Daly v. Lee et al
Filing
24
MEMORANDUM AND OPINION. For the reasons set forth herein, the Court concludes that petitioner has demonstrated no basis for habeas relief under 28 U.S.C. § 2254. Therefore, the petition for a writ of habeas corpus is denied in its entirety on th e merits. Because petitioner has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue. See 28 U.S.C. § 2253(c)(2). The Clerk of the Court shall enter judgment accordingly and close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/4/2014. Ordered by Judge Joseph F. Bianco on 4/4/2014. cm to pltf via fcm on 4/4/2014 (Chipev, George)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-3030 (JFB)
_____________________
JOHN DALY,
Petitioner,
VERSUS
WILLIAM LEE, SUPERINTENDENT GREEN HAVEN CORRECTIONAL FACILITY,
Respondent.
___________________
MEMORANDUM AND ORDER
April 4, 2014
_______________________
vacated. For the following reasons, the
Court denies the petition for writ of habeas
corpus in its entirety on the merits.
JOSEPH F. BIANCO, District Judge:
John P. Daly (“petitioner” or “Daly”)
petitions this Court for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254,
challenging his conviction entered on June
11, 2002 in the County Court of the State of
New York, County of Nassau, for six counts
of robbery in the first degree, N.Y. Penal
Law § 160.15(1)-(2); two counts of assault
in the first degree, id. § 120.10(1); and two
counts of attempted robbery in the first
degree, id. § 110 160.15(1)-(2). Petitioner
was sentenced to a term of imprisonment of
thirty-five years, which was subsequently
reduced to twenty-five years.
I.
A.
Factual Background
The Court has adduced the following
facts from the instant petition and
underlying record. This case concerns two
separate crimes that were tried together
against petitioner.
1.
OTB Robbery and Shooting
The first incident occurred on January
14, 2001, at the Off Track Betting (“OTB”)
in Farmingdale, New York, on Hempstead
Turnpike. (Tr.1 at 5). Throughout the
afternoon, several individuals observed a
“very suspicious” and “odd-looking” man in
the OTB. (Id. at 255-60, 265-67, 323-25,
349-50, 516-20.) The man was a White
male, about thirty to forty years old, with an
approximate height of six feet and weight of
Petitioner challenges his conviction on
the following grounds: (1) ineffective
assistance of counsel; and (2) his
constitutional rights were violated because
of “prejudicial spillover” when he was tried
simultaneously for two robberies, one at an
Off Track Betting parlor (“OTB”) in
Farmingdale, New York, and the other at a
Mobil gas station in Hempstead, New York,
where the OTB robbery conviction was later
BACKGROUND
1
1
“Tr.” refers to the transcript of petitioner’s trial.
window, Koscik ran into the back room and
screamed, “We’re being robbed. We’re
being robbed.” (Id. at 341-42.)
190 pounds. (Id. at 258, 324, 341, 349-50.)
He had a mustache and was wearing a blond
shoulder-length wig, dark baseball cap,
lightly tinted sunglasses, scarf, and large ski
jacket. (Id. at 258-59, 323-25, 340-41, 34951.)
The man approached Bragman’s window
and pointed his gun at her. (Id. at 518.)
Having just witnessed the man rob Koscik,
Bragman knew what he wanted and had her
money ready. (Id.) She placed about $2200
in his knapsack, and the man walked over to
Corrado’s window. (Id. at 519.) The man
then robbed Corrado in the same manner.
(Id. at 325-27, 519.)
At about 1:00 p.m., the OTB operations
manager, Glen Abraham (“Abraham”), took
special notice of the man because he was an
“odd-looking character.” (Id. at 349-52.)
Abraham watched him sporadically
throughout the day, observing that the man
wore his sunglasses most of the time while
checking the results and watching the races.
(Id. at 349-50.) Abraham later identified
petitioner as this man. (Id. at 359-62.)
Around 2:00 p.m., Peter Shank (“Shank”)
entered the OTB and began watching the
races on the televisions in the back of the
room. (Id. at 255-57.) After about five
minutes, Shank noticed the same man,
whom he described as “very suspicious,”
wearing sunglasses about three feet away
from him. (Id. at 257-60.) Shank began
watching the races and placing bets while
continuing to look over at the man, who
stood about twenty feet away and never left
the area where the results were posted. (Id.
at 260-61). Shank identified petitioner as
this man. (Id. at 264-65, 285-91.)
At about 4:00 p.m., Shank witnessed two
fearful-looking cashiers placing money in a
robber’s bag. (Id. at 265-66.) He deduced
that a robbery was in progress and ran
towards the robber, who was walking
toward the exit. (Id. at 267.) Shank tackled
the robber near the door and landed on top
of him. (Id. at 268-69.) As Shank stood and
went to pick the man up off the floor, he
heard a shot. (Id.) He felt a burning
sensation in his stomach, realized he had
been shot, and fell to the ground. (Id.) The
robber then ran out of an emergency exit
door. (Id. at 270.) Bragman called the police
after witnessing Shank tackle the man and
hearing a gunshot. (Id. at 520.) The police
arrived a few minutes later and began
securing the crime scene. (Id. at 358.) Shank
was airlifted to a hospital, where he
underwent surgery to repair his bulletdamaged liver. (Id. at 272-73.)
Around 4:20 p.m., the ninth race had just
closed and three cashiers—Catherine Koscik
(“Koscik”),
Georgeann
Bragman
(“Bragman”),
and
Carol
Corrado
(“Corrado”)—were working at different
windows. (Id. at 337-38, 513-15, 320-22.)
Abraham was in the back room doing
paperwork, and all of the customers were
watching the race. (Id. at 355, 338.) The
man approached Koscik’s window, pointed
a silver revolver at her face, and said, “Give
me your large bills.” (Id. at 338-40, 518.)
Koscik grabbed a pack of large bills and
threw it into the man’s knapsack. (Id. at
340.) When the man moved to Bragman’s
At around 7:15 p.m., Detective Patrick
Carroll (“Detective Carroll”) entered the
OTB and observed a pool of blood on the
floor, a bullet hole in a wood partition, and a
bullet lying on the floor. (Id. at 302-05.) The
bullet was a damaged lead fragment from a
revolver which was deformed from either
going through or hitting a hard object. (Id. at
311-12.) In the OTB parking lot, Detective
Carroll found a dark-colored baseball cap
with an Abercrombie and Fitch logo. (Id. at
2
On multiple visits to the Mobil, Ali had
observed petitioner driving a large white
pickup truck with blue lettering, and later
identified a photograph of the truck. (Id. at
437-38.)
310.) When presented with the baseball cap
in court, neither Shank nor Abraham could
positively identify the cap as the one worn
by the OTB robber. (Id. at 263, 351.)
2.
Mobil Station Attempted Robbery
and Shooting
Bharaj Sr. and Bharaj Jr. were sitting in
the office of the gas station when they heard
Ali scream. (Id. at 392, 484, 490.) They ran
out of the office and saw petitioner pushing
Ali through the gas station door. (Id. at 392,
484-86.) Ali was yelling, “Help, help, he’s
robbing me, help.” (Id. at 484.) Bharaj Sr.
immediately recognized petitioner as the
same customer who had visited the station
on multiple prior occasions. (Id. at 490.) On
the first occasion, two weeks prior to the
attempted robbery, Bharaj Sr. witnessed
petitioner arrive at the station driving a
white pickup truck with blue lettering and
New Jersey license plates. (Id. at 487-88.)
Petitioner attempted to use his company
credit card to pump gas for other customers
in exchange for their cash. (Id. at 487.) On
the second occasion, petitioner attempted to
use his credit card again to pay for gas but
the card would not work. (Id. at 488.) On the
third occasion, Bharaj Sr. saw petitioner
arrive at the station on a bicycle, which he
dropped in front of the door before entering
the sales area. (Id. at 489.) Petitioner was
hostile toward Bharaj Jr. as he bought
cigarettes and, at one point, petitioner
threatened to kill him. (Id. at 489-90, 39798.) Shortly after threatening Bharaj Jr.,
petitioner then left the gas station on his
bicycle. (Id. at 398.)
The second incident occurred on
February 26, 2001, at the Mobil Gas Station
at 710 Fulton Avenue in Hempstead. (Id. at
427-30.) At about 10:20 a.m., Liquat Ali
(“Ali”) was at work pumping gas while
Harbans Bharaj Sr., (“Bharaj Sr.”), the gas
station owner, and Harbans Bharaj Jr.
(“Bharaj Jr.”), his son, were counting money
inside the office. (Id. at 427-29, 390.) When
Ali opened the door to walk inside the
station, a man grabbed him by his shirt from
behind. (Id. at 429.) The man held a silver
revolver to Ali’s shoulder and demanded
that Ali go in the station and give him
“whatever was inside.” (Id. at 429-31.) The
man was of average size, about 5’9” or
5’10,” and had fair skin. (Id. at 392, 431.)
He was wearing a dark ski hat pulled over
his face with an opening that revealed his
eyes, nose and lips. (Id. at 431-32, 486, 39294.) He was also wearing a black and red
plaid shirt and cut-off gloves that revealed
his fingers. (Id. at 431, 486.) Ali identified
petitioner as this man. (Id. at 434-35.)
Ali had seen petitioner at the Mobil on
four or five different occasions about two
weeks before the incident. (Id. at 436-37.)
On two of these occasions, petitioner gave
Ali an Exxon credit card and told him to
swipe the card and give him $20 in cash
instead of pumping gas. (Id. at 437.) On
both of these occasions, petitioner never
received any money for his attempted
transactions because his credit card was not
approved. (Id.) On another occasion,
petitioner came to the gas station and asked
customers if he could use his credit card to
pay for their gas in exchange for cash. (Id.)
After leaving the office and seeing
petitioner and Ali in the sales area, Bharaj
Jr. panicked when he realized that a robbery
was in progress and threw a piece of Lshaped countertop at petitioner. (Id. at 392,
394-95, 417.) Petitioner then abandoned his
robbery plans and started running away
toward Cameron Avenue. (Id. at 392-93,
490-92.) Bharaj Sr. and Jr. began pursuing
3
At about 9:00 a.m., they parked by the house
in an unmarked vehicle. (Id. at 473-74.)
There was a white Nissan pickup truck with
blue writing on the sides parked in the
driveway. (Id. at 454, 474.) At about 10:10
a.m., a male tenant driving a red van pulled
up to the front of the residence and entered
the house. (Id. at 474-75.) The tenant was
not carrying anything. (Id. at 456, 475.)
petitioner. (Id. at 393, 435, 490-91.) As he
approached the corner of the gas station, he
turned to look toward the Bharajs and then
headed down Cameron Avenue. (Id. at 491.)
