Mitchell v. Sheahan
Filing
19
MEMORANDUM AND ORDER. For the reasons stated herein, the petition for a writ of habeas corpus is denied. Because Petitioner has not demonstrated a basis for federal habeas relief under 28 U.S.C. § 2254, no certificate of appealability shall issue. See 28 U.S.C. § 2253(c)(2). The Clerk of the Court is respectfully directed to enter judgment accordingly and close this case. Ordered by Judge Sandra L. Townes on 8/26/2015. C/M to pro se Petitioner David Mitchell. (Barrett, C)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-- - ----- ----- ----------- -------x
DAVID MITCHELL,
-
U.31, DISTRICT COURT ED N, Y
*
AUG 272015 *
BROOKLYN OFFICE
Petitioner,
MEMORANDUM AND ORDER
- against 12-cv-3 182 (SLT)
SUPERINTENDENT MICHAEL SHEAHAN,
Respondent.
---------- - -- --------------------------
x
TOWNES, United States District Judge,
David Mitchell ("Petitioner") brings this pro se petition for a writ of habeas corpus
pursuant to 28 U.S.0 § 2254, challenging his September 5, 2007 conviction for Manslaughter in
the First Degree, Assault in the Second Degree, and Criminal Possession of a Weapon in the
Second Degree in Richmond County, New York Supreme Court. For the following reasons, the
petition is denied.
BACKGROUND
I.
Relevant Factual History
The following facts are drawn from the record of proceedings before the state trial court.
In view of Mitchell's conviction, the evidence presented at trial is summarized in the light most
favorable to the verdict. See Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir. 2012).
A. Alleged Crime
On October 9, 2006, Petitioner and his associates, Angel Irizarry and Naquan Jacobs,
were present in the Arlington Houses area, where Irizarry was selling drugs. (7/30/07 Tr. at
50:12-51:7). At some point in the afternoon, Irizarry went to Jeannette DeGracia's apartment to
make a sale and was confronted by Bar Kim, one of DeGracia's visitors. (7/30/07 Tr. at 52:7-9).
Kim demanded that Irizarry hand over the drugs, punched Irizarry in the face, and took the drugs
and approximately $300 from Irizarry. (7/30/07 Tr. at 53:6-24). Irizarry left DeGracia's
apartment immediately and told Petitioner what happened, whereupon Petitioner ordered Irizarry
to return to DeGracia' s apartment with a 9 millimeter handgun to recover the money and drugs.
(7/30/07 Tr. at 54:15-55:11).
Irizarry returned to DeGracia's apartment, however Kim had already left. (7/30/07 Tr. at
56:18-22). According to Irizarry's trial testimony, he returned to Petitioner, who responded "I
told you to go up there and do what you have to do." (7/30/07 Tr. at 57:2-12). That evening,
Irizarry again returned to DeGracia's apartment, accompanied by Petitioner and Jacobs. (7/30/07
Tr. at 57:19-20). DeGracia, Gloria Nazario, and Sandra Medina were in the apartment. (7/31/07
Tr. at 109:20-22; 7/30/07 Tr. at 167:16). Following a heated confrontation with DeGracia about
Kim's whereabouts, according to Irizarry's trial testimony, Petitioner ordered Irizarry to shoot
DeGracia. (7/30/07 Tr. at 58:14-59:5). Irizarry testified that he then pointed the gun at
DeGracia and fired, striking her in the abdomen. (7/30/07 Tr. at 59:17-22). The bullet passed
through DeGracia and hit Nazario in her leg. (7/31/07 Tr. at 171:4-15). Petitioner, Irizarry, and
Jacobs fled the scene. (7/31/07 Tr. at 171:21-25). DeGracia was taken to a hospital, where she
died from her injuries one month later. (7/30/07 Tr. at 44:21- 45:14).
B. Identification and Arrest
On October 13, 2006, Nazario participated in a lineup conducted by Detective
Longobardi and identified Petitioner as one of the men involved in the shooting. (7/31/07 Tr. at
237:1-242:6). One week later, Nazario also identified Irizarry in a lineup. (7/30/07 Tr. at 179:610). In the course of their investigation, the police attempted to secure footage of the video
surveillance taken in the building's lobby and elevator, however their efforts were unsuccessful
because the video had stopped recording between 7:45 p.m. and 8:42 p.m. - covering the period
2
of the shooting. (8/1/07 Tr. at 312:3-313:3). On September 5, 2007, Petitioner and Irizarry were
charged with Murder in the Second Degree, Assault in the First and Second Degrees, and
Criminal Possession of a Weapon in the Second Degree.
