Schouenborg v. Suffolk County Riverhead Courts et al
Filing
43
MEMORANDUM & ORDER finding as moot 34 Motion to Amend/Correct/Supplement; Certificate of Appealability Denied Re: 1 Petition for Writ of Habeas Corpus; For the foregoing reasons, Petitioner's motion to amend (Docket Entry 34) is FOUND TO BE MOOT and Petitioner's Habeas Petition is DENIED. In addition, since Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253, no certificate of appealability shall issue. The Clerk of the Court is directed to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 6/23/2016. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
TERRENCE P. SCHOUENBORG,
Petitioner,
MEMORANDUM & ORDER
08-CV-2865(JS)
-againstSUPERINTENDENT, AUBURN CORRECTIONAL
FACILITY,
Respondent.
----------------------------------X
APPEARANCES
For Petitioner:
Richard W. Levitt, Esq.
Law Offices of Levitt & Kaizer
40 Fulton Street, 23rd Floor
New York, NY 10038
For Respondent:
Michael J. Brennan, Esq.
Edward A. Bannan, Esq.
Suffolk County District Attorney’s Office
200 Center Drive
Riverhead, NY 11901
SEYBERT, District Judge:
On January 27, 2005, following a jury trial in the County
Court
of
Suffolk
County,
pro
se
Petitioner
Terrence
Paul
Schouenborg (“Petitioner”) was convicted of two counts of Sodomy
in the First Degree in violation of New York Penal Law § 130.50(1);
two counts of Sodomy in the Second Degree in violation of New York
Penal Law § 130.45(1); four counts of Sexual Abuse in the Second
Degree in violation of New York Penal Law § 130.65(1); and three
counts of Endangering the Welfare of a Child in violation of New
York Penal Law § 260.10(1).
On June 16, 2005, following a hearing
pursuant to Section 400.21 of New York Criminal Procedure Law,
1
Petitioner was sentenced as a persistent felony offender to an
indeterminate term of imprisonment of twenty-two years to life for
each
of
his
convictions
for
Sodomy
in
the
First
Degree;
an
indeterminate term of imprisonment of twenty years to life for
each of his convictions for Sodomy in the Second Degree and Sexual
Abuse in the First Degree; and one year of imprisonment for each
of his convictions for Endangering the Welfare a Child.
The
sentences were imposed concurrently.
Presently before the Court is Petitioner’s Petition for
a Writ of Habeas Corpus (the “Habeas Petition”) pursuant to 28
U.S.C. § 2254 (“Section 2254”), including a supplemental brief
submitted in support of the Habeas Petition.
(Docket Entry 34.)
For the reasons that follow, the Habeas Petition is DENIED.
BACKGROUND
I.
The Underlying Facts
On September 16, 2003, thirteen-year-old SV,1 a female
student in the eighth grade, went to Tanner Park in Copiague, New
York with two friends, LJ, also a female student, and JP, a male
student.
LJ subsequently left the park to return home.
Tr., Docket Entry 24, at 591:12-602:162.)
(Trial
SV and JP remained at
Due to the minority ages of SV, LJ, and JP at the time of the
incident, they are identified only by their initials.
1
Pages 1-768 of the Trial Transcript can be found at Docket
Entry 24 and pages 769-1497 can be found at Docket Entry 124-1.
2
2
the park, where a man who had just parked his vehicle approached
them and asked if they had “rolling papers.”
720:12.)
(Trial Tr. 719:21-
JP answered in the negative and the man went back to his
car and drove away.
(Trial Tr. 720:13-721:9.)
Forty-five minutes to an hour later, the man returned
and asked SV and JP if they wanted to smoke.
722:9.)
(Trial Tr. 721:12-
SV said she would, and SV and JP got into the man’s car.
(Trial Tr. 722:11-15.)
SV testified that it was still light out
when she and JP got into the car.
(Trial Tr. 609:22-24.)
The
driver identified himself as Paul or Paulie, told the two teenagers
that he was twenty-seven years old, and said that he grew up in
the Bronx.
(Trial Tr. 610:19-20, 723:18-24.)
The three of them
drove around, drank beer, and smoked cigarettes.
28.)
(Trial Tr. 724-
The record reflects that the driver dropped JP off near his
home, likely around 8 p.m.
(Trial Tr. 620:12-23, 729:4-11.)
Once
JP left the car, the man drove around, ultimately parking the car
in front of a flower shop.
(Trial Tr. 622:5-635:10.)
After the
car was parked, the man climbed into the rear seat and sexually
assaulted and sodomized SV.
(Trial Tr. 622:5-635:10.)
Following the assault, SV climbed into the front seat
and was able to escape from the vehicle.
637:20.)
(Trial Tr. 636:25-
She ran to LJ’s home where the police were called.
(Trial Tr. 637:24-639:5.)
3
II.
The Investigation
Police Officer Sonia Martinez arrived at LJ’s home at
approximately 11:00 p.m.
(Trial Tr. 561:4-11.)
SV told Officer
Martinez that the assailant was a “white Hispanic-looking male,”
in his late twenties.
(Trial Tr. 574”3-575”12.)
SV described the
assailant as having a mustache, a beard, and blue eyes.
In
addition, she said he was driving a white vehicle with black
lettering on the side.
