Hill v. Bradt
-CLERK TO FOLLOW UP- DECISION AND ORDER denying Petitioner's request for a writ of habeas corpus an dismissing the petition. (Clerk to close case.) (Copy of Decision and Order sent by first class mail to Petitioner.) Signed by Hon. Michael A. Telesca on 9/28/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ERIC D. HILL,
No. 1:13-CV-00267 (MAT)
DECISION AND ORDER
-vsMARK L. BRADT,
Proceeding pro se, Eric D. Hill (“petitioner”) seeks a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is
being detained in respondent’s custody in violation of his federal
constitutional rights. Petitioner is incarcerated pursuant to a
judgment entered on July 19, 2007, in Monroe County Court (Keenan,
J.), following a jury verdict convicting him of two counts of
murder in the second degree (N.Y. Penal Law § 125.25(1)).
Factual Background and Procedural History
In 2006, petitioner was charged by indictment with two counts
of murder in the second degree (N.Y. Penal Law § 125.25(1)), in
connection with the October 12, 2005 double homicide of Marvin
Joseph and Marvin Crawford. Petitioner was tried on these charges
at a jury trial which commenced June 19, 2007, before Monroe County
petitioner at a Rochester bar, the Garage Door, with his friend
“D.B.” and two women. Huff testified that she knew petitioner, also
known as “Southboy,” from “the streets” and that he had gold teeth,
which she observed on the evening in question. T. 328-29.1
At the bar, Huff observed Joseph (known to Huff as “Fleet”)
apparently stemming from Crawford’s attempt to flirt with the two
women accompanying petitioner and D.B. After the argument ended,
Huff witnessed petitioner enter a van and block Joseph’s car from
leaving the parking lot. Petitioner then ran toward Joseph’s car
holding a large silver gun. Huff heard five or six shots fired and
saw petitioner run back to his van and drive away. Huff identified
Joseph and Crawford from morgue photographs. Police processed the
scene and recovered six spent .40 caliber gun casings and a piece
of chewing gum in the area of Joseph’s car. The gum later tested
positive for the DNA of petitioner’s wife. Subsequent investigation
revealed petitioner as a suspect, but petitioner had fled the area.
Petitioner was eventually apprehended in Enterprise, Alabama, on
November 30, 2006.
The jury convicted petitioner on both charges. On July 19,
2007, petitioner was sentenced to two consecutive prison terms of
25 years to life. Petitioner filed a direct appeal, in which he
argued in a counseled brief that he was denied a fair trial due to
prosecutorial misconduct, that the verdict was against the weight
References to T. are to the 674-page jury trial transcript,
which took place June 18-21, 2007. All other proceedings will be
referenced by date.
of the evidence, and that his trial counsel was ineffective.
Petitioner also filed a pro se supplemental brief and appendix, in
which he claimed that he was denied his right to be present at all
prosecutor introduced morgue photographs of both victims. He also
argued that his trial counsel was ineffective for failing to object
to the admission of one of the photographs of the victims.
In a March 25, 2011 opinion, the New York State Supreme Court,
Appellate Division, Fourth Department affirmed the judgment of
conviction. See People v. Hill, 82 A.D.3d 1715 (4th Dep’t 2011),
lv denied 17 N.Y.3d 806. The court addressed all of defendant’s
claims on the merits, rejecting each in turn. The New York State
Court of Appeals denied leave to appeal. See id.
On March 1, 2012, petitioner filed a pro se motion pursuant to
New York Criminal Procedure Law § 440.10, arguing ineffective
assistance of counsel and prosecutorial misconduct. The District
Attorney opposed the motion, and the motion was denied by the
Monroe County Court “for the reasons set forth in the People’s
response.” Doc. 8-1 at 316. The Appellate Division denied leave to
appeal. Doc. 8-1 at 348-49.
The Federal Habeas Proceeding
This timely habeas petition followed, in which petitioner
claims that (1) trial counsel was ineffective for failing to:
(a) effectively cross-examine identification witness Valeria Huff;
(b) interview and call certain witnesses; (c) request a jury charge
to the effect that petitioner’s flight to Alabama following the
(e) challenge the admissibility of DNA evidence; (2) the prosecutor
committed misconduct (a) by making certain comments on summation
and (b) by presenting perjured testimony; (3) petitioner’s right to
be present at all stages of trial was violated due to a certain ex
parte communication between the prosecutor and the trial judge; and
admission of two morgue photographs of the victims. Respondent
concedes that all of petitioner’s claims are exhausted, but argues
that each fails for the reasons set out in its brief.
III. Standard of Review
The Anti–Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) applies to Hill’s petition, which was filed in 2013.