C. Trial and Sentencing
All of Petitioner's pretrial motions, including a motion to suppress the out-of-court
identifications, were denied. Petitioner was tried in a four-day trial, which began on July 30,
2007, in New York Supreme Court, Richmond County. Eleven witnesses testified for the
prosecution, including four eyewitnesses: Jacobs, Irizarry, Nazario, and Medina. Each of the
eyewitnesses testified that Petitioner came into the apartment with Irizarry and Jacobs.'
Furthermore, Irizarry testified that Petitioner had yelled at him to "shoot the ladies." (7/30/07 Tr.
at 59:5-8). Likewise, Nazario testified that during the incident, Petitioner directed Irizarry to
"hurry up and shoot, hurry up and shoot." (7/31/07 Tr. at 171:1-2). Medina testified that she
saw Petitioner whisper something to Irizarry before the shooting, although she did not hear what
he said. (7/31/07 Tr. at 296:15-20). Irizarry also testified that he initially did not identify
Petitioner as an accomplice and refused to cooperate with the police because he was afraid of
Petitioner. (7/31/07 Tr. at 87:12-13.) Jacobs similarly testified that after the incident, Petitioner
asked Jacobs to provide Petitioner with a false alibi, a request to which Jacobs initially complied
because, inter alia, he "kind of feared him," but ultimately agreed to testify against him.
(7/31/07 Tr. at 207:3-210:2). Additionally, Detective Michael Palm, testified about the security
During trial Jacobs testified on direct examination that he was "sure" that Petitioner was
present when the shots were fired. (7/30/07 Tr. at 202:11-13). Irizarry stated during trial: "I was
standing in front of the doorway and David Mitchell was on my right hand." (7/30/07 Tr. at
58:11-12). Medina, who was inside the apartment, testified that Petitioner was positioned in the
doorway on the left. (8/1/07 Tr. at 278:18-25). And Nazario presented consistent testimony that
Petitioner was on the left side of the doorway during the shooting. (7/30/07 Tr. at 175:9-12).
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tape explaining that there was a gap in the footage during the time of the incident, from 7:45 p.m.
to 8:42 p.m. (8/1/07 Tr. at 312:23-25). Detective Longobardi testified about the October 13,
2006 lineup from which Nazario identified Petitioner (7/31/07 Tr. at 237:1-242:6). The defense
did not put on any witnesses.
On September 5, 2007, Petitioner was convicted of a lesser included offense of
Manslaughter in the First Degree, as well as Assault in the Second Degree and Criminal
Possession of a Weapon in the Second Degree, and was acquitted of Murder in the Second
Degree. Pet. at 1. Petitioner was sentenced as a second felony offender to concurrent
determinate terms of twenty-five years, seven years, and fifteen years, respectively.
D. The Direct Appeal
Petitioner appealed his conviction to the New York Supreme Court, Appellate Division,
Second Department in February 2009 on the following grounds: (1) insufficient evidence for jury
verdict, (2) denial of due process and ineffective assistance of appellate counsel, and (3)
excessive sentence. (Def's App. Br. 4). On December 1, 2009, the Appellate Division affirmed
Petitioner's conviction on all grounds. People v. Mitchell, 68 A.D.3d 784 (N.Y. App. Div. 2d
Dep't 2009). On March 8, 2010, the Court of Appeals denied Petitioner's request for leave to
appeal. People v. Mitchell, 14 N.Y.3d 803 (2010).
E. Petition for Writ of Error Coram Nobis
On May 27, 2011, Petitioner filed apro se petition for writ of error coram nobis,
claiming that he was denied the effective assistance of appellate counsel where appellate counsel
failed to raise a claim of ineffective assistance of trial counsel. (Coram Nobis Br. at 7).
Petitioner alleged that his trial counsel was deficient in (1) failing to obtain surveillance footage
that may have exonerated him, (2) failing to investigate the actual footage, and (3) failing to raise
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a claim of police and prosecutorial misconduct, where the police and prosecutor failed to
preserve the videotape and allegedly destroyed the footage. (Coram Nobis Br. at 7-8). On
January 24, 2012, the New York Supreme Court, Appellate Division, Second Department denied
Petitioner's coram nobis petition, holding that Petitioner had failed to establish that he was
denied the effective assistance of appellate counsel. People v. Mitchell, 91 A.D.3d 887 (2012).
