McGhee v. Rock

Filing 19

ORDER *** I deny the petition for a writ of habeas corpus and decline to issue a certificate of appealability. *** Ordered by Judge Edward R. Korman on 11/7/2014. (Diaconis, Ari)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

NOT FOR PUBLICATION

JOHN L. McGHEE,
Petitioner,
– against –

MEMORANDUM & ORDER

DAVID A. ROCK,

12-CV-4077 (ERK)
Respondent.

KORMAN, J.:
On August 15, 2001, victim Edgar Garzon was assaulted while walking down the street
in Jackson Heights, Queens. (Trial Tr. at 347.) He died in the hospital three weeks later. (See
id. at 689.) In December 2001, petitioner John McGhee moved to England and upon returning to
the United States in 2006 was tried for Garzon’s murder. (See id. at 816.) McGhee’s first trial
ended in a mistrial due to a juror’s illness that prevented deliberations. (Proceedings July 24,
2007 at 2-3.)
At McGhee’s second trial, the government called 10 witnesses. Emergency responders
testified that gray brain matter was discharging from the victim’s skull upon arrival. (Trial Tr. at
321.) A local resident testified that the assailant smashed the victim’s head into the sidewalk
with such force that sharp whacking sounds could be heard inside a nearby apartment building.
(Id. at 612.) The victim’s friend testified that immediately after the beating, the victim was lying
in a pool of blood and was convulsing such that his head repeatedly struck the ground. (Id. at
383.) While neither the local resident nor the victim’s friend saw the assailant’s face, both stated
that at least two men other than the victim were present at the scene: the assailant and a friend of
the assailant who at one point instructed the assailant to stop the assault. (Id. at 428, 615.) The

local resident and the victim’s friend also recalled that once the assault ended, the assailant took
the driver’s seat in a red car and the assailant’s friend took the front passenger seat; the car then
drove away after jerking several times. (Id. at 382, 616.)
The government’s key witness was Christopher Ricalde, who was 14 years old at the time
of the crime. He testified that on August 15, 2001 he was in the back seat of a red car driven by
petitioner John McGhee. (Id. at 446.) He claimed that he saw McGhee step out of the car and
beat a man to the ground. (Id. at 452.) He also testified that his co-passenger eventually stepped
out from the front passenger seat and instructed McGhee to stop the assault. (Id. at 466.) Much
of Ricalde’s testimony was consistent with that of the local resident and the victim’s friend—for
example, all three claimed the car jerked before it drove away; all claimed that the events
occurred at the same location and around the same general time. (Id. at 377, 455, 448, 611.) But
several subtle inconsistencies are apparent. Whereas Ricalde claimed that the victim stood up
and walked away after the assault, (id. at 454), the victim’s friend claimed that the victim was
totally unable to stand up, not even “half way,” (id. at 431-32). Ricalde testified that his copassenger was African American with braided hair, (id. at 457), but the local resident testified
that the co-passenger was a light skinned Hispanic with no braids, (id. at 624-25). Similarly, the
local resident claimed that the assailant was a light skinned Hispanic with dark hair, (id. at 613),
but Ricalde claimed that the assailant was McGhee, a bald man who “we can all agree is not a
light skinned Hispanic,” 1 (id. at 453, 817). There was also much confusion about whether the
assault involved a weapon—the victim’s friend told a 911 operator that there was a baseball bat,

