion hearing, counsel explained that Henriquez was unable to pay the retainer and stated that he would not be able to represent Henriquez for that reason, although his relationship with Henriquez was not acrimonious. Counsel noted that Henriquez's assertions respecting counsel's conduct posed the risk that Henriquez would claim ineffective assistance of counsel if he were convicted, but the court declined to relieve counsel from the obligation of continuing to represent Henriquez and ordered that counsel be paid at the standard rate for appointed counsel. On the second day of witness testimony at the trial, Henriquez renewed his request for new counsel, asserting that counsel expressed profound indifference to the result of the trial. When questioned by the court about Henriquez's allegation, counsel stated: "I have no idea." The court denied Henriquez's renewed application, stating that counsel would "continue to do what he can to protect your rights."

Prior to the jury charge, counsel requested that the court issue a missing-witness charge instructing that the jurors could draw a negative inference from the fact that the prosecution failed to present testimony from three eyewitnesses. The court determined that defense counsel was free to argue that the prosecution's evidence is insufficient because a witness(es) is absent, but declined the request for the missing-witness charge. Henriquez was convicted for first-degree attempted assault, second-degree assault and third-degree criminal possession of a weapon and sentenced to an aggregate determinate term of 13 years imprisonment and five years of post-release supervision.

Henriquez's appeal was denied based on the appellate court's findings that the: (1) trial court "providently exercised its discretion when it denied defendant's request for missing-witness charges concerning three eyewitnesses to the stabbing" because the prosecution established that one witness was unavailable and the defendant failed to establish that the remaining two witnesses were under the prosecution's control; (2) ineffective assistance of counsel claims "are unreviewable on direct appeal because they involve matters of strategy not reflected in, or fully explained by, the record" and, alternatively, denied on the merits; and (3) trial court denied properly Henriquez's "request for new counsel, made just before trial, and renewed just after trial was under way," as the trial court "conducted an adequate inquiry into defendant's request," the record "does not demonstrate any serious dispute between defendant and his retained counsel, other than an issue about payment of fees, which was satisfactorily resolved," and "defendant's claim of a conflict is unavailing." People v. Henriquez, 147 A.D.3d 706, 707-08, 48 N.Y.S.3d 142, 144-45 (App. Div. 1st Dep't 2017). Leave to appeal from that decision was denied by the New York Court of Appeals. People v. Henriquez, 29 N.Y.3d 1080, 64 N.Y.S.3d 170 (2017). This petition followed.

PETITIONER'S CONTENTIONS

Henriquez contends that "[i]n light of the conflicting evidence in this case, it was imperative that the prosecution present at least one of the eyewitnesses to the alleged assault in order to provide some modicum of supporting evidence." The prosecutor failed to produce any of the known eyewitnesses, including the complainant's brother, notwithstanding that "two of the witnesses were incarcerated in New York State and one detective testified that he was aware of those witnesses' whereabouts." Henriquez asserts that the court denied erroneously his request for a missing-witness charge by "opining that none of the witnesses were within the control of the prosecution." According to Henriquez, "[i]t is undisputed that the missing witnesses are key witnesses whose testimony would have been material and noncumulative." The court's error is not harmless because "the evidence in this case was extremely weak," as no weapon, fingerprint or blood was found on the complainant's car and, "when confronted with the fact that he told four different stories to hospital staff and yet another tale to the detectives, the complainant openly admitted that he `lies to help himself.'" Had the court issued a missing-witness charge, the jury would have been permitted to infer that the testimony of each of the three eyewitnesses would have been unfavorable to the prosecution.

Henriquez contends that his counsel rendered ineffective assistance to him by failing to: (i) object to the prosecution bolstering the complainant's testimony with prior consistent statements; (ii) request a limiting instruction; and (iii) object to prosecutorial misconduct on summation. According to Henriquez, to bolster the complainant's "inconsistent versions of the events that occurred leading up to [the complainant's] stabbing, the District Attorney's office orchestrated the covert recording of a telephone call between [the complainant], his wife, and [Henriquez's] wife. During this controlled call, [the complainant] repeatedly accused Mr. Henriquez of stabbing him and claimed he could have killed him; statements which were consistent with his trial testimony." Henriquez asserts that "there was no articulated or conceivable non-hearsay basis for admitting the call into evidence, and there was no sound strategy . . . that would account for the failure of defense counsel to object to its inclusion in the trial." Moreover, counsel failed to object to the following statements in summation by the prosecutor:

