Guinyard v. Kirkpatrick et al
Filing
15
DECISION AND ORDER denying petition for writ of habeas corpus and dismissing the petition. Signed by Hon. Michael A. Telesca on 6/26/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
LAWRENCE GUINYARD,
DECISION AND ORDER
No. 11-CV-06352(MAT)
Petitioner,
-vsROBERT KIRKPATRICK,
SUPERINTENDENT OF
WENDE CORRECTIONAL FACILITY
AND THE ATTORNEY GENERAL OF
NEW YORK STATE
Respondent.
________________________________
I.
Introduction
Pro se1 Petitioner Lawrence Guinyard (“Petitioner”) has filed
a timely petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 challenging the constitutionality of his custody pursuant to
a judgment entered August 6, 2008, in New York State, Supreme
Court, Erie County, convicting him, upon a jury verdict, of Murder
in the Second Degree (N.Y. Penal Law (“Penal Law”) § 125.25[1]) and
1
When Petitioner initially filed his habeas petition (Dkt. No. 1) and
supporting memorandum (Dkt. No. 2) on July 15, 2011, he was unrepresented. On
July 26, 2011, Petitioner moved to have counsel appointed in the instant
proceeding, asserting that the habeas petition had been drafted by an inmate law
clerk at the facility where Petitioner was incarcerated because Petitioner is
mentally retarded and cannot read and write. See Dkt. No. 4. The Court granted
Petitioner’s motion and appointed attorney Brian Shiffrin, Esq. on July 28, 2011.
See Dkt. No. 5. On November 10, 2011, attorney Shiffrin filed a memorandum in
support of the habeas petition and reply to Respondent’s opposition. See Dkt.
No. 12.
-1-
Criminal Possession of a Weapon in the Third Degree (Penal Law
§ 265.02[1]).
II.
Factual Background and Procedural History
Under Erie County Indictment No. 01004-2007, Petitioner was
charged with
one count of Murder in the Second Degree (Penal Law
§ 125.25[1]) and one count of Criminal Possession of a Weapon in
the Third Degree (Penal Law § 265.02[1]). See Ind. No. 01004-2007,
dated 05/11/07 at Resp’t Ex. B.
Tieshawn Pettigrew (“Pettigrew”) testified that in April of
2007 she lived in apartment 1 of a four-unit apartment building at
148 Blaine in the City of Buffalo, New York with her fiancee,
Demetrius Stewart (“Stewart”), and her three children.
Trans. [T.T.] 492-494.
Pettigrew in apartment 2.
Trial
McAllister lived across the hall from
T.T. 496.
On the morning of April 18,
2007, Pettigrew received a call from an upstairs neighbor informing
Pettigrew that there was a diabetic kit and mail at the back door
of Pettigrew’s apartment.
T.T. 497.
Prompted by that phone call,
Pettigrew observed the items outside her door and noticed that the
mail was addressed to McAllister.
T.T. 499-500.
Pettigrew and
Stewart then called the police who responded shortly thereafter,
entered McAllister’s apartment, and told Pettigrew “that the lady
was in there dead.”
T.T. 500.
The Buffalo Police Homicide Unit
took Pettigrew and Stewart to police headquarters for questioning.
T.T. 500.
After police ended questioning Pettigrew, she left the
-2-
police station.
T.T. 501.
At the request of police, Stewart gave
a bucal swab for a DNA sample.
T.T. 507.
Lance Huddleston (“Huddleston”) testified that at the time of
the
murder
he
T.T 517-518.
lived
in
upstairs
apartment
4
at
148
Blaine.
When questioned by police, Huddleston told them that
he had been with a friend the night before at Voelker’s Bowling
Alley
and
the
New
Humboldt
Inn.
T.T.
520-521.
Huddleston
testified that he came home around 4:30 a.m., saw the diabetes kit
in the hallway, and “moved it to the side because [he] had noticed
that it had syringes in it. . . .”
his apartment and went to sleep.
T.T. 522.