F. The Habeas Corpus Petition
On May 21, 2012, Petitioner filed the instant timely petition for writ of habeas corpus. 2
Petitioner reasserts all claims asserted in his direct appeal and his application for a writ of error
corain nobis. First, Petitioner argues that there was insufficient evidence for the jury to find him
guilty beyond a reasonable doubt. (Pet. at 6). Second, Petitioner maintains that he was denied
his due process right to a fair trial due to prosecutorial errors. (Pet. at 8). Specifically, Petitioner
argues that the court permitted the prosecutor to (1) improperly bolster Nazario' s identification
testimony by eliciting from the detective that she positively identified Petitioner in a lineup and
(2) improperly elicit from Petitioner's associates that they had not initially mentioned Petitioner
to the police because they were frightened of him, and because he had tried to procure a false
alibi from one of them - in violation of state evidentiary law. (Pet. at 8). Third, Petitioner
contends that his sentence was excessive because he was not the shooter and because the
probation department exaggerated his prior record. (Pet. at 9). Lastly, Petitioner argues that he
2
On September 7, 2012, Respondent moved to dismiss Petitioner's habeas petition on the
ground that it was not timely filed. Pursuant to Rule 7(a) of the Rules Governing § 2254 cases,
this Court directed the parties to provide evidence of the date on which Petitioner's application
for a writ of error coram nob/s was delivered to prison authorities and whether the decision of
the Appellate Division was served on Petitioner. This Court concluded that the AEDPA
limitations period was tolled within a year of the date that Petitioner's conviction became final,
and thus, that the instant petition was timely. Accordingly, on July 9, 2013, this Court denied
Respondent's motion to dismiss.
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received ineffective assistance of appellate counsel because his appellate counsel neglected to
raise the argument that trial counsel was ineffective in failing to obtain security footage that
could have exonerated him. (Pet. at 11).
LEGAL STANDARD
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"):
[A] district court shall entertain an application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or laws or treaties of the United
States.
28 U.S.C. § 2254(a); see also Estelle v. McGuire, 502 U.S. 62, 68 (1991). "[B]efore a federal
court can consider a habeas application brought by a state prisoner, the habeas applicant must
exhaust all of his state remedies," by 'fairly presenting' his federal claims to the state court.
Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011); 28 U.S.C. § 2254(b)(1)(A). Where the claim
was adjudicated on the merits by the state court, AEDPA requires federal courts to accord
"substantial deference" to the state court's decision. Fischer v. Smith, 780 F.3d 556, 560 (2d Cir.
2015). The relevant section of AEDPA provides that:
[a]n 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.
28 U.S.C. § 2254(d). In addition, a state court's factual findings are "presumed to be correct,"
and can only be overcome by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
Petitioners bear the burden of proving violations of federal law by a preponderance of the
evidence. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Pinkney v. Keane, 920 F.2d 1090,
1094 (2d Cir. 1990) (explaining that because "[h]abeas corpus ... is an asymmetrical enterprise
in which a prisoner seeks to overturn a presumptively valid judgment of conviction ... , the
petitioner generally bears the burden of proof throughout the habeas proceeding.").
DISCUSSION
A. Jury Verdict Based on Insufficient Evidence
Petitioner's first claim is that the verdict was against the weight of the evidence and the
prosecution failed to prove his guilt beyond a reasonable doubt.
"A 'weight of the evidence' argument is a pure state law claim grounded in New York
Criminal Procedure Law ["CPL"] § 470.15(5), whereas a legal sufficiency claim is based on
federal due process principles." Correa v. Duncan, 172 F. Supp. 2d 378, 381 (E.D.N.Y. 2001).
As explained above, state law claims are not cognizable on habeas review. Estelle, 502 U.S. at
67 ("We have stated many times that 'federal habeas corpus relief does not lie for errors of state
law.') (citation omitted). Accordingly, Petitioner's "argument that [the] verdict is against the
weight of the evidence states a claim under state law, which is not cognizable on habeas
corpus." McKinnon v. Superintendent, Great Meadow Corr. Facility, 422 F. App'x 69, 75 (2d
Cir. 2011) (summary order) (collecting cases and noting that "the argument that a verdict is
against the weight of the evidence states a claim under state law, which is not cognizable on
habeas corpus")
To the extent that Petitioner challenges the legal sufficiency of the evidence supporting
his conviction, his claim is subject to habeas review because it implicates federal due process
principles. Edwards v. Superintendent, Southport CF., 991 F. Supp. 2d 348, 372 (E.D.N.Y.