About fifty feet further, petitioner turned
around a second time. (Id.) Bharaj Sr. then
saw that petitioner was holding a gun and
screamed to warn his son, “Run, he’s got a
gun.” (Id. at 393, 491-92.) Bharaj Jr., who
was about ten feet away from petitioner, saw
a silver revolver in petitioner’s hand. (Id. at
400-01.) Petitioner then turned toward the
Bharajs and fired. (Id. at 400, 491-92.) The
bullet hit Bharaj Jr. in his finger, continued
into his abdomen, and became lodged near
his spine. (Id. at 402-05.)
At about 10:50 a.m., the detectives saw
petitioner pull into the driveway in a white
Nissan Pulsar. (Id. at 456-59.) Petitioner got
out of the car and was holding a small bag
against his waist. (Id. at 458-59.) When
petitioner entered the driveway, the tenant
exited the house and the two men spoke
briefly before going inside the house. (Id. at
458-60, 477.) At sometime between 11:15
a.m. and 11:50 a.m.,2 the tenant left the
house in a red van. (Id. at 461.) After that
time, no one other than petitioner entered or
exited the house. (Id. at 460, 562-63, 647.)
After firing his gun, petitioner proceeded
down Cameron Avenue and turned right
onto Devon Street. (Id. at 402-03.) At about
10:20 a.m., Clarence Jackson (“Jackson”), a
resident of Cameron Avenue, heard
gunshots from outside his home. (Id. at 70205.) He looked out the window and saw a
man in a red plaid jacket running across
Cameron Avenue. (Id. at 705-06.) He also
witnessed the man get into a small white car
on the corner of Devon Street and Cameron
Avenue and drive away. (Id.)
At about 1:00 p.m., Detectives Ragona
and Sorenson were relieved of their
surveillance duties by Detectives Edward
Byrnes (“Detective Byrnes”) and Thomas
Washington (“Detective Washington”), who
continued the surveillance. (Id. at 461, 47879, 559-60, 643-45.) Around 6:30 p.m.,
petitioner was arrested by members of the
Special Operations Unit. (Id. at 563-64.)
Detectives Ragona and Byrnes drove
petitioner to the Robbery Squad office. (Id.
at 564-65.)
Bharaj Sr. stopped chasing petitioner
when his son was shot and called 911 for
help. (Id. at 403, 492.) Bharaj Jr. was
transported to a hospital where he underwent
abdominal surgery. (Id. at 492-93, 403-05.)
He was hospitalized for four days and
returned to the hospital for a second surgery
to remove the bullet. (Id. at 405-06.)
3.
4.
At about 6:45 p.m., Detective Byrnes
placed petitioner in an interview room at the
Robbery Squad office, where they were
joined by Detective Washington. (Id. at 566-
Police Surveillance of Petitioner’s
House
On February 26, 2001, the morning of
the Mobil incident, Detectives Robert
Ragona (“Detective Ragona”) and Douglas
Sorenson (“Detective Sorenson”) were
conducting surveillance near petitioner’s
home in Levittown. (Id. at 451-52, 472-73.)
2
Detective Sorenson testified that the tenant left the
house at about 11:15 to 11:20 a.m. (Tr. at 461.)
Detective Ragona testified that the tenant left the
house at about 11:50 a.m. (Tr. at 478.)
4
Petitioner’s Statements to the Police
hole cut out of the face area. (Id. at 530-31,
547-48.) These two items were invoiced and
sent to SIB for further evaluation. (Id. at
548-49.) At trial, Bharaj Jr. identified the
jacket and hat recovered from petitioner’s
house as the same garments worn by the
man who shot him near the Mobil station.
(Id. at 407-08.)
68, 650.) After he was advised of his rights,
petitioner agreed to talk to the police and
stated, “I don’t need a lawyer. I didn’t do
anything.” (Id. at 568-69, 651.) Petitioner
authorized a search of his house by signing a
consent form. (Id. at 573, 653.) He denied
any involvement in or knowledge of the
Mobil incident, claiming that he had stayed
at a motel the night before until about 11:00
a.m. (Id. at 574, 653-54.) Detective Byrnes
noted several lies and inconsistencies in
petitioner’s statements concerning his
whereabouts the prior week, his activity on
the morning of the Mobil incident, and
whether he had ever been to the OTB. (Id. at
578-81, 655-56.) When the detectives
pointed out these inconsistencies, petitioner
indicated that he no longer wished to talk
and ended his interview. (Id. at 581, 657.)
5.
6.
On March 29, 2001, Abraham and Shank
independently identified petitioner as the
OTB robber from a lineup at the Nassau
County Police Department Robbery Squad.
(Id. at 359-62, 285-91.) Prior to viewing the
lineup, neither man discussed the case with
anyone else in the waiting area. (Id. at 360,
287-88.) After the identification, neither
man had any contact with the other
witnesses, who had not yet viewed the
lineup. (Id. at 362, 291-92.)
Incriminating Evidence Recovered
from Petitioner’s Home
Immediately after petitioner’s arrest,
Detectives Robert Hillman (“Detective
Hillman”)
and
Stephen
Kowalski
(“Detective Kowalski”) entered petitioner’s
home with the consent of his wife, Nancy
Daly. (Id. at 525, 544.) Mrs. Daly retrieved
two handguns from the bedroom and handed
them to the detectives along with their
carrying case. (Id. at 525-26, 543-45.) One
of the handguns was a .38 caliber silver
revolver. (Id. at 526, 545-46.) The detectives
brought the guns to the Robbery Squad
where they were invoiced for testing at the
Scientific Investigation Bureau (“SIB”)
Firearms Section. (Id. at 528, 546.)
7.
Petitioner’s Identification by the
Mobil Station Witnesses
On March 29, 2001, Bharaj Jr.3 and Ali
separately identified petitioner as the Mobil
station robber at the Robbery Squad. (Id. at
411-17, 441-43.) They did not discuss the
case with anyone else at any time prior or
subsequent to viewing the lineup. (Id. at
413-16, 440-43, 642-43.)
3
Petitioner argues that Bharaj Jr. did not indicate any
recognition of the Mobil robber as a familiar
customer until the “suggestive line-up procedures”
(Pet. Br. at 4), pointing to Bharaj Jr.’s testimony that
after the Mobil robber began running away, he and
his father “decided that, oh, maybe it’s some local
thug, so let’s, you know, let’s get him.” (Tr. at 400).
This assertion is not supported by the record, which
shows that the line-up procedures were not
suggestive and indicates that Bharaj Jr. recognized
petitioner as the robber when he testified that he saw
the robber’s face and said, “This is the same
customer. He’s been here a few times.” (Tr. at 490.)
The following morning at about 4:40
a.m., Hillman and Kowalski returned to
petitioner’s home to execute a search
warrant. (Id. at 529, 546.) During the search,
they recovered a red and black plaid flannel
jacket in an upstairs bedroom. (Id. at 529-30,
546-47.) The jacket was rolled into a ball
and inside of it was a blue ski hat with a
5
Petitioner’s Identification by the
OTB Witnesses
8.
Evidence Connecting Petitioner to
Both Crimes
parking lot. (Id. at 620-21.) There were four
human hairs in the hat, upon which Schiraldi
performed DNA testing. (Id. at 622, 62627.) The results of the DNA testing
indicated that these hairs from the
Abercrombie and Fitch baseball hat did not
originate from John Daly. (Id. at 628.)
On February 27, 2001, Detective Robert
Nemeth (“Detective Nemeth”) received the
two handguns, magazines and ammunition
given to the police by petitioner’s wife. (Id.
at 715.) He also received the .38 caliber lead
bullet recovered from the OTB on January
14, 2001. (Id. at 715-16.) Detective Nemeth
compared the “lands and grooves”4 of the
OTB bullet to the “lands and grooves” of
petitioner’s revolver. (Id. at 714, 720-21.)
He concluded that it was “probable,” but not
certain, that the bullet was fired from
petitioner’s revolver. (Id. at 721.)
10.
During the course of his investigation,
Detective Kowalski interviewed Kieran
Ryan (“Ryan”), who was 5’8” tall and
weighed 180 pounds. (Id. at 552-53.)
Kowalski had eliminated Ryan as a suspect
in the January 14, 2001 OTB robbery when
he learned that Ryan had been discharged
from a hospital on January 13, 2001 with his
right arm in a cast and sling. (Id. at 555-56.)
The date of the OTB robbery was January
14, 2001, and the OTB robber was never
described as wearing a cast or sling. (Tr. at
555-56, 258-59, 323-25, 340-41, 349-51.)
On March 15, 2001, Detective Nemeth
received the copper-jacketed bullet removed
from Bharaj Jr.’s body during surgery. (Id.
at 716-17.) He analyzed the “lands and
grooves” of this bullet and compared them
to bullets that were test-fired from
petitioner’s revolver. (Id. at 720-21.)
Nemeth concluded that, to a reasonable
degree of scientific certainty, the bullet
recovered from Bharaj Jr.’s body was fired
from petitioner’s revolver. (Id. at 722.)
9.
11.
Petitioner’s Case
Petitioner testified that, in early 2001, he
was 43 years old and lived in a house in
Levittown, New York with his wife, Nancy
Daly, and his friend, Jerry Rooney
(“Rooney”). (Id. at 728-29, 744.) He
admitted to using crack and cocaine, as well
as entering a rehabilitation program to save
his marriage. (Id. at 779-82.)
DNA Evidence
On March 6, 2001, Detective Vito
Schiraldi (“Detective Schiraldi”) from SIB
received the plaid flannel jacket and the ski
mask recovered from petitioner’s home. (Id.
at 617, 622-23). DNA testing on the ski
mask established that the mask contained
petitioner’s DNA. (Id. at 624-28, 696-97.)
Petitioner claimed that he weighed 215
pounds at the time of his trial and about 225
pounds at the time of his arrest. (Id. at 72930.) He also claimed that he had not
weighed 190 pounds since high school and
that he was 5’9” tall. (Id. at 730, 814.)
Petitioner denied telling the police and the
jail on January 27, 2001, that he weighed
about 190 pounds and was 5’10” tall. (Id. at
730, 769-70.) However, Detective Byrnes
testified that on February 26, 2001,
petitioner told him that he was 5’10” and
weighed 190 pounds. (Id. at 868-69.)
On March 1, 2001, Detective Schiraldi
received the dark Abercrombie and Fitch
baseball hat that was found in the OTB
4
“Lands and grooves” are rifling characteristics. As
explained by Detective Nemeth, “a rifling is a cutting
of a groove or several grooves in the barrel. It is cut
in order to impart a twist which stabilizes the bullet
in flight.” (Tr. at 714.)