T.T. 522.
He then went up to
At approximately 7:00
a.m., Huddleston’s female friend called him to come open the door
to the apartment building, which he did.
T.T. 525.
As he was
walking to the door of the apartment building, he noticed that the
front door to McAllister’s apartment was slightly ajar.
T.T. 526.
Huddleston accompanied his female friend from the door and the two
then went upstairs.
T.T. 526.
After McAllister’s body was
discovered, Huddleston and his female friend were questioned by
police.
T.T. 520.
At the request of the police, Huddleston gave
a bucal swab for a DNA sample.
T.T. 531.
Buffalo Police Department (“BPD”) Detective James Maroney was
the crime scene investigator for the murder.
T.T. 553.
Detective
Maroney testified that McAllister’s body was found lying face down
in the doorway of her bedroom.
T.T. 557.
-3-
Yellow residue from the
discharge
of
apartment.
a
fire
extinguisher
T.T. 556-557.
was
found
throughout
the
Detective Maroney recovered a black
polymer knife and dentures from the crime scene.
stains were found on the kitchen floor.
T.T. 557.
T.T. 557.
Blood
Detective
Maroney took photographs of various items at the murder scene,
including the victim’s mail, the diabetic kit, footprints in the
discharge from the fire extinguisher, and the indentation on the
victim’s finger where she had worn a ring.
T.T. 556-557, 569-570,
585.
BPD
Detective
Daniel
Rinaldo
developed
a
lead
in
the
investigation of McAllister’s murder when he received a call on
April 23, 2007 from Matthew Lowe (“Lowe”), the proprietor of the
Blessed Variety Store located at 291 East Delevan.
T.T. 666-667.
Lowe told Detective Rinaldo that he bought two rings and a DVD
player from a black male, who he knew as “New York”, who frequented
his store.
T.T. 668, 679.
Lowe told Detective Rinaldo that he
paid $20 for the rings and $40 for the DVD player.
T.T. 668.
Lowe
described “New York” to Detective Rinaldo as a black male in his
late forties, standing five feet ten inches, weighing approximately
175 lbs.
T.T. 668.
Detective Rinaldo asked Lowe to bring the
rings and the DVD player down to police headquarters, which Lowe
did about one hour later.
T.T. 669.
Police subsequently took the
items to some of the victim’s family members for identification
purposes.
T.T. 670.
The victim’s grandson, Kelly Craig, was not
-4-
able to identify the items as his grandmother’s.
T.T. 670.
Brenda
Taylor, the victim’s daughter, identified one of the rings as her
mother’s.
T.T. 670.
Nicole Brooks, the victim’s granddaughter,
identified one of the rings and the DVD player as belonging to
McAllister.
T.T. 671.
Police reviewed photos with Lowe while he was at headquarters
and then set out to look for Petitioner at his last known address,
250 Humboldt Parkway.
T.T. 696.
Detectives Michael Mordino,
Rinaldo and Michael Acquino located Petitioner at this address, and
Petitioner agreed to come to the police station for questioning.
T.T. 696.
Detective Mordino testified that in the police car on
the way to the station, Petitioner spontaneously stated, “I bet
this is about the woman from the side of Humboldt that was killed.
I used to do some work for her . . . .”
T.T. 700.
At the station, Petitioner was read his Miranda rights and
agreed to sign a “rights card” indicating that he understood the
right
to
remain
silent
but
was
waiving
it.
T.T.
701-703.
Petitioner then proceeded to give a four page statement that was
read back to him.
T.T. 704, 711.
Petitioner stated that he had
done some work as a handyman for McAllister about three months ago.
T.T. 707.
Petitioner also stated that McAllister had called him
that winter and complained about “the guy upstairs from her.”
T.T. 709.
Following the interview, Petitioner agreed to give
police a DNA sample and to submit his clothing, including his
-5-
footwear, for analysis.
white
paper
T.T. 712.
outfit
to
T.T. 711-712.
wear
after
Petitioner was given a
his
clothing
was
removed.