2013) ("[A] legal sufficiency claim ... is based on principles of due process."). However,
Petitioner "bears a heavy burden" in challenging the legal sufficiency of evidence supporting
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his conviction "because a reviewing court must consider the evidence 'in the light most
favorable to the prosecution' and uphold the conviction if 'any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt." United States v.
Aguilar, 585 F.3d 652, 656 (2d Cir. 2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)) (emphasis in original).
Here, Petitioner does not meet the heavy burden necessary to demonstrate legal
insufficiency. During trial, Petitioner was identified by four separate eyewitnesses as having
been present on the day of the incident and involved in the shooting. Two of the witnesses,
Irizarry and Jacobs, were Petitioner's associates, whose identification of Petitioner based on
their prior acquaintance is particularly compelling. Two other eyewitnesses, Nazario and
Medina, also identified Petitioner and had ample opportunity to observe Petitioner in the
apartment and no motive to lie. All of the witnesses testified consistently that Petitioner entered
the apartment with Irizarry, and spoke with Irizarry immediately before he shot DeGracia.
Nazario and Irizzary actually heard Petitioner order Irizzary to shoot DeGracia, while Medina
testified that she saw Petitioner whisper to Irizarry immediately before the shooting but did not
hear what he said. Moreover, Petitioner's phone number was the contact number that DeGracia
used to purchase the drugs which first brought Irizarry to her doorstep. Thus, there was ample
testimony and circumstantial evidence supporting Petitioner's conviction. Accordingly,
Petitioner's application for habeas relief on the grounds of legal insufficiency is denied.
B. Denial of Due Process
As the second basis for attacking his conviction, Petitioner reasserts two evidentiary
errors and a summation error which he raised on direct appeal. Petitioner contends that he was
deprived of his due process right to a fair trial when the trial court permitted the prosecutor to
(1) improperly bolster Nazario's lineup identification by eliciting testimony about the lineup
from the detective, (2) improperly impeach its own witnesses by eliciting testimony from
Irizzary and Jacobs about their initial refusal to identify Petitioner, and (3) argue on summation
that appellant was a drug kingpin absent support in the record. (Def.'s App. Br. 25).
"Under Supreme Court jurisprudence, a state court's evidentiary rulings, even if
erroneous under state law, do not present constitutional issues cognizable under federal habeas
review." McKinnon, 422 F. App'x at 73 (citing Hawkins v. Costello, 460 F.3d 238 5 244 (2d Cir.
2006); see also Estelle, 502 U.S. at 67. "[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions." Estelle, 502 U.S. at 67-68;
DiGuglielmo v. Smith, 366 F.3d 130, 137 (2d Cir. 2004) ("We are not empowered to secondguess" the Appellate Division's evidentiary rulings.); Bradshaw v. Richey, 546 U.S. 74, 76
(2005) (The Supreme Court has "repeatedly held that a state court's interpretation of state law,
including one announced on direct appeal of the challenged conviction, binds a federal court
sitting in habeas corpus."). "Therefore, unless the challenged evidentiary rulings in the state
proceedings affect the fundamental fairness of those proceedings, the claims are not properly
reviewable in this context." McKinnon, 422 F. App'x at 73; see also Taylor v. Curry, 708 F.2d
886, 891 (2d Cir. 1983).
Here, the Appellate Division found that the trial court properly allowed the prosecutor to
elicit testimony from Jacobs about Petitioner's attempt to procure a false alibi, but found that it
was a harmless evidentiary error for the prosecutor to elicit the reason, i.e., fear of Petitioner. It
is not in the providence of this Court to reexamine the Appellate Division's determinations of
state law. In any event, "[i]n order to prevail on a claim that an evidentiary error deprived the
defendant of due process under the Fourteenth Amendment, he must show that the error was so
pervasive as to have denied him a fundamentally fair trial." Collins v. Scully, 755 F.2d 16, 1819 (2d Cir. 1985) (citing United States v. Agurs, 427 U.S. 97, 108 (1976)). Even if Jacobs'
testimony that Petitioner had attempted to procure a false alibi had been erroneously admitted
under state law, this Court is constrained to consider whether the error, "viewed objectively in
light of the entire record before the jury, was sufficiently material to provide the basis for
conviction or to remove a reasonable doubt that would have existed on the record without it."