(Trial Tr. 580:23-581:18.)
Two Detectives subsequently arrived, including Detective
Joseph Brittelli, who took control of the investigation.
Tr. 683:13-685:5.)
(Trial
SV again stated that her attacker had blue
eyes and a mustache, but also stated that he “looked like a white
and black Puerto Rican,” or someone of mixed race.
685:21-686:2.)
(Trial Tr.
SV drove around with the detectives and showed
them the location of her assault, the parking lot of a florist
shop.
(Trial Tr. 801:23-802:12.)
discarded
a
cigarette
butt,
SV indicated that her attacker
and
the
retrieved one for forensic testing.
detectives
located
and
(Trial Tr. 802:19-803:3.)
The detectives also sent a Marlboro Lite butt that SV’s assailant
placed in SV’s purse to the lab for testing.
(Trial Tr. 853:13-
854:6.)
The detectives then transported SV to the Sexual Assault
Nurse
Examiner
(“SANE”)
at
Good
4
Samaritan
Hospital
for
examination.
(Trial Tr. 808:6-14.)
The SANE nurse photographed
SV’s injuries, took swabs of fluids and other evidence from her
vaginal and anal areas, and collected a urine sample.
1021-61.)
(Trial Tr.
Detective Brittelli gathered all of the evidence from
the examination and sent it to the Suffolk County Crime Lab.
(Trial Tr. 852:6-19.)
He attempted to take a statement from SV
after her examination, but she was too tired to cooperate at that
time.
(Trial Tr. 814:2-19.)
On September 29, 2003, Detective Brittelli obtained SV’s
statement.
(Trial Tr. 816:5-10.)
This statement, along with JP’s
statement, led to the arrest of Petitioner on October 23, 2003, at
which time they seized Petitioner’s vehicle and searched it for
evidence.
(Trial Tr. 829:19-830:24, 863-870:16.)
III. The Lineup and Wade Hearing
On October 13, 2003--10 days before Petitioner’s arrest-Detective Brittelli showed SV a photo array that included photos
of
Petitioner
appearance.”
and
five
other
“white
(Trial Tr. 69:16-73:12.).
of Petitioner as her attacker.
males
all
similar
in
SV identified the photo
(Trial Tr. 76:3-24.)
On October 23, 2003, the day of Petitioner’s arrest,
police prepared a lineup for SV to view at the First Precinct in
West Babylon, New York.
(Trial Tr. 78:4-22, 875:21-876:9.)
The
lineup was comprised of Petitioner and four other “fillers,” who
were police officers. (Trial Tr. 83:17-87:7.) Detective Brittelli
5
testified that he advised SV that “she was going to look at five
males, all similar in appearance” and “if she recognized someone,
she was to tell [Detective Brittelli] what number he was and why
she recognized him.”
(Trial Tr. 85:3-8.)
SV viewed two lineups.
Each time the participants were rearranged and each time SV
positively identified Petitioner as the assailant.
650:9-651:17, 889:7-891:22.)
(Trial Tr.
Detective Brittelli testified that
SV identified Petitioner “almost immediately” upon viewing each
lineup.
(Tr. 116:20-117:4.)
On August 30, 2004, JP also viewed
a lineup which included Petitioner, but he was unable to identify
any of the six men.3
(Trial Tr. 730:13-20.)
Ultimately, the Court
allowed the jury to hear about the lineups during the trial.
(See
Trial Tr. 650-52.)
IV.
Trial Testimony Regarding the Lineups
At trial, the prosecutor asked SV a number of questions
about the lineups she viewed.
After discussing when and where the
lineups took place, the following exchange occurred:
Q. And what, if any, instructions did the detective give
you at that point?
A. “There’s going to be five men standing. And you’re going
to have to pick one. And why do you recognize him.”
Q. [SV], did the detective tell you you’re going to have to
pick one?
During trial JP was, however, able to identify a picture of
Petitioner’s vehicle as the vehicle he and SV entered on
September 16, 2003. (Trial Tr. 729:19-730.)
3
6
A. Yes.
No.
Q. What did the detective say to you, [SV]?
A. “That there’s going to be five men.
have to” -- I forgot.
And you’re going to
Q. [SV], did the detective tell you that you would have to
pick one of the men?
A. I think so.
(Trial Tr. 648:19-649:8.)
When the prosecutor tried to go over
the same ground again, defense counsel objected and the objections
were sustained.
However, the following additional exchange also
occurred:
THE COURT: [SV], tell us to the best of your recollection
what happened from the time you got to the precinct. Run
through it in your mind. You said you went downstairs.
Right?
THE WITNESS: Yes.
THE COURT: Take it from there.
downstairs?
What happened when you went
THE WITNESS: He told me to wait a little bit.
THE COURT: You got to speak into that microphone.
THE WITNESS: He told me to wait a little bit. And he told
me to come in. And he told me, “There’s going to be five
men. And you’re going to have to see all of them. And
you’re going to have to pick one of them out. And you’re
going to have to recognize him.”
(Trial Tr. 649:20-650:15.)
instructions
that
SV
Although defense counsel revisited the
received
during
7
the
lineups
on
cross-
examination, defense counsel never moved to reopen the Wade hearing
based upon SV’s testimony.
V.
(Trial Tr. 699.)