Henriquez contends that he was deprived of a fair trial when the court failed to appoint unconflicted counsel to him because, notwithstanding the conflict arising from a financial dispute, Henriquez and counsel both "made clear that their concerns went beyond that." Henriquez's request for new counsel was rejected as "boilerplate" and the court failed to investigate the allegations before rejecting them, stating: "[L]awyers don't just get off at the last minute. . . . The witnesses are here. Too bad. The case is a year and a half old. Too bad. I have been on this case for part of that time. That's not the way it happens." Henriquez maintains that the court did not inquire into the breakdown in the relationship between Henriquez and his counsel or offer any suggestion to remedy the conflict, other than to state how counsel would be paid. Henriquez asserts that the court failed to conduct a minimal inquiry and "harmless error should not apply because it is far too speculative."

RESPONDENT'S CONTENTIONS

The respondent contends that, with respect to the court's denial of the missing-witness charge, a state-court determination on a state-law question cannot be reviewed in this proceeding and the United States Supreme Court has "never held that due process requires the jury to receive a missing-witness charge." Concerning Henriquez's claims based on ineffective assistance of counsel, they are unexhausted because he has not filed a motion pursuant to New York Criminal Procedure Law ("CPL") § 440.10. Furthermore, Henriquez did not: (a) request a stay; (b) indicate that he has filed or intends to file, a motion challenging his counsel's assistance; and (c) show "good cause" for his failure to exhaust his ineffective assistance of counsel claim in state court. The respondent asserts that Henriquez's unexhausted claim that counsel rendered ineffective assistance is also meritless.

The respondent contends that Henriquez's claim that the trial court erred in denying his motion for new counsel and failing to conduct a thorough inquiry about Henriquez's relationship with his counsel must be denied because Henriquez failed to "identify any minimum degree of searching required by the Constitution, and no such minimum exists." To the extent that Henriquez asserts an actual conflict of interest by his counsel, that claim must fail because Henriquez did not show that any actual conflict affected his counsel's performance. The trial court was not required to do more than it did, which is to ask counsel about the alleged animosity.

LEGAL STANDARD

"[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). A habeas corpus petitioner must exhaust all remedies available in the state courts. See 28 U.S.C. § 2254(b)(1)(A). "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480 (1991).

APPLICATION OF LEGAL STANDARD

Denial of the Missing-Witness Charge Request

The state appellate court's determination that the trial court "providently exercised its discretion when it denied defendant's request for missing witness charges concerning three eyewitnesses to the stabbing" concerns state law and is not subject to federal habeas corpus review. See Estelle, 502 U.S. at 67-68, 112 S. Ct. at 480. Henriquez failed to identify any clearly established federal law requiring the missing-witness charge independent of the state law. Moreover, a jury charge violates the United States Constitution when, "by itself[, the jury charge] so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400 (1973). Henriquez failed to make such a showing. A missing-witness charge is not a federally protected right; rather, it creates a presumption that the missing witness's testimony would be unfavorable to the party who failed to produce the witness. See Graves v. United States, 150 U.S. 118, 121 (1893). Having failed to show that the state-court determination of Henriquez's claim, based on the missing-witness charge: (1) 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, no habeas corpus relief is warranted based on that claim.

Ineffective Assistance of Counsel Claim

Henriquez's ineffective assistance of counsel claim is unexhausted because he failed to make a motion pursuant to CPL § 440.10, as the appellate court noted in its decision. Henriquez did not request a stay of the petition to exhaust his unexhausted ineffective assistance of counsel claim, and he failed to provide any explanation for his failure to exhaust his ineffective assistance of counsel claim. Accordingly, no habeas corpus relief is warranted based on Henriquez's unexhausted ineffective assistance of counsel claim.

Denial of the Request for New Counsel

Henriquez failed to make citation to any clearly established federal law mandating any particular degree of inquiry, by a court, when determining an application for new counsel. Moreover, Henriquez failed to rebut, by clear and convincing evidence, the presumptively correct factual finding by the state court that "[t]he record does not demonstrate any serious dispute between defendant and his retained counsel, other than an issue about payment of fees, which was satisfactorily resolved." Accordingly, no habeas corpus relief is warranted based on Henriquez's claim that the court erred in denying his request to appoint new counsel.

RECOMMENDATION

For the foregoing reasons, I recommend that the petition be denied.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Gregory H. Woods, 500 Pearl Street, Room 2260, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 425, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Woods. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).