Collins, 755 F.2d at 18-19. Here, even if there had been a state evidentiary error in Petitioner's
case, it was not sufficiently material to rise to the level of constitutional error. As explained
above, there was ample evidence supporting the conviction, and Jacobs' testimony about
Petitioner's allegedly suspicious conduct in the days after the shooting has no bearing on the
overwhelming testimony that placed Petitioner at the scene of the crime.
The Appellate Division found that the remainder of Petitioner's evidentiary claims,
including Petitioner's claims that the prosecutor was permitted to elicit improper testimony
from Irizzary in violation of C.P.L. § 60.35 and to make inflammatory arguments on summation
were not preserved for appellate review. Mitchell, 68 A.D.3d at 785. Pursuant to New York's
contemporaneous objection rule, an appellant must preserve an issue for appeal by objecting on
that ground during trial. C.P.L. § 470.05. Generally, a New York appellate court will deny - as
defaulted - consideration of a claim that has not been first asserted in trial court. If "a state
prisoner has defaulted his federal claims in state court pursuant to an independent and adequate
state procedural rule," then "federal habeas review of the claims is barred unless the prisoner
can demonstrate" first, "cause for the default," and second, "actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). Thus,
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"[a] party whose claim is rejected on appeal in state court for failure, to comply with ... New
York's contemporaneous objection rule, may be precluded from raising that claim in a federal
habeas corpus petition." Drake v. Woods, 547 F. Supp, 2d 253, 261 (S.D.N.Y. 2008). The
procedural bar applies even where the state court has "ruled in the alternative on the merits of
the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). Where, as here, "the
state court has actually and explicitly relied upon procedural default to dispose of a claim, there
is an 'adequate and independent state ground' for the judgment, and federal habeas review is
prohibited." Edwards, 991 F. Supp. 2d at 366. Thus, Petitioner's remaining evidentiary claims
are procedurally barred.
C. Excessive Sentence
Petitioner claims that his sentence was unduly excessive in light of the fact that he had a
relatively minor criminal record, he was not the shooter, and the actual shooter received a
significantly shorter sentence than the one Petitioner received. (Def.'s App. Br. 32). Petitioner
is incarcerated on charges of Manslaughter in the First Degree, Assault in the Second Degree,
and Criminal Possession of a Weapon in the Second Degree, for which he was sentenced to
concurrent determinate terms of twenty-five, seven, and fifteen years, respectively. On
reviewing Petitioner's direct appeal, the Appellate Division found that "the sentence imposed
was not excessive." Mitchell, 68 A.D.3d at 890. Because the Appellate Division adjudicated
Petitioner's claim on the merits, AEDPA deference applies. 28 U.S.C. § 2254(d).
Petitioner's claim is not cognizable on federal habeas review so long as "petitioner's
sentence is within the range prescribed by state law." Edwards, 991 F. Supp. 2d at 372; see also
White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). The sentences imposed on Petitioner in
11
this case were within the legally prescribed ranges under state law and are therefore not unduly
harsh or excessive. Petitioner's application for habeas relief on his third ground is thus denied.
D. Ineffective Assistance of Appellate Counsel
As the fourth basis for attacking his conviction, Petitioner argues that he was denied
effective assistance of appellate counsel in violation of his Sixth Amendment right to counsel.
Ineffective assistance of counsel claims are governed by the two-prong standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984). "Although it was born in the context of
ineffective assistance of trial counsel, Strickland's two-prong test applies equally to claims of
ineffective assistance of appellate counsel on a defendant's first appeal as of right." Aparicio v.
Artuz, 269 F.3d 78 5 95 (2d Cir. 2001).
Under Strickland, counsel is presumed to have provided adequate assistance and to have
exercised reasonable professional judgment in making all significant decisions. Strickland, 466
U.S. at 690. To overcome this presumption and to prove a deprivation of the Sixth Amendment
right to effective assistance of counsel, a habeas petitioner must show that (1) "the identified acts
or omissions were outside the wide range of professionally competent assistance" and (2) "that
there is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 671, 694. "A lawyer's decision not to pursue a
defense does not constitute deficient performance if, as is typically the case, the lawyer has a
reasonable justification for the decision." DeLuca v. Lord, 77 F.3d 578, 588 n.3 (2d Cir. 1996).