Additional Evidence Presented at Trial
SV testified at trial and identified Petitioner as the
assailant in court.
(Trial Tr. 636:11-25.)
In addition, the
prosecution pointed to SV’s lineup identifications of Petitioner
to
corroborate
651:17.)
SV’s
in-court
identification.
(See
Tr.
650-
The prosecutor also pointed to circumstantial evidence
implicating Petitioner in the crime.
For example, SV said in her
statement to Detective Brittelli that the assailant told her he
worked at a pizza shop called “the Merrick something Pizza,” and
it was determined that the Petitioner worked at a restaurant called
Tomato & Basil Restaurant Pizzeria located on Merrick Road
(Tr.
830:9, 855:15-17, 901:18-24); SV testified that the assailant said
that he “was going to be fishing” and fishing gear was found in
Petitioner’s trunk
(Tr. 611:13-19, 832:9-15); SV testified that
the assailant told her his name was Paul, which is Petitioner’s
middle name (Tr. 610, 705-706); and SV testified that a bag that
was removed from Petitioner’s car looked similar to the one she
saw the night she was assaulted. (Tr. at 653:13-22.) In addition,
JP testified that the assailant said he grew up in the Bronx and
the prosecutor pointed to the Petitioner’s birth certificate which
indicated that Petitioner was born in the Bronx.
(Trial Tr.
723:18-19,
focused
1393:6-13.)
Finally,
8
the
prosecution
on
Petitioner’s car, which JP described as a white Oldsmobile with a
blue interior and positively identified as Petitioner’s car at
trial.
(Trial Tr. 722:21-23, 730:3-12.)
During
the
trial,
defense
counsel
focused
on
the
inconsistencies in SV’s version of events on the night of the
incident.
Specifically, defense counsel argued that SV identified
the wrong man.
(Trial Tr. 552-553.)
He noted that, at various
times, SV described the assailant as white, Hispanic, Puerto Rican,
and black. (Trial Tr. 685:11-688:10, 927:8-24.) SV also testified
on cross-examination that Petitioner’s first name, “Terrance,” was
the same name as “Paul.”
she
testified
that
(Trial Tr. 705:11-706:7.)
police
told
her
at
one
In addition,
point
that
the
perpetrator was Italian, when she previously described him as
Puerto Rican.
(Trial Tr. 688:4-10.)
Furthermore, during her
various interviews with police, SV failed to mention that the
assailant had any tattoos, despite the fact that Petitioner has
multiple
tattoos,
and
assailant’s clothing.
SV
gave
varying
descriptions
of
(Trial Tr. 920-926:2, 932:14-933:15.)
the
In
addition, SV’s description of the vehicle she entered that night
did not include what defense counsel characterized as a distinctive
sticker on the back window of Petitioner’s vehicle or a distinctive
steering wheel.
(Trial Tr. 915:8-919:3.)
There were also several
inconsistencies between JP and SV’s testimony.
For example, JP
testified that SV smoked marijuana with the assailant and SV denied
9
smoking
marijuana.
(Trial
Tr.
722:4-12,
681:6-9.)
And
JP
testified that he asked SV if she wanted to come with him when he
exited the car, but SV denied that JP made that overture.
(Trial
Tr. 621-622, 735.)
The prosecution elicited extensive testimony about the
physical evidence recovered from SV and from Petitioner’s vehicle.
Both the exterior and interior of Petitioner’s vehicle were dusted
for fingerprints, but none were found.
(Trial Tr. 939.)
The
vehicle was also tested for SV’s blood because she told Detective
Brittelli that she had bled into her hand and wiped her blood in
the car.
(Trial Tr. 926:3-927:7.)
evidence of SV’s blood in the vehicle.
Police did not find any
(Trial Tr. 941:2-943:11.)
Moreover, hair and fibers that were recovered from SV’s clothing
were not consistent with Petitioner’s vehicle. (Trial Tr. 1195:251197:11.)
fabric,
Hairs and fibers recovered from the floor mats, seat
and
clothing
found
in
the
back
seat
and
trunk
of
Petitioner’s vehicle were either inconsistent with SV or unusable
for testing and comparison.
(Trial Tr. 1197:12-1199:24.)
On the
basis of this testing, Clyde Wells, an expert in the field of hair
and fiber analysis from the Suffolk County Crime Lab, determined
that he could not conclusively place or exclude SV from being in
Petitioner’s car.
(Trial Tr. 1205-06.)
On cross-examination,
defense counsel elicited that although animal hair was recovered
10
from many areas in Petitioner’s vehicle, no animal hair was found
on SV.
(Trial Tr. 1208:15-25.)
Ann Juston, a DNA expert from the Suffolk County Crime
Lab, testified that DNA taken from a semen-stained shirt found in
Petitioner’s car was insufficient in size to obtain a complete DNA
profile.
large
(Trial Tr. 1261:25-1263:15.)
enough
to
test
for
a
partial
However, the sample was
DNA
profile,
which
was
consistent with Petitioner’s DNA and the DNA of at least two other
people.
(Trial Tr. 1262:21-24.)
Ms. Juston also testified that
SV could not be excluded as a contributor of the DNA.
(Trial Tr.
1262:24-1263:4.)
After deliberation, the jury convicted Petitioner on all
counts.
