Respondents Brief — Coleman v. New York

No. 84-12 ce - Supreme Court. US.

IN THE KANDER L. STEVAS,

CLERK

Supreme Court of the United States—

October Term, 1984

ADONIOUS COLEMAN,

Petitioner,

agamst

THE STATE OF NEW YORK,

Respondent.

ee ee mane nn

ae me oe a

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Rosert M. MorcEentTHAU

District Attorney

New York County

Attorney for Respondent

One Hogan Place

New York, New York 10013

(212) 553-9000

Norman Barcuay

MicHaEL H. WARREN

Assistant District Attorneys

Of Counsel

TABLE OF CONTENTS

PAGE

Preliminary Statement 7 1

Statement of the Case Psenia PRA ects ee IS 2

Reasons for Denying the Writ SME corte ox bi or oi ok +

1. Any Conflict Among The Federal Circuit

Courts Regarding The Constitutional Stand-

ard For Effective Assistance Of Counsel Has

Already Been Resolved By Decisions Of This

Court And The Second Circuit |. ; 5)

The Standard Followed By The New York

State Courts And Applied In Evaluating Peti-

tioner’s Claim Of Ineffective Assistance Of

Counsel Conforms With That Followed In The

Federal Courts ........... APRN TLR LOM } 6

3. The Record In The State Court Does Not

Raise The Question Presented In The Petition 8

4. The State Court’s Conclusion That Petitioner

Was Not Denied The Effective Assistance Of

Counsel Presents No Issue Meriting Review

By This Court, And, In Any Event, Was

a AED aa le ay IP RO AP a AOE a I 9

bo

NI oat De iron er yy ar ere) > a eT SA me?

Il

TABLE OF AUTHORITIES

PAGE

Cases:

Beasley v. United States, 491) F.2d) 687 (6th Cir,

1974) 4)

Bonner v. City of Prichard, 661 Ftd 2206 (11th Cir.

1981) . 5

Caraway v. Beto, 421 F.2d 636 (Sth Cir. 1970) i)

Cooper v. Fitzharris, 586 F.2d 1820 (th Cir. 1978),

cert. denied, 440 U.S. 974 (1979) Hs)

Davis v. Alaska, 415 U.S. 308 (1974) 4,9

Dyer v. Crisp, 618 F.2d 275 (10th Cir.), cert. dented,

445 U.S. 945 (1980) | 4)

Fiumara v. United States, 727 F.2d 209 (2d Cir.},

cert. dented, US. , 104 S.Ct. 2154 (1984) 6

Johnson v. Massachusetts, 390 U.S. 511 (1968) 8

Katzinger v. Chicago Metallie Mfg. Co., 329 U.S. 394

(1947) Pea ee 4

Magnum Co. v. Coty, 262 U.S. 159 (1923)... 9

Marzullo v. Maryland, 561 F. 24 540 (4th Cir. 1977),

cert. denied, 485 U.S. 1011 (1978) me 9)

Massachusetts v. Painten, 389 U.S. 560 (1968) - 8

Moore v. United States, 432 F.2d 730 (3rd Cir. 1970) 9)

People v. Aiken, 45 N.Y.2d 394 (1978) 7

People v. Beaulieu, 40 A.D.2d 942 (4th Dept. 197 2) a

People v. Droz, 39 N.Y.2d 457 (1976) ...... | 7

People v. Jackson, 74 A.D.2d 585 (2d Dept. 1980) as 7

People v. Kass, 25 N.Y.2d 123 (1969) " 10

People v. Sellars, 74 A.D.2d 551 (1st Dept. 1980) iz 7

PAGE

Strickland v. Washington, U.S. , 104 S.C.

2052 (1984) 6,11

Trapnell v. United States, 725 F.2d 149 (2d Cir.

1983) 6

United States v. Bermudez, 526 F.2d 89 (2d Cir.

1975), cert, denied, 425 U.S. 970 (1976) 10

United States v. Boseh, 584 F.2d 1113 (1st Cir. 1978) D

United States v. DeCoster, 487 F.2d 1197 (D.C. Cir.

