White v. Bellnier

Filing 16

ORDER & OPINION: The Petition for a Writ of Habeas Corpus is denied. Because petitioner has failed to make a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of appealability. In addition, this Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith. The Clerk of Court is directed to enter judgment accordingly. SO ORDERED by Senior Judge Allyne R. Ross, on 12/23/2011. C/mailed by Chambers. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

FILEdecJ~

IN CLEt-J~~ OFFICE 5f1t
U.8.[NsnnR~~E.D.N.Y.

* DErr.2 7 2011 *

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------------

)(

BROOKLYN OFFICE

GARY WHITE,

09-CV-744 (ARR)
Petitioner,

NOT FOR ELECTRONIC
OR PRINT PUBLICATION

-against-

ORDER & OPINION

JOSEPH F. BELLNIER, Superintendent of the Upstate
Correctional Facility
Respondent.
)(

--------------------------------------------------------------------ROSS, United States District Judge:
On June 30, 2009, Gary White ("petitioner"), appearing pro se, filed a petition for a writ
of habeas corpus challenging his criminal conviction pursuant to 28 U.S.C. § 2254. In his
petition, he claims (1) that the state trial court erred in not suppressing custodial statements he
made to the police and (2) that he was deprived of the effective assistance of trial and appellate
counsel. For the reasons stated below, his petition is denied.

BACKGROUND
Petitioner challenges his July 23, 2003 conviction in the Supreme Court of the State of
New York, Kings County, of Murder in the Second Degree. Following a jury trial, petitioner
was found guilty of murdering Albert Hansen, who died after being twice shot in the head on
June 1,2002, in Brooklyn, New York. People v. White, 10 N.Y.3d 286, 288-90 (2008).1
Petitioner first became a suspect in Hansen's murder when, on June 9, 2002, at approximately

I In reviewing an application for a writ of habeas corpus, the court must presume that a state court's determination of
a factual issue is correct, and the petitioner carries the burden of overcoming that presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(l); see Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003). As
petitioner does not challenge the New York Court of Appeals' presentation of the facts and the court fmds that they
are consistent with the record, the court adopts and borrows from the factual summary contained in that the Court of
Appeals' opinion.

tllf

2:00 a.m., a police officer arrested petitioner in response to an unrelated domestic violence
complaint by petitioner's girlfriend and petitioner's girlfriend advised the officer that petitioner
was involved in the shooting. Id. at 288. Later that day, the arresting officer informed detective
Frank Byrne-who had been assigned, with detective Robert Sommer, to investigate the
shooting-that petitioner's girlfriend had implicated petitioner in that crime. Id. Byrne
confirmed the allegation with petitioner's girlfriend, who stated that petitioner, if asked about the
shooting, would offer a visit to a friend's home as an alibi. Id. at 288, 289 n. *. The detectives
then tracked down the witness to the shooting to conduct a line-up, and the investigation
proceeded as follows:
[A]t approximately 7:30 P.M., after spending over 17 hours in a holding cell
(much of it sleeping) [petitioner] was placed in a lineup. The only witness to the
shooting ... was unable to identify [petitioner] from the lineup. At approximately
9:30 P.M., [petitioner] was brought to an office for questioning by the detectives.
Once there, [petitioner] inquired why he had been placed into a lineup. In
response, Sommer produced a computer generated arrest photograph of the
victim. [Petitioner] responded, "What about him?" Byrne stated "he was killed,
and he was either killed in cold blood, or there was a reason for it." [Petitioner]
was then asked whether he would "like to tell his side of the story," and he
responded, "I'll tell you everything. Get me Newports and a Pepsi." This initial
exchange took approximately five minutes without any Miranda warnings.
Byrne then left the office to procure the requested items while Sommer remained
with [petitioner], engaging in small talk. Byrne returned 15 to 20 minutes later
At
and allowed [petitioner] to drink his soda and smoke a cigarette.
approximately 10:00 P.M., Byrne read [petitioner] his Miranda rights from a card.
[Petitioner] acknowledged that he understood his rights and signed and dated the
card. [Petitioner] also indicated his willingness to speak with the detectives .
. . . . [Petitioner] told the detectives that, on [the date of the shooting], he was in
Queens visiting a friend from 7:30 P.M. until the next morning. The detectives
explained to [petitioner] that they knew his alibi was fabricated and that he should
tell the truth. In response, [petitioner] rolled up his sleeves and showed the
detectives large scars on both arms. [Petitioner] stated that Hansen caused the
injuries during a mugging, allegedly committed 16 or 17 years earlier. He further
indicated that on the day of the shooting, Hansen had again robbed and threatened
to kill him. When he saw Hansen walking ... with another person later that day,
he ran up to them, pushed the other person aside, and shot Hansen twice.

