Alexandre v. Senkowski

126 F. App'x 7
CourtCourt of Appeals for the Second Circuit
DecidedMarch 1, 2005
DocketNo. 03-2556
StatusPublished
Cited by1 cases

This text of 126 F. App'x 7 (Alexandre v. Senkowski) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alexandre v. Senkowski, 126 F. App'x 7 (2d Cir. 2005).

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be, and it hereby is, AFFIRMED.

The petitioner-appellant, Marcelin Alexandre, appeals from the denial of his petition for a writ of habeas corpus. Alexandre was convicted in state court, after a jury trial, of counts of second degree murder, first and second degree robbery, fifth degree criminal possession of stolen property, and second degree possession of a weapon; he was sentenced to consecutive prison terms for the murder and robbery convictions, resulting in a sentence of 33 and 1/3 years to life in prison. The Appellate Division affirmed the judgment of conviction. See People v. Alexandre, 215 A.D.2d 488, 626 N.Y.S.2d 520 (2d Dep’t 1995). Leave to appeal to the New York Court of Appeals was denied. See People v. Alexandre, 86 N.Y.2d 789, 632 N.Y.S.2d 502, 656 N.E.2d 601 (1995) (table). The Appellate Division also denied Alexandre’s two applications, based on several claims of denial of effective assistance of counsel, for a writ of error coram nobis. See People v. Alexandre, 259 A.D.2d 490, 490, 684 N.Y.S.2d 891, 891 (2d Dep’t 1999) (finding that Alexandre had “failed to establish that he was denied the effective assistance of appellate counsel”); People v. Alexandre, 285 A.D.2d 555, 555, 727 N.Y.S.2d 908, 908 (2d Dep’t 2001) (same).

Alexandre filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York. The district court considered all of the claims on the merits and denied the writ. See Alexandre v. Senkowski, Nos. 97-CV-2482, 03-MISC-0066, 2003 WL 21822279, 2003 U.S. Dist. LEXIS 13648 (E.D.N.Y. July 31, 2003). The court granted a certificate of appealability with respect to four of Alexandre’s claims of ineffective assistance of counsel as well as his claim regarding the trial court’s failure to suppress his post -Miranda statements. Alexandre, 2003 WL 21822279, at *14, 2003 U.S. Dist. LEXIS 13648, at *41-42; Alexandre v. Senkowski, No. 97cv2482, at 2 (E.D.N.Y. Aug. 8, 2003) (amending the phrasing of one of the claims certified for appeal). This Court denied Alexandre’s application to expand the certificate of appealability.

This Court reviews de novo a district court’s decision to grant or deny a habeas petition. See Harris v. Kuhlmann, 346 F.3d 330, 342 (2d Cir.2003). However, we review a district court’s findings of fact for clear error. See Jenkins v. Artuz, 294 F.3d 284, 290 (2d Cir.2002).

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may grant a state prisoner’s petition for a writ of habeas corpus with respect to any claim “adjudicated on the merits” by a state court only if the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). Furthermore, a federal habeas court cannot review federal claims that were “defaulted ... in state court pursuant to an independent and adequate state procedural rule” unless the petitioner can show “cause for the default and actual prejudice” or that “failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, [10]*10501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Finally, although a federal court may deny a writ of habeas corpus on the merits even if the petitioner has failed to exhaust state remedies, 28 U.S.C. § 2254(b)(2), “there exists no complementary power to grant a habeas petition on an unexhausted claim,” Aparicio v. Artuz, 269 F.3d 78, 91 n. 5 (2d Cir.2001); 28 U.S.C. § 2254(b)(1).

Three of the four ineffective assistance of counsel claims Alexandre raises in this appeal were adjudicated on the merits by the Appellate Division. See Alexandre, 259 A.D.2d at 490, 684 N.Y.S.2d at 891; Alexandre, 285 A.D.2d at 555, 727 N.Y.S.2d at 908. We conclude that these adjudications were not “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d).

“[T]he [constitutional] right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). A defendant who claims to have received ineffective assistance of counsel must show both that “counsel’s representation fell below an objective standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that “deficiencies in counsel’s performance [were] prejudicial to the defense,” id. at 692. This test is applicable for claims of ineffective assistance of trial as well as appellate counsel. See Aparicio, 269 F.3d at 95 (citing Evitts v. Lucey, 469 U.S. 387, 396-97, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985)). It is clear that “[t]he failure to include a meritless argument does not fall outside the wide range of professionally competent assistance to which [a defendant] [is] entitled.” Id. at 99 (internal quotation marks and citation omitted).

Alexandre’s claim that he received ineffective assistance of appellate counsel because counsel failed to challenge the trial court’s denial of Alexandre’s request to proceed pro se lacks merit. A criminal defendant in a state trial has a “constitutional right to conduct his own defense.” Faretta v. California, 422 U.S. 806, 836, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However, in deciding whether to grant such a request when it is made “[a]fter trial has begun, a trial court ... must balance the legitimate interests of the defendant in self-representation against the potential disruption of the proceedings already in progress[, taking into consideration] the defendant’s reasons for the self-representation request, the quality of counsel representing the party, and the party’s prior proclivity to substitute counsel.” Williams v. Bartlett, 44 F.3d 95, 99-100 n. 1 (2d Cir.1994) (citations omitted). In this case, the context of the court’s denial of Alexandre’s request, which Alexandre made just before summations, shows that the denial was based primarily on the court’s assessment that Alexandre was attempting to disrupt proceedings and cause a mistrial.

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