1973) i)

United States v. Dukes, 727 F.2d 34 (2d Cir. 1984) 6

United States v. Master, 539 F.2d 663 (8th Cir. 1976) 5)

United States v. Wight, 176 F.2d 376 (2nd Cir. 1949),

cert, denied, 888 U.S. 950 (1950) )

United States ex rel. Williams v. Twomey, 510 F.2d

634 (7th Cir.), cert. denied, 423 U.S. 876 (1975 5

Statutes:

New York Penal Law §70.00[3] [a] [i]

New York Penal Law §220.21 1

Other Authorities:

Stern & Gressman, Supreme Court Practice (5th Ed.

1978) | ee 7 | 4,9

No. 84-12

IN THE

Supreme Court of the United States

October Term, 1984

Avontous CoLEMAN,

Petitioner,

against

Tue State or New York,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Preliminary Statement

Petitioner Adonious Coleman seeks a writ of certiorari

to review a June 2, 1983, order of the Appellate Division,

First Department, of the New York Supreme Court. That

order affirmed, without opinion, a September 17, 1979, order

of the New York Supreme Court, New York County, con-

victing petitioner, after a jury trial, of Criminal Posses-

sion of a Controlled Substance in the First Degree (New

York Penal Law $220.21), and sentencing him to from fif-

teen years to life imprisonment.

Statement of the Case

or

On September 25, 1977, at approximately 2:00 a.m., two

officers of the New York City Police Department observed

petitioner, in the midst of a heavy rainstorm, lingering

suspiciously behind a parked van. Upon observing the of-

ficers, petitioner fled. The officers pursued and, during the

chase, petitioner attempted to conceal behind a parked ear

a bag containing over $15,000 worth of heroin. The drugs

Were recovered and petitioner was captured,

By Indictment No, 3981/77, petitioner was charged with

one count of Criminal Possession of a Controlled Substance

in the First Degree, an offense which upon conviction re-

quired imposition of a minimum prison term of from 15

years to life (Penal Law §70.00[3][a][i]).

On September 11, 1979, at a pre-trial hearing held be-

fore Justice Shirley Levittan of the New York State Su-

preme Court, counsel for petitioner moved to suppress the

recovered narcotics and statements made by petitioner at

the time of the arrest. On that date, the court denied the

motion to suppress the drugs and granted the motion to

suppress the statements.

Petitioner proceeded to trial before Justice Levittan

and a jury on September 13, 1979. At trial, the officers

who arrested petitioner testified regarding the events un-

derlying petitioner's apprehension. A chemist employed

by the New York City Police Department testified that the

material recovered from petitioner was in fact heroin.

3

Upon the close of the People’s case, petitioner’s trial

counsel argued in summation that the People’s evidence

failed to demonstrate beyond a reasonable doubt that pe-

titioner had possessed the bag containing the recovered

narcotics. Counsel also argued that even if the jurors

found that petitioner had in faet possessed the heroin, the

evidence at trial did not support the conclusion that he had

knowingly possessed the nareoties but rather that he had

recently stolen the drugs from the van behind which he

had been lingering before his arrest. Accordingly, counsel

argued that petitioner should be acquitted of the crime

charged. Upon the conclusion of summations, the case was

submitted to the jury and on September 17, 1979, petitioner

was found guilty as charged.

On appeal to the Appellate Division, First Department,

petitioner argued that the proof of his guilt was insufficient

to support the verdict. Petitioner also argued that he was

denied his sixth amendment right to the effective assist-

ance of trial counsel. Specifically, petitioner asserted that

his counsel had failed to pursue certain lines of defense and

had failed to call witnesses who would have testified re-

garding petitioner’s good character. Petitioner also ar-

gued that counsel had inadequately prepared and that he

had improperly prejudiced petitioner by suggesting on

summation that petitioner had committed a theft on the

night of his arrest.

By an order dated June 21, 1983, the Appellate Division

unanimously and without opinion affirmed petitioner’s

judgment of conviction. 95 A.D.2d 984. On November 15,

1983, the New York State Court of Appeals, denied leave

to appeal. 60 N.Y.2d 965 (Cooke, Ch. J.).