1

The record is unclear as to McGhee’s race, but McGhee’s counsel stated during
summation that “we can all agree [that] John McGhee is not a light skinned Hispanic.” The
prosecution did not object. (Trial Tr. at 845.)
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(id. at 433-34); the local resident recalled seeing a small object in the assailant’s hand, (id. at
630); but Ricalde’s testimony did not mention an object of any sort, (id. at 453).
During cross examination of Ricalde, he admitted to being a member of gang known as
the Latin Kings. (Id. at 495.) He also admitted to smoking marijuana on a daily basis between
the ages of 12 and 14, including on the night of the assault. (Id. at 447, 471, 496.) He admitted
to other criminal acts as well, such as vandalizing a car and conducting a fraud related to his
sister’s bank account. (Id. at 855.) McGhee’s counsel repeatedly compared Ricalde’s testimony
in the second trial to his testimony from the first trial—it becomes clear that Ricalde’s story is
inconsistent regarding many of the details from August 15, 2001. (See, e.g., 491.) It is also clear
that Ricalde had lied to the police on multiple occasions—for example, Ricalde initially
informed police that he was not at the scene of the crime, but in subsequent police interviews he
claimed being present in the car. (Id. at 482.) Raising further suspicion as to the truth of
Ricalde’s testimony, McGhee’s counsel highlighted that police posters offered a reward for
information regarding the assault, but Ricalde claimed that while he definitely saw the posters,
he never noticed the large printed words “$12,000 reward.” (Id. at 493.)
Among the last witnesses that the District Attorney called were Detective Corey and Dr.
Lara Goldfeder, a doctor in New York City’s Office of the Medical Examiner. Detective Corey
testified that he came to believe that McGhee was associated with the victim’s murder based on
information that Ricalde provided between 2003 and 2006. (Id. at 562-63.) He also testified that
although McGhee had been living in England since late 2001, McGhee returned to the United
States in 2006 because he lied on his application for British citizenship and the British authorities
had asked him to leave. (Id. at 566, 575.) Detective Corey stated that he met McGhee at the

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airport just after his flight from England landed. After Corey introducing himself as a detective,
McGhee replied, “What do you think I am looking at, three, four, five years?” (Id. at 567.)
Dr. Goldfeder testified that before beginning her autopsy to determine the victim’s cause
of death she reviewed his medical records, which indicated injuries to the victim’s head,
including severe lacerations and fractures. (Id. at 685.) The medical records also indicated that
physicians other than Dr. Goldfeder performed treatments on the victim between the time of the
assault and the time of death, including placement of a catheter through his skull and removal of
portions of his skull and brain. At some points, Dr. Goldfeder briefly explained the purpose
behind some of the treatments performed by physicians other than herself.

For example,

physicians used the catheter to monitor brain swelling—when swelling “reach[es] a critical point
. . . they can treat it []surgically.” (Id. at 688-89.) She stated that reviewing the treatments
performed by other physicians was critical to her cause of death determination.

Without

reviewing the victim’s records, it would be difficult to determine whether certain abnormalities
resulted from blows to the head as opposed to medical intervention or a pre-existing congenital
defect from which the victim suffered. (See id. at 690, 697.)
After discussing the victim’s records, Dr. Goldfeder described her actual autopsy,
including her need to store the victim’s brain in a formaldehyde solution due to its softened state.
(Id. at 694.) She described in great detail all the fractures on the victim’s skull, including a
description of the victim’s pre-existing congenital defect which consisted of a “thin” skull near
the back of the victim’s head. She ultimately stated that forceful “blunt trauma” caused the death
and that the victim’s pre-existing defect played no role. (Id. at 714.) On cross examination,
McGhee’s attorney briefly inquired into the possibility of medical intervention or congenital
defect as a cause of death, but Dr. Goldfeder rebuffed these suggestions. (Id. at 719, 725.)

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At the close of the prosecution’s case, the trial judge denied McGhee’s motion to dismiss
for insufficiency of the evidence. (Id. at 745.) Although he himself did not testify, McGhee then
presented a defense consisting of 3 witnesses: a car expert, a reputation witness, and McGhee’s
wife. The car expert testified that the red car seen at the crime scene was a red Acura Integra,
and specifically not a red Honda CRX. (Id. at 758.) This was relevant in that the prosecution’s
witness, Christopher Ricalde, testified that the red car was a Honda CRX.
McGhee’s reputation witness was Barry Ricalde, Christopher Ricalde’s father.