IV.
(Trial Tr. 1484-1488.)
Sentencing
On June 16, 2005, following a hearing pursuant to New
York
Criminal
Procedure
Law
Section
400.21,
Petitioner
was
sentenced as a persistent felony offender to an indeterminate term
of imprisonment of twenty-two years to life for each of his Sodomy
in
the
First
Degree
convictions;
an
indeterminate
term
of
imprisonment of twenty years to life for each of his convictions
for Sodomy in the Second Degree and Sexual Abuse; and one year of
imprisonment for each of his Endangering the Welfare a Child
convictions.
The sentences were imposed concurrently.
11
V.
Procedural History
Petitioner’s direct appeal raised five grounds.
that
the
trial
court
abused
its
discretion
by
First,
allowing
the
testimony of the DNA expert who could only testify that the DNA
evidence was inconclusive.
Second, that the court further abused
its discretion by allowing Petitioner’s two-year-old driver’s
license photograph, which depicted Petitioner with facial hair,
into evidence. Third, that the prosecutor engaged in prosecutorial
misconduct
during
improperly
shifted
her
the
summation
burden
of
by
making
proof
statements
onto
improperly vouched for witness credibility.
which
Petitioner
and
Fourth, that the
evidence was insufficient to prove his guilt beyond a reasonable
doubt.
The
Fifth, that the sentence imposed were harsh and excessive.
Appellate
Division,
conviction and sentence.
Second
Department,
both
the
People v. Schouenborg, 42 A.D.3d 473,
840 N.Y.S.2d 807 (2d Dep’t 2007).
appeal, which was denied.
affirmed
Petitioner sought leave to
See People v. Schouenborg, 9 N.Y.3d
926, 875 N.E.2d 900, 844 N.Y.S.2d 181 (N.Y. 2007).
Petitioner filed his Habeas Petition on July 15, 2008.
Following the submission of additional briefs, the Court issued an
opinion on September 30, 2013 denying the majority of Petitioners
claims as either procedurally barred or meritless; staying the
case while Petitioner sought to exhaust his claim for ineffective
assistance of appellate counsel in state court; and holding in
12
abeyance Petitioner’s claim regarding the admission of his dated
driver’s
license
photo
into
evidence.
(See
Sept.
30,
2013
Memorandum & Order (“Sept. 2013 Order”), Docket Entry 18.)4
In
addition, the Court appointed counsel to represent Petitioner.
(Sept. 2013 Order at 32.)
On November 2, 2015, Petitioner moved to renew his motion
to vacate and set aside his sentence pursuant to N.Y. C.P.L. Art.
440, arguing that trial counsel was ineffective for failing to
reopen the Wade hearing after the victim gave testimony suggesting
that
the
lineup
suggestive.
she
participated
in
may
have
(Pet’r’s Br., Docket Entry 34-1, at 2.)
been
unduly
Petitioner’s
renewed motion was denied on March 10, 2015, (See March 10, 2015
Order (“Mar. 2015 Order”) Docket Entry 34-2), and on August 21,
2015 the Appellate Division, Second Department subsequently denied
Petitioner leave to appeal.
(See August 21, 2015 Decision & Order
(“Aug. 2015 Order”) Docket Entry 34-3.)
In addition, Petitioner submitted an application for a
writ of coram nobis to the Appellate Division, Second Department,
arguing that Petitioner’s former appellate counsel was ineffective
In its Sept. 30. 2013 Order, the Court held in abeyance
Petitioner’s argument that it was an error to introduce his 2001
driver’s license photo at trial. However, Petitioner does not
cite to any law in further support of that argument in his
supplemental brief and instead focuses on the arguments that his
trial counsel and appellate counsel were ineffective. The Court
therefore deems Petitioner’s claim regarding the admission of
his driver’s license photo abandoned.
4
13
for
failing
ineffective.
to
argue
that
Petitioner’s
(See Pet’r’s Br. at 3.)
trial
counsel
was
The Appellate Division
denied Petitioner’s application and also denied leave to appeal to
the New York Court of Appeals.
(See May 13, 2015 Decision & Order,
Docket Entry 34-4; July 22, 2015 Order, Docket Entry 34-5.)
On September 16, 2015, the Court granted Petitioner’s
request to amend his Petition to assert claims for ineffective
assistance of his trial counsel and ineffective assistance of
appellate counsel.
(Sept. 16, 2015 Minute Order, Docket Entry 33;
see also Pet’r’s Mot. to Amend, Docket Entry 25.)
In addition,
the Court directed Petitioner to file an amended Habeas Petition
setting forth his remaining arguments.
(See Sept. 16, 2015 Minute
Order.)
On November 2, 2015, Petitioner filed a supplemental
brief in further support of his Petition.
(Docket Entry 34.)
his
was
brief,
Petitioner
argues
that
he
denied
In
effective
assistance of both trial counsel and appellate counsel and asks
the Court to grant his Petition on one of these basis.
(Pet’r’s
Br., at i.)
DISCUSSION
I. Standards of Review
Under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), a federal court may grant a writ of habeas
corpus to a state prisoner when prior state adjudication of the
14
prisoner’s case “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.”
