Clarke v. Cook

Filing 13

OPINION & ORDER: 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 Judge Allyne R. Ross, on 7/26/2012. C/mailed to Petitioner's counsel. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

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GREGORY CLARKE,

BROOKLYN OFFICE
1O-CV -5846 (ARR)

Petitioner,

NOT FOR ELECTRONIC
OR PRINT PUBLICATION

-againstOPINION & ORDER
CATHERINE COOK,
Respondent.

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* AUG 0 7 2012 * ~

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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ROSS, United States District Judge:
On December 16, 2010, Gregory Clarke ("petitioner"), represented by counsel, 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 trial counsel's failure to move for a mistrial when
grounds for a severance emerged during trial deprived him of effective assistance of counsel and
(2) that the prosecutors' failure to inform his trial counsel of his codefendant's in camera court
appearance deprived petitioner of due process and a fair trial. For the reasons stated below,
petitioner's application is denied.

BACKGROUND
Petitioner was arrested on February 14,2003, when he and Desmond Tapper ("Tapper")
arrived at the scene of his brother-in-Iaw's homicide wearing bullet-proof vests and artificial
shields identifying them as "US bail enforcement fugitive recovery special agent[ s]." Pursuant
to a search of petitioner's car, the police found a loaded .357 magnum firearm in a compartment
under the passenger seat, where Tapper had been seated and a forged bank check in the car's
trunk. Petitioner and Tapper agreed to go to the stationhouse, where Tapper told a detective that
the gun recovered from the vehicle was his and that petitioner had not been aware of its presence

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in the car. Petitioner and Tapper were jointly charged with criminal possession of a weapon in
the second degree, two counts of criminal possession of a weapon in the third degree, criminal
possession of a forged instrument in the second degree, and the unlawful wearing of a body vest.
At arraignment and throughout pre-trial proceedings, Tapper was represented by Alan
Hirshman, whose legal fees were paid for by petitioner. Tapper and petitioner, represented by
separate counsel, jointly moved for the suppression of physical evidence. At the suppression
hearing, which spanned over three days from May to July 2004, Tapper again claimed
responsibility for the gun. Namely, he testified that, after learning of the murder, he had
retrieved the loaded gun from his home and concealed it under the passenger seat of the car. The
suppression motion was denied. Subsequent attempts to reach a plea bargain were unsuccessful.
Several months later, in September and early November, Tapper contacted the District
Attorney's Office asking for help. Tapper indicated that he did not trust Hirshman because
petitioner had paid Hirshman's fees, and he said that Hirshman was trying to "trick" him. The
prosecutor terminated the conversation each time that Tapper called and eventually brought the
matter to the court's attention.
On November 8, 2004, the court held an in camera proceeding to address Tapper's
conflict-of-interest allegations and the possibility of appointing shadow counsel. Appearing
before the court outside the presence of prosecutors, Tapper said that it had been mistake to
confess and to testify that the gun was his. He stated that petitioner was paying his legal bills,
that he did not believe that Hirshman was representing his best interests, and that he thought
Hirshman was working with petitioner's lawyer and telling him everything that Tapper planned
to do. The court informed Tapper of his right to terminate his lawyer and to have other counsel
appointed and instructed him to return the following morning to speak with a court-assigned

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attorney about the situation. Showing the court what appears to have been a document from
Hirshman, Tapper then interjected the following: "This is what he show me, sir, and I even-I, I
took my citizenship tests, my citizen, and they deny me because of this case is going on." Pet.,
Ex D at 15. The court responded that the document was Mr. Hirshman's advice that Tapper
would be deported if he were convicted of a felony and that such advice was "not necessarily
inaccurate." Id. The court again advised Tapper of his right to counsel and ordered the record to
remain sealed until further order of the court.
The following morning, the court held an in camera proceeding with the prosecutors in
the case and Michael Hartofilis, the attorney whom the court had contacted to serve as shadow
counsel. The court put on record the nature of the prior day's proceeding and noted that, at the
court's direction, Hartofilis had spoken with Tapper and the Assistant District Attorneys. The
court then adjourned the matter to allow Tapper to decide whether he wanted to change counsel.
The record ofthis proceeding, like that held of day before, was placed under seal.
Tapper subsequently decided to change counsel, and the court appointed Hartofilis to
represent him. On October 3,2005, petitioner and Tapper jointly proceeded to trial. At trial, two
detectives and one police officer testified about the details of the defendants' arrest and Tapper's
initial statements to police. On the day of the defendants' arrest, police witnessed petitioner
driving his black Mercedes around a police vehicle and under crime scene tape, at which point an
officer motioned for him to stop the vehicle. In the car, police discovered a loaded gun in a
compartment under the passenger's seat, a silver .357 bullet on the floor of the passenger's seat,
a walkie-talkie tuned to the 105th Police Precinct frequency, and a forged check the trunk. One
of the officers testified that, after traveling to the stationhouse, Tapper said he had taken the gun
from his house, and Tapper's written statement to that effect was placed in evidence. In the