Detective Mordino then initiated a second conversation
with Petitioner.
T.T. 713.
He showed Petitioner photographs of
individuals who had been arrested on Blaine.
T.T. 713, 719.
Detective Mordino also told Petitioner he had been identified as
the person who sold McAllister’s rings and DVD player.
Petitioner
initially
denied
that
he
had
possessed
T.T. 714.
the
items
belonging to McAllister, but subsequently told Detective Mordino
that he found the rings and the DVD player in a flower pot on
Blaine.
T.T. 714.
Detective Mordino then indicated to Petitioner
that they had a video from a Canisius College security camera, of
a black male on a bicycle which was next to the victim’s house.
T.T. 715.
The police did not, however, have this video to show
Petitioner when Petitioner insisted that Detective Mordino “show
him the proof.” T.T. 715. Detective Mordino then asked Petitioner
if he had been in McAllister’s home, to which he responded in the
negative.
T.T. 716.
Detective Mordino indicated to Petitioner
that the footprints found at the crime scene matched the prints on
Petitioner’s boots, and showed Petitioner the photographs of the
footprints. T.T. 716-717. After seeing the photographs, Petitioner
stated “they look like mine.”
T.T. 717.
At that point, Petitioner
changed his story and told Detective Mordino that he was riding his
bike near McAllister’s apartment building when he saw her arguing
-6-
with a black male on the street.
T.T. 716-717.
Petitioner stated
that he went to see “what was going on” and that everything
appeared
“okay”
and
he
left.
T.T.
718.
Detective
Mordino
testified that at no time during the interview was Petitioner
threatened or promised anything, nor did Petitioner appear to have
any difficulty understanding what was taking place.
T.T. 720.
He
further testified that Petitioner was offered food, drink, and
cigarettes throughout the interview.
T.T. 721.
Detective Acquino, who was primarily involved in interviewing
Petitioner
along
with
Detective
Mordino,
testified
that
when
Petitioner was brought to police headquarters, he was read his
Miranda rights and waived those rights.
T.T. 747.
Detective
Acquino testified that Petitioner initially denied selling the
rings and the DVD player to Lowe, but then changed his story and
indicated that he did sell these items after finding them in a
flower pot on Blaine.
T.T. 748-750.
Detective Acquino testified
that when confronted with his inconsistent answers, Petitioner told
the detectives that he did not want to speak with them anymore,
wanted an attorney, and stated that, “the more I talk, the more I
get into trouble.”
T.T. 752.
stopped the interview.
about
fifteen
minutes
At this point, the detectives
T.T. 752. The detectives left the room and
later
another
detective,
who
had
been
observing the interview through a two-way mirror, told Detective
Acquino
that
Petitioner
was
lying
-7-
on
the
floor.
T.T.
753.
Detective Acquino returned to the interview room to find Petitioner
curled up on the floor in a fetal position and repeating, “I’m
sorry, I’m sorry.”
T.T. 753.
Detective Acquino testified that he
asked Petitioner if he was okay, and, upon Petitioner’s request,
gave Petitioner a cigarette.
T.T. 753.
Petitioner asked that
Detective Acquino sit with him while he smoked the cigarette and he
agreed.
Petitioner then initiated a conversation with Detective
Acquino and stated that he had “lied.”
T.T. 753-754.
Petitioner
told Detective Acquino that he was on the street the day of the
murder and saw the door to McAllister’s apartment open.
T.T. 754.
Petitioner told Detective Acquino that his footprints were found in
her apartment
because
McAllister was dead.
he entered
T.T. 754.
her apartment
and
saw that
Petitioner also told Detective
Acquino that he had taken the rings and the DVD player from
McAllister’s apartment.
T.T. 754.
Detective Acquino testified
that he did not ask any questions of Petitioner while Petitioner
was talking to him, and that all of the statements Petitioner made
were spontaneously volunteered.
T.T. 754.