AEDPA “revised the conditions under which federal courts may grant
Connecticut Superior Court for Judicial Dist. of Danbury, 316 F.3d
103, 106 (2d Cir.2003) (citing 28 U.S.C. § 2254). Under AEDPA, a
federal court may grant a writ of habeas corpus under 28 U.S.C.
§ 2254 only if the state court’s adjudication of the petitioner’s
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” 28 U.S.C.
§ 2254(d)(1), or involved an “unreasonable determination of the
facts” in light of the evidence presented, 28 U.S.C. § 2254(d)(2).
The Second Circuit has stated that “it is often appropriate in
considering a habeas petition under the AEDPA for the federal court
to go through two steps: first, the court determines what the
correct interpretation of Supreme Court precedent is; second, if
the state court’s understanding or application of that precedent is
determined to be erroneous, the federal court must still ask
whether that error was a reasonable one.” Kruelski, 316 F.3d at
IV. Grounds Asserted in the Petition
Ineffective Assistance of Counsel (Ground One)
Petitioner claims that trial counsel was ineffective for
failing to: (1) effectively cross-examine identification witness
Valeria Huff; (2) interview and call certain witnesses; (3) request
a jury charge to the effect that petitioner’s flight to Alabama
following the shooting was of slight probative value; (4) object to
(5) challenge the admissibility of DNA evidence.
To establish ineffective assistance of counsel, a defendant
first must show “counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the
probability that, absent the errors [by counsel], the fact finder
would have had a reasonable doubt respecting guilt.” Strickland v.
Washington, 466 U.S. 668, 687, 695 (1984). As discussed further
below, the Court finds that all of Hill’s theories in support of
his ineffective assistance of trial counsel claim fail under the
“highly deferential” standard laid out in Strickland. Id. at 689.
The Court also notes that, under Strickland, it is required to
consider alleged errors by counsel “in the aggregate.” Lindstadt v.
Keane, 239 F.3d 191, 199 (2d Cir. 2001). In this case, counsel
actively participated in all stages of the trial, presenting a
cogent and capable defense by making appropriate motions and
objections, performing effective cross-examination of witnesses,
and presenting reasonable opening and closing arguments. The record
representation was effective. See Harrington v. Richter, 562 U.S.
assistance when counsel's overall performance indicates active and
capable advocacy.”); United States v. DiPaolo, 804 F.2d 225, 234-35
(2d Cir. 1986) (holding that defendants were not denied effective
assistance of counsel where counsel appeared well-prepared and
demonstrated good understanding of the facts and legal principles
involved in case).
Cross-Examination of Huff
Petitioner argues that counsel’s cross-examination of Huff was
so deficient that it denied him a fair trial. A reading of the
cross-examination (T. 355-62), however, belies this contention.
Defense counsel’s lines of questioning followed logical strategies,
such as attempting to establish that Huff could have confused
petitioner with his friend, D.B., and attempting (but failing) to
elicit testimony that D.B. may have been armed. The fact that
defense counsel’s questioning may not have elicited the answers
that would have been most beneficial to petitioner’s case does not
mean that counsel’s questioning amounted to ineffective assistance,
petitioner in this case. Moreover, “[d]ecisions whether to engage
in cross-examination, and if so to what extent and in what manner,
are ... strategic in nature.” United States v. Nersesian, 824 F.2d
cross-examination generally will not be second-guessed by reviewing
courts.” Seda v. Conway, 774 F. Supp. 2d 534, 541 (W.D.N.Y. 2011).
The Court declines to do so here.
Failure to Interview and Call Certain Witnesses
Petitioner contends that counsel was ineffective for failing
to interview and call three witnesses who were present at the bar
on the night in question. However, as respondent points out,
petitioner’s defense counsel explained in a letter (which was
attached to petitioner’s CPL 440.10 motion) that his decision not
to call these witnesses was strategic. In that letter, defense
counsel informed petitioner that he chose not to call the witnesses
“as a matter of trial strategy” because he “was fearful that any
one of those witnesses could have made an in court identification,
at the very least, which would place [petitioner] at the location
of the shooting on the date of the shooting.” Doc. 8-1 at 223.
As with decisions regarding cross-examination, “[t]he decision
whether to call any witnesses on behalf of the defendant, and if so
which witnesses to call, is a tactical decision of the sort engaged
in by defense attorneys in almost every trial.” Nersesian, 824 F.3d
at 1321. There is no reason to believe, especially considering the
record evidence of defense counsel’s trial strategy, that these
witnesses would have helped petitioner’s defense so substantially
that the failure to call them constituted ineffective assistance.
