Giordano v. Cunningham

Opinion

Giordano v. Cunningham CV-97-154-M 11/03/98 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Vincent Giordano, Plaintiff

v. Civil No. 97-154-M

Michael J. Cunningham, Warden, Defendant

O R D E R

Petitioner, Vincent Giordano, seeks habeas corpus relief

from incarceration following his burglary conviction in state

court. See 28 U.S.C. § 2254. He alleges that his conviction and

sentence are in violation of his federal constitutional rights.

Procedural Background

On March 26, 1998, Giordano filed an amended petition for

habeas corpus relief (the fourth amendment to his original

petition), in which he raises two grounds for relief. First, he

asserts that he received ineffective assistance of trial counsel,

alleging that counsel failed to raise a speedy trial claim and

conspired with the prosecutor to allow the introduction of

evidence regarding his possession of allegedly stolen foreign

currency. Next, Giordano claims that he was the victim of

prosecutorial misconduct, stemming from allegedly improper

statements in, among other things, the prosecutor's opening

statement and closing argument. In its answer, the State

acknowledges that Giordano has exhausted his claims, see 28 U.S.C. § 2254(b), but denies that he is entitled to the relief

requested.

Factual Background

During the early morning hours of December 3, 1987,

Manchester Police Officers were dispatched to Brayco

International, Inc. to investigate suspicious activity. After a

search of the premises, the officers found Giordano hiding in the

building. He was taken into custody, following which officers

recovered from his person items which included 20 five-dollar

bills, a variety of foreign coins and paper currency, a

flashlight, a jigsaw blade, and two drill bits. After a search

of the premises, the officers also located several suitcases

which were filled with various items belonging to Brayco.

However, one of the cases contained a number of tools, including

a chisel, a jigsaw, a jigsaw blade container (with one blade

missing), a drill, and a drill bit container (with two bits

missing). The tools were not property of Brayco, nor did they

belong to either of the contractors who were renovating a portion

of the building. The office manager reported to police that $95

in cash (in the form of $5 bills) was missing from petty cash.

Prior to trial, Giordano moved the court to order the State

to return "all of his property seized on December 3, 1987 in

connection with this case." Petitioner's motion to restore

property, at 1. The State asserted that the foreign currency had

2 been stolen from Brayco and, therefore, should not be returned to

petitioner. Following a hearing, the trial court ordered the

State to provide "written justification for retaining any of the

property of defendant set forth in the two-page police property

report." Order dated September 21, 1998. The State responded by

notifying the court that it had contacted newly appointed defense

counsel and expected to arrive at a stipulated resolution to

defendant's pending motion to restore the seized property. The

court apparently deemed that response inadeguate and ordered that

"all property being presently retained by the state shall be

turned over to defendant forthwith." Order dated November 1,

1988 .

Nevertheless, at trial the prosecutor elicited testimony

from the president of Brayco that he collected foreign coins and

freguently had a number of such coins in his desk. Giordano's

counsel moved to strike the testimony, alleging that the

government had failed to establish any link between the coins

seized from (and later returned to) Giordano and the burglary.

The court denied the motion. Subseguently, counsel for the State

and counsel for Giordano entered into a stipulation regarding the

foreign coins, which the court read to the jury. The stipulation

explained that Giordano had filed a motion reguesting the return

of certain seized property, the court conducted a hearing on the

matter, concluded that the State had failed to provide written

3 justification for withholding the coins and, therefore, ordered

that they be returned to Giordano.

Following his conviction, Giordano filed a post-trial motion

in which he asserted that the trial court had committed

reversible error by allowing the prosecutor to introduce

testimony about the foreign currency. The trial court denied his

motion, noting that it had already considered the issue in the

context of Giordano's earlier motions. He did not raise the

issue on direct appeal of his criminal conviction.

After the New Hampshire Supreme Court affirmed Giordano's

conviction, see State v. Giordano, 138 N.H. 90 (1993), he moved

for a new trial, again alleging that he had received ineffective

assistance of counsel insofar as counsel had failed to file a

motion in limine seeking to preclude the introduction of any

evidence relating to the foreign currency and neglected to object

to certain statements and guestions by the prosecutor concerning

that currency. The trial court denied his motion. Giordano

filed a notice of appeal with the New Hampshire Supreme Court,

which declined to accept his appeal.

Giordano now asserts that his rights guaranteed by the Sixth

and Fourteenth Amendments were violated by trial counsel's

alleged inadeguate assistance (by failing to obtain a ruling in

limine precluding any testimony regarding the foreign coins) and

4 by the prosecutor's references to the foreign currency (in

opening statement, examination of witnesses, closing argument, as

well as statements made outside the presence of the jury in the

context of oral arguments on defendant's various motions).

Discussion

I. Ineffective Assistance of Counsel.

To show that his trial counsel's representation was

constitutionally deficient, Giordano must satisfy the two-part

test established in Strickland v. Washington, 466 U.S. 668

(1984). To succeed, he must show that "(1) counsel's performance

fell below an objective standard of reasonableness, and (2) there

is a reasonable probability that, but for counsel's error, the

result of the proceedings would have been different." Smullen v.

United States, 94 F.3d 20, 23 (1st Cir. 1996).

Even if Giordano could satisfy the first prong (which he has

not) by showing that "counsel made errors so serious that counsel

was not functioning as the 'counsel' guaranteed the defendant by

the Sixth Amendment," Strickland, 466 U.S. at 687, he certainly

has not demonstrated the prejudice element of the second prong.

To clear the high hurdle of the prejudice element, Giordano "must

affirmatively prove 'a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.'"