(Id. at 446.)
The father

testified that his son’s reputation for truth and veracity was “exceedingly bad,” that his son
enjoyed being the center of attention, and that the father had told his son to not testify or speak to
the police regarding the son’s “lies” and fabrications. (Id. at 779, 797.) McGhee’s wife testified
that McGhee moved to England not as a fugitive but in an effort to rebuild a family with his wife
and children, all of whom were British citizens living in England. (Id. at 815-16.) On cross
examination, presumably for purposes of impeachment, the prosecutor elicited that McGhee’s
wife co-signed McGhee’s application for British citizenship despite knowing that it contained a
lie. (Id. at 829.)
After deliberating and hearing read backs from the testimony of Christopher Ricalde,
Decective Corey, and the local resident, the jury found McGhee guilty of second-degree murder.
(Id. at 930.) The trial judge denied McGhee’s motion to set aside the verdict and imposed a
sentence of 22 years to life. (Proceedings Oct. 17, 2008 at 2, 15.) On appeal, McGhee argued
for reversal based on two evidentiary grounds—permitting the prosecutor to elicit testimony that
McGhee lied on his application for British citizenship and prohibiting McGhee’s lawyer from
laying a foundation regarding Barry Ricalde’s basis of knowledge for his son’s poor reputation.
Ruling that these grounds were without merit, the Appellate Division affirmed McGhee’s

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conviction. People v. McGhee, 82 A.D.3d 1264, 1265-66 (N.Y. App. Div. 2d Dep’t 2011). The
Court of Appeals denied leave to appeal. See People v. McGhee, 17 N.Y.3d 808, 808 (2011).
McGhee then filed § 440.10 and coram nobis motions. His § 440.10 motion claimed
ineffective assistance of trial counsel based primarily on two grounds: failing to object to untrue
testimony by Dr. Goldfeder and failing to retain an expert to respond to Dr. Goldfeder’s findings
regarding the victim’s cause of death. The trial judge denied McGhee’s § 440.10 motion
because it lacked merit and because, in addition, it asserted on the record claims. (Decision &
Order, Nov. 17, 2011, at 4-5). The Appellate Division denied leave to appeal. (See Aff. Opp’n
Habeas Pet. at 12; Reply Br. Supp. Habeas Pet. at 1, ¶ 1.) McGhee’s coram nobis motion argued
that appellate counsel was ineffective for failing to raise issues regarding the prosecutor’s
improper vouching for witnesses. (Mot. Supp. Coram Nobis at 4-6.) The Appellate Division
denied this motion on the merits, and the Court of Appeals denied leave to appeal. People v.
McGhee, 93 A.D.3d 736, 736 (N.Y. App. Div. 2d Dep’t 2012); People v. McGhee, 20 N.Y.3d
1013, 1013 (2013). McGhee’s petition for a writ of habeas corpus asserts two grounds: (i) trial
counsel’s ineffectiveness for failing to object to Dr. Goldfeder’s testimony and failing to consult
a medical expert to respond to Dr. Goldfeder’s testimony; and (ii) appellate counsel’s
ineffectiveness for failing to argue on direct appeal that the prosecutor improperly vouched for
witnesses during summation. (Habeas Pet. at 4-5.)
DISCUSSION
I.

Ineffective Assistance of Trial Counsel
McGhee asserts two specific instances of ineffective trial counsel: failure to “call or

retain any defense experts to rebut the people’s [medical] expert” and failure to “object to the
medical examiner’s uncontroverted expert testimony.” (Habeas Pet. at 4.) The trial judge ruled

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that these claims are meritless. To prove ineffective assistance of counsel under Supreme Court
precedent, criminal defendants must show that (i) “counsel’s representation fell below an
objective standard of reasonableness” and that (ii) “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 687-88 (1984). The first prong requires that
courts recognize counsel’s “wide latitude” in making tactical decision and imposes a “strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. The second prong requires that defendants “show[] a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have been different.” Id. at 694.
In Harrington v. Richter, 131 S.Ct. 770, 788 (2011), the Supreme Court addressed the
applicability of AEDPA deference as applied to claims of ineffective assistance of counsel under
Strickland v. Washington, 566 U.S. at 687-88. Recognizing that AEDPA and Strickland are both
“highly deferential” on their own, the Supreme Court observed that together they are “doubly
so.” Harrington, 131 S.Ct. at 788. Thus, the question is not “whether counsel’s actions were
reasonable” but “whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id.
The trial judge did not unreasonably hold that McGhee’s counsel was not ineffective.
Indeed, the record reveals that trial counsel presented meaningful representation.