See, e.g., Rogers v. Chappius, 2013 WL 1825505, at *12 (W.D.N.Y.
Apr. 30, 2013) (noting that counsel was not ineffective for failing
evidence that they would offer exonerating testimony, counsel’s
failure to call them was a strategic decision, and there was no
reasonable probability that their testimony would have changed the
outcome of the case).
Jury Charge Regarding Flight
Petitioner contends that counsel was ineffective for failing
to request a jury charge to the effect that petitioner’s flight to
consciousness of guilt. “As courts in this circuit have observed,
a flight instruction, while pointing out to the jury the limited
probative value of flight evidence, [also reveals to the jury that
flight can be considered] as evidence of the defendant’s own
consciousness of guilt.” Swaby v. People, 2014 WL 1347204, *7
(E.D.N.Y. Mar. 31, 2014), aff'd sub nom. Swaby v. New York, 2015 WL
3479633 (2d Cir. June 3, 2015) (internal quotation marks omitted)
(quoting Garcia v. Graham, 2012 WL 2921624, *10 (W.D.N.Y. July 17,
(E.D.N.Y. Nov. 23, 2009); Robinson v. Keane, 1999 WL 459811, *3
(S.D.N.Y. June 29, 1999)). In this case, counsel’s decision not to
request the charge is amply explained by a strategy of avoiding
“disclosing to the jury the fact that flight evidence can be
Failure to Object to Prosecutor’s Summation Remarks
Petitioner claims that certain remarks by the prosecutor on
highlighting Huff’s testimony that she was initially afraid to come
forward and speak to police about what she witnessed, and remarks
to the effect that a verdict other than guilty would be illogical.
On direct appeal, the Appellate Division found that the “alleged
instances of prosecutorial misconduct were ‘either a fair response
to defense counsel's summation or fair comment on the evidence.’”
Hill, 82 A.D.3d at 1715 (quoting People v Anderson, 52 A.D.3d 1320,
1321 (4th Dep’t 2008), lv denied 11 N.Y.3d 733).
prosecutorial remarks were so prejudicial that they rendered the
trial in question fundamentally unfair.” Garofolo v. Coomb, 804
prosecutorial comments, standing alone, are insufficient to reverse
a conviction. United States v. Young, 470 U.S. 1, 11 (1985).
improprieties on the fairness of the trial as a whole. Id.; see
also Smith v. Phillips, 455 U.S. 209, 219 (1982) (“[T]he touchstone
misconduct is the fairness of the trial, not the culpability of the
prosecutor.”). The comments made by the prosecutor at petitioner’s
trial, considered either alone or in the context of the entire
trial, amounted to fair comment on the evidence, as the Appellate
Division found. Thus, the comments did not constitute misconduct
and therefore could not render the trial fundamentally unfair.
Failure to Challenge DNA Evidence
Petitioner claims that counsel was ineffective for failing to
object to DNA evidence from his wife, Lakeesha Hill. As discussed
above, a piece of chewing gum recovered from the scene tested
positive for Ms. Hill’s DNA. Petitioner has not, and cannot, put
forth precedent to suggest that he has standing to challenge the
admissibility of his wife’s DNA, found on an abandoned piece of
chewing gum at the scene. In response to petitioner’s CPL 440.10
standing to challenge this evidence, and that therefore counsel was
not ineffective for failing to argue a motion that had little
chance of success. Doc. 8-1 at 247 (citing People v. Caban, 5
petitioner’s motion based on the reasons set forth by the District
Attorney, and the Appellate Division denied leave to appeal. This
applicable Supreme Court precedent, which holds that a defendant
has standing to challenge a search only where he has a “legitimate
Illinois, 439 U.S. 128, 143 (1978); see also United States v.
Levasseur, 816 F.2d 37, 44 (2d Cir. 1987) (“[A] warrantless search
or seizure of abandoned property does not violate the fourth
amendment.”) (citing Abel v. United States, 362 U.S. 217, 240–41
challenged the DNA evidence based on chain of custody also fails.
Again, the Monroe County Court denied the motion based on the
District Attorney’s reasoning. The District Attorney argued that
this claim arose out of issues apparent from the record yet not
raised on direct appeal, in contravention of CPL 440.10(2)(c). This
ground for denial of petitioner’s motion constitutes a procedural
bar to habeas relief because it is an adequate and independent
state law ground. See, e.g., Acevedo v. Lempke, 2012 WL 360276, *12
(S.D.N.Y. Feb. 3, 2012 (“A state court's rejection of a motion to
vacate pursuant to 440.10(2)(c) is an adequate and independent
state ground sufficient to preclude review of the claim by way of
a writ of habeas corpus.”).