28 U.S.C. § 2254(d)(1).
A state-court decision is
contrary to clearly established federal law if it “applies a rule
that contradicts the governing law set forth in [Supreme Court]
cases, or if it confronts a set of facts that is materially
indistinguishable from a decision of [the Supreme] Court but
reaches a different result.”
Brown v. Payton, 544 U.S. 133, 141,
125 S. Ct. 1432, 1434, 161 L. Ed. 2d 334 (2005).
“A state-court
decision involves an unreasonable application of [the Supreme]
Court’s clearly established precedents if the state court applies
[them] to the facts in an objectively unreasonable manner.”
Id.
Clearly established federal law “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.”
Yarborough v. Alvarado, 541
U.S. 652, 660–61, 124 S. Ct. 2140, 2142, 158 L. Ed. 2d 938 (2004)
(internal quotation marks and citation omitted).
Thus, “[a]s a
condition for obtaining habeas corpus from a federal court, a state
prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing
law
beyond
any
possibility
for
15
fairminded
disagreement.”
Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 786-87, 178 L.
Ed. 2d 624 (2011).
Although
Section
2254
imposes
a
highly
deferential
standard of review, it does not require blind deference to every
state court decision.
Rather, “[i]f, after carefully weighing all
the reasons for accepting a state court’s judgment, a federal court
is
convinced
that
a
prisoner’s
custody
.
.
.
violates
Constitution, that independent judgment should prevail.”
the
Williams
v. Taylor, 529 U.S. 362, 389, 120 S. Ct. 1495, 1511, 146 L. Ed. 2d
389 (2000).
II.
Ineffective Assistance of Trial Counsel
Petitioner
first
argues
that
he
was
deprived
of
effective assistance of counsel when Petitioner’s trial counsel
failed to move to reopen a Wade hearing after SV gave testimony at
trial that contradicted testimony provided by police at the Wade
hearing.
(Pet’r’s Br. at 13.)
To prevail on a claim of ineffective assistance of
counsel, petitioner “must show both that his counsel acted ‘outside
the wide range of professionally competent assistance,’ and that
the deficiencies in his counsel’s performance were prejudicial to
his defense.” Jameson v. Coughlin, 22 F.3d 427, 429 (2d Cir. 1994)
(quoting Strickland v. Washington, 466 U.S. 668, 690, 691-92, 104
S. Ct. 2052, 2065, 2066-67, 80 L. Ed. 2d 674 (1984)). In evaluating
whether an attorney’s representation fell “below an objective
16
standard
of
reasonableness,”
a
court
must
“indulge
a
strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.”
89, 104 S. Ct. at 2064-65.
Strickland, 466 U.S. at 688-
“Counsel has a duty to make reasonable
investigations or make a reasonable decision that makes particular
investigations unnecessary.”
Id. 466 U.S. at 691, 104 S. Ct. at
2066.
The second prong of the Strickland test requires that
any deficiencies in counsel’s performance be prejudicial to the
defense.
See Strickland, 466 U.S. at 692, 104 S. Ct. at 2067.
While a finding of prejudice is not dependent upon a showing “that
counsel’s deficient conduct more likely than not altered the
outcome in the case,” the petitioner nevertheless must establish
“that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.”
Id. 466 U.S. at 693-94, 104 S. Ct. 2068.
“A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.”
Bunkley v. Meachum, 68 F.3d 1518,
1521 (2d Cir. 1995).
However, it is well established that counsel need not
raise every non-frivolous issue simply because a client suggests
it “if counsel, as a matter of professional judgment, decides not
to present those points.”
Jones v. Barnes, 463 U.S. 745, 751, 103
S. Ct. 3308, 3312, 77 L. Ed. 2d 987 (1983); see also Abdurrahman
17
v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990).
Further, there is
a strong presumption that counsel used “‘reasonable professional
assistance’” and conducted himself accordingly.
See Clark v.
Stinson, 214 F.3d 315, 321 (2d Cir. 2000) (quoting Strickland, 466
U.S.
at
689).
However,
“a
petitioner
may
establish
constitutionally inadequate performance if he shows that counsel
omitted significant and obvious issues while pursuing issues that
were clearly and significantly weaker.”
Mayo v. Henderson, 13
F.3d 528, 533 (2d Cir. 1994).
In this case, Petitioner claims he was deprived of
effective assistance of counsel when his trial counsel did not
move to reopen the Wade hearing after SV testified at trial that
she was told by the police, prior to viewing two lineups, that
“[t]here are going to be five men standing[,] [a]nd you are going
to have to pick one.”
(Pet’r’s Br. at 13.)
Specifically,
Petitioner claims that the detective’s instruction rendered the
lineups overly suggestive.
(Pet’r’s Br. at 13.)
Under N.Y. C.P.L § 710.40(4), the trial court has the
discretion to re-open a suppression hearing if the defendant
proffers new facts, which are pertinent to the suppression issue,
and
which
“could
not
have
[been]
discovered
with
diligence before the determination of the motion.”
reasonable
N.Y. C.P.L.
§ 710.40(4); People v. Velez, 39 A.D.3d 38, 42, 829 N.Y.S.2d 209,
212 (2d Dep’t 2007); People v. Clark, 88 N.Y.2d 552, 555, 670
18
N.E.2d 980, 981, 647 N.Y.S.2d 479 (N.Y. 1996) (The statute requires
that the new “facts asserted be ‘pertinent’ to the issue of
official suggestiveness such that they would materially affect or
have affected the earlier Wade determination.”)