Christopher Chisholm (“Chisholm”), an inmate at the Erie
County Correctional Facility, spoke with Petitioner while they were
housed together there.
T.T. 781, 784.
Chisholm testified that
Petitioner told him that he went to McAllister’s apartment to talk
to her about doing some work, and she declined his services.
T.T. 782.
Chisholm testified that Petitioner told him, “that’s
-8-
when
it
all
happened.”
T.T.
782.
According
to
Chisholm,
Petitioner choked McAllister with his hands and then stabbed her
with a knife.
T.T. 782.
Petitioner also told Chisholm that he
took McAllister’s rings and sold them.
T.T. 809-811.
Chisholm
testified that he subsequently wrote a letter to then district
attorney
Frank
Clark
relaying
this
information.
T.T.
784.
Chisholm stated in the letter that he knew the victim’s family and
was not
looking
for
anything
in
return
for
the
information.
T.T. 784-785.
Forensic serologist Mark Kalinowski (“Kalinowski”) testified
that he tested blood stains found on Petitioner’s sweatshirt.
T.T. 902.
He testified that the blood found on the sweatshirt
matched the victim’s genetic profile, and that the chances that the
blood did not belong to McAllister was one in two hundred eightythree quadrillion. T.T. 904. Kalinowski testified further that he
swabbed the collar of the sweatshirt and that “the major profile
that was obtained . . . is the same DNA profile obtained from the
known buccal sample of [Petitioner].”
T.T. 905.
Kalinowski
testified that the chances that the blood swabbed from the collar
of the sweatshirt was not Petitioner’s blood was one in two point
seventeen quadrillion.
T.T. 904.
Forensic chemist Michelli Schmitz (“Schmitz”) testified that
she was qualified in footprint comparison.
testified
that
after
examining
-9-
Petitioner’s
T.T. 949.
sneakers
Schmitz
and
the
footprints found at the crime scene, she determined that they were
the same.
T.T. 959.
Petitioner testified in his defense; and stated that he had
known McAllister for approximately one year, and had worked for her
infrequently
by
T.T. 964-965.
doing
odd
jobs,
including
shoveling
snow.
That, on April 18th, he went to McAllister’s home,
entered her apartment, and found her dead on the floor.
T.T. 965.
He testified that he became nervous and ran out of the house and on
his way out, he found a ring on the ground “down the driveway” and
a “little walkman.”
T.T. 966.
On cross-examination, Petitioner
denied ever being in the victim’s room, despite detectives finding
footprints matching his boots there. T.T. 982-983. He also denied
selling a DVD player to Lowe, maintaining that it was a “walkman”
instead that “takes DVDs . . . .”
T.T. 986-988.
At the end of his trial, the jury found Petitioner guilty as
charged.
T.T.
1147.
He
was
subsequently
sentenced
to
an
indeterminate period of imprisonment of twenty-five years to life
on the murder conviction and a concurrent indeterminate term of
imprisonment of two and one-third to seven years on the weapons
possession
conviction.
Sentencing
Mins.
of
08/06/08
8-9;
Resentencing Mins. of 09/29/08 2-4.
Petitioner
appealed
his
judgment
of
conviction
to
the
Appellate Division, Fourth Department on the following grounds:
(1) the trial court erred in denying his motion to suppress his
-10-
statements to police; (2) that he was denied a fair trial due to a
Brady violation; (3) the verdict was against the weight of the
evidence; (4) ineffective assistance of counsel; and (5) his
sentence was harsh and excessive.
I-V at Resp’t Ex. B.
See Pet’r Br. on Appeal, Points
The Appellate Division, Fourth Department
affirmed the judgment of conviction on April 30, 2010, and leave to
appeal was denied.
People v. Guinyard, 72 A.D.3d 1545 (4th Dep’t
2010), lv. denied, 15 N.Y.3d 805 (2010).
This habeas corpus petition followed, wherein Petitioner seeks
relief on the following grounds: (1) the trial court erred in
denying his motion to suppress his statements to police; (2) that
he was denied a fair trial due to a Brady violation; (3) that the
evidence was legally insufficient to support his conviction; and
(4) ineffective assistance of counsel.