Prosecutorial Misconduct (Ground Two)
1. Summation Remarks
As discussed above, petitioner contends that the prosecutor
Specifically, petitioner argues that the prosecutor’s comments
regarding Huff’s testimony that she was initially afraid to come
forward, the implication that other witnesses may have been afraid
as well, and the prosecutor’s suggestion that a not guilty verdict
would be illogical, constituted misconduct. Prior to finding the
Division expressly found that this claim was not preserved for
470.05(2). Hill, 82 A.D.3d at 1715.
Because the Appellate Division relied on a state procedural
rule to reject petitioner's prosecutorial misconduct argument, the
claim is precluded from habeas review pursuant to the adequate and
independent state ground doctrine. See, e.g., Richardson v. Greene,
contemporaneous objection rule as an adequate and independent state
ground barring habeas review); Switzer v. Graham, 2010 WL 1543855,
*4 (W.D.N.Y. Apr. 16, 2010).
Introduction of Allegedly Perjured Testimony
Petitioner contends that the prosecutor knowingly introduced
perjured testimony. Petitioner first raised this contention in his
CPL 440.10 motion. In his federal petition, he claims that Huff’s
inconsistent statements prove its falsity. Specifically, petitioner
contends that one police report noted that Huff “did not see
anything regarding the shooting” (Doc. 1 at 41), and another stated
that Huff learned from a cousin that “the person responsible for
the shooting is called ‘Southboy.’” Id.
Initially, the Court notes that petitioner makes much of
Huff’s testimony that she “saw” the shooting, arguing that because
Huff testified that she did not actually see the gun being fired,
characterization of Huff’s testimony does not support an argument
petitioner exit his vehicle holding a large silver gun and approach
the driver’s side of Joseph’s vehicle, at which point she heard
five or six gunshots. She then saw petitioner run back to his van
and drive away. In Huff’s account, petitioner was within her view
reiterated this story, and upon questioning, clarified that she did
not actually see the gun fired, but that she “[saw] the gun, and 
heard the gunshots.” T. 359. Considering the entirety of Huff’s
characterization of Huff’s testimony, in which he commented that
Huff had witnessed the murders, was improper.
Under a due process analysis, a conviction must be set aside
where “(1) ‘the prosecution knew, or should have known, of the
perjury,’ and (2) ‘there is any reasonable likelihood that the
false testimony could have affected the judgment of the jury.’”
Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir. 2003) (quoting
United States v. Agurs, 427 U.S. 97, 103 (1976) (citing Napue v.
Illinois, 360 U.S. 264, 269 (1959)). “A witness commits perjury if
he gives false testimony concerning a material matter with the
willful intent to provide false testimony, as distinguished from
incorrect testimony resulting from confusion, mistake, or faulty
(2d Cir.2001) (citation omitted).
Defendant has put forth no proof that Huff committed perjury
(let alone that the prosecutor should have known about the same).
inconsistencies between initial police reports paraphrasing Huff’s
indication in the record that any of Huff’s statements at trial
were false, and petitioner has submitted no proof of falsity.
Therefore, with no evidence of false testimony, petitioner’s claim
fails. See, e.g., Black v. Rock, 2015 WL 2120516, *11 (E.D.N.Y. May
6, 2015) (finding no proof of perjured testimony where petitioner
pointed only to minor inconsistencies between the testimony and
other proof at trial); Dinsio v. Donnelly, 2007 WL 4029221, *5
testimony was contradicted by inconsistencies with grand jury
testimony and police dispatch records). Considering petitioner’s
allegations, the state courts’ denial of his CPL 440.10 motion
cannot be said to have been based on an unreasonable application of
applicable federal law.
Right to Be Present at All Material Stages of Trial
Petitioner claims that the following exchange between the
prosecutor and the trial judge, which occurred prior to trial and
outside the presence of defendant and defense counsel, denied him
the right to be present at all material stages of trial:
[Assistant District Attorney]: I don’t want to make this
an ex parte communication, but I think I have to put the
Court on in the. [sic] There is one evidentiary issue
that is slightly irregular, which I really don’t want to
tip off to the Defense – sort of a Hobson’s choice. I
don’t want to mislead the Court, but at the same time, I
don’t want to tip off this issue to the Defense. If you
would like, I will tell you what it is so you can
research it if you think it’s necessary, but I don’t want
to say something that could be construed as improper with
the Defendant not here and the Defendant’s Counsel not
THE COURT: It’s more for the Court’s benefit than
anything else. Why don’t you make a brief record of the
[ADA]: The testimony is going to include the unique
characteristic that the Defendant had a mouth full of
gold teeth. At some point during the trial, depending on
the circumstances, in all likelihood, I would request
that the Defendant be asked to present that to the jury.