6
Keiran Ryan
accept credit cards. (Id. at 788.) However,
that claim was proven false by a receipt
indicating that he used a credit card to check
in to the Courtesy Motel at 12:23 a.m. on
February 26, 2001. (Id. at 788-89.)
Corporal Keith Knight of the Nassau County
Correctional Center testified that all inmates
are measured for their height and weight
upon admission to the facility. (Id. at 84547.) On February 27, 2001, petitioner was
measured at 5’10” and 192 pounds, and this
information was recorded in the jail’s
computer system and is reproduced in
Respondent’s Exhibit 47. (Id. at 852.)
Petitioner testified that he left the hotel
the next morning and returned to his home at
7:00 a.m. (Id. at 761.) He claimed that he
took Rooney’s red van at 9:00 a.m. to
unload boiler equipment at K-Mart and then
returned to his house at 9:45 a.m. (Id. at
763-64.) Petitioner contended that Rooney
pulled up to his house in petitioner’s white
Pulsar around 10:00 a.m. and that he went
outside to speak to Rooney in the driveway.
(Id. at 764.) Petitioner claimed that he went
back into his house and remained there for
the rest of the day until the time of his arrest.
(Id. at 764-65.)
According to petitioner, on January 11,
2001, he was laid off from his job and he
fought with his wife about his
unemployment. (Id. at 737.) On January 13,
2001, he spent the night at his father’s house
and did not leave until after lunch the next
day—the day of the OTB robbery. (Id.)
Petitioner claimed that he went to Home
Depot in Hempstead at 2:00 p.m., went back
to his house, and then returned to Home
Depot again around 4:30 p.m. (Id. at 73738.) He produced two receipts from Home
Depot dated January 14, 2001, at 2:08 p.m.
and 4:43 p.m., in the amounts of $50 each.
(Id. at 740.) Petitioner testified that the only
time he had ever been to the Farmingdale
OTB was in November 2000. (Id. at 73637.) He also claimed that he was mistaken
when he told the detectives that he had been
to the OTB in January 2001. (Id. at 736.)
Petitioner denied any involvement in
both the OTB and Mobil incidents. (Id. at
765.) He admitted that he had been to the
Hempstead Mobil at least five or ten times
and that his credit card had been rejected
there on one occasion. (Id. at 754-55.) He
also recognized Ali. (Id. at 756.) Petitioner
admitted that he owned the gun that was
used to shoot Bharaj Jr. and that this gun
was kept in his bedroom closet. (Id. at 80607.) He also admitted that he owned gloves
with cut-out fingers and that the police
removed such gloves from his home while
executing a search warrant. (Id. at 807-10.)
He denied that he ever rode to the Mobil
station on a bicycle or bought cigarettes
there. (Id. at 755-56.)
Petitioner testified that on the night of
February 25, 2001, he stayed at the Courtesy
Motel in Hempstead. (Id. at 760.) He
claimed that he drove there in his company’s
white pickup truck. (Id. at 761.) He asserted
that he “w[as]n’t desperate for cash”
because he had recently received a
severance check for $4,300 from his former
employer. (Id. at 754, 787.) However, he
admitted to using a credit card that same
night to purchase a $100 gift card from
Home Depot and immediately making a 98
cent purchase solely to get the balance of the
gift card in cash. (Id. at 786-87.) Petitioner
claimed that he used the cash to pay for his
hotel room because the hotel would not
Petitioner admitted that he owned the
knit ski hat with the large hole cut out in the
front. (Id. at 744.) However, he claimed that
there had only been a small one-inch tear in
the hat that one of his dogs made. (Id. at
744-45.) He asserted that the hole, as it
appeared in court, was larger than that made
7
per week. (Id. at 832.) Nancy Daly’s
nephew, Todd Smith, testified that he had
been to petitioner’s home nearly every day
since February 26, 2001, and had never seen
Rooney at the house. (Id. at 838-40.)
by his dog and that he had never seen his hat
with such a large hole in it. (Id.)
Petitioner believed that Rooney robbed
the Mobil station. (Id. at 772-73.) He stated
that Rooney owned flannel shirts similar to
the red and black flannel shirt that the police
recovered from petitioner’s house. (Id. at
745.) Petitioner claimed that he does not
own any flannel shirts like the one that the
police recovered. (Id.) He stated that Rooney
had “free run” of the house and that he had
access to the upstairs bedroom where the
flannel shirt, knit hat and cut-off gloves
were found. (Id. at 747-48.) Petitioner also
stated that he never had any contact with
Rooney after his own arrest. (Id. at 815.)
B.
1.
a.
County Court Proceedings
Pre-trial Suppression Hearing
On December 10 and 11, 2001, a
combined Huntley, Mapp, and Wade hearing
was conducted before the Honorable Donald
DeRiggi in the Nassau County Court. (Resp.
Ex.5 64 at 1.) The hearing was held to
determine petitioner’s motion to suppress
his statements to the investigating
detectives, identification testimony and
physical evidence. (Resp. Ex. 62 at 2.) On
February 14, 2002, the County Court denied
the suppression motion in its entirety. (Id. at
20, Resp. Ex. 63 at A-1089.) The court held:
(1) petitioner’s wife voluntarily agreed to
turn over the guns to the police; (2) the
photo array shown to eyewitnesses was not
unduly suggestive; (3) the police had
probable cause to arrest petitioner; and (4)
petitioner knowingly, intelligently and
voluntarily waived his Miranda rights.
(Resp. Ex. 62 at 20-21, Resp. Ex. 63 at A1086-89.)
Petitioner claimed that he never told the
detectives that he checked out of the
Courtesy Motel at 11:00 a.m. (Id. at 79293.) He stated that the time at which he
checked out had never been discussed
during his interview. (Id. at 793.) He also
denied telling detectives that he took his
wife’s Pulsar out for a test drive. (Id. at
795.) During his interview with the
detectives, petitioner never once mentioned
Rooney or the fact that Rooney was driving
the Pulsar on the day of the Mobil incident.
(Id. at 795-98.) He claimed that he ended the
conversation with the detectives because he
believed that the written statement the police
asked him to sign was inaccurate. (Id. at
757-59.)
Petitioner’s counsel sought reargument,
which was denied. (Resp. Ex. 62 at 21.)
However, on June 3, 2002, the County Court
issued an amended decision. (Id. at 21,
Resp. Ex. 63 at A-1090-91.) The amended
decision was identical to the original
February 2002 decision, except it added a
ruling that “the lineup was conducted in a
manner which did not violate the
defendant’s constitutional right[s]. . . ”
because it was not suggestive and the police
Petitioner’s father, John Daly Sr. (“Daly
Sr.”), testified that his son asked him to cash
a $4300 severance check on February 17,
2001.
(Id.
at
830-31.)
Petitioner
accompanied his father to the bank, where
he cashed the check and gave petitioner
$2300. (Id. at 831.) Daly Sr. held the
remaining $2000 for petitioner’s wife. (Id. at
831-32.) Daly Sr. also stated that between
June 2000 and February 2001, petitioner
stayed at his father’s house several nights
5
“Resp. Ex.” refers to exhibits submitted with
respondent’s opposition to the habeas corpus petition.
8
Procedural History
did nothing to direct the witness’s attention
to petitioner. (Id.)
b.
Liotti remarked that Peace was “a legal
dinosaur, loose in the Jurassic Park of our
courtrooms . . . with flourishes of synergy
akin to a type of senile dementia.” (Id. at
¶ 11.) Liotti also asserted that “but for
[Peace’s] conduct, Mr. Daly would have
been found innocent of these charges.” (Id.
at ¶¶ 4.) Petitioner also included an affidavit
from Nancy Daly in support of the motion.
(Id. at 1.) Mrs. Daly opined on the many
ways she felt that Peace was ineffective,
including his refusal to do a writ for a bail
reduction, his decision to waive petitioner’s
speedy trial rights without his knowledge,
and his failure to ask for a subpoena for the
videotape of the OTB. (Id. at 1-2.)
Indictment and Conviction
On July 16, 2001, petitioner was indicted
for six counts of robbery in the first degree,
three in violation of N.Y. Penal Law
§ 160.15(1) and three in violation of Penal
Law § 160.15(2). (Resp. Ex. 1.) Petitioner
was also indicted for two counts of
attempted murder in the first degree, in
violation of N.Y. Penal Law § 110.00 of
125.27, Subdivision (1)(a)(vii); two counts
of assault in the first degree, in violation of
N.Y. Penal Law § 120.10(1); and two counts
of attempted robbery in the first degree, in
violation of N.Y. Penal Law § 110.00 of
160.15, Subdivisions 1 and 2. (Id.)
The People opposed, and Peace
submitted
an
affirmation
(“Peace’s
affirmation”) in which he detailed his entire
trial strategy. (Resp. Ex. 6.) He stated that
there was an abundance of communication
between him and petitioner, including at
least 39 visits at the jail, and “dozens” of
meetings with petitioner’s wife and father.
(Id. at ¶ 37.) Peace stated that that he did not
use the alibi witnesses because they would
conflict with the defense. (Id. at ¶ 29.) He
also stated that, in a post-verdict discussion
with the jurors, he was told that petitioner’s
own inconsistent testimony about his weight
led several jurors to find him guilty when
they were otherwise convinced of his
innocence. (Id. at ¶ 45.) Peace also stated
that Liotti’s insults were “vicious and
inappropriate” personal attacks and that
Liotti “makes suggestions which no honest
attorney would ever make.” (Id. at ¶¶ 5, 6.)
On June 11, 2002, the jury found
petitioner guilty of six counts of robbery in
the first degree,6 two counts of assault in the
first degree (one for each shooting victim),
and two counts of attempted robbery in the
first degree.7 (Tr. at 1059, 1073-74.)
Petitioner was found not guilty of the two
counts of attempted murder. (Id.)
c.
Motion to Set Aside the Verdict
Prior to sentencing, petitioner retained
new counsel, Thomas Liotti (“Liotti”), and
moved to set aside the verdict under N.Y.
C.P.L. § 330.30 on the ground that the trial
counsel, Ernest Peace (“Peace”), failed to
provide effective assistance of counsel.
(Resp. Ex. 2 at ¶¶ 1-14.) In his motion,
Liotti stated that he was “shocked and
appalled by Mr. Peace’s conduct” and that
Peace “exhibited an ineptitude in this case
that is literally unrivaled by any[thing] I
have previously reviewed.” (Id. at ¶¶ 3, 6.)