In Velez, for
example, it was determined that the court should have re-opened a
suppression hearing when trial testimony regarding the sequence of
events leading to the defendant’s arrest ran contrary to testimony
provided by police at the suppression hearing.
at 44, 829 N.Y.S.2d at 213.
Velez, 39 A.D.3d
The Second Department found that
because the officers’ credibility was called into question, the
trial court should have revisited the suppression issue.
Id.
Here, just like in Velez, defense counsel could have
moved
to
reopen
inconsistent
the
account
suppression
of
the
hearing
instructions
based
SV’s
received
she
upon
from
Detective Brittelli at the suppression hearing.
Courts in New
York have held that trial testimony that contradicts the factual
account given by police at a suppression hearing provides grounds
to reopen the hearing under N.Y. C.P.L § 710.40(4).
See People v.
Villanova, 179 A.D.2d 381, 381, 578 N.Y.S.2d 151, 152 (1st Dep’t
1992)
(holding
that
the
trial
court
erred
in
denying
the
defendant’s request to reopen a Wade hearing when the complainant
and his friend testified, contrary to the police officer’s account,
that they were “escorted to the scene of the show-up by other
police officers in order to identify individuals who had been
19
apprehended.”)
Moreover, at least one court has explained that
“there is no discernable strategic justification for counsel’s
failure to move to reopen a Wade hearing.”
697 F. Supp. 2d 516, 542 (S.D.N.Y. 2010).
Maldonado v. Burge,
However, even if the
defense attorney’s decision not to reopen the Wade hearing in this
case based upon SV’s inconsistent testimony was unreasonable, such
a
determination
would
only
satisfy
the
first
prong
of
the
Strickland test.
In order to satisfy the second prong of the Strickland
analysis, Petitioner must present evidence that he was likely to
succeed at the suppression hearing and that “but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068;
Lynn v. Bliden, 443 F.3d 238 (2d Cir. 2006) (explaining that the
Second Circuit “has demanded some showing of the likelihood of
success at the [suppression] hearing.”); Sheard v. Conway, No. 09CV-3603, 2010 WL 9023189, at *7 (E.D.N.Y. July 19, 2010), report
and recommendation adopted, 2012 WL 5603343 (E.D.N.Y. Nov. 15,
2012) (denying a habeas petition brought on ineffective assistance
grounds because the petitioner made “no showing that had his
attorney moved to reopen the Wade hearing, the identification would
have been suppressed”).
In Saltys v. Adams, 465 F.2d 1023, 1027
(2d Cir. 1972), for example, the Second Circuit found that a
petitioner’s trial counsel was ineffective for failing to object
20
to a highly informal identification procedure.
There, only three
witnesses glimpsed the defendant’s face for ten to thirty seconds.
Id. at 1024.
Two of the witnesses subsequently picked out a
picture of a man “resembling” the robber after examining the spread
of
several
mugshots.
After
the
petitioner’s
photograph
was
identified, the two witnesses were led through a police “bullpen”
and both identified the petitioner as the robber.
Id. at 1025.
Holding that the petitioner was denied effective assistance of
counsel, the court found that the informal procedure employed by
police was overly suggestive.
Moreover, since the identification
was the only evidence connecting the petitioner with the crime,
counsel’s
failure
to
object
to
its
unreasonable and warranted a retrial.
admission
was
manifestly
Id. at 1028-29.
Unlike the slipshod identification procedure employed in
Saltys, however, Petitioner has not presented sufficient evidence
tending to show that the lineup undertaken in this case was overly
suggestive and thus should have been suppressed. The only evidence
indicating that the lineup was overly suggestive was SV’s trial
testimony regarding Brittelli’s statement during the lineup that
“you’re going to have to pick one”--indicating that a suspect was
in custody and was among the men she was going to view in the
lineup.
However, the New York Court of Appeals has held that “an
identification is not automatically contaminated by an officer’s
remark that a suspect is in custody.”
21
People v. Rodriguez, 64
N.Y.2d 738, 740, 475 N.E.2d 443, 445, 485 N.Y.S.2d 976 (1984); see
also People v. Adams, 53 N.Y.2d 241, 248, 423 N.E.2d 379, 382, 440
N.Y.S.2d 902 (N.Y. 1981) (finding that a showup identification was
unduly suggestive when “[t]he victims were shown only the suspects
in custody after apparently being informed that they were the
suspected robbers”); People v. Liggins, 159 A.D.2d 443, 444, 553
N.Y.S.2d 329, 329 (1st Dep’t 1990) (holding that a “lineup was not
unduly suggestive notwithstanding the comment by [the] officer
that they had a suspect in custody”). Moreover, the Second Circuit
has held that the existence of inconsistent statements alone is
not enough to show that a petitioner’s Wade argument would have
been meritorious.
See Lynn, 443 F.3d 238, 250 (2d Cir. 2006)
(Holding that, despite “inconsistent statements” made by a witness
about a photo array identification, “[t]here simply [was] no
evidence
in
the
Record
regarding
improper
police
conduct
pertaining to the out-of-court identification procedures.”).