I am sure it’s an issue that you have come across, but in
case -THE COURT: It’s not an unusual issue. The Court has
ordered Defendants in the past to display various parts
of their body.
[ADA]: I didn’t want to mislead you and you say, “why
didn’t you tell me?”
THE COURT: I understand. You’re aware I do like to have
these things dealt with. That is what I consider a fairly
routine issue which comes up regularly. Thank you, Mr.
June 15, 2007 Transcript at 17-19.2 During direct examination of
Investigator Randall Benjamin, after the investigator testified
that he observed petitioner’s gold teethk, the prosecutor asked
that the court direct petitioner to approach the jury and display
his teeth. The judge granted this request over defense counsel’s
On direct appeal, the Appellate Division rejected petitioner’s
argument, noting that “[t]he Fifth Amendment privilege against
required to reveal the physical characteristics of his or her
body.” Hill, 82 A.D.3d at 1716 (citing People v Havrish, 8 N.Y.3d
389, 393 (2007), cert denied 552 U.S. 886; People v Slavin, 1
N.Y.3d 392, 398 (2004), cert denied 543 US 818). The Appellate
prosecutor provide defendant with pretrial notice of the intent to
use such evidence,” and that as a result, “the discussion between
the prosecutor and the court regarding that issue was ‘not only
noncritical but [was], as a matter of law, unnecessary’” Id. at
1716-17 (citing People v Holmes, 304 A.D.2d 1043, 1044 (2003), lv
denied 100 N.Y.2d 642). The Appellate Division’s decision on this
Page 17 of this transcript is missing from the record before
the Court. However, petitioner (who has filed a traverse in
response to respondent’s brief) does not dispute that this is the
exchange that occurred between the prosecutor and the trial judge.
issue constituted an accurate application of federal law, and
therefore, petitioner’s claim lacks merit.
Admission of Morgue Photos (Ground Four)
Petitioner contends that the introduction of morgue photos of
both victims violated his right to a fair trial because it served
merely to inflame the passions of the jury. On direct appeal, the
Appellate Division held that the photographs were relevant to prove
the identity of the victims. Hill, 82 A.D.3d at 1717.
In order to elevate this alleged error in the admission of
constitutional deprivation, Hill must show that the error violated
a specific constitutional provision. United State ex rel. Holliday
v. Adams, 443 F.2d 7, 8 n.1 (2d Cir. 1971) (per curiam). To meet
this burden, Hill contends that the introduction of the photographs
deprived him of due process and a fair trial.
Under well-established New York law, the trial court has
discretion as to whether to introduce photographs of homicide
victims. See People v. Wood, 79 N.Y.2d 958 (1992). (“The general
rule is . . . [that] photographs are admissible if they tend ‘to
prove or disprove a disputed or material issue, to illustrate or
elucidate other relevant evidence, or to corroborate or disprove
some other evidence offered or to be offered.’ They should be
excluded ‘only if [their] sole purpose is to arouse the emotions of
the jury and to prejudice the defendant[.]’ ”) (quoting People v.
Pobliner, 32 N.Y.2d 356, 369–70 (1973)). “[P]hotographs of a corpse
are admissible even though they portray a gruesome spectacle and
may tend to arouse passion and resentment against the defendant in
the minds of the jury.” Pobliner, 32 N.Y.2d at 369-70 (internal
quotation marks omitted).
Bar owner James Pizzicato identified Joseph (a/k/a “Fleet) via
a morgue photograph, which was admitted over counsel’s objection.
Counsel argued that the photograph was being “introduced solely to
inflame the passions of the jury.” T. 313. Huff also identified
through a separate morgue photograph. After initially objecting,
then conferring off the record with the prosecutor, defense counsel
conceded to the photo of Crawford being admitted for identification
purposes only. There is no indication that the trial court allowed
these photographs into evidence for any purpose other than proper
identification of the victims, which was a critical issue in this
trial. Thus, based on a review of the record, petitioner has failed
to demonstrate any error of state evidentiary law. See Morgan v.
Rock, 2010 WL 3703697, *3-4 (W.D.N.Y. Sept. 16, 2010). Because
there was no error, petitioner was not denied a fair trial.
For the foregoing reasons, petitioner’s request for writ of
habeas corpus is denied, and the petition (Doc. 1) is dismissed.
Because Petitioner has not “made a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the
Court declines to issue a certificate of appealability. The Clerk
of the Court is requested to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
September 28, 2015
Rochester, New York.
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