See Pet., Points I-IV
(Dkt. No. 1); Mem. of Law (Dkt. No. 3); Mem. & Legal Authority in
Support
of
Petition
for
Writ
of
Habeas
Corpus
and
Reply
to
Respondent’s Filings in Opposition (“Reply”) (Dkt. No. 12).
For the reasons that follow, the writ of habeas corpus is
denied and the petition is dismissed.
III. The Exhaustion Requirement
“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to a judgment of a State court shall not
be granted unless it appears that . . . the applicant has exhausted
the remedies available in the courts of the State. . . .”
-11-
28
U.S.C. § 2254(b)(1)(A);
see, e.g., O’Sullivan v. Boerckel, 526
U.S. 838, 843-44 (1999);
accord, e.g., Bossett v. Walker, 41 F.3d
825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995).
“The
exhaustion requirement is not satisfied unless the federal claim
has been ‘fairly presented’ to the state courts.” Daye v. Attorney
General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied,
464 U.S. 1048 (1984).
With the exception of Petitioner’s legal
sufficiency claim –- which is raised for the first time in the
instant habeas petition –- Petitioner’s claims are exhausted and
properly before this Court.
IV.
The AEDPA Standard of Review
For federal constitutional claims adjudicated on the merits by
a state court, the deferential standard of review codified in the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) applies.
A habeas petitioner can only obtain habeas corpus relief by showing
that the state court decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or was based
on “an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
§ 2254(d)(1)-(2).
-12-
28 U.S.C.
V.
Analysis of the Petition
1.
Legally Insufficient Evidence (Ground Two)
Petitioner claims in ground two of the petition, that the
evidence was legally insufficient to support his conviction.
Pet. at 16-19; Mem. of Law at 2-3.
See
This claim, which is raised for
the first time in the habeas petition, is unexhausted but deemed
exhausted and procedurally defaulted from habeas review.
A petitioner must exhaust all available state remedies either
on direct appeal or through a collateral attack of his conviction
before he may seek a writ of habeas corpus in federal court.
28
U.S.C.
§
2254(b);
Bossett
v.
Walker,
41
F.3d
(2d Cir.1994), cert. denied, 514 U.S. 1054 (1995).
825,
828
Petitioner
failed to raise this claim in the state courts either on direct
appeal and/or through a collateral attack. Consequently, the claim
is unexhausted for purposes of federal habeas review. Nonetheless,
Petitioner no longer has a state court forum in which to exhaust
this claim.
Petitioner has already used his one right to appeal
and he is precluded from collaterally attacking this record-based
claim in a motion to vacate his judgment of conviction.
Court
Rules
§
500.20(a);
N.Y.
Crim.
Proc.
Law
See N.Y.
(“CPL”)
§ 440.10(2)(c) (court must deny motion to vacate where record-based
claim could have been raised on direct appeal but unjustifiably was
not).
Accordingly,
sufficiency
of
the
the
Court
evidence
deems
claim
-13-
Petitioner’s
exhausted
and
unexhausted
procedurally
defaulted from habeas review. See Grey, 933 F.2d at 120-21 (“[f]or
exhaustion purposes, ‘a federal habeas court need not require that
a federal claim be presented to a state if it is clear that the
state court would hold the claim procedurally barred.’”) (quoting
Harris v. Reed, 489 U.S. 255, 263 n.9 (1989)).
Despite the procedural default, this Court may review the
merits of Petitioner’s claim if he can show “cause” for his failure
to raise the claim in the state courts and “actual prejudice”
resulting therefrom, or, that failure to review the claim will
result in a “fundamental miscarriage of justice.”
Carrier, 477 U.S. 478, 485, 496 (1986);
See Murray v.
see also Schlup v. Delo,
513 U.S. 298, 316 (1995) (introduction of new evidence of innocence
is essential to establish a “fundamental miscarriage of justice” to
allow a federal court to reach the merits of a barred habeas
claim).