2

At the detective's request, [petitioner] provided a written statement but omitted
the .s.hooting. When confronted by the detectives regarding the omission,
[petItIOner] prepared a second handwritten statement in which he admitted to
shooting the victim. After [petitioner] completed his written accounts of the
shooting, he was provided with a meal, consumed it and then felt ill, but did not
2
request medical treatment. [Petitioner] agreed to give a videotaped confession
and at approximately 1:30 A.M., on June 10, 2002, an assistant district attorney
again advised [petitioner] of his Miranda rights, this time on videotape. At the
conclusion of the Miranda warnings, [petitioner] for the first time requested
counsel, at which time the videotaping ceased.
Id. at 288-89. Petitioner was intoxicated at the time of his arrest, but the detectives who
interrogated him testified that he appeared normal when the lineup was conducted and at the time
he was questioned. Resp't's Ex. I, pt. 5 at 305-08, 578.
Prior to trial, petitioner sought to have his statements to police suppressed under the
theory that his pre-Miranda exchange with police constituted an interrogation and that, because
there was no attenuation between this initial interrogation and the post-Miranda questioning, all
the statements that petitioner made were obtained in violation of his state and federal
constitutional rights. White, 10 N.Y.3d at 289. The trial court initially ruled in favor of
petitioner and excluded petitioner's confessions. However, upon the State's motion to renew and
reargue, the court ruled that only petitioner's pre-Miranda statements were inadmissible and that
his post-Miranda written and oral statements could be admitted at trial. Id. at 290; Resp't's Ex.
D at A 15. Observing that the videotaped statement in which petitioner invoked his right to
counsel was not offered by the prosecution, the court stated that that statement would not be
admitted at trial. Resp't's Ex. D at A15.
The case then proceeded to trial. Petitioner's first trial began on July 8, 2003, and
resulted in a mistrial due to jury deadlock. Aff. of Camille O'Hara Gillespie ("Gillespie Aff.")
~
2

8. At the close of a second trial, which began a week later, the jury delivered a guilty verdict,
Petitioner vomited after eating. Resp't's Ex. I, pt. 5 at 385.

3

convicting petitioner of Murder in the Second Degree pursuant to New York Penal Law §
125.25[1]. Id. ~ 10. At that trial, notwithstanding the judge's prior suppression ruling, detectives
Byrne and Sommers testified about the content of their pre-Miranda questioning of petitioner.
Resp't's Ex. I, pt. 5 at 310-14. Also, the videotape showing petitioner's invoking his right to
counsel was admitted after defense counsel cross-examined Byrne and Sommers on its content.
Resp't's Ex. I, pt. 5 at 385-88, 415-46, 629.
Following his conviction, petitioner moved orally for the verdict to be set aside based on,
inter alia, the prosecution's reference to petitioner's girlfriend in his opening statements.
Resp't's Ex. I, pt. 6 at 2-4. Petitioner's girlfriend was not called as a witness, and petitioner
argued that the prosecution's early reference to the girlfriend led defense to cross-examine the
witnesses differently than it would have had she not been mentioned. 3 Id. The prosecution
responded that it had tried to locate the girlfriend to testify, and it disavowed having opened the
door to discussing her. In this regard, the prosecution noted that defense counsel had referred to
the girlfriend during jury selection and opening statements and had characterized her as a
scorned woman who had been abused emotionally and physically. Id. at 5-6. The trial court
denied petitioner's motion and sentenced petitioner to a prison term of twenty-two years to life.
Id. at 6, 15. Petitioner thereafter appealed.
On direct appeal before the New York Supreme Court, Appellate Division, Second
Judicial Department ("Appellate Division"), Petitioner argued that the trial court's failure to
suppress his post-Miranda statements violated his federal and state constitutional rights because
they were purportedly part of a continuous interrogation not interrupted prior to petitioner's
Miranda waiver. Gillespie Aff.