4

In this application, petitioner continues to assert that

he was denied the effective assistance of counsel, by virtue

of his trial counsel’s inadequate preparation, his failure to

call character witnesses and his advancement of the defense

that petitioner was, at most, guilty of theft. Petitioner

argues that this Court should review trial counsel’s per-

formance in order to articulate a standard by which crim-

inal defense counsel’s performance should be judged under

the sixth amendment and to thereby resolve a dispute

among the federal circuit courts as to that standard.

Reasons for Denying the Writ

Generally, this Court will grant a petition for a writ of

certiorari only where there exists a split among the federal

appellate courts as to a particular issue, or where novel

questions of constitutional dimension or national import

are raised. See, e.g., Davis v. Alaska, 415 U.S. 308, 315

(1974); Katzinger v. Chicago Metallic Mfg. Co., 329 US.

394 (1947). See generally, Stern & Gressman, Supreme

Court Practice, §4.27, pp. 315-17 (5th ed. 1978). As the dis-

cussion below demonstrates, petitioner’s application should

be denied since there is no dispute among the federal cir-

cuit courts regarding the legal principles governing his

state appeal. Moreover, petitioner’s contention that he

personally was denied the effective assistance of counsel is

meritless and, in any event, does not present a question of

national interest or constitutional import.

1. Any Conflict Among The Federal Circuit Courts

Regarding The Constitutional Standard For

Effective Assistance Of Counsel Has Already

Been Resolved By Decisions Of This Court And

The Second Circuit.

Petitioner asserts that a writ of certiorari should be

granted in order to resolve ‘‘[t]he clash amongst the Cir-

cuits’’ regarding the constitutionally mandated standard of

competence for defense counsel in criminal trials (Petition

for a Writ of Certiorari, p. 27).

True, until recently the Second Circuit applied the

‘*farce and mockery’’ standard to determine whether assist-

ance of counsel at a criminal trial was ‘‘effective,’’ while

the remaining Courts of Appeal applied a standard of ‘‘rea-

sonable competence.’’? See United States v. Bosch, 584 F.2d

11138, 1120-21 (1st Cir. 1978); United States v. Wight, 176

F.2d 376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950

(1950) ; Moore v. United States, 482 F.2d 730, 737 (3rd Cir.

1970) ; Sarzullo v. Maryland, 561 F.2d 540, 543-44 (4th Cir.

1977), cert. denied, 435 U.S. 1011 (1978) ; Caraway v. Beto,

421 F.2d 630, 637 (Sth Cir. 1970); Beasley v. United States,

491 F.2d 687, 696 (6th Cir, 1974) ; United States ex rel. Wil-

liams v. Twomey, 510 F.2d 634, 641 (7th Cir.), cert. denied,

423 U.S. 876 (1975) ; United States v. Easter, 539 F.2d 663,

666 (Sth Cir, 1976); Cooper v. Fitzharris, 586 F.2d 1325,

1329 (9th Cir. 1978), cert. denied, 440 U.S. 974 (1979) ; Dyer

v. Crisp, 613 F.2d 275, 278 (10th Cir.), cert. denied, 445 U.S,

945 (1980) ; Bonner v. City of Prichard, 661 F.2d 1206, 1207

(11th Cir, 1981) ; United States v. DeCoster, 487 F.2d 1197,

1202 (D.C. Cir. 1973).

6

However, the Second Circuit’s recent adoption of the

requirement that counsel in criminal cases exhibit reason-

able competence resolves any dispute among the Circuits.

Trapnell vy. United States, 725 F.2d 149 (2d Cir. 1983).

See also, Fiumara vy. United States, 727 F.2d 209, 214 (2d

Cir.), cert. denied, —— US. , 104 S. Ct. 2154 (1984) ;

United States v. Dukes, 727 F.2d 34, 41 (2d Cir. 1984).

In any event, even in the absence of the agreement

among the Circuits, there would be no reason for this Court

to address the question of the proper standard for judging

criminal defense counsel’s performance, since it has re-

cently done so, concluding that that standard is one of rea-

sonable competence. Strickland v. Washington. —— US.