"[S]trategic choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable." Strickland, 466 U.S. at 690-91. On federal habeas
review, "[t]he pivotal question is whether the state court's application of the Strickland standard
was unreasonable." Harrington v. Richter, 562 U.S. 86, 101 (2011).
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In his application for a writ of error coram nobis, Petitioner argued that his appellate
counsel was ineffective for failing to raise ineffective assistance of trial counsel, where trial
counsel failed to introduce a security tape from the building where the shooting took place,
which Petitioner believes would have exonerated him, and failed to obtain footage from the gap
in the tape. (Coram Nobis Br. at 7-8). Petitioner claimed that although there was a lengthy gap
in the footage recovered, encompassing the time of the shooting, the video was "highly relevant"
to his claim that he was not in the building during the incident and would have put the credibility
of the state witnesses into question. (Coram Nobis Br. at 12). The Appellate Division rejected
these claims without "explicat[ing] a coherent rationale for its rejection of a petitioner's claim,
but that rejection [was] nevertheless ... clearly on the merits," and is thus reviewed for whether it
was an unreasonable application of Strickland. Aparicio, 269 F.3d at 94.
The Appellate Division reasonably concluded that appellate counsel was not deficient
under Strickland. "Counsel is not obliged to advance every nonfrivolous argument that could be
made." Aparicio, 269 F.3d at 95. Indeed, appellate counsel "need not (and should not) raise
every non-frivolous claim, but rather may select from among them in order to maximize the
likelihood of success on appeal." Smith v. Robbins, 528 U.S. 259, 288 (2000). As the Supreme
Court has noted, the "process of winnowing out weaker arguments on appeal and focusing on
those more likely to prevail, far from being evidence of incompetence, is the hallmark of
effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (internal quotation
marks and citations omitted).
Appellate counsel reasonably declined to raise appellate arguments regarding the
surveillance tape. Trial counsel reasonably declined to admit the tape with the one hour gap
covering the time of the shooting, as the tape had little probative value with a gap. The police
13
were unable to locate the missing portion of the footage during their investigation, although they
recovered the tape on which the footage should have been. Searching for the footage elsewhere
would likely have been time intensive and futile, given that the footage was "missing" due to a
gap in the tape, as opposed to a misplaced physical tape. Thus, trial counsel reasonably chose to
concentrate defense efforts on potentially fruitful investigations. The decision not to further
investigate the footage was a reasonable tactical decision and as such, does not amount to
ineffective assistance. Thus, appellate counsel reasonably decided not to include that claim in
the appeal. Petitioner's ineffective assistance of appellate counsel claim is denied because he
fails to meet the first prong of the Strickland standard.
Moreover, even assuming that Petitioner had met the first prong, he has failed to satisfy
prong two - showing that he was prejudiced by appellate counsel's conduct. Given the
overwhelming evidence establishing that Petitioner was present during the shooting, the
surveillance tape, even if it had shown Petitioner did not enter or exit the building during the
hours immediately before and after the shooting, would not have altered the outcome of the trial.
The tape would not have undermined the consistent eyewitness testimony placing him next to the
shooter, given that he could have already been in the building before the shooting, remained in
the building after the shooting, or used a different entrance and exit. Thus, even if appellate
counsel had raised this argument and it was an error for trial counsel not to pursue the tape, the
Appellate Division would have found any error to have been harmless. Lynch v. Dolce, No. 141675-PR, --- F.3d ---, 2015 WL 3 77189 1, at *10 (2d Cir. June 18, 2015) (appellate counsel's
error is prejudicial when "there is a reasonable probability that the outcome of the appeal would
have been different; in other words, whether the Appellate Division likely would have concluded
that [there] ... was error, and that the error was not harmless beyond a reasonable doubt.").
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Therefore, Petitioner has failed to demonstrate that he was prejudiced by his appellate counsel's
failure to make these arguments on appeal. The Appellate Division's denial of Petitioner's
coram nobis application on the grounds of ineffective assistance of appellate counsel is not
contrary to, or an unreasonable application of Strickland, and his habeas petition on these
grounds is denied.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is denied. Because
Petitioner has not demonstrated a basis for federal habeas relief under 28 U.S.C. § 2254, no
certificate of appealability shall issue. See 28 U.S.C. § 2253(c)(2). The clerk of the court is
respectfully directed to enter judgment accordingly and close this case.
SO ORDERED.
/s/ Sandra L. Townes
ANDRA L. TOWNES
United States District Judge
46
Dated: August
2015
Brooklyn, New York
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