~

11. On May 1, 2007, the Appellate Division affirmed

petitioner's judgment of conviction. People v. White, 836 N.Y.S.2d 204 (App. Div. 2d Dep't
3

Defense counsel appears to have been referring to questions regarding petitioner's alleged abuse of his girlfriend.

4

2007). Petitioner was granted leave to appeal to the New York Court of Appeals, which affirmed
the order of the Appellate Division on March 20,2008. White, 10 N.y'3d 286. Noting that
petitioner "made no statement that was either inculpatory or related to the shooting until after ...
he had properly waived his Miranda rights," the Court of Appeals held that the break between
the initial custodial interrogations the subsequent admission "was sufficiently pronounced to
dissipate the taint of the Miranda violation" and that petitioner's post-Miranda statements were
admissible. Id. at 292. Basing its analysis primarily on New York law, it stated that the police
should have administered Miranda warnings initially but that "after the very brief pre-Miranda
questioning' [petitioner] may be said to have returned, in effect, to the status of one who is not
under the influence of questioning. '" Id. at 292 (quoting People v. Chapple, 38 N. Y.2d 112, 115
(1975». The Court of Appeals also observed that, after receiving Miranda warnings, petitioner
first provided an exculpatory statement and alibi and confessed only after being confronted with
the untruthfulness of the statement. Id.
Following his unsuccessful appeals in state court, petitioner sought a writ of certiorari in
the United States Supreme Court, predicated on the claim that his federal constitutional rights to
counsel and due process were violated because the police had not given Miranda warnings before
any questioning began and that Oregon v. Elstad, 470 U.S. 298 (1985), did not justify the state
court's failure to suppress his post-Miranda statements to the police. Gillespie Aff.

~

19. On

October 6,2008, the Supreme Court denied the petition, at which point petitioner's conviction
became final. White v. New York, 129 S. Ct. 221 (Oct. 6,2008).
Petitioner thereafter timely filed the instant action, alleging (1) that the state court erred
in not suppressing petitioner's custodial statements and (2) that he was deprived of the effective
assistance of trial and appellate counsel. At the time of filing, petitioner conceded that he had

5

not exhausted his ineffective assistance of counsel claims and asked the court to stay his petition
and hold it in abeyance to allow him to pursue, in state court, a motion to vacate his jUdgment of
conviction, pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10, and a Writ of
Error Coram Nobis. Pet. at ~ 22, B. The court directed petitioner to show good cause for why he
failed to exhaust his ineffective assistance of counsel claims prior to filing his habeas petition
and directed petitioner to address the merits of the claims, so that the court could determine
whether a stay was warranted. Dkt. No.6. Based on a review of petitioner's submissions in
response to that order, the court declined to grant a stay. Instead, in an order dated January 26,
2011, the court ordered respondent to address the merits of petitioner's ineffective assistance of
counsel claims. Dkt. No.9. The court observed that, when faced with a "mixed petition," it may
(i) dismiss the petition; (ii) stay the petition and hold it in abeyance while petitioner returns to

state court to exhaust his previously unexhausted claims; or (3) deny the petition on the merits
pursuant to 28 U.S.C. § 2254(b)(2), notwithstanding the failure of petitioner to exhaust his state
court remedies. Id. (quoting Rhines v. Webber, 544 U.S. 269, 277 (2005)).
Petitioner's ineffective assistance of counsel claims have now been exhausted. On
October 8, 2009, petitioner moved in New York Supreme Court, Kings County, to vacate his
judgment of conviction pursuant to C.P.L. § 440.10, claiming ineffective assistance of trial
counsel on the following grounds: (1) trial counsel failed to challenge petitioner's initial and
subsequent arrest for lacking probable cause and the derived statements as being the "fruit of the
poisonous tree;" (2) trial counsel failed to make a motion in limine to preclude and/or object to
the introduction of hearsay evidence; (3) trial counsel failed to conduct pretrial investigations
and to produce material exculpatory witnesses; (4) trial counsel conducted cross-examination of
prosecution witnesses prejudicially; and (5) trial counsel failed to object at trial to the