— ., 104 S.Ct. 2052 (1984).

Thus, the dispute among the Circuits has been resolved

and whatever ambiguity may have existed regarding this

Court’s interpretation of the constitutionally mandated

standard of competence for defense counsel has also been

clarified. There is, therefore, no pressing or constitution-

ally significant issue to be resolved in this case.

2. The Standard Followed By The New York State

Courts And Applied In Evaluating Petitioner’s

Claim Of Ineffective Assistance Of Counsel

Conforms With That Followed In The Federal

Courts.

Not only is there no need to resolve a dispute among

the federal circuits concerning the standard of competence

of criminal defense counsel, but there is no need to resolve

a dispute between that standard and the standard actually

applied by the state courts in this case.

7

The New York state courts, well before the Second Cir-

cuit’s abandonment of the farce and mockery standard, had

rejected that standard and concluded that counsel in erim-

inal cases must exhibit at the minimum reasonable com-

petence. People v. Aiken, 45 N.Y.2d 394, 400-401 (1978) ;

People v. Droz, 39 N.Y.2d 457 (1976); People v. Sellars,

74 A.D.2d 551 (1st Dept. 1980); People v. Jackson, 74 A.D.

2d 585 (2d Dept. 1980). Moreover, in recent years the

New York Court of Appeals has signaled its willingness to

provide even greater scrutiny of claims of ineffective assist-

ance of counsel than that required under the reasonable

competence standard, and to ascertain whether counsel’s

performance was ‘‘adequate or effective in any meaningful

sense of the words.’’ People v. Aiken, 45 N.Y.2d at 398.

In reviewing petitioner’s claim that he was denied the

effective assistance of counsel the state courts applied a

standard conforming, at the very least, with that mandated

by the federal courts. Indeed, petitioner’s primary reliance

on New York state authority, in support of his claim that

he was denied the effective assistance of counsel, only un-

derscores the state’s sensitivity to such claims (See, e.g.,

Petition for a Writ of Certiorari, pp. 17-18, 22-24).

Thus, review of this case would not resolve any dis-

crepancy between the federal standard for effectiveness of

counsel and that adopted by New York State.* And even

if a dispute on the issue existed among the Circuits, the test

employed by the New York courts was the one that was

* Petitioner alludes to certain authority from other jurisdictions

finding that retained counsel is subject to a lesser standard of com-

petence than assigned counsel. The New York state courts have never

drawn such a distinction. People v. Aiken, 45 N.Y.2d at 401. In any

event, petitioner was represented by assigned counsel and his per-

formance could, therefore, not have been judged under any more

ienient standard than that of reasonable competence.

8

most beneficial to petitioner. Obviously, then, petitioner

has simply presented a hypothetical controversy for this

Court’s review.

3. The Record In The State Court Does Not Raise

The Question Presented In The Petition.

Even if petitioner asserted some constitutional issue

deserving resolution by this Court, this case would not be

an appropriate vehicle for that resolution.

Where the record does not clearly and specifically pre-

sent a petitioner’s claim and an evidentiary hearing would

be needed to ascertain whether there is any basis for his

factual allegations, a writ of certiorari should not be

granted. See, Johnson v. Massachusetts, 390 U.S. 511

(1968) ; Massachusetts v. Painten, 389 U.S. 560, 561 (1968).

Here, the question presented by petitioner would require

such an evidentiary hearing, for it consists primarily of a

series of factual allegations either not presented in, or

refuted by, the state court record.

The record provides no suport for petitioner’s asser-

tions that ‘‘consultation before trial consisted of a single

twenty minute meeting, no potentially helpful character

witnesses were interviewed, no visit to the scene of the

arrest was made, [or that] no factual investigation of

events prior to defendant’s arrest was made .. .’’ (Petition

for a Writ of Habeas Corpus p.1). Indeed, the record spe-

cifically refutes petitioner’s assertion that ‘‘no defense was

interposed.’’ Jd. Thus, before the Court could even evalu-

ate petitioner’s claims it would have to order a lengthy

evidentiary hearing—a course the Court has consistently

declined to take.