At trial,

counsel conducted an extremely damaging cross examination of Christopher Ricalde, eliciting
that the witness was a gang member, a liar, and a habitual drug user. (See, e.g., Trial Tr. at 471.)
At McGhee’s Sandoval and Huntley hearings, counsel displayed adeptness by presenting several
persuasive arguments, all of which revealed familiarity with McGhee and the factual nuances of
the case. (See id. at 9-12.) At voir dire, counsel actively engaged in jury selection and entered
into a lengthy colloquy with the judge regarding prospective juror bias and the presumption of

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innocence. (Id. at 45-46.) Other examples of effective advocacy are ample: counsel gave
competent opening and closing statements; called witnesses on McGhee’s behalf; objected to the
government’s overly prejudicial photographs; moved to dismiss for insufficiency of the
evidence; and moved to set aside the jury’s verdict. (See, e.g., Trial Tr. at 608; Appellant Br. on
Direct Appeal at 17-18.)
McGhee’s first instance of alleged trial counsel error is based on a failure to obtain an
expert to rebut Dr. Goldfeder’s assertion that blunt force caused the victim’s death. (Habeas Pet.
at 4.) The Supreme Court dismissed a similar claim in Harrington v. Richter, 131 S.Ct. at 788.
There, trial counsel failed to consult a blood expert while developing a defense. The Court ruled
that this was not deficient performance under Strickland and that trial counsel is free to “avoid
activities that appear ‘distractive from more important duties.’” Id. at 789. The Court went on,
“[e]ven if it had been apparent that expert blood testimony could support Richter’s defense, it
would be reasonable to conclude that a competent attorney might elect not to use it.” Id. Indeed,
“[t]here are countless ways for counsel to provide effective assistance in any given case. Even
the best criminal defense attorneys would not defend a particular client in the same way.” Id. at
788-89.
Passing over the fact that McGhee has offered no basis for concluding that Dr.
Goldfeder’s finding were flawed, the record shows that the most obvious weakness in the
prosecution’s case against McGhee regarded whether McGhee beat the victim, not whether the
victim died as a result of the beating. While some evidence vaguely suggested that medical
intervention or the victim’s pre-existing congenital defect may have contributed to his death,
(see, e.g., Trial Tr. at 719, 725), the record is overflowing with evidence indicating that the
assault was the true cause: numerous witnesses testified that immediately after the assault the

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victim was convulsing such that his head repeatedly and involuntarily struck against the concrete
sidewalk, which was covered in the victim’s blood and brain mater; one witness testified that the
assailant slammed the victim’s head into the sidewalk with such force that multiple sharp
smacking sounds were heard inside a nearby building; surgeons were forced to remove parts of
the victim’s skull to provide room for his swollen brain; photographs show the victim in the
hospital just after the beating with extreme bruises and cuts running across his face. (See id. at
318, 362-63, 625, 687.)
Nevertheless, counsel did effectively cross examine the medical examiner and in doing so
introduced to the jury the notions of medical intervention and pre-existing congenital defect as a
possible cause of death. (Id. at 719.) That counsel chose to not obtain an expert to rebut what
may have been irrefutable evidence is not sufficient for a showing under Strickland. This is
especially true where counsel’s apparent strategy was to focus on whether McGhee beat the
victim. (Id. 844-45.) On this issue, counsel put forth an excellent defense, which included
testimony from McGhee’s wife, a motor vehicle expert, and a reputation witness used to
undermine the credibility of the prosecutor’s key witness, Christopher Ricalde. (See, e.g., 77980.)

Under these circumstances, the trial judge was not unreasonable in ruling that trial

counsel’s failure to retain a medical expert did not contravene Strickland’s performance prong.
McGhee’s second specific instance of alleged trial counsel error is based on a “failure to
object to the medical examiner’s uncontroverted expert testimony based upon pre-trial and prior
to trial, examinations by different medical physicians pertaining to examinations of the brain and
skull.” (Habeas Pet. at 4.) McGhee’s position here is unclear, and I read it as a claim that the
prejudicial effect of Dr. Goldfeder’s testimony regarding other physicians’ treatments
outweighed its probative value.