On November 15, 2002, the court denied
petitioner’s motion to set aside the verdict.
(Resp. Ex. 7.) The court found that
petitioner was “afforded meaningful
representation at his trial” and that Peace
presented petitioner’s defense in a “coherent
and consistent manner.” (Id. at 8.) The court
also noted that Liotti’s language was
6
The two counts of robbery, under different theories,
were charged for each of the three OTB cashiers.
7
The two counts of attempted robbery were charged
under different theories for the Mobil incident.
9
“inappropriate and abusive” and that his
conduct was “unacceptable.” (Id.)
d.
held that “defense counsel’s actions were
within the reasonable objective range of
performance and he provided the defendant
with meaningful representation.” (Id. at 9.)
Sentencing
On January 6, 2003, petitioner was
sentenced to concurrent determinate terms
of imprisonment of fifteen years on each
count of robbery in the first degree and on
one count of assault in the first degree. (S8 at
13.) The court also imposed concurrent
determinate terms of twenty years’
imprisonment for the remaining count of
assault in the first degree and the two counts
of attempted robbery in the first degree. (Id.)
The twenty-year terms were directed to run
consecutively to the fifteen-year terms. (Id.)
The total sentence amounted to a term of
thirty-five years. (Id.) On February 4, 2003,
the court, on its own motion, reduced the
term of imprisonment imposed on the
attempted first-degree robbery counts to
fifteen years. (Resp. Ex. 63 at A-1127.) In
all other respects, the sentence remained
unchanged. (Id.)
e.
f.
On July 21, 2004, petitioner appealed his
conviction to the Appellate Division, Second
Department. (Resp. Ex. 21.) He raised the
following claims: (1) trial counsel was
ineffective; (2) the evidence was legally
insufficient to establish guilt; (3) the trial
judge should have recused himself; (4) the
court failed to take into account petitioner’s
pre-sentence memorandum challenging the
findings and conclusions of the probation
department and did not afford petitioner a
hearing wherein he could contest hearsay
allegations in the report; and (5) petitioner’s
sentence was excessive. (Resp. Ex. 21.)
On July 18, 2005, the Appellate Division
issued an order reducing the determinate
terms of imprisonment imposed on each
count to twelve and one-half years of
imprisonment as a matter of discretion in the
interest of justice. People v. Daly, 20 A.D.3d
542 (N.Y. App. Div. 2005). The court
otherwise affirmed the conviction, holding
that “defendant was afforded effective
assistance of counsel. . . . The defense
counsel presented a coherent, cogent
defense.” Id. at 543. The court also held: (1)
the evidence was legally sufficient to
establish petitioner’s guilt; (2) the verdict
was supported by the weight of the
evidence; (3) the judge properly declined to
recuse himself; (4) the reduction of the
terms of imprisonment from thirty-five years
to twenty-five years was a more appropriate
sentence; and (5) the remaining contentions
were without merit. Id. at 543-44.
Petitioner’s First § 440.10 Motion
On September 23, 2003, petitioner
sought an order, pursuant to C.P.L.
§ 440.10, to vacate the judgment of
conviction on the following grounds: (1)
ineffective assistance of trial counsel; (2)
newly discovered evidence; and (3) the
prosecutor’s failure to provide testimony
concerning alleged Brady material. (Resp.
Ex. 13.) The Brady violation concerned a
baseball cap recovered from the OTB
parking lot that did not contain petitioner’s
DNA. (Id. at 7-8.) Petitioner also made note
of his continuing application for an order of
recusal for this motion. (Id. at 1.) On March
29, 2004, the County Court of Nassau
County (Brown, J.) denied petitioner’s
§ 440.10 motion. (Resp. Ex. 16.) The court
g.
8
Petitioner’s Second § 440.10 Motion
On December 19, 2005, petitioner
brought a second C.P.L. § 440.10 motion
“S” refers to petitioner’s sentencing hearing.
10
Appeal to the Appellate Division
Ex. 48.) Petitioner raised the following
claims: (1) the County Court, finding that
Brady and Rosario violations had occurred,
erred by not dismissing the charges or, at the
very least, directing that a new trial be held;
(2) the prosecution’s misconduct relating to
the withheld Brady and Rosario material
requires a dismissal or a new trial; and (3)
petitioner’s burden at the evidentiary
hearing did not extend to calling petitioner
or the adversarial and potentially hostile
former trial counsel. (Resp. Ex. 48 at ii.)
Petitioner also claimed that his conviction in
the Mobil station case should be reversed
because the Brady and Rosario violations in
the OTB case had a “prejudicial spillover
effect” due to the consolidation of the OTB
and Mobil cases. (Id. at 48-49.)
based upon the disclosure of documents that
petitioner had requested on April 2004 from
the Nassau County Police Department
pursuant to New York’s Freedom of
Information law (New York Public Officers
Law § 84, et seq.). (Resp. Ex. 33.) Petitioner
claimed he was denied a fair trial because
the People failed to turn over certain witness
statements to which he was entitled under
People v. Rosario, 9 N.Y.2d 286 (1961), or
Brady v. Maryland, 373 U.S. 83 (1963).
(Resp. Ex. 33 at 1.) These documents
consisted of, inter alia, witness statements
relating exclusively to the OTB incident,
including notes from a detective’s hospital
interview with Shank, the OTB shooting
victim, and a written statement from Terry
Rogers (“Rogers”), a witness who saw the
OTB perpetrator without his disguise in his
black Cougar. (Id. at 6-9.) Rogers did not
testify at the criminal trial and was not
called as a witness. (Id. at 3.) Both Shank
and Rogers described the OTB perpetrator
as a dark-looking Italian male in his 20s,
which was inconsistent with petitioner’s
appearance. (Id.) Petitioner believed that this
evidence would have exonerated him
because “this case was based solely on
identification.” (Id. at 1.) None of these
witnesses or their witness statements were in
any way related to the February 26, 2001
Mobil incident. (Resp. Ex. 50 at 26-36.)
On December 23, 2008, the Appellate
Division affirmed the County Court’s
decision denying the part of petitioner’s
motion seeking to vacate the judgment
relating to the Mobil station crimes. People
v. Daly, 57 A.D.3d 914, 914 (2d Dept.
2008). However, the Appellate Division
found that a Brady violation had occurred,
and granted petitioner a new trial on the
counts relating to the OTB crimes. Id. at
914. The court also rejected petitioner’s
argument that “there was a prejudicial
‘spillover effect’ which warrants reversal of
the convictions stemming from the Mobil
gas station robbery.” (Id. at 917.) The court
held that “the undisclosed material pertained
solely to the OTB robbery and the incidents
were not factually related.” (Id.)
On December 21, 2006, the court denied
petitioner’s second § 440.10 motion. (Resp.
Ex. 43.) The court concluded that the nondisclosure of certain evidence with which
the defense should have been provided did
not prejudice petitioner. (Id.) The court also
concluded that petitioner failed to establish
that his trial counsel was ineffective. (Id.)
h.
i.
On August 20, 2009, petitioner appealed
to the Court of Appeals, arguing that “the
People’s failure to turn over Brady and
Rosario material involving the OTB robbery
created a prejudicial spillover effect as to the
Mobil attempted robbery.” (Resp. Ex. 59.)
Appeal of the Second § 440.10
Decision
On February 1, 2008, appealed the
denial of his second § 440.10 motion. (Resp.
11
Appeal of the December 2008
Decision to the Court of Appeals
On May 4, 2010, the Court of Appeals
rejected petitioner’s arguments, holding that
there was “no reasonable possibility that the
Rosario and Brady violations had an impact
on defendant’s ability to defend against the
gas station counts or otherwise influenced
the verdicts on those counts.” People v.
Daly, 14 N.Y.3d 848, 850 (2010). Following
this decision, petitioner did not seek
certiorari review.
unreasonable application of, clearly
established
Federal
law,
as
determined by the Supreme Court of
the United States; or
The District Attorney’s Office opted to
not retry petitioner on the charges relating to
the OTB crimes, and those charges were
dismissed. (Resp. Br.9 at xxi.)
28 U.S.C. § 2254(d). “‘Clearly established
Federal law’” is comprised of “‘the
holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions as of the time of
the relevant state-court decision.’” Green v.
Travis, 414 F.3d 288, 296 (2d Cir. 2005)
(quoting Williams v. Taylor, 529 U.S. 362,
412 (2000)).
C.
(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.
The Instant Petition
Petitioner filed the instant habeas corpus
petition on April 28, 2011. Respondent
opposed on November 30, 2011. The Court
has fully considered the arguments and
submissions of the parties.
II.
A decision is “contrary to” clearly
established federal law, as determined by the
Supreme Court, “if the state court arrives at
a conclusion opposite to that reached by [the
Supreme Court] on a question of law” or “if
the state court decides a case differently than
[the Supreme Court] has on a set of
materially
indistinguishable
facts.”
Williams, 529 U.S. at 412-13. A decision is
an “unreasonable application” of clearly
established federal law if a state court
“identifies the correct governing legal
principle from [the Supreme Court’s]
decisions but unreasonably applies that
principle to the facts of [a] prisoner’s case.”
Id. at 413.
STANDARD OF REVIEW
To determine whether a petitioner is
entitled to a writ of habeas corpus, a federal
court must apply the standard of review set
forth in 28 U.S.C. § 2254, as amended by
the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), which provides, in
relevant part:
(d) An application for a writ of
habeas corpus on behalf of a person
in custody pursuant to the judgment
of a State court shall not be granted
with respect to any claim that was
adjudicated on the merits in State
court proceedings unless the
adjudication of the claim—
AEDPA establishes a deferential
standard of review: “‘a federal habeas court
may not issue the writ simply because that
court concludes in its independent judgment
that the relevant state-court decision applied
clearly established federal law erroneously
or incorrectly. Rather, that application must
also be unreasonable.’” Gilchrist v. O’Keefe,
260 F.3d 87, 93 (2d Cir. 2001) (quoting
Williams, 529 U.S. at 411). Additionally,
(1) resulted in a decision that was
contrary to, or involved an
9
“Resp. Br.” refers to respondent’s brief in
opposition to the petition for writ of habeas corpus.
12
while “‘[s]ome increment of incorrectness
beyond error is required . . . the increment
need not be great; otherwise, habeas relief
would be limited to state court decisions so
far off the mark as to suggest judicial
incompetence.’” Id. (quoting Francis S. v.
Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
Finally, “if the federal claim was not
adjudicated on the merits, ‘AEDPA
deference is not required, and conclusions of
law and mixed findings of fact . . . are
reviewed de novo.’” Dolphy v. Mantello,
552 F.3d 236, 238 (2d Cir. 2009) (quoting
Spears v. Greiner, 459 F.3d 200, 203 (2d
Cir. 2006)).