6

introduction of petitioner's videotaped statement invoking his right to counsel. Gillespie Aff.
~ 19. By order dated March 8, 2010, the New York Supreme Court, Kings County, denied

petitioner's motion to vacate judgment, People v. White, Ind. No. 3850/2002, 2010 NY Slip Op
31195U (Sup. Ct. Kings Ctny. March. 9, 2010), a decision that petitioner was denied leave to
appeal. Supp. Aff. of Camille 0 'Hara Gillespie ~~ 13, 29. Petitioner thereafter moved for a Writ
of Error Coram Nobis, alleging that appellate counsel had been ineffective for failing to argue,
on direct appeal, that trial counsel was ineffective for the reasons alleged in petitioner's C.P.L.
§ 440.10 motion. Id. ~ 32. On November 9, 2010, the Appellate Division denied petitioner's

motion, People v. White, 910 N.Y.S.2d 366 (App. Div. 2d Dep't 2010), and petitioner's
application for leave to file an appeal from that order and decision was denied on June 30, 2011,
see Dkt. No. 14.
DISCUSSION
I.

Standard of Review

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDP A") established a
deferential standard that federal habeas courts must apply when reviewing state court
convictions. 28 U.S.c. § 2254(d). The statute provides, in pertinent part:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim(l) resulted in a decision that 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.
Id. Here, petitioner does not argue that the adjudication of his claims "resulted in a decision that

7

was based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding," so at issue is only whether the state court's decision resulted in a
decision involving an unreasonable application of clearly established Federal law. Id.
The statutory language "clearly established Federal law, as determined by the Supreme
Court of the United States" refers to "the holdings, as opposed to the dicta, of [the Supreme]
Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529
U.S. 362,412 (2000). A state court decision is "contrary to" clearly established Supreme Court
precedent if "the state court applies a rule that contradicts" Supreme Court precedent or if "the
state court confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from that precedent." Id. at 405-06.
With respect to the "unreasonable application" clause, "a federal habeas court ... should ask
whether the state court's application of clearly established federal law was objectively
reasonable." Id. at 409. "Where a state court's decision is unaccompanied by an explanation,
the habeas petitioner's burden still must be met by showing there was no reasonable basis for the
state court to deny relief." Harrington v. Richter, 131 S. Ct. 770, 784 (2011).

II.

Petitioner's Suppression Claim
The Miranda exclusionary rule safeguards a defendant's Fifth Amendment right against

self-incrimination by barring the use, as evidence against a defendant, of any statements he
makes during an unwamed, in-custody interrogation by police. Miranda v. Ariz., 384 U.S. 436,
478-479 (1966); see Elstad, 470 U.S. at 306-07. "The purpose of the Miranda warning is to
ensure that the person in custody has sufficient knowledge of his or her constitutional rights
relating to the interrogation and that any waiver of such rights is knowing, intelligent, and
voluntary." United States v. Carter, 489 F.3d 528, 534 (2d Cir. 2007). Therefore, although any

8

initial unwarned statements must be suppressed, statements made subsequently, after a valid
Miranda waiver, may be admitted so long as they are knowing and voluntary. See Elstad, 470
U. S. at 317-18 ("[ A] suspect who has once responded to unwarned yet uncoercive questioning is
not thereby disabled from waiving his rights and confessing after he has been given the requisite
Miranda warnings."). However, in an exception to Elstad, a law enforcement official may not
follow a practice of interrogation whereby the official intentionally withholds warnings until a
confession is elicited and then uses the confession to coerce inculpatory post-warning statements.
Missouri v. Seibert, 542 U.S. 600, 613 (2004); Carter, 489 F.3d at 537.
Petitioner claims that he is being held unlawfully because it was a violation of his federal
constitutional rights to admit, as evidence at trial, in-custody statements he made to police.
Specifically, he argues that both his pre-Miranda and post-Miranda statements to police should
have been suppressed because "they were part of a continuous interrogation not interrupted by
any meaningful break prior to [petitioner's] purported waiver of his constitutional rights." Am.
Pet. at ~ 22A. Because the state court's determination that petitioner's statements should not be
suppressed was well within the bounds of Supreme Court jurisprudence, 28 U.S.C. § 2254(d),
habeas relief is not available to petitioner on this ground.
Petitioner's claim that he is entitled to habeas relief because his pre-Miranda statement
was improperly admitted is unavailing. 4 The only statement made by petitioner prior to the
administration of Miranda warnings was an avowal that he would tell the police everything if
they brought him a Pepsi and cigarettes. The Court of Appeals properly observed, in the course
of its analysis, that this statement was not inculpatory. White, 10 N.y'3d at 292. Under the law