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statement, Tapper said that he had retrieved the gun because petitioner had received "a lot of
calls about people wanting to hurt him." Trial Tr. at 744-48. As part of the prosecution's casein-chief, an expert in the field of forged bank instruments also testified that the forged check was
clearly not genuine.
Tapper then presented his defense case. Tapper's mother testified that Tapper worked for
petitioner and that they were like brothers. She said that, following petitioner's and Tapper's
arrest, petitioner told her that the gun was his, that Tapper was going to "take [the] rap" for
petitioner because Tapper's record was clean and the judge would throw the case out if they
charged Tapper with it, and that petitioner would take care of Tapper. Id.910-11.
Tapper also testified on his own behalf. He said that, at the time of his arrest, he had
been the manager of petitioner's Laundromat and was also doing security work that required him
to wear a bullet-proof vest and a shield. He testified that, after petitioner learned of his brotherin-law's murder, he and petitioner first went to the home ofa person who had argued with
petitioner's brother-in-law the night before and then to petitioner's apartment in Queens, where
petitioner retrieved a gun. According to Tapper, petitioner put the gun in the glove compartment
of the car. When they arrived at the crime scene, he and petitioner began speaking with family
members and were approached by plainclothes detectives, who requested their identification. At
the police's request, Tapper went to the stationhouse to verify his employment. While there,
petitioner asked Tapper to say that the gun was his if the police discovered it because Tapper did
not have a record but petitioner had a felony conviction and would go away for seven to fifteen
years. Petitioner told Tapper he would pay for his lawyer and that they would throw it out of
court. He also promised Tapper a barbershop and a car. During police questioning later that
day, Tapper took responsibility for the gun in both oral and written statements.

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Tapper testified that, at some point prior to the suppression hearing, he told Hirshman
that he did not want to testify that the gun was his and wanted to approach the District Attorney's
Office to explain what had happened. Tapper told his attorney that he was going to testify at the
hearing that that gun was petitioner's, but he ultimately testified that the gun was his. However,
after the hearing, he again told Hirshman that he wanted to meet with prosecutors to disclaim
responsibility for the gun. He told his attorney that he thought the case would have been thrown
out by then. After several months of waiting to meet with the District Attorney's Office, Tapper
called the prosecutor himself. After Hartofilis was appointed to represent Tapper at trial,
petitioner had two meetings with prosecutors.
Petitioner then presented his defense case, in which he testified as the sole witness.
Petitioner acknowledged that he had previously been convicted of a felony. He testified that he
owned a real estate investment company and did security work for a fugitive recovery company.
Petitioner said that he told Tapper of his brother-in-Iaw's death upon learning about it and that
Tapper had asked petitioner to stop at Tapper's home. At Tapper's building, Tapper got out
while petitioner remained in the car and talked on the phone. Tapper returned to the car, and
they drove to the crime scene because petitioner was concerned that his niece may have been in
the house when her father was killed. Petitioner denied asking Tapper to admit that he possessed
the gun or telling Tapper's mother that Tapper had agreed to take the blame for possessing the
gun. Petitioner testified that the gun was Tapper's and that he did not know it was in his car. He
conceded that he knew there was a compartment underneath his passenger seat but maintained
that he did not see Tapper place a gun there. Petitioner stated that he made the forged check
found in his car while "experimenting" with new software and that he never intended to use it.
Trial Tr. at 1072. Petitioner testified that he had paid for Tapper's bail and his first attorney but

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said that Tapper had chosen Hirshman to represent him.
In rebuttal, a police detective testified about statements Tapper made in proffer sessions
on March 8 and April 12,2008. During those sessions, Tapper had stated that he and petitioner
were going to a work site in Long Island when petitioner learned that his brother-in-law had been
killed. Tapper said that they first went to petitioner's house, where petitioner retrieved a gun and
stated words to the effect of, "[w ]hoever did this is going to pay," Trial Tr. at 1180, and then
went to Canarsie Brooklyn, where petitioner believed that his brother-in-Iaw's murderer lived.
They drove around for a while before proceeding to the crime scene.
On October 3, 2005, the jury found petitioner guilty of the four counts charged. They
found Tapper guilty of one count of criminal possession of a weapon in the third degree and one
count of the unlawful wearing of a body vest and acquitted him of the remaining charges.
Petitioner was sentenced to concurrent terms of seven years' imprisonment on the second-degree
weapons count, two-to-four years' imprisonment on the two third-degree weapons counts and the
forged instrument count, and one-and-one-half-to-three years' imprisonment on the body vest
count. Tapper received an aggregate determinate prison sentence of three years.
Petitioner appealed his conviction on the grounds, inter alia, that he was denied the
effective assistance of trial counsel due to counsel's failure to move for severance. During
Tapper's appeal of his case, the in camera proceedings regarding his conflict-of-interest
allegations were unsealed, and petitioner was provided transcripts of them. Petitioner was
granted leave to file a post-argument submission concerning the issue of their recent disclosure,
and he thereafter moved to vacate his conviction on the ground that the prosecutor's nondisclosure of the transcripts deprived him of due process and a fair trial in violation of Brady v.
Maryland, 373 U.S. 83, 87 (1963).