III.
critically at the facts by complimenting Judge
DeRiggi during petitioner’s case; (4) failed to attack
the testimony of Megan Clement and her company;
(5) waived petitioner’s speedy trial rights without
consent; (6) failed to inform petitioner about Terry
Rogers following the black Cougar getaway car from
the OTB robbery; (7) failed to emphasize the
elimination of the gun owned by petitioner as having
been used at the Mobil robbery; (8) engaged in a
screaming and yelling match with petitioner; (9)
voiced no objection to the Court in identification of
petitioner by Shank; (10) used street vernacular; (11)
presented his formal file to new counsel in poor
condition; (12) failed to effectively communicate
with petitioner and his family; (13) failed to visit the
OTB crime scene or obtained crime scene photos;
(14) failed to get bank statements to produce in
evidence; (15) failed to adequately use police reports
from the Hempstead Police and Ambulance crew that
arrived at the Mobil after the robbery; (16) failed to
have any plea discussions or offers regarding
petitioner’s cases; (17) failed to inquire about the
reliability of a confidential informant under the
Aguilar-Spinelli test; (18) failed to contest anything
related to identification; (19) failed to follow through
on the subpoena to secure petitioner’s Home Depot
receipts; (20) failed to adequately interview petitioner
or apprise him of the law related to his case; (21)
failed to effectively conduct direct and crossexamination; (22) discredited himself during his
summation by stating that Daly had never previously
been convicted; (23) failed to object to testimony
concerning material not found at the crime scenes to
show irrelevance; (24) failed to make a motion in
limine to prevent evidence of Daly’s drug usage from
being brought out; (25) failed to tell Daly about
Ryan; (26) failed to call Ryan as a witness or
subpoena the wigs from his car; (27) failed to submit
written requests to charge; and (28) failed to request a
missing witness charge. (See Pet. at 6 and Resp. Ex.
21 at 32-36, 60-93, 94-98.) The Court has reviewed
all of these claims and finds that trial counsel
provided petitioner with effective representation, and
there is no basis to conclude that counsel’s
performance fell below an objective standard of
reasonableness for any of the reasons articulated by
petitioner. In any event, even if trial counsel’s
performance was deficient, petitioner suffered no
prejudice as a result of any of these purported errors
by counsel because the evidence against him on the
Mobil robbery was overwhelming, and there is no
reasonable probability that, but for any of these (or
any other) purported errors by counsel the outcome
of the trial would have been different.
DISCUSSION
Petitioner has exhausted his claims in
state court. The Court thus addresses the
merits of his two claims for habeas relief.
A.
Ineffective Assistance of Trial
Counsel
Petitioner contends that he received
ineffective assistance of trial counsel
because his counsel failed to: (1) request a
hearing pursuant to People v. Darden, 34
N.Y.2d 177 (1974); (2) obtain an expert in
identification; (3) retain a ballistics expert;
(4) present alibi witnesses; (5) call Michael
Rose as a witness; (6) call character
witnesses; (7) permit petitioner to take a lie
detector test; (8) make certain objections to
the prosecutor’s direct examination of
Bharaj Jr.; (9) move for a reduction in bail;
(10) make a trial order of dismissal at the
end of all the evidence; and (11) object to
the portion of the judge’s instructions to the
jury concerning descriptions of the
perpetrator provided by witnesses.10 (See
10
Petitioner also claims that trial counsel: (1) was
distracted during the trial by his ill wife; (2)
gratuitously praised his adversary and the Nassau
County Police Department; (3) deprived the jurors of
an adversarial proceeding or the responsibility to look
13
Pet.11 at 6, Resp. Ex. 2112 at 32-36, 60-93,
94-98.) The Appellate Division concluded
that petitioner was not deprived of effective
assistance of counsel because trial counsel
presented a coherent and cogent defense.
People v. Daly, 20 A.D.3d at 543. As set
forth herein, the record as a whole
demonstrates that petitioner received
effective representation, and the Appellate
Division’s decision on that issue was neither
contrary to, nor based on an unreasonable
application of, clearly established federal
law. Therefore, the Court concludes that the
claim for habeas relief based on ineffective
assistance of counsel fails on the merits.
1.
(quoting Strickland, 466 U.S. at 690). The
performance
inquiry
examines
the
reasonableness of trial counsel’s actions
under all circumstances, keeping in mind
that a “fair assessment of attorney
performance requires that every effort be
made to eliminate the distorting effects of
hindsight.” Id. at 319 (quoting Rompilla v.
Beard, 545 U.S. 374, 408 (2005)) (internal
quotation marks omitted). In assessing
performance, a court must apply a “‘heavy
measure of deference to counsel’s
judgments.’” Id. at 319 (quoting Strickland,
466 U.S. at 691). “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),
and “‘strategic choices made after thorough
investigation of law and facts relevant to
plausible
options
are
virtually
unchallengeable,’” id. (quoting Strickland,
466 U.S. at 690). Moreover, “‘strategic
choices made after less than complete
investigation are reasonable precisely to the
extent
that
reasonable
professional
judgments support the limitations on
investigation.’” Id. at 588 (quoting
Strickland, 466 U.S. at 690-91).
Legal Standard
Under the standard promulgated in
Strickland v. Washington, 466 U.S. 668
(1984), a petitioner is required to
demonstrate two elements in order to state a
successful claim for ineffective assistance of
counsel: (1) “counsel’s representation fell
below
an
objective
standard
of
reasonableness,” id. at 688, and (2) “there is
a reasonable probability that, but for
counsel’s unprofessional errors, the result of
the proceeding would have been different,”
id. at 694.
The first prong requires a showing that
counsel’s performance was deficient.
However,
“[c]onstitutionally
effective
counsel embraces a ‘wide range of
professionally competent assistance,’ and
‘counsel is strongly presumed to have
rendered adequate assistance and made all
significant decisions in the exercise of
reasonable professional judgment.’” Greiner
v. Wells, 417 F.3d 305, 319 (2d Cir. 2005)
11
The second prong focuses on prejudice
to a petitioner. A petitioner is required to
show that there is “a reasonable probability
that, but for counsel’s unprofessional errors,
the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694.
“Reasonable probability” means that the
errors were of a magnitude such that it
“undermine[s] confidence in the outcome.”
Pavel v. Hollins, 261 F.3d 210, 216 (2d Cir.
2001) (quoting Strickland, 466 U.S. at 694).
“[T]he question to be asked in assessing the
prejudice from counsel’s errors . . . is
whether there is a reasonable probability
that, absent the errors, the factfinder would
have had a reasonable doubt respecting
“Pet.” refers to the petition for habeas corpus.
12
Petitioner does not present any new arguments in
support of his petition for habeas corpus. For his
ineffective assistance of counsel argument, he merely
refers to points 1, 4 and 5 his brief on direct appeal
which is reproduced in respondent’s Exhibit 21.
14
trial and made no attempts to conceal their
identities at any point during the course of
petitioner’s arrest or the trial proceedings.
Thus, because petitioner never had a legal
entitlement to a Darden hearing, he fails to
satisfy the first prong of Strickland.
guilt.” Henry v. Poole, 409 F.3d 48, 63-64
(2d Cir. 2005) (quoting Strickland, 466 U.S.
at 695). “‘An error by counsel, even if
professionally unreasonable, does not
warrant setting aside the judgment of a
criminal proceeding if the error had no
effect on the judgment.’” Lindstadt v.
Keane, 239 F.3d 191, 204 (2d Cir. 2001)
(quoting Strickland, 466 U.S. at 691).
Moreover, “[u]nlike the determination of
trial counsel’s performance under the first
prong of Strickland, the determination of
prejudice ‘may be made with the benefit of
hindsight.’” Hemstreet v. Greiner, 491 F.3d
84, 91 (2d Cir. 2007) (quoting Mayo v.
Henderson, 13 F.3d 528, 534 (2d Cir.
1994)).
b.
Petitioner asserts that trial counsel was
ineffective for failing to obtain an expert to
question or explain the identification
process. (Pet. at 6, Resp. Ex. 21 at 35.) This
assertion is unfounded because an expert on
identification would have been unnecessary.
Petitioner claims that counsel was “not
aware of changes in the law that allowed for
such testimony” from an expert in
identification. Petitioner cites People v. Lee,
96 N.Y.2d 157 (2001), a case decided the
same year as petitioner’s trial. In Lee, the
Court of Appeals held that expert testimony
on the issue of the reliability of eyewitness
identification “is not inadmissible per se”
and that “the decision whether to admit it
rests in the sound discretion of the trial
court.” 96 N.Y.2d at 160. Petitioner’s
interpretation of Lee as setting forth a
compulsory requirement for attorneys
distorts the nature of the court’s holding. Lee
does not mandate that attorneys must obtain
the services of an expert in identification in
every case involving identification issues in
order to avoid being deemed incompetent.
This Court proceeds to examine
petitioner’s claim, keeping in mind that
petitioner bears the burden of establishing
both deficient performance and prejudice.
United States v. Birkin, 366 F.3d 95, 100 (2d
Cir. 2004).
2.
a.
Application
Failure to Request a Darden Hearing
Petitioner alleges that trial counsel was
ineffective for failing to request a hearing
pursuant to People v. Darden, 34 N.Y.2d
177 (1974). This claim lacks merit because
there was no legal basis for a Darden
hearing. A Darden hearing is used to
challenge the actual existence and reliability
of any confidential informer who provided
information that served as the basis for
probable cause for a defendant’s arrest.
Darden, 34 N.Y.2d at 180. A defendant is
entitled to such a hearing only when
information is provided by a confidential
informant. Id. at 179-82. Here, petitioner’s
arrest was based on his identification as the
perpetrator of the OTB and Mobil crimes by
Shank and Bharaj Jr., who were not
confidential informants. (Resp. Ex. 62 at 221.) Shank and Bharaj Jr. both testified at
Peace
presented
a
claim
of
misidentification without the use of an
expert in identification. He determined that
Lee would not have been advantageous
because expert testimony would have been
repetitive. (Resp. Ex. 6 at 5.) He also
believed that “jurors are turned off by most
so-called expert witnesses” and felt that
using an expert would have been an added
distraction because there was ample other
evidence
available
to
attack
the
15
Failure to Call an Identification
Expert
that further testing would have produced any
helpful evidence for the defense. Therefore,
petitioner has not demonstrated that
counsel’s representation fell below an
objective standard of reasonableness.
identification
testimony.
(Id.)
This
conclusion was not unreasonable. Therefore,
the Court concludes that petitioner fails to
show deficient performance.
c.