This claim is unexhausted, as petitioner did not appeal the admission of his pre-Miranda statement to the Court of
Appeals, see Resp't's Ex. D, but the court nonetheless may review this claim and dismiss it on the merits. See 28
U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the
failure of the applicant to exhaust the remedies available in the courts of the State.").
4

9

of this circuit, "[a]greeing to tell the truth, without more, is not an inculpatory or selfincriminating statement." Nova v. Barlett, 211 F.3d 705 (2d Cir. 2000). Similarly, merely
agreeing to tell the police "everything" does not implicate oneself in criminal activity. Because
it was not inCUlpatory, the admission of this pre-warned statement, though erroneous, was
harmless, and habeas relief is not available. See id. at 709 (citing Brecht v. Abrahamson, 507
U.S. 619, 637-38 (1993)).
Nor is habeas relief warranted based on the admission of petitioner's post-Miranda
statements, as the state court's determination that they were admissible was not an unreasonable
application of Supreme Court precedent. See 28 U.S.C. § 2254(d). In its opinion, the Court of
Appeals did not give a reasoned explanation of its rejection of petitioner's federal constitutional
challenge, but it is clear from a review of the record that there was a reasonable basis on which it
could deny relief. See Harrington, 131 S. Ct. at 784 ("Where a state court's decision is
unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing
there was no reasonable basis for the state court to deny relief. "). Because petitioner made no
incriminating statements prior to his Miranda waiver and "there was almost no overlap between
[his pre-Miranda] statement and the full confession he gave after he received the warnings,"
there is no basis for finding that the post-warning questioning was a continuation of the prewarning questioning. See Carter, 489 F.3d at 536 (discussing and distinguishing Seibert, 542
U.S. 600). Moreover, the circumstances surrounding petitioner's post-Miranda confession and
the entire course of police conduct support a conclusion that petitioner's incriminating statements
were voluntarily made and that their admission was proper. See Elstad, 470 U.S. at 318.
The Supreme Court has made clear that the admissibility ofa suspect's post-Miranda
confession, when made following unwarned but non-coercive police questioning, turns on the

10

knowing and voluntary nature of the suspect's post-Miranda statements:
It is an unwarranted extension of Miranda to hold that a simple failure to

administer the warnings, unaccompanied by any actual coercion or other
circumstances calculated to undermine the suspect's ability to exercise his free
will, so taints the investigatory process that a subsequent voluntary and informed
waiver is ineffective for some indeterminate period. Though Miranda requires
that the unwarned admission must be suppressed, the admissibility of any
subsequent statement should tum in these circumstances solely on whether it is
knowingly and voluntarily made.
Elstad, 470 U.S. at 309; see Tankleffv. Senkowski, 135 F.3d 235, 244 (2d Cir. 1998). The
record here does not compel a finding that the police's pre-Miranda questioning was
accompanied by circumstances so calculated to undermine petitioner's ability to exercise his free
will that suppression of petitioner's post-Miranda statements was required. The detectives' preMiranda questioning lasted five minutes and elicited no inculpatory statements. Although
petitioner was arrested while intoxicated and was held for seventeen hours before being
questioned, evidence was adduced at trial that petitioner slept and his personal needs were
attended to during this period of detention. The record lacks any evidence of actual coercion.
The conditions surrounding petitioner's Miranda waiver also support a finding that the
waiver was knowing and voluntary. Between petitioner's pre-Miranda statement and his waiver
of rights, approximately fifteen to twenty minutes of time passed, during which petitioner was
provided, as per his request, with a drink and cigarettes. At the time that the petitioner signed the
Miranda waiver, there is no indication that petitioner was intoxicated or otherwise impaired in a
manner that would preclude him from understanding and exercising his rights. See Takleff, 135
F.3d at 245 ("Furthermore, and crucially important, there is no indication in the record that
[petitioner] did not understand his rights once he was given the warnings or that his subsequent
waiver of those rights was anything but knowing and voluntary."). As in Elstad, "[t]hough
belated, the reading of [petitioner]'s rights was undeniably complete." 470 U.S. at 314. That

11

petitioner then chose to waive his rights and speak "is, of course, highly probabative." Id. at 318.
Indeed, after petitioner signed a Miranda waiver and the police resumed questioning, petitioner
provided police with a fake alibi and disavowed any involvement with or knowledge of the
shooting. Based on the totality of these circumstances, see id., the state court's determination
that petitioner's Miranda statements were admissible was a reasonable application of Federal
law, as determined by the Supreme Court. See 28 U.S.C. § 22S4(d). Accordingly, habeas relief
is denied on this ground.
III.