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In a decision dated July 7,2009, the Appellate Division unanimously affirmed
petitioner's conviction. People v. Clarke, 64 A.D.3d 612 (N.Y. 2d Dept. 2009). With regard to
his ineffective assistance of counsel claims, the court succinctly stated, "[ u]pon viewing the
record as a whole, we conclude that the defendant was not denied the effective assistance of
counsel." Id. at 614. It denied his Brady claims on the merits, finding that the in camera
statements of his codefendant were inculpatory; did not concern the credibility of a prosecution
witness; and were not within the prosecution'S possession, custody, and control. Id. at 613
(citations omitted). In a certificate dated November 5, 2009, the Court of Appeals denied leave
to appeal. People v. Clarke, 13 N.y'3d 859 (2009). Petitioner's conviction became final ninety
days later, and he filed the instant petition on December 16,2010.
DISCUSSION

Petitioner argues that he is entitled to relief on two separate grounds. He contends, first,
that he was denied the effective assistance of counsel when trial counsel failed to move for a
mistrial after Tapper's testimony provided grounds for severance. Second, petitioner argues that
the prosecution's failure to inform defense counsel of Tapper's appearance before the court,
during which he made statements that could have impeached his testimony, deprived him of due
process and a fair trial. Respondent asserts that petitioner's claims are only partially exhausted
and should be deemed exhausted and procedurally barred. Because the petition may be properly
denied on the merits, the court need not address respondent's arguments in this regard. See
Rhines v. Webber, 544 U.S. 269,277 (2005); see also 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.").

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I.

Standard of Review

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") 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(1) 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. 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).

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II.

Petitioner's Ineffective Assistance of Counsel Claim

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 ineffective assistance of counsel claims are presented on collateral
habeas review, the court assesses them subject to the strictures of AEDP A and must be "doubly
deferential" in reviewing the state court's determination that counsel acted effectively. Knowles
v. Mirzayance, 556 U.S. 111 (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

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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, if it did, that petitioner was not prejudiced as a result. See id.
Here, petitioner fails to show that his counsel's performance fell below an objective
standard of reasonableness. Petitioner argues that his trial counsel's performance did not meet
constitutional muster because he did not move for a mistrial on severance grounds when he
learned that Tapper's defense was in irreconcilable conflict with petitioner's. He contends that
such irreconcilable conflict entitled him to a mistrial under New York law, that any reasonably
competent attorney would have moved for one, and that he was prejudiced as a result of his
attorney's failure to do so. Petitioner reasons that, had he been tried separately from Tapper,
Tapper would not have testified absent a deal, which petitioner could have used to impeach him.
Moreover, petitioner would not have been compelled to testify had Tapper not taken the stand,
and the prosecution's evidence would have been reduced to the mere presence ofa gun in
petitioner's car. Petitioner argues that this alternative strategy would have been "substantially
more effective" than the course undertaken by petitioner's trial counsel. Pet'r's Reply at 5.
Petitioner's arguments are unavailing.
In the circumstances of this case, the court cannot conclude that counsel's performance
fell outside the wide range of professionally competent assistance. Counsel's decision not to
move for a mistrial may be seen as part of a reasonable and sound trial strategy because the joint
trial enabled counsel to argue, thanks to the admission of Tapper's prior statements and
testimony, that Tapper exclusively possessed the gun without petitioner's knowledge. Resp't's
Br. at 38. New York law provides that "[t]he presence in an automobile ... of any firearm ... is
presumptive evidence of its possession by all persons occupying such automobile at the time