Beyond Detective Brittelli’s contradictory statements
regarding the instructions he gave, there is a dearth of evidence
tending to show the lineup was not overly suggestive.
SV spent
several hours with the assailant, ample time to become familiar
with his facial features.
She then positively identified him in
a photo array and identified him again ten days later in two
lineups at the police station.
Thus, Petitioner has not shown
that his Wade argument would have been meritorious.
22
Petitioner’s
ineffective assistance of counsel argument at the trial level must
therefore be rejected.
III. Ineffective Assistance of Appellate Counsel
In the Second Department’s decision in Petitioner’s
direct appeal, the court noted that although appellate counsel
raised the issue that the evidence at trial was insufficient to
convict Petitioner, that issue was not preserved for appellate
review because trial counsel did not register an objection on that
ground.
Schouenborg, 42 A.D.3d at 473, 840 N.Y.S.2d at 808.
Nevertheless,
sufficiency
the
of
the
Second
Department
evidence
analyzed
and
argument
Petitioner’s
that
held
“[t]he
discrepancies in the complainant’s prior statements to a detective
and her trial testimony, and the inconsistencies between the
complainant’s testimony and that of the other witnesses were minor
and did not render her testimony incredible or unreliable as a
matter of law.”
Id.
Petitioner
now
claims
that
he
was
denied
effective
assistance of appellate counsel because appellate counsel did not
argue that trial counsel was ineffective for failing to raise the
argument that there was insufficient evidence presented to convict
Petitioner.5
(See Pet’r’s Br. at 21.)
This claim is now fully
In other words, Petitioner seeks to revisit the argument that
there was insufficient evidence to convict him, employing an
ineffective assistance of appellate counsel argument as a
5
23
exhausted following the submission of Petitioner’s unsuccessful
application for a writ of coram nobis and the denial of leave to
appeal issued by the New York Court of Appeals.
Just like claims for ineffective assistance of trial
counsel, ineffective assistance of appellate counsel claims are
evaluated using the same framework established by the Supreme Court
in Strickland.
See Mayo, 13 F.3d at 533 (citing Strickland, 466
U.S. at 688, 104 S. Ct. at 2064); Mabee v. Phillips, No. 05-CV4182, 2009 WL 3644077, at *5 (S.D.N.Y. Nov. 4, 2009).
Thus, to
prevail on a claim of ineffective assistance of appellate counsel,
the petitioner “must show both that his counsel acted ‘outside the
wide range of professionally competent assistance,’ and that the
deficiencies is his counsel’s performance were prejudicial to his
defense.”
Jameson, 22 F.3d at 429 (quoting Strickland, 466 U.S.
at 668, 104 S. Ct. at 2052).
To show “that appellate counsel’s
failure to raise a state claim constitutes deficient performance,
it is not sufficient for the habeas petitioner to show merely that
counsel omitted a nonfrivolous argument, for counsel does not have
a duty to advance every nonfrivolous argument that could be made.”
Mayo, 13 F.3d at 533.
Rather, a petitioner can only “establish
constitutionally inadequate performance if he shows that counsel
vehicle to bring the sufficiency of the evidence point before
this Court.
24
omitted significant and obvious issues while pursuing issues that
were clearly and significantly weaker.”
Id.
Petitioner’s appellate counsel advanced five separate
arguments in his direct appeal in this case, but neglected to
include the argument that trial counsel was ineffective.
In order
to show that appellate counsel was ineffective for failing to
include this argument, however, Petitioner must show that there is
a reasonable probability that his sufficiency of the evidence
argument ultimately would have been meritorious.
See Fore v.
Ercole, 594 F. Supp. 2d 281, 302-03 (E.D.N.Y. 2009).
second prong of the Strickland test.
This is the
Here, however, Petitioner
cannot show there was insufficient evidence presented at trial to
support a guilty verdict and thus cannot show that, if raised,
there was a reasonable probability that his appeal would have been
successful.
A.
Sufficiency of the Evidence Inquiry
“A challenge to the sufficiency of the evidence presents
the question ‘whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt.’”
Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002) (quoting
Jackson v. Virginia, 443 U.S. 307, 307, 99 S. Ct. 2781, 2783, 61
L. Ed. 2d 560 (1979) (emphasis in original).
Moreover, “[a]
defendant challenging a conviction on sufficiency grounds bears a
25
heavy burden” and “[t]he reviewing court must consider the evidence
in the light most favorable to the government, crediting every
inference
that
the
jury
might
have
drawn
in
favor
of
the
government.”
United States v. Hernandez, 85 F.3d 1023, 1030 (2d
Cir. 1996).
The Second Circuit’s decision in United States v.
Anglin is instructive.
In that case, the defendant was found
guilty of robbing a bank and the principal evidence establishing
the defendant’s guilt consisted of (1) an in-court identification
made by a bank teller and (2) circumstantial evidence corroborating
the identification.
59 (2d Cir. 1999).
United States v. Anglin, 169 F.3d 154, 156However, another bank teller who witnessed the
crime could not identify the defendant in court, despite previously
identifying him in a photo array.
Id. at 157.
The defendant
challenged the sufficiency of the evidence on appeal, arguing that
the bank teller who could not identify the defendant “had a better
opportunity to observe the robber’s face” and that there were
discrepancies in the descriptions given by the two bank tellers.