Petitioner's Ineffective Assistance of Counsel Claims
A petitioner seeking a writ of habeas corpus on ineffective assistance of counsel grounds

faces a heavy burden in establishing entitlement to relief. Strickland v. Washington, 466 U.S.
668 (1984), established the two-prong test by which ineffective assistance of counsel claims are
adjudicated. See Harrington, 131 S. Ct. at 780. Under Strickland, a petitioner must demonstrate,
first, that counsel's performance fell below "an objective standard of reasonableness" under
"prevailing professional norms," id. at 688, and second, that "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been
different." Id. at 698. A court need not decide both prongs of the Strickland test if a there is an
insufficient showing on one. See Id. at 697. In analyzing a claim that counsel's performance fell
short of constitutional standards, the court must "indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance." Id. at 689. In so
doing, it must "affirmatively entertain the range of possible reasons [petitioner]'s counsel may
have had for proceeding as they did." Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011)
(citation and internal quotation marks omitted).
Moreover, when Strickland claims are presented on collateral habeas review, the court

12

assesses them subject to the strictures of AEDPA and must be "doubly deferential" in reviewing
the state court's determination that counsel acted effectively. Knowles v. Mirzayance, 556 U.S.
III (2009) (citing Yarborough v. Gentry, 540 U.S. 1,5-6 (2003) (per curiam)); see 28 U.S.C. §
2254(d). In order to prevail on an ineffective assistance of counsel claim on habeas review, a
petitioner must show not only that counsel's performance fell below the Strickland standard but
also that the state court's adjudication of the Strickland standard was itself unreasonable. See
Harrington, 131 S. Ct. at 785. Stated differently, the court may afford habeas relief only upon a
finding that the state court was unreasonable-and not merely incorrect-in concluding that
counsel's performance did not fall below an objective standard of reasonableness or, ifit did,
that petitioner was not prejudiced as a result. See id.
Petitioner argues that his trial and appellate counsel's performance fell below
constitutional standards in five respects. Namely, petitioner contends that trial counsel failed to:
(1) challenge [petitioner]' s arrest as lacking probable cause, and [petitioner]' s
subsequent statement as fruit of the poisonous tree; (2) object to the admission of
hearsay testimony at trial; (3) conduct a pre-trial investigation and to call as
witnesses Denise Scott and Robin Halloway; (4) properly cross-examine the
People's witnesses, and; (5) object to the playing of [petitioner]'s video-taped
statement invoking his right to counsel.

Am. Pet. at ~ 22B. He contends that appellate counsel's assistance was also ineffective because
appellate counsel did not raise these ineffective assistance arguments on direct appeal.
Petitioner's ineffective assistance of counsel claims have now been exhausted and, for the
reasons stated below, the court finds that they have no merit and that habeas relief is not
warranted.
(1)

Failure to Challenge Petitioner's Arrest as Lacking Probable Cause

Petitioner contends that his counsel should have challenged his initial arrest as lacking in
probable cause and sought to have petitioner's subsequent confession suppressed as fruit of the