5 Arqencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996)

(quoting Strickland, 466 U.S. at 694).

Giordano's ineffective assistance of counsel claim is based

on the assertion that the evidence regarding the foreign currency

was inadmissible and counsel somehow failed to take appropriate

steps to insure that it was not introduced at trial. However,

Giordano's legal premise (that the evidence was inadmissible)

appears to be an incorrect view of governing state law. See,

e.g.. State v. Reynolds, 131 N.H. 291, 294-95 (1988); State v.

Brown, 125 N.H. 346, 351 (1984).

Nevertheless, Giordano's counsel actually attempted to keep

that evidence from the jury. Ultimately, however, the trial

court ruled that it was admissible and, therefore, permitted the

prosecutor to elicit testimony concerning the foreign currency.

Even if trial counsel had done as Giordano suggests he should

have (i.e., moved in limine to preclude any such testimony and/or

objected more vigorously to the prosecutor's references to the

foreign currency), the result would likely have been the same:

the court would have denied counsel's objection and reaffirmed

its earlier ruling that evidence concerning the foreign currency

was admissible.

Taking the analysis even a step further and assuming that

the trial court should have excluded that evidence and counsel

6 failed to take reasonable steps to disabuse the court of its

allegedly incorrect view of the law, Giordano has not

demonstrated that the preclusion of that evidence would likely

have altered the jury's verdict in any way (i.e., that but for

counsel's alleged error, the result of the proceeding might have

been different). Independent of the foreign currency, the

evidence introduced against Giordano at trial was both

substantial and compelling. And, his assertion that he had been

granted access to the building so that he might use the restroom

(and his explanation for how he came to be carrying burglary

tools in his pockets - tools which directly linked him to a

substantial cache of other burglary tools found at the premises)

was, at a minimum, incredible. In short, Giordano has failed to

establish either of the two elements of the Strickland test.1

1 Giordano's assertion that he was denied effective assistance of counsel insofar as counsel failed to adeguately assert Giordano's claim that he had been denied the right to a speedy trial (and/or speedy sentencing) is entirely without merit and Giordano has failed to produce any evidence which even remotely suggests that he is entitled to habeas relief on that basis. The record is replete with evidence that the delays in bringing Giordano to trial were almost exclusively the product of his repeated dismissal of appointed counsel. See, e.g.. Transcript of hearing dated July 5, 1990. See also Transcript of hearing dated June 5, 1989 at 28 (in which the court held that each continuance granted in the case, some of which were over the State's objection, was granted to insure that Giordano receive adeguate assistance of counsel and a fair trial).

The record also demonstrates that on several occasions trial counsel advanced claims that Giordano was denied the right to a speedy trial. Prior counsel also advanced similar motions, as did the defendant himself, in the form of pro se pleadings. Notwithstanding Giordano's assertions to the contrary, this issue was, at a minimum, fully and adeguately addressed. His assertion that his counsel was constitutionally inadeguate for having failed to raise the speedy trial issue is entirely without merit.

7 II. Denial of Due Process/Unfair Statements by the Prosecutor.

Giordano's second basis for habeas relief is closely linked

to the first. Again, he relies upon his mistaken assertion that

the testimony concerning the foreign currency was inadmissible at

trial and, therefore, should not have been referenced by the

prosecutor in his opening statement, examination of witnesses, or

closing argument (he also suggests that trial counsel erred by

not seeking a mistrial based upon comments made by the prosecutor

to the court, outside the presence of the jury). As noted above,

however, Giordano's reasoning is flawed. The trial court

specifically ruled that the evidence concerning the foreign

currency was admissible. There is simply nothing in the record

from which this court might reasonably conclude that: (1) the

trial court erred in admitting such evidence; and (2) the

admission of such evidence was the product of an erroneous

application of federal law, deprived Giordano of any federally

protected rights, or that the jury's verdict might have been

different had such evidence been suppressed.

Similarly, Giordano's assertion that his rights under N.H.

Rev. Stat. Ann. ("RSA") 595-A:6 were violated (and therefore,

that he was deprived of due process) is without basis. That

Moreover, nothing suggests that the trial court's denial of those motions was contrary to or based upon an unreasonable application of federal law. See 28 U.S.C. § 2254. See also Order dated August 30, 1991) (Hampsey, J.) (denying petitioner's motion to vacate jury verdict on grounds that he received constitutionally deficient assistance of counsel). statute authorizes the trial court to order the return of

property (even that which has evidentiary value) seized by the

police. That the prosecutor failed to file a timely and proper

objection to Giordano's motion seeking the return of the foreign

currency (or that the court actually ordered that such currency

be returned to him ) , did not preclude the prosecutor from

introducing evidence at trial which demonstrated that Giordano

had actually stolen that currency. See Trial transcript at 150-

59; see also State v. Reynolds, supra; State v. Brown, supra. At

a minimum, however, Giordano has failed to demonstrate that the

trial court's decision to permit the prosecutor to introduce

evidence concerning the foreign currency (regardless of whether

or not it was consistent with RSA 595-A:6) "was contrary to, or

involved an unreasonable application of, clearly established

Federal law," 28 U.S.C. § 2254(d)(1), or otherwise led to the

violation of Giordano's federally protected rights.

Conclusion

For the foregoing reasons, it is apparent that petitioner is

not entitled to relief under 28 U.S.C. § 2254. Accordingly, his

fourth amended petition for habeas corpus relief (document no.

70) is denied. The Clerk of the Court is instructed to enter

judgment in accordance with this order and close the case.

SO ORDERED

Steven J. McAuliffe United States District Judge

November 3, 1998

cc: Vincent Giordano Ann M. Rice, Esq.