Failure to Retain a Ballistics Expert
d.
Petitioner argues that trial counsel’s
failure to retain a ballistics expert rendered
him ineffective. (Pet. at 6, Ex. 21 at 75-76.)
Counsel’s strategic choice to not retain a
ballistics expert, however, was objectively
reasonable.
According
to
Peace’s
affirmation, he considered using a ballistics
expert. (Resp. Ex. 6 at 3.) He submitted the
People’s ballistics report to an independent
ballistics expert, obtained his opinion, and
declined to pursue this strategy. (Id.) The
expert would not have been able to make the
positive statement that the gun used in the
Mobil robbery was not the gun recovered
from petitioner’s home. (Id.) Therefore,
counsel saw no use for the expert’s
testimony, stating that it would only have
distracted the jury from petitioner’s specific
defenses. (Id.)
Petitioner contends that trial counsel was
ineffective for failing to present alibi
witnesses. (Pet. at 6, Ex. 21 at 34, 83.) This
claim fails, as counsel’s actions were
objectively reasonable.
The decision to call, or not call, a
witness is a classic example of strategy.
With respect to alibi witnesses, courts have
found that “even if . . . alibi evidence did
exist, the trial attorney’s decision not to call
the purported alibi witnesses was a
reasonable tactical decision” that does not
constitute deficient performance. Dupont v.
United States, 224 F. App’x 80, 81 (2d Cir.
2007); see also Perkins v. Comm'r of Corr.
Servs., 218 F. App’x 24, 26 (2d Cir. 2007)
(finding valid “strategic reasons” for failure
to call alibi witnesses).
An attorney’s duty to investigate is
limited
to
“mak[ing]
reasonable
investigations or to mak[ing] a reasonable
decision that makes particular investigations
unnecessary.” Strickland, 466 U.S. at 691.
“[A] particular decision not to investigate
must be directly assessed for reasonableness
in all the circumstances, applying a heavy
measure of deference to counsel’s
judgments.” Id. Here, the ballistics expert
retained by the defense would not have been
able to state that the People’s expert was
wrong and could not have provided further
opinions without performing tests on the
guns himself. (Resp. Ex. 6 at 3.) Counsel
also reasonably concluded that further
testing would have been unnecessary
because the defense’s theory of the case was
that Rooney used petitioner’s gun to commit
the crimes. (Id.) Moreover, there is no proof
Petitioner argues that there were three
eyewitnesses who saw petitioner at his home
on February 26, 2001, and should have been
called as alibi witnesses. (Resp. Ex. 21 at
83.) However, counsel made a strategic
decision to not call alibi witnesses because
he determined that these witnesses would
have added nothing to the defense. (Resp.
Ex. 6 at 9.) The witnesses, who were friends
and neighbors of petitioner’s family, all
stated that at the time they saw petitioner,
they also saw Rooney with him. (Id.) Thus,
counsel concluded that it would be futile to
call a witness who would be an alibi for the
man whom the defense believed actually
committed the crime charged to petitioner.
(Id.) Furthermore, the testimony of these
alibi witnesses could have been damaging to
the defense because it conflicted with the
testimony of the detectives who were
16
Failure to Present Alibi Witnesses
watching petitioner’s house on February 26,
2001, as well as petitioner’s own testimony.
The statements of Eleanor Cappiello and
Ken Johnson indicated that they both saw
petitioner and Rooney outside petitioner’s
home on February 26, 2001 around 10:20
a.m. (Resp. Ex. 23 at A76-79, A82-83.)
These statements are contradictory to the
petitioner’s testimony that he spoke with
Rooney in his driveway around 10:00 a.m.
and then returned inside his house until the
time of his arrest. (Tr. at 764-65.) Because
the
alibi
witness
testimony
was
contradictory and may have undermined the
defense theory that Rooney committed these
crimes, it was reasonable for counsel to
decline to call the alibi witnesses.
particular witness is typically a question of
trial strategy that [reviewing] courts are illsuited to second-guess.’” Greiner v. Wells,
417 F.3d 305, 323 (2d Cir. 2005) (quoting
United States v. Luciano, 158 F.3d 655, 660
(2d Cir. 1998)); see also Eze v. Senkowski,
321 F.3d 110, 129 (2d Cir. 2003) (“A
defense counsel’s decision not to call a
particular witness usually falls under the
realm of trial strategy that we are reluctant
to disturb.”). In fact, depending on the
circumstances, even counsel’s decision not
to call witnesses “that might offer
exculpatory evidence . . . is ordinarily not
viewed as a lapse in professional
representation.” United States v. Best, 219
F.3d 192, 201 (2d Cir. 2000).
Therefore, petitioner has not satisfied the
first prong of Strickland because counsel’s
determination to not call alibi witnesses is
not objectively unreasonable. The decision
to choose one consistent defense is the kind
of strategic decision entrusted to counsel.
According to Rose, he saw a chase and
heard a shot, but the shooter’s back was to
him so he would not be able to identify the
shooter. (Resp. Ex. 23 at A80-81.)
According to Peace, this description of
Rose’s observations of the perpetrator was
nearly identical to those given by other
eyewitnesses to the shooting. (Resp. Ex. 6 at
7.) Counsel deduced that Rose would be
unable to offer anything additional to the
defense that other witnesses could not
provide. (Id.) Moreover, petitioner indicated
that Rose’s testimony would have
contradicted the testimony of the Bharajs
because Rose did not witness a struggle
between the shooter and the victim. (Resp.
Ex. 21 at 83.) However, the Bharajs never
testified that there was any struggle between
themselves and the shooter. (Tr. at 386-425,
481-506.) Counsel’s decision to not call
Rose as a witness thus was objectively
reasonable because Rose’s testimony would
not have advanced the defense in any
significant way. The inclusion of Rose as a
witness may have actually been harmful to
petitioner’s case. Thus, petitioner failed to
satisfy the first prong of Strickland.
e.
Failure to Call Michael Rose as a
Witness
Petitioner asserts that trial counsel was
ineffective for failing to call Michael Rose
(“Rose”) as a witness. (Pet. at 6, Ex. 21 at
83.) Rose lives adjacent to the Mobile Gas
Station. (Resp. Ex. 23 at A80.) Petitioner
asserts that “these omissions by [counsel]
caused John Daly to be wrongfully
convicted” because Rose would have
testified that “he had a clear view of the gas
station from his window; that he was
looking out of his window during the
robbery; that there was no struggle; and that
he was unable to identify the assailant since
he was wearing a mask that covered his
face.” (Resp. Ex. 21 at 83.)
“Courts
applying
Strickland
are
especially deferential to defense attorneys’
decisions concerning which witnesses to put
before the jury. . . ‘The decision not to call a
f.
17
Failure to Call Character Witnesses
statement is consistent with New York law.
E.g., People v. De Lorenzo, 45 A.D.3d 1402,
1403 (N.Y. App. Div. 2007) (“It is well
established that ‘the reliability of the
polygraph has not been demonstrated with
sufficient certainty’ for the results of such
tests to be admissible in evidence.” (quoting
People v. Shedrick, 66 N.Y.2d 1015, 1018
(1985) and citing cases); see also United
States v. Ruggiero, 100 F.3d 284, 292 (2d
Cir. 1996) (confirming that lie-detector tests
are generally not admissible in federal court
because of their questionable accuracy).
Further, petitioner’s assumption that the
results of the test would be favorable and
that these results could have led to a more
favorable verdict was merely speculation.
Despite petitioner’s claim that counsel’s
actions were “incomprehensible,” counsel’s
decision to tell petitioner not to take a lie
detector test was legally sound advice.
Therefore, petitioner’s claim fails because it
does not satisfy the first prong of Strickland.
Petitioner claims that trial counsel was
ineffective for failing to call character
witnesses. (Pet. at 6, Ex. 21 at 85.) The
Court disagrees. As stated supra, a defense
attorney’s decision to call or not call
witnesses is a recognized component of trial
strategy to which courts give great
deference. Here, counsel acted reasonably in
declining to call character witnesses because
it would have been a risky tactic. (Resp. Ex.
6 at 2.) Peace deduced that, on crossexamination, such witnesses would reveal
uncharged robberies committed by petitioner
as well as petitioner’s history of drug abuse.
(Id.) This information could have devastated
the defense and counsel determined that the
potential harm of putting on character
witnesses would have outweighed any
possible benefit. (Id.) Thus, the decision not
to call character witnesses stemmed from a
desire to avoid any negative impact resulting
from information about petitioner’s past that
would be revealed to the jury by the
witnesses, and may be characterized as
“sound trial strategy.” Strickland, 466 U.S.
at 689-90. Therefore, petitioner’s claim fails
because the decision to not call character
witnesses was objectively reasonable.
g.
h.
Petitioner asserts that trial counsel was
ineffective because he failed to make certain
objections to the prosecutor’s direct
examination of Bharaj Jr. (Pet. at 6, Ex. 21
at 68.) This claim is unfounded because such
objections would have been unnecessary.
Failure to Permit Petitioner to Take a
Lie Detector Test
Petitioner claims that he was denied
effective assistance of trial counsel because
counsel would not permit petitioner to take a
lie detector test. (Pet. at 6, Ex. 21 at 60-61.)
The Court disagrees. Petitioner claims that
he repeatedly asked counsel for a lie
detector test to use the results for plea
discussions and to boost his confidence
during the trial. (Resp. Ex. 6 at 6, Resp. Ex.
21 at 61.) However, counsel stated that
petitioner asked about a lie detector test on
only one occasion and counsel informed him
that the results would be useless because
they would not aid in plea discussions and
were inadmissible at trial. (Id.) Counsel’s
In particular, “[a]ctions or omissions by
counsel that ‘might be considered sound trial
strategy’ do not constitute ineffective
assistance.” Best, 219 F.3d at 201 (quoting
Strickland, 466 U.S. at 689); see also Lynn
v. Bliden, 443 F.3d 238, 247 (2d Cir. 2006)
(“As a general rule, a habeas petitioner will
be able to demonstrate that trial counsel’s
decisions were objectively unreasonable
only if there [was] no . . . tactical
justification for the course taken.”) (citation
and quotation marks omitted). For that
reason, “[s]trategic choices made by counsel
18
Failure to Make Certain Objections
to the Direct Examination of Bharaj Jr.
However, this claim is completely meritless
because trial counsel sought a reduction of
bail on September 27, 2001, although that
motion was denied. (Resp. Ex. 65.)
after thorough investigation . . . are virtually
unchallengeable . . . and there is a strong
presumption that counsel's performance falls
‘within the wide range of reasonable
professional assistance.’” Gersten v.