Id. at 159. Rejecting the defendant’s argument, the Second Circuit
explained
tellers’
that
although
descriptions
“the
. . .
discrepancies
furnished
between
defense
the
counsel
two
with
legitimate arguments,” those arguments were “customarily grist for
the jury mill.”
Id. (internal quotation marks and citation
omitted).
Thus,
the
substantial
likelihood
court
of
determined
irreparable
26
that
absent
“a
misidentification,”
very
the
jury’s verdict would not be disturbed.
grappling
with
the
sufficiency
Id. at 160.
of
Other courts
identification
evidence
presented to the jury have come to similar conclusions regarding
the court’s role in reviewing the jury’s determination.
See Pratt
v. Upstate Corr. Facility, 413 F. Supp. 2d 228, 238 (W.D.N.Y. 2006)
(holding
that
an
“eyewitness[’s]
testimony
alone”
may
be
sufficient to support a conviction); People v. Jennings, 120 A.D.2d
546,
501
N.Y.S.2d
responsibility
for
772
(1986)
resolving
(explaining
any
questions
that
“[t]he
relating
to
identification and the credibility of witnesses lies with the trier
of fact”); People v. Burroughs, 127 A.D.2d 843, 843, 511 N.Y.S.2d
947, 948 (2d Dep’t 1987) (finding that “[w]hile the testimony of
[ ]
eyewitnesses
contained
various
inconsistencies,
discrepancies were before the triers of fact”).
these
But see People v.
Wynn, 57 A.D.2d 937, 937, 395 N.Y.S.2d 33, 34 (2d Dep’t 1977)
(holding that “weak [in-court] identification evidence, coupled
with the fact that it took [the] complainant 20 minutes before she
could identify the defendant at [a] showup” was insufficient to
find the defendant guilty beyond a reasonable doubt”).
During Petitioner’s trial, the prosecution focused on
SV’s identification of Petitioner as her attacker along with
circumstantial evidence corroborating SV’s indemnification.
SV
spent several hours with Petitioner and was able to identify him
in a photo array, at two lineups, and in court.
27
In addition, the
circumstantial evidence corroborating SV’s identification of her
attacker consisted of: (1) SV’s testimony that the assailant’s
name was Paul and the fact that Petitioner’s middle name was Paul;
(2) SV’s testimony that the perpetrator told her he worked at “the
Merrick pizza something” and the fact that Petitioner worked at
Tomato & Basil Restaurant Pizzeria located on Merrick Road; (3)
the fact that fishing gear was found in Petitioner’s trunk and SV’
testimony that the perpetrator told her that he “was going to go
fishing”; (4) SV’s identification of a bag that was removed from
Petitioner’s
car
as
one
that
looked
similar
to
the
bag
the
assailant carried; (5) JP’s identification of Petitioner’s car as
the car he rode in with the assailant; and (6) JP’s testimony
regarding the perpetrator’s statement that he grew up in the Bronx
and Petitioner’s birth certificate showing that he was born in the
Bronx.
During the trial, there was also conflicting testimony
about
a
range
of
issues.
For
example,
there
was
differing
testimony about the directions that Detective Brittelli gave SV at
the
lineup,
whether
SV
and
JP
smoked
marijuana
with
the
perpetrator, and whether JP asked SV to come with him when he left
the perpetrator’s vehicle.
weighed
upon
SV’s
In addition, there was testimony that
credibility
identification of Petitioner.
and
the
reliability
of
her
For example, SV testified on cross-
examination that the name “Terrance” was the same name as “Paul”;
28
she testified that police told her that the perpetrator was
Italian, when she previously described him as Hispanic; and there
was testimony that JP could not identify Petitioner during a
lineup.
However, all of these issues were highlighted by the
attorneys
at
arguments.
trial
and
were
addressed
during
their
closing
“Federal habeas courts are not free to reassess fact[-
]specific credibility judgments by juries or to weigh conflicting
testimony.” Anderson v. Senkowski, No. 92-CV-1007, 1992 WL 225576,
at *3 (E.D.N.Y. Sept. 3, 1992), aff’d, 992 F.2d 320 (2d Cir. 1993).
Thus, the Court cannot draw its own conclusions about the weight
the jury gave these discrepancies and how the jury reconciled them
with the identification evidence and other circumstantial evidence
that implicated Petitioner in the crime.
Moreover, in light of
the fact that SV’s identification of Petitioner was corroborated
by a significant amount of circumstantial evidence, the Court
cannot conclude that there was “a very substantial likelihood of
irreparable
misidentification.”
Anglin,
169
F.3d
at
155.
Therefore, the Second Department’s decision rejecting Petitioner’s
ineffective assistance of appellate counsel argument did not run
contrary to clearly established federal law.
CONCLUSION
For the foregoing reasons, Petitioner’s motion to amend
(Docket Entry 34) is FOUND TO BE MOOT and Petitioner’s Habeas
Petition is DENIED.
In addition, since Petitioner has not made a
29
substantial
showing
of
the
denial
of
a
constitutional
right
pursuant to 28 U.S.C. § 2253, no certificate of appealability shall
issue.
The Clerk of the Court is directed to mark this case
CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated: June
23 , 2016
Central Islip, New York
30
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