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such weapon ... is found." N.Y. Penal Law § 265.15(3); see People v. Maye, 64 A.D.3d 795
(N.Y. 2d Dept. 2009). As respondent correctly argues, had petitioner's counsel successfully
sought a mistrial, Tapper's statements exculpating petitioner would likely have been
inadmissible in his separate trial, "thereby leaving counsel with no evidence to rebut the
presumption that petitioner possessed the gun by virtue of its presence in petitioner's car." Id. at
39. As such, petitioner's assertion that moving for a mistrial had no drawbacks is unavailing.
That the strategy that petitioner's counsel chose to pursue proved unsuccessful does not mean
that counsel was ineffective in electing to employ it. Nor does identifying an alternative strategy
that, in hindsight, appears to have been a preferable course of action "overcome the presumption
that, under the circumstances, the challenged action 'might be considered sound trial strategy. '"
Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955).
This conclusion is bolstered by virtue of the fact that this case comes before the court on
habeas review. Petitioner argues that the state court decision was contrary to and an
unreasonable application of clearly established federal law because the decision did not specify
the portion of Strickland upon which it based its analysis and otherwise cited to New York law,
whose standard varies from the federal one and has, at times, been said to be in tension with it.
As such, petitioner contends, "one can have no confidence that the court was correctly applying
the federal test." Pet'r's Br. at 15. Asserting a lack of confidence in the state court's application
of the federal standard falls well short of meeting petitioner's heavy burden of "showing there
was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784.
Contrary to the suggestion of petitioner's argument, this burden is not lessened where the state
court gives minimal reasons for its decision or does not explicitly review counsel's
representation under the federal standard. See id. at 785; Rosario v. Ercole, 601 F.3d 118, 128

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(2d Cir. 2010) ("While [the court] did not explicitly review the evidence under the Strickland
standard, the import was the same. Conflating the two prongs of Strickland does not violate
AEDPA--different is not per se unreasonable."). "A state court 'unreasonably applies' clearly
established law when it identifies the correct legal principle from Supreme Court jurisprudence,
but unreasonably applies the principle to the case before it." Rosario, 601 F.3d at 126 (quoting
Williams, 529 U.S. at 412-13). Here, the state court clearly identified the correct legal principal
and even cited to Strickland. For the reasons stated above, the state court's application of the
standard in this case was imminently reasonable, and petitioner's claim to the contrary is
properly rejected.
Because the court finds that petitioner is not entitled to habeas relief pursuant to its
analysis of the first prong of Strickland, there is no need to address the parties' arguments
relating to the test's second prong.

III.

Petitioner's Brady Claim
"There are three components of a true Brady violation: The evidence at issue must be

favorable to the accused, either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice
must have ensued." Strickler v. Greene, 527 U.S. 263,281-82 (1999); see also Moore v. Illinois,
408 U.S. 786, 794-95 (1972). Petitioner argues that the prosecutors' failure to inform defense
counsel of Tapper's appearance before a judge violated Brady and deprived him of due process
and a fair trial. In this regard, he contends that Tapper's in camera statement to the court about
the case's effect on his citizenship tests could have been used to impeach Tapper because they
"provide[d] a convincing explanation for him to lie about his guilt of possession of a weapon,"
namely the fear of being deported. Pet'r's Br. at 22. Petitioner argues that the prosecution "was

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effectively in control ofth[is] exculpatory evidence" because it had knowledge that in camera
proceedings occurred. Id. at 25. According to petitioner, there is a reasonable probability that
the case would have concluded differently had the transcripts been disclosed earlier and
exploited during Tapper's cross-examination.
Making the generous assumption that such statements could be viewed as impeaching, a
point on which the parties disagree and the state court did not express a view,l the state court's
determination that Brady was not violated was nonetheless objectively reasonable. Petitioner
fails to show that the supposed impeachment material was suppressed by the prosecution. The
prosecutors were not privy to the court's in camera conversations with Tapper, and the state
court reasonably found that his statements were not within the prosecution's possession, custody,
and control. Petitioner's suggestion that the Assistant District Attorneys had reason to believe
that Tapper's in camera discussion would reveal exculpatory or impeaching evidence is
supported by nothing but post-hoc speculation. As such, there is no basis for concluding that the
State suppressed those statements, either willfully or inadvertently. The state court decision
must also be upheld on the separate ground that petitioner cannot establish prejudice.
"Suppressed evidence is not material when it 'merely furnishes an additional basis on which to
impeach a witness whose credibility has already been shown to be questionable. '" United States
v. Amiel, 95 F.3d 135, 145 (2d Cir. 1996) (quoting United States v. Wong, 78 F.3d 73, 79 (2d
Cir. 1996) (internal quotations omitted)). Tapper's credibility was thoroughly impeached at trial
when he was confronted with his prior contradictory statements to police and his sworn
testimony about the gun. Because his credibility had already been placed in significant doubt,
and any cross-examination into his vague statement about possible deportation would have been

1 The state court found the statements to be inculptatory but did not express any opinion as to their impeachment
value.

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cumulative.
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
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
accordingl y.
SO ORDERED.

S/Judge Ross
Allyne R. Ro
United States
Dated:

July 26,2012
Brooklyn, New York

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