Senkowski, 426 F.3d 588, 607 (2d Cir. 2005)
(quoting Strickland, 466 U.S. at 689-90); see
also Pavel v. Hollins, 261 F.3d 210, 2l6 (2d
Cir. 2001) (explaining that representation is
deficient only if, “in light of all the
circumstances, the identified acts or
omissions were outside the wide range of
professionally
competent
assistance”)
(emphasis in original) (citation and
quotation marks omitted).
j.
Failure to Make a Trial Order of
Dismissal at the End of All the Evidence
Petitioner claims that counsel was
ineffective because he failed to make a trial
order of dismissal at the end of all the
evidence. (Pet. at 6, Ex. 21 at 69.) As set
forth below, this claim is without merit.
Petitioner claims that counsel “retreated”
in the presence of the jury when counsel
stated, “A motion to dismiss because of the
evidence taken in the light most favorable to
the People could not result in a conviction
would be absurd. I don’t make absurd
motions. This is a triable case to the jury.”
(Resp. Ex. 21 at 69, Tr. at 871.) Petitioner
also accused counsel of acting as an agent
for the prosecution, rather than an advocate
for his client. (Id.) However, petitioner’s
accusation that counsel made this statement
in front of the jury is false. The record
clearly states that the “discussion was held
at the bench off the record” and, therefore,
was never heard by the jury. (Tr. at 871.)
Petitioner claims that counsel should
have objected when the prosecutor asked
Bharaj Jr., “Did you see where the defendant
went after you went to the ground?” (Resp.
Ex. 21 at 68, Tr. at 402.) However, it was
proper for the prosecutor to refer to
petitioner as “defendant,” rather than “the
shooter,” because the witness had already
identified petitioner as the perpetrator. (Tr.
at 396-97.) Petitioner also complains that
counsel failed to object when Bharaj Jr.
testified about his surgery and recovery from
the shooting at the Mobil station. (Resp. Ex.
21 at 68, Tr. at 404-07.) However, counsel
contended that no objection could have been
made to this testimony since there was a
charge of attempted murder and a charge of
first degree assault which would have
permitted such testimony regarding the
extent of the injury suffered by Bharaj Jr.
(Resp. Ex. 6 at 6.) Counsel’s failure to
object to Bharaj Jr.’s testimony was
reasonable and petitioner’s claim is
therefore groundless.
i.
Moreover, counsel’s conclusion that a
trial order of dismissal would be absurd was
reasonable given the legal standard requiring
that the evidence be considered in the light
most favorable to the prosecution. (Tr. at
871.) Attorneys are not required to make
meritless motions. See Buitrago v. Scully,
705 F. Supp. 952, 954 (S.D.N.Y. 1989).
Thus, decisions to forego meritless motions
cannot be grounds for claims of ineffective
assistance of counsel. Here, such a motion
would likely have been meritless because of
the
overwhelming
evidence
against
petitioner. Counsel recognized this lack of
merit, as he stated, “I will never make a
motion for a trial order of dismissal that I
know to be frivolous. I will never argue
Failure to Move for a Reduction in
Bail
Petitioner argues that trial counsel was
ineffective for failing to move for a
reduction in bail. (Pet. at 6, Ex. 21 at 61)
19
Court finds that, assuming arguendo that
counsel’s performance was deficient,
counsel’s failure to object to the instruction
did not result in prejudice to petitioner.
Immediately after giving the instruction at
issue, the Court clearly instructed the jury to
consider the descriptions given to the police
shortly after the crime and compare them to
the physical appearance of petitioner to
determine whether the witnesses had “the
opportunity or mental capacity to reason at
the time and to remember the physical
features and other characteristics of the
perpetrator.” (Tr. at 1000-01.) This
additional instruction was intended to avoid
prejudice to petitioner because it allowed the
jury to consider the defense theory that the
identification testimony was not credible
due to inconsistencies between the
witnesses’ descriptions and petitioner’s
actual appearance. Thus, petitioner failed to
demonstrate that counsel’s failure to object
to the instruction was unreasonable, or that
he was prejudiced by the alleged error.
when I know there is no merit to my
argument.” (Resp. Ex. 6 at 3.) In short,
petitioner has not satisfied the first prong of
Strickland because he is unable to
demonstrate that counsel’s performance fell
below an objective level of reasonableness.
k.
Failure to Object to the Judge’s
Instructions to the Jury Concerning
Descriptions of the Perpetrator Provided by
Witnesses
Petitioner argues that trial counsel was
ineffective for failing to object to the portion
of the judge’s instructions to the jury
concerning descriptions of the perpetrator
provided by witnesses. (Pet. at 6, Ex. 21 at
94-96.) Petitioner’s claim fails because such
an objection would have been without merit.
The judge instructed the jury, “You will
also recall that the descriptions of the
perpetrator were given to the police shortly
after the commission of the crimes. You
may not consider such evidence in deciding
whether the right man or wrong man is on
trial in this case.” (Tr. at 1000.) This
instruction is not objectionable under New
York law, under which testimony
concerning descriptions given out of court is
hearsay and is not admissible to establish the
truth of what was stated. See People v.
Huertas, 75 N.Y.2d 487, 491-93 (1990).
This type of evidence can only be admitted
for “nonhearsay purpose[s]” such as
“assist[ing] the jury in evaluating the
witness’s opportunity to observe at the time
of the crime, and the reliability of her
memory at the time of the corporeal
identification.” People v. Huertas, 75
N.Y.2d at 493; accord People v. Wilder, 93
N.Y.2d 352, 357 (1999). Thus, counsel
cannot be criticized for failing to object to
the instruction because the instruction was
consistent with prevailing state law.
l.
Even assuming arguendo that counsel’s
performance was deficient in any of the
above respects, the Court concludes that
none of these failures, alone or in concert,
resulted in prejudice to petitioner. “In
evaluating the prejudice suffered by a
petitioner as a result of counsel’s deficient
performance, the court looks to the
‘cumulative weight of error’ in order to
determine whether the prejudice ‘reache[s]
the constitutional threshold.’” Somerville v.
Conway, 281 F. Supp. 2d 515, 519
(E.D.N.Y 2003) (quoting Lindstadt v.
Keane, 239 F.3d 191, 202 (2d Cir. 2001)).
“The defendant must show that there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different.”
Strickland, 466 U.S. at 694. Given the
record detailed supra, there is no reasonable
Although petitioner failed to show that
counsel’s actions were unreasonable, the
20
Prejudice to Petitioner
Station crimes, and that this warrants habeas
relief. (See Pet. at 6,13 Resp. Ex. 48.)
probability that petitioner would have been
acquitted but for these failures. The
evidence establishing petitioner’s guilt as to
the Mobile Gas Station incident is
overwhelming. Further, trial counsel
pursued
a
sound
strategy
of
misidentification, focusing on Rooney.
Petitioner’s contention that he would not
have been convicted is speculative at best
and fails to satisfy the second prong of
Strickland.
As a threshold matter, a petitioner is
entitled to a writ of habeas corpus only when
the state court’s adjudication of the claim
“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)
(emphasis added). There is no specific
Supreme Court authority with respect to
“spillover” prejudice when a criminal count
has been dismissed at trial or reversed on
appeal. In fact, the Supreme Court recently
was presented with the opportunity to rule
on a prejudicial spillover claim, but did not
need to address it. See Black v. United
States, 130 S. Ct. 2963, 2970 n.14 (2010)
(“Black contends that spillover prejudice
from evidence introduced on the mail-fraud
counts requires reversal of his obstructionof-justice conviction. . . That question, too,
is one on which we express no opinion.”).
Therefore, some courts have held that “it
would be impossible for this Court to
determine that” a prejudicial spillover claim
implicates “clearly established federal law”
and thus, a prejudicial spillover claim cannot
be a ground for habeas relief. See Couser v.
Zon, No. 05-CV-1040, 2008 WL 2440709,
at *6 (N.D.N.Y. June 17, 2008); see also
Woods v. Lempke, No. 08CV144, 2008 WL
5157286, at *3 (W.D.N.Y. Dec. 8, 2008)
(“Petitioner fails to provide any established
federal law as determined by the Supreme
Court that acknowledged a claim of
‘spillover’ effect a reversed conviction on
one count having on other counts of
conviction.”).
In sum, the Court finds that petitioner
has failed to show that any aspect of his trial
counsel’s performance, individually or
collectively, fell “outside the wide range of
professionally competent assistance” or that
“there is a reasonable probability that, but
for counsel’s unprofessional errors, the
result of the proceeding would have been
different.” Strickland, 466 U.S. at 690.
Given the record in this case, the Court
concludes that the state court’s decision to
deny petitioner’s ineffective assistance claim
under Strickland did not “involve[] 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). Nor did it involve “an
unreasonable determination of the facts in
the light of the evidence presented in the
State court proceeding.” 28 U.S.C. §
2254(d)(2). Therefore, the Court rejects
petitioner’s claim of habeas relief based on
ineffective assistance of counsel.
B.
Prejudicial Spillover
Petitioner claims that the Brady violation
associated with the January 2001 OTB
robbery had a prejudicial spillover effect on
the jointly tried February 2001 Mobil Gas
13
Petitioner does not make new arguments for his
prejudicial spillover claim and instead refers to his
brief on appeal from the second § 440.10 decision.
21
murder
was
distinct
and
easily
compartmentalized, the risk of jury
confusion at petitioner’s trial was
significantly limited.”); see also Jelinek v.
Costello, 247 F. Supp. 2d 212, 276-77
(E.D.N.Y. 2003) (citing United States v.
Morales, 185 F.3d 74, 82 (2d Cir. 1999))
(applying Second Circuit procedure for
assessing prejudicial spillover claim).14
Thus, it appears that the Second Circuit has
implicitly concluded that, because the
prejudicial spillover rule is clearly
established in a set of facts involving
joinder, see, e.g., Zafiro v. United States,
506 U.S. 534 (1993); United States v. Lane,
474 U.S. 438 (1986), it also is clearly
established in the context of a set of facts
involving retroactive misjoinder. Accord
Panetti v. Quarterman, 551 U.S. 930 (2007)
(“AEDPA does not require state and federal
courts to wait for some nearly identical
factual pattern before a legal rule must be
applied. Nor does AEDPA prohibit a federal
court from finding an application of a
principle unreasonable when it involves a set
of facts different from those of the case in
which the principle was announced. The
statute recognizes that, to the contrary, that
even a general standard may be applied in an
unreasonable manner.” (internal quotation
marks and citations omitted)).