Petitioner has not alleged cause and prejudice for the
default.
Moreover, he has failed to allege facts sufficient to
avail
himself
exception.
of
the
“fundamental
miscarriage
of
justice”
Accordingly, this claim is procedurally defaulted from
habeas review and denied on that basis.
2.
Brady Claim (Ground One)
At ground one of the petition, Petitioner argues, as he did on
direct appeal,2 that he was denied his right to a fair trial and
2
The Appellate Division determined as follows: “[d]efendant contends that
he was denied a fair trial based on the court’s failure to impose any sanctions
upon the People for their delay in turning over Brady material. The record
-14-
due process by the prosecution’s delay in providing exculpatory
material in violation of the principles enunciated in Brady v.
Maryland, 373 U.S. 83 (1963).
Specifically, he argues that the
prosecution failed to timely disclose a tape-recorded conversation
between the victim and her incarcerated husband, as well as two
related “P-73” report forms3 authored by BPD Detective Mary Evans.
See Pet., Point I; Mem. of Law at 1-2; Reply at 6-9.
The Appellate
Division adjudicated this claim on the merits, and the AEDPA
therefore applies.
Under that standard, Petitioner’s claim is
meritless.
“Suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material to either guilt or punishment irrespective of the good
faith or bad faith of the prosecution.”
Brady, 373 U.S. at 87.
Evidence is material when “there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the
proceeding would have been different.”
473 U.S. 667, 682 (1985).
United States v. Bagley,
When a habeas claim is based on belated
disclosure of Brady information, rather than non-disclosure of such
establishes, however, that defendant had a meaningful opportunity to use that
material and, in any event, his failure to request such sanctions renders his
contention unpreserved for our review.” People v. Guinyard, 72 A.D.3d at 1546
(internal citations omitted).
3
At trial, Detective Evans testified that a “P-73” report form “is a
memoralization of whatever activity you might have done that day.” T.T. 853.
-15-
information, a petitioner is not entitled to reversal, even if the
information is deemed material, “unless he can show that the
delayed disclosure caused him prejudice.”
United States v. Diaz,
922 F.2d 998, 1007 (2d Cir.), cert. denied, 500 U.S. 925 (1991).
Petitioner cannot meet this standard.
The
record
reflects
that
during
the
second
day
of
jury
selection, the prosecutor provided defense counsel with Rosario
material, which included, inter alia, two P-73 police report forms
authored by BPD Detective Evans.
T.T. 276-279.
On the record,
defense counsel acknowledged receipt of the documents.
T.T. 280.
The first P-73 revealed that Detective Evans had spoken to an
investigator at Washington Correctional Facility and that he had
informed her that a taped recording of a phone call that occurred
the night before the murder between the victim and her incarcerated
husband, Irvin McAllister, existed.
The second P-73 revealed that
Detective Evans had subsequently met with Irving McAllister and
that he had told her that his wife had been threatened with a knife
by the woman who lived across the hall, and that the victim had
complained to him that she was having problems with her upstairs
male neighbor.
T.T. 756-759.
Subsequently, after the trial had
begun and after Pettigrew and Huddleston had testified, defense
counsel stated, on the record, that “[he] had not thoroughly
reviewed the documents (previously provided to him on the second
day of jury selection) with regard to [Detective Evans] and it was
-16-
over the lunch period on Monday that [he] came across two pieces of
paper that was within this stack of those documents. [One of them]
– they’re both P-73s.”
T.T. 757.
Defense counsel argued that the
taped conversation was Brady material and that he should be allowed
to play the taped conversation to the jury and to call the victim’s
husband as a witness.
T.T. 759.
The prosecution argued that the
tape was not Brady material, and the trial court, after reviewing
the tape, determined that it was not and precluded the defense from
playing the tape to the jury.
T.T. 760, 764-766.
The trial court,
however, stated that it would consider permitting defense counsel
to
call
Irving
McAllister
to
testify.