13

poisonous tree. Probable cause to arrest exists where the arresting officer has "knowledge or
reasonably trustworthy information sufficient to warrant a person of reasonable caution in the
belief that an offense has been committed by the person to be arrested." Martinez v. Simonetti,
202 F.3d 625,634 (2d Cir. 2000) (citations and internal quotation marks omitted). "When
information is received from a putative victim or an eyewitness, probable cause exists, unless the
circumstances raise doubt as to the person's veracity." Curley v. ViII. of Suffern, 268 F.3d 65,
70 (2d Cir. 2001). In rejecting petitioner's claim that his counsel was ineffective for failing to
challenge his arrest as lacking in probable cause, the state court determined that petitioner's
arrest was justified by a legitimate report of domestic assault. Therefore, the court reasoned,
"counsel had no viable basis to challenge whether police had probable cause to effectuate that
arrest and thus could not legitimately challenge his subsequent statement pursuant to the fruit of
the poisonous tree doctrine." White, 2010 NY Slip Op 31195U at *4. This conclusion was not
unreasonable.
Petitioner seeks to cast doubt on the probable cause supporting his arrest by downplaying
the nature of the dispute between him and his girlfriend and pointing out that he was never tried
or convicted for the assault. See Resp't's Ex. H, Notion of Motion to Vacate Judgment, at 18
("[Petitioner],s own independent recollection of the incident involving himself and [his
girlfriend] on June 9th, 2002, was that a 'verbal dispute' had occurred."). However, petitioner
does not dispute that his girlfriend made a complaint of domestic assault, and his supposed
recollection of the dispute sheds no light on circumstances that may have raised doubt as to his
girlfriend's veracity at the time. See Curley, 268 F.3d at 70. Because petitioner does not show
that there was any viable ground for challenging his arrest, counsel was not deficient in failing to
bring a motion doing so. See Knowles, 556 U.S. 111 (holding that counsel was not ineffective

14

where he did not pursue a claim that he reasonably believed was doomed to fail). Moreover,
because there is no "reasonable probability" that, but for counsel's purported error in failing to
challenge petitioner's arrest, the result of the proceeding would have been different, petitioner
also fails to establish any prejudice under Strickland. See id.
(2)

Failure to Object to the Admission of Hearsay at Trial

Petitioner next argues that his trial counsel was ineffective because he failed to object to
hearsay testimony at trial. Although petitioner does not identify the particular hearsay statements
he finds objectionable in his habeas petition, in his state-court motion to vacate judgment,
petitioner faulted counsel for eliciting and failing to object to testimony indicating that petitioner
had assaulted his girlfriend and that petitioner's girlfriend had implicated him in the shooting.
A review of the record demonstrates that counsel's purported elicitation of hearsay
testimony regarding the assault was consistent with counsel's trial strategy for dealing with this
problematic information and with the anticipated testimony of petitioner's girlfriend. That
petitioner's girlfriend did not ultimately testify because she could not be located does not, in
hindsight, render counsel's strategy unreasonable. See Mayo v. Henderson, 13 F.3d 528, 533 (2d
Cir. 1994) ("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.'" (quoting Strickland, 466 U.S. at
690». Counsel's strategy was to suggest that the girlfriend had accused petitioner of the
shooting because she was a scorned woman retaliating for petitioner's mistreatment of her. In
light of this strategy, the state court cannot be said to have unreasonably applied Strickland in
determining that trial counsel's failure to object to inadmissible hearsay that was pertinent to the
girlfriend's motivations for accusing petitioner did not amount to ineffective assistance of

15

counsel. See Singleton v. Davis, 308 Fed. Appx. 560,562 (2d Cir. 2009) (denying habeas relief
where defense counsel elicited hearsay and did not object to its introduction where doing so was
strategic though potentially risky). Moreover, in light of the significant evidence of petitioner's
guilt, petitioner has not established that the admission of hearsay was prejudicial.
(3)

Failure to Conduct a Pre-Trial Investigation and Call Witnesses

Petitioner argues that his trial counsel was also ineffective because he failed to conduct a
pre-trial investigation and to call, as witnesses, Denise Scott and Robin Halloway. Counsel's
decisions regarding investigation and witness presentation are afforded a "strong presumption"
that they fell within the "wide range" of reasonable professional assistance. Strickland, 466 U.S.
at 689. Counsel may "make a reasonable decision that makes particular investigations
unnecessary," id. At 691, and "[a]n attorney need not pursue an investigation that would be
fruitless, much less one that might be harmful to the defense," Harrington, l31 S. Ct. at 789-90.
A court reviewing a Strickland claim is "especially deferential to defense attorneys' decisions
concerning which witnesses to put before the jury" such decisions are "typically a question of
trial strategy that [reviewing] courts are ill-suited to second-guess." Greiner v. Wells, 417 F.3d
305, 323 (2d Cir. 2005) (citation and internal quotation marks omitted). Particularly given the
discretion afforded to counsel in making strategic decisions, the state court correctly determined
that petitioner's challenge to counsel's investigatory and witness-related choices is without merit.
The Supreme Court has advised that "[t]o support a defense argument that the
prosecution has not proved its caseL] it sometimes is better to try to cast pervasive suspicion of
doubt than to strive to prove a certainty that exonerates." Harrington, l31 S. Ct. at 790. A
review of the record shows that petitioner's counsel reasonably employed such a strategy, which
sought to undermine the jury's confidence in the police investigation and portray the petitioner's