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Even assuming that Dr. Goldfeder’s testimony was arguably prejudicial, the trial judge
was not unreasonable in ruling that McGhee’s trial counsel did not violate Strickland’s
performance prong in failing to object on that ground. Indeed, trial counsel did object at some
points during the government’s direct examination of Dr. Goldfeder. And as stated earlier,
throughout other parts of the trial counsel objected to the admission of overly prejudicial
government photographs. (See, e.g., id. at 364). This indicates that trial counsel’s failure to
object to Dr. Goldfeder’s possibly prejudicial testimony “was driven by strategy” and thus
cannot be called into question. Allen v. Artus, 09-cv-4562, WL 1918721, at *20 n.10 (E.D.N.Y.
May 14, 2014) (collecting cases). There are many strategic reasons an attorney might “forego
objections: the conclusion that additional objections might have annoyed the judge or jury; the
possibility that the prosecutor, given enough rope, would alienate the jury; the desire not to call
attention to unfavorable evidence or to highlight unfavorable inferences.” Taylor v. Fischer, No.
05 Civ. 3034, WL 416372, at *6 (S.D.N.Y. Feb. 21, 2006).
Nor was it unreasonable that the trial judge determined that trial counsel’s alleged errors
did not satisfy Strickland’s second prong.

First, there is no suggestion that the result of

McGhee’s trial reasonably might have been different had trial counsel objected to Dr.
Goldfeder’s testimony regarding treatments performed by other physicians. The jury had already
heard a graphic description of the injuries suffered by the victim, and it is inconceivable that
testimony regarding treatments performed by other physicians could possibly have affected the
verdict. Indeed, indicating the jury’s focus on the central issue of whether it was McGhee who
assaulted the victim, during deliberations the jury asked only for read backs from the testimony
of Christopher Ricalde, Detective Corey, and the local resident, each of which went to that issue.
(Trial Tr. at 930.)

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Second, McGhee’s argument regarding the failure of counsel to call his own medical
expert to respond to Dr. Goldfeder assumes, without any support from the record, that such an
expert would have contradicted Dr. Goldfeder. Indeed, McGhee has put forth, at best, a mere
“theoretical possibility” that the victim died from something other than the assault and has
submitted nothing by way of “direct refutation of [Dr. Goldfeder’s] testimony.” See Harrington,
562 S.Ct. at 792. More significantly, and as discussed earlier, the central issue in the case was
whether McGhee assaulted the victim, not whether the victim died from the assault.
II.

Ineffective Assistance of Appellate Counsel
Without pointing to any specific statements that the prosecutor made, McGhee argues

here that appellate counsel was ineffective in not arguing for reversal based on the prosecutor’s
improper vouching for witnesses during summation. 2

(Habeas Pet. at 5.)

The Appellate

Division ruling that this claim is meritless is entitled to the standard of “double deference”
outlined earlier. To show ineffective assistance of appellate counsel, defendant’s must show that
(i) appellate counsel was objectively unreasonable in failing to raise a particular issue on appeal,
and (ii) absent counsel’s deficient performance, there is a reasonable probability that the appeal
would have been successful. See Strickland, 466 U.S. at 687. Under the first prong, appellate
counsel need not raise frivolous arguments on appeal.

Nor should counsel “raise every

nonfrivolous 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). Indeed, “[e]xperienced
advocates since time beyond memory have emphasized the importance of winnowing out weaker
2

McGhee also seems to claim (for the first time in his reply brief here) that the
prosecutor improperly attempted to “trip up” the defense’s witnesses. (Reply Br. at 2.) McGhee
points to nothing specific in the record and seems to suggest that traditional tactics used on cross
examination would be constitutional error, such as asking a witness to explain certain details
regarding his testimony on direct examination or confronting a witness with a contradiction
made on direct examination. This unexhausted claim is meritless.
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arguments on appeal and focusing on one central issue if possible or at most on a few key
issues.” Jones v. Barnes, 463 U.S. 745, 751 (1983).
McGhee’s appellate counsel provided meaningful representation.