The Second Circuit, however, has
developed a framework for addressing
prejudicial spillover claims in this context,
which is referred to as “retroactive
misjoinder.” See, e.g., United States v.
Jones, 482 F.3d 60, 78 (2d Cir. 2006)
(“Retroactive
misjoinder
refers
to
circumstances in which the joinder of
multiple counts was proper initially, but
later developments—such as a district
court’s dismissal of some counts for lack of
evidence or an appellate court’s reversal of
less than all convictions—render the initial
joinder improper.” (internal quotation marks
and brackets omitted)); see also United
States v. Simels, 654 F.3d 161, 171 (2d Cir.
2011) (“Nor is a retrial on the remaining
counts required, as Simel contends, on a
theory of retroactive misjoinder because of
prejudicial
spillover
from
evidence
introduced on the vacated counts. The
Appellant has not met the ‘extremely heavy
burden’ of demonstrating that there was
prejudicial spillover necessitating a new
trial.” (citation omitted)).
Moreover, although not explicitly
addressing the “clearly established federal
law” requirement, the Second Circuit has
addressed the merits of prejudicial spillover
or retroactive misjoinder claims in the
context of habeas petitions. See Lindstadt v.
Keane, 239 F.3d 191, 206 (2d Cir. 2001)
(after granting habeas relief for ineffective
assistance of counsel on four counts of child
abuse related to one incident, concluding
that habeas relief was warranted on count
relating to a second incident based on
spillover because jury that finds guilt on
abuse counts on one occasion is “primed to
find the defendant guilty of another,” there
was less evidence to support fifth count and
it was “infected by the same errors affecting
the other counts,” and count was “the
weakest of the lot”); Herring v. Meachum,
11 F.3d 374, 378 (2d Cir. 1993) (“Moreover,
because the evidence with respect to each
Accordingly, this Court, following the
Second Circuit’s decisions in the habeas
context, treats the retroactive misjoinder rule
to be clearly established
and, thus,
considers the merits of the spillover effect
claim. As set forth below, the Court
concludes, under this Circuit’s precedent,
that petitioner has failed to demonstrate that
14
This is not the only circuit to address prejudicial
spillover claims on habeas corpus review. For
example, the Ninth Circuit has concluded that where
evidence was simple and distinct, it was “likely that
the jury was able to keep the evidence separate when
considering the various counts.” Bean v. Calderon,
163 F.3d 1073, 1091 (9th Cir. 1998).
22
be difficult for a defendant to make a
showing of prejudicial spillover when the
evidence introduced in support of the
vacated and remaining counts emanate from
similar facts (because the same evidence
would likely have been admissible to prove
both) or where the vacated and remaining
counts are premised on completely different
fact patterns (since the evidence to both
counts is readily separable). Morales, 185
F.3d at 82; accord Wapnick, 60 F.3d at 954;
see also Rooney, 37 F.3d at 856 (“[T]he
absence of prejudicial spillover can also be
found where the evidence on the reversed
and remaining counts are completely
dissimilar, thus permitting the inference that
the jurors were able to keep the evidence
separate in their minds.”). “Thus, a
defendant is likely to make a successful
argument of prejudicial spillover only in
those cases in which evidence is introduced
on the invalidated count that would
otherwise be inadmissible on the remaining
counts, and this evidence is presented in
such a manner that tends to indicate that the
jury probably utilized this evidence in
reaching a verdict on the remaining counts.”
185 F.3d at 82 (quotation omitted). For the
third factor, a claim of prejudicial spillover
will likely fail when the government’s case
is “sufficiently strong so that there was little
or no likelihood that any prejudice from the
structuring charge tainted the jury’s verdicts
on the remaining charges.” Wapnick, 60
F.3d at 954.
there was a prejudicial spillover resulting
from the vacated OTB convictions.
1.
Legal Standard
When fewer than all criminal counts
have been dismissed at trial or reversed on
appeal, a court must determine whether
prejudicial
spillover
from
evidence
introduced in support of the dismissed or
reversed counts requires the remaining
convictions to be upset. Jelinek, 247 F.
Supp. 2d at 276 (citing United States v.
Rooney, 37 F.3d 847, 855 (2d Cir. 1994)). In
assessing the “spillover effect” on the
remaining counts, reviewing courts consider
“whether the totality of the circumstances
requires reversal of some or all of the
remaining counts.” United States v.
Wapnick, 60 F.3d 948, 953 (2d Cir. 1995)
(quotation omitted).
Three factors guide the impermissible
spillover inquiry:
1) whether the evidence on the
vacated counts was inflammatory
and tended to incite or arouse the
jury to convict the defendant on the
remaining counts; 2) whether the
evidence on the vacated counts was
similar to or distinct from that
required to prove the remaining
counts; and 3) the strength of the
government’s case on the remaining
counts.
United States v. Naiman, 211 F.3d 40, 50
(2d Cir. 2000).
“In New York, the ‘paramount
consideration in assessing potential spillover
error is whether there is a reasonable
possibility that the jury’s decision to convict
on the tainted counts influenced its guilty
verdict on the remaining counts in a
meaningful way.’” Jelinek, 247 F. Supp. 2d
at 277 (quoting People v. Doshi, 715 N.E.2d
113, 116 (1999)).
The first factor is not met where “the
evidence that the government presented on
the reversed counts was, as a general matter,
no more inflammatory than the evidence that
it presented on the remaining counts.”
Morales, 185 F.3d at 83. With respect to the
second factor, the Second Circuit has
explained that, as a practical matter, it can
2.
23
Application
First, as discussed supra, the evidence
presented for the vacated OTB charges was
no more inflammatory than that for the
Mobil charges. For the OTB charges, the
government presented evidence that
petitioner robbed three cashiers and shot a
man in the stomach. For the Mobil charges,
the government presented evidence that
petitioner attempted to rob gas station and
shot a man in the stomach. The evidence
from the two incidents depicted the crimes
as being of the same nature and quality.
Thus, the evidence from the OTB charges
could not have incited the jury to convict on
the Mobil charges. There also is no
colorable argument that the conduct at issue
is comparable to the child abuse addressed
in Lindstadt. Petitioner, therefore, fails to
satisfy the first factor.
Moreover, it is clear that the vacated and
remaining counts originated from dissimilar
facts. The two incidents occurred in
different venues, on different dates, and in
different locations at different times. (Tr. at
346-47, 427-29.) The perpetrator was also
described as wearing different disguises
during the two incidents. (Tr. at 340-51,
431-32, 486.) In addition, none of the
eyewitnesses or victims from the OTB
incident was an eyewitness or victim from
the Mobil incident. Further, in this case,
there were only two significant sources of
overlapping evidence and facts between the
incidents. First, the ballistics evidence
suggested that the same gun was used for
both crimes. However, this evidence was not
conclusive with regard to the OTB incident.
Second, the methodology of the two crimes
was similar, as the perpetrator shot a man in
the stomach in the course of a robbery on
both occasions. Under New York law,
however, this is not enough to demonstrate
that the crimes were presented as part of a
common scheme and plan. See People v.
Fiore, 34 N.Y.2d 81, 84-85 (1974) (noting
that showing a “[m]ere similarity” between
two crimes is insufficient to demonstrate
that the acts were conducted as part of a
common scheme and plan.”). To show that
two acts were conducted as part of a
common scheme and plan, “[t]here must be
such a concurrence of common features that
the various acts are naturally to be explained
as caused by a general plan of which they
are the individual manifestations.” Id. at 85
(internal citation and quotation marks
omitted). As stated supra, the circumstances
surrounding the reversed and the remaining
counts were distinct. Thus, it is a reasonable
inference that the jurors were able to keep
the evidence separate in their minds.
Accordingly, petitioner has failed to satisfy
the second factor. The two incidents were
not factually intertwined to such a degree
Second, in this case, the indictment
stated, “All of the acts and transactions
alleged in each of the several counts of this
Indictment are connected together and form
part of a common scheme and plan.” (Ex. 1
at 4.) Petitioner cites this to support his
argument that this was “the People’s battle
cry throughout the course of the trial.” (Pet.
Supp.15 at 1.) Petitioner also argues that the
crimes were intertwined through the
alternate presentment of witness testimony,
the police lineup which involved both sets of
victims, and the opinions of the expert
witnesses about both incidents which were
simultaneously expressed during trial. (Id.)
However, the indictment was never read to
the jury or introduced into evidence. (Resp.
Br. at 56.) Thus, because the jury never
heard this statement, it could not have
affected the deliberations. This wording
alone does not prove that the prosecutor did,
in fact, present the two crimes as part of a
common scheme and plan.
15
“Pet. Supp.” refers to the three page document
petitioner attached to his petition for habeas corpus.
24
See 28 U.S.C. § 2253(c)(2). The Clerk of the
Court shall enter judgment accordingly and
close this case.
that the Brady violation relating to the OTB
counts required reversal of the Mobil counts.
Third, the evidence establishing
petitioner’s guilt on the Mobil counts was
overwhelming. The government’s case
included testimony from three reliable
eyewitnesses who identified petitioner as the
perpetrator. (Tr. at 405-06, 441-43, 490.) It
also included identification of petitioner’s
automobile by the eyewitnesses and the
detectives. (Tr. at 437-38, 487-88, 474, 45659.) In addition, the government offered
ballistics evidence that conclusively
matched the gun used in the Mobil crime to
a gun registered to petitioner and found in
petitioner’s home. (Tr. at 715-22.) Further,
detectives recovered items from petitioner’s
home that matched eyewitness descriptions
of the clothing worn by the Mobil
perpetrator, and one of these items contained
petitioner’s DNA. (Tr. at 407-08, 431-32,
486, 529-31, 622-23.) Thus, the strength of
the government’s case on the Mobil robbery
was overwhelming, and there was no
likelihood that any prejudice from the OTB
counts could have tainted the jury’s verdict
on the Mobil station counts.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: April 4, 2014
Central Islip, New York
***
Petitioner is proceeding pro se. Respondent
is represented by Andria M. DiGregorio,
Nassau County District Attorney, 262 Old
Country Road, Mineola, NY 11501.
Therefore, the Court concludes that
petitioner has failed to demonstrate a
prejudicial spillover effect from the
admission of the evidence regarding the
OTB robbery. Accordingly, the Court denies
the claim for habeas relief based on
prejudicial spillover.
IV.
CONCLUSION
For the reasons set forth herein, the
Court concludes that petitioner has
demonstrated no basis for habeas relief
under 28 U.S.C. § 2254. Therefore, the
petition for a writ of habeas corpus is denied
in its entirety on the merits. Because
petitioner has failed to make a substantial
showing of a denial of a constitutional right,
no certificate of appealability shall issue.
25
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