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confession as the result of police coercion. See, M,., Resp 't' s Ex. I, pt. 5 at 181-84 (stating that
the detectives "didn't do what they were supposed to do in this case" and describing their attitude
towards the investigation as "cavalier" in defense's opening statements). At trial, consistent with
this strategy, counsel cross-examined the police about whether they received tips from Scott and
Halloway on possible suspects whom the police did not pursue. See Resp't's Ex. I, pt. 5 at 33640,600-01. Petitioner does not explain what exculpatory information counsel would have
discovered had he conducted a more thorough pre-trial investigation. Nor does he provide any
indication, by affidavit or otherwise, of what Scott or Halloway would have said at trial, and
whether their testimony would have provided information beyond that brought out during
counsel's cross-examination of police. As such, there is no basis for concluding that counsel's
performance fell below "an objective standard of reasonableness" or that there is a "reasonable
probability" that, had counsel taken the course of action suggested by petitioner, "the result of
the proceeding would have been different." Strickland v. Washington, 466 U.S. at 688, 98.
(4)

Failure to Cross-Examine the Prosecution's Witnesses Properly

Petitioner further claims that his counsel's performance was ineffective because he did
not properly cross-examine the prosecution's witnesses. As the state court found:
Faced with the compelling evidence of [petitioner]'s own admission of guilt,
counsel wisely chose to employ a strategy of undermining the credibility of the
detectives who took the inclupatory statement and to argue to the jury that the
statement either had never been made or was false. The record indicates that
counsel performed competent cross-examinations of the people's witnesses in an
attempt to impeach their credibility. Such a legitimate strategy, though ultimately
unsuccessful, does not rise to the level of ineffective assistance.
White, 2010 NY Slip Op 31195U at *6-7 (citations omitted). Because the court finds not fault in
this assessment, habeas relief is not available on this ground.

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(5)

Failure to Object to Videotaped Statement Invoking Right to Counsel

Petitioner's final argument, that his trial counsel was ineffective for failing to object to
the introduction of the videotaped statement of petitioner invoking his right to counsel, is also
unavailing. As the state court noted, the videotaped recording contained no inculpatory
evidence, so petitioner cannot show prejudice resulting from its introduction. Moreover, the
state court could have reasonably inferred from the record that counsel's failure to object was
consistent with his strategy of suggesting that petitioner was under police coercion at the time he
confessed. Counsel cross-examined witnesses on the content of the videotape and, in his
summation, referenced petitioner's behavior on the tape as evidence that petitioner's extended
pre-interrogation detention had made petitioner "susceptible, like a puppet on strings" to police
coercion. See Resp't's Ex. I, pt. 5 at 665. Because counsel made a reasonable strategic choice to
exploit the content of the videotape, his assistance cannot be properly characterized as ineffective
in this regard.
(6)

Ineffective Assistance of Appellate Counsel

Petitioner claims that his appellate counsel also was ineffective because he did not raise,
on direct review, the ineffective assistance of trial counsel claims that petitioner brought
collaterally. As discussed above, these claims have little to no merit. It was therefore not
unreasonable for the state court to conclude that petitioner's appellate counsel was not
ineffective in deciding not to raise the claims on direct appeal.

CONCLUSION
The petition for a writ of habeas corpus is denied. Because petitioner has failed to make
a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), the court

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declines to issue a certificate of appealability. In addition, this court certifies pursuant to 28
U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith. Coppedge v. United States,
369 U.S. 438,444-445 (1962). The Clerk of Court is directed to enter judgment accordingly.
SO ORDERED.

/S/

~llyne R. *~s ~

United States District Judge
Dated:

December 23,2011
Brooklyn, New York

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SERVICE LIST:

Plaintiff:
Gary White
# 03-A-5098
Upstate Correctional Facility
309 Bare Hill Road
P.O. Box 2001
Malone, NY 12953