In the Appellate

Division, he summarized the proceedings below clearly and in a light favorable to McGhee;
made relevant citations to the record; argued for reversal based on two evidentiary grounds; and
cited applicable case law indicating that he had fully researched the issues. (See Appellant’s Br.
on Direct Appeal.) Appellate Counsel also wrote an articulate and well-reasoned letter to Judge
Ciparick on the Court of Appeals in which he urged the court to review the Appellate Division’s
ruling. (Letter May 26, 2011).
As for McGhee’s specific assertion that appellate counsel failed to argue improper
vouching on appeal, I have reviewed the prosecutor’s summation and find no improper
vouching. Vouching under New York law refers to the prosecutor acting as an unsworn witness
in order to tie his own credibility to that of the witness. See People v. Moye, 12 N.Y.3d 743, 744
(2009) (citing People v. Lovetlo, 1 N.Y.2d 436, 439 (1956)). While the prosecutor provided a
litany of reasons why the jury should believe Christopher Ricalde and disbelieve McGhee’s
reputation witness, this does not constitute improper vouching. The prosecutor referred to
evidence properly before the court and, based on that evidence, speculated as to the witnesses’
possible motives and interests, but he never put his own character or credibility at issue. See
Rodriquez v. Brown, No. 11-cv-1246, WL 4073748, at *6 (E.D.N.Y. Sept. 13, 2011). Yes, on
several occasions the prosecutor stated in substance, “I submit that Christopher Ricalde is telling
the truth.” (See, e.g., Trial Tr. at 889.) But phrases like “I submit” or “I suggest” are not
improper where the prosecutor argues based on evidence and not personal belief. See Rodriquez,
2011 WL 4073748, at *6. Such phrases are particularly inoffensive here, where the prosecutor

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was responding to defense counsel’s provocations regarding Christopher Ricalde’s credibility.
See People v. Marks, 6 N.Y.2d 67, 77 (1959).
In an affirmation responding to McGhee’s coram nobis motion, McGhee’s appellate
attorney addressed the fact that no improper vouching occurred and further highlighted that any
hypothetical improper vouching would have, in any event, been unpreserved for appellate
review. (Aff. Resp. Coram Nobis at 3-4.) Under these circumstances, the Appellate Division
was not unreasonable in rejecting McGhee’s claim of ineffective appellate counsel.
III.

Actual Innocence
McGhee’s reply brief summarizes much of the trial and asks that I grant habeas relief

based on a “weight of the evidence analysis” and that I “weigh the relative probative force of
conflicting testimony and the relative strength of the conflicting inferences that may be drawn
from the testimony [at trial].” (Reply Br. at 2.) Reading this language generously, I construe
this as a standalone claim of actual innocence and deny it on the merits. First, it is an open
question whether there is a “constitutional right to be released upon proof of actual innocence.”
Friedman v. Rehal, 618 F.3d 142, 159 (2d Cir. 2010). Second, assuming there is that right, the
evidence that McGhee presents here is not sufficient to meet “the high standard” that such a
claim would require. See District Attorney’s Office v. Osborne, 557 U.S. 52, 71 (2009). Indeed,
McGhee does not present new evidence obtained after his trial; rather, he merely reasserts that
Christopher Ricalde is untrustworthy and inconsistent as to some details regarding the events on
August 15, 2001. Habeas corpus relief cannot be granted based on such evidence, as “[i]t is well
settled that upon habeas corpus the court will not weigh the evidence.” Hyde v. Shine, 199 U.S.
62, 84 (1905). Indeed, while Christopher Ricalde may have been an impaired witness, that by
itself would not be sufficient to upset the verdict even on direct appeal. As the Supreme Court

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has held, “[t]he established safeguards of the Anglo-American legal system leave the veracity of
a witness to be tested by cross-examination, and the credibility of his testimony to be determined
by a properly instructed jury.” Hoffa v. United States, 385 U.S. 293, 311 (1966).
CONCLUSION
I deny the petition and decline to issue a certificate of appealability.

SO ORDERED.

Brooklyn, New York

Edward R. Korman

November 7, 2014

Edward R. Korman
Senior United States District Judge

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