4. The State Court’s Conclusion That Petitioner Was

Not Denied The Effective Assistance Of Counsel

Presents No Issue Meriting Review By This Court,

And, In Any Event, Was Correct.

Finally, assuming that petitioner’s contentions could be

evaluated on this record, the petition should still be denied.

Shorn of surplusage, the petition for a writ of certiorari

consists of nothing more than a lengthy argument that the

New York state courts, while applying a standard of re-

view conforming with that mandated by the Constitution,

incorrectly concluded that petitioner had not been denied

the effective assistance of counsel. Such a claim, even if

meritorious, simply does not demonstrate that the case is

of such national significance or constitutional import as to

justify this Court’s serutiny. See, e.g., Davis v. Alaska,

415 U.S. 308, 315 (1974); Magnum Co. v. Coty, 262 U.S.

159, 163 (1923). See also, Stern & Gressman, Supreme

Court Practice, §4.2, pp. 257-59 (5th ed. 1978). Moreover,

even if the state court’s ruling merited review, the petition

should be denied, since petitioner has failed to make a

threshold showing that his rights were violated or that the

state court’s ruling was incorrect.

Simply put, petitioner’s entire challenge is a further

expression of his post-trial dissatisfaction with his coun-

sel’s advancement of the defense that petitioner was at

worst a mere thief who had unknowingly stumbled upon a

cache of narcotics. The assertion of one specific defense

should not raise a question of national import. In any

event, the advancement of that defense, at petitioner’s trial,

did not violate his sixth amendment right.

Defense counsel was faced with a scenario in which the

testimony of two police officers and a police chemist un-

10

equivocally linked his client to a cache of heroin with a

street value in excess of $15,000. The only rational course

to take in defending petitioner was to assert that he did not

‘‘knowingly’’ possess the drugs. While the jury quite

properly rejected this defense, it cannot be said that peti-

tioner was prejudiced by virtue of its advancement. No

alternative defense was suggested by the record. Counsel’s

argument that his client may have been guilty of a crime,

but not the crime with which he had been charged, carried

far greater verisimilitude than the unsupported and shop-

worn claim, asserted in petitioner’s state appeal, that he

was totally innocent and nothing more than the victim of

some massive police conspiracy. (See ‘‘Brief and Memo-

randum of Law”’’ in support of petitioner’s appeal in the

New York State Appellate Division, pp. 20-21). Moreover,

conceding that petitioner might be a thief could hardly

prejudice the defense, since there was no larceny charge

before the jury on which petitioner could be convicted, and,

if there had been, it would not have carried the life sen-

tence of the drug possession charge.

Nor was petitioner prejudiced by his attorney’s failure

to call the character witnesses alluded to in his petition,

since such a course would only have permitted the People

to elicit evidence of his prior arrests and convictions.

United States v. Bermudez, 526 F.2d 89, 95 (2d Cir. 1975),

cert, denied, 425 U.S. 970 (1976); People v. Kass, 25 N.Y.

2d 123 (1969) ; People v. Beaulieu, 40 A.D.2d 942 (4th Dept.

1972).*

* The New York State Board of Corrections pre-sentence report

on petitioner indicates that prior to his arrest for the possession of

heroin, petitioner had been convicted as a youthful offender and had

been arrested at least ten times for offenses including possession and

sale of narcotics, weapons possession, disorderly conduct, possession

of stolen property and unauthorized use of a vehicle.

a

11

In sum, petitioner has cited no fact that would rebut the

‘‘strong presumption that counsel’s conduct [fell] within

the wide range of reasonable professional assistance.’’

Strickland v. Washimgton, 104 S.Ct. at 2066. Indeed, the

state court correctly concluded that petitioner was not

denied the effective assistance of counsel. That determina-

tion forms no basis for further review by this Court.

Conclusion

The petition for a writ of certiorari to the New

York State Court of Appeals should be denied.

Respectfully submitted,

Rosert M. MorcentHau

District Attorney

New York County

NorMAN BarRcLay

MicHaet H. Warren

Assistant District Attorneys

Of Counsel

September 1984