T.T.
769-770.
In
conjunction with the court’s statements, the prosecutor noted that
“[i]n addition to the remedy of allowing [defense counsel] to
recall [Pettigrew and Huddleston] that he is trying to claim are
the real killers here and to allowing him leeway to recall them and
re-question them in a broader manner, another obvious remedy is to
call Detective Evans, which he’s indicated he’s going to do, and to
ask specifically about this conversation with this guy who’s in
custody concerning his hearsay.” T.T. 769-770. The following day,
defense counsel stated, on the record, that, if the court was
amenable to it, he would refrain from calling Irving McAllister to
testify so long as he was permitted to elicit hearsay testimony
from Detective Evans with respect to the information contained in
the P-73 report forms.
T.T. 834-835.
-17-
The court indicated that it
was amenable to this arrangement, and defense counsel thereafter
called Detective Evans as a witness and asked her about Irving
McAllister’s statements. T.T. 855-857. Detective Evans testified,
in pertinent part, that, “Mr. McAllister told me . . . she was
angry that the male that lived in the upper dropped some weights on
the floor in the middle of the night.
And also the girl in the
lower front had –- after Ms. McAllister had complained about the
woman in the front lower slamming her door, that the girl had
responded by pulling a knife and cussing her out, that’s quote.”
T.T. 855-856.
Petitioner argues that the information at issue was material
and that the mid-trial disclosure of it impeded the ability for the
information to be effectively used.
Even assuming arguendo that
the information constituted Brady material, Petitioner has not and
cannot establish prejudice (i.e., that his attorney did not possess
the evidence in time for its effective use at trial).
Initially,
the P-73 police report forms were provided to defense counsel on
the second day of jury selection.
Nonetheless, Petitioner argues
that “the People’s delay in providing the Brady material . . .
seriously
impeded
counsel’s
preparation
for
trial
since
both
Pettigrew and Huddleston had already testified for the people.”
Pet. at 12.
Indeed, the record reflects that defense counsel
admitted that he had not thoroughly reviewed the P-73s until midtrial (after Pettigrew and Huddleston had already tesitifed).
-18-
However, the record also reflects that fairly extensive discussions
between the court and the parties were conducted on this issue in
which defense counsel was afforded the opportunity to recall
Pettigrew and Huddleston and also to call Detective Evans in place
of Irving McAllister himself.
Defense counsel declined to re-call
Pettigrew and Huddleston and instead elected to call Detective
Evans and questioned her about the substance of the P-73 police
reports, eliciting from her the same information that he wished to
elicit through Irving McAllister.
Thus, Petitioner’s counsel made
effective use of the information contained in the P-73 reports at
trial,
and
the
Court
cannot
therefore
find
that
there
is
a
reasonable probability that earlier disclosure of the information
would have changed the outcome of the proceeding.
Petitioner’s
Brady claim is therefore meritless.
Accordingly, the state court’s adjudication of this claim was
neither contrary to or an unreasonable application of settled
Supreme Court law.
Nor can it be said that the state court’s
decision was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding. The
claim is therefore denied.
-19-
3.
Trial Court Erred in Denying Petitioner’s Motion to Suppress
Petitioner’s Statements to Police (Ground Three)
At ground three of the petition, Petitioner argues, as he did
on direct appeal,4 that the trial court erred in denying his motion
to suppress his statements to police. Specifically, he claims that
his statements to homicide detectives were involuntary because he
is mentally retarded and unable to read and write and therefore was
not “capable of understanding the consequences of waiving his
constitutionally protected right to remain silent and his right to
an attorney . . . .”
See Pet., Point III.
The Appellate Division
adjudicated this claim on the merits, and the AEDPA therefore
applies.
Under that standard, Petitioner’s claim is meritless.
The “ultimate issue of voluntariness [of a confession] is a
legal
question
requiring
independent
federal
determination.”
Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997) (citing Arizona
v. Fulminante, 499 U.S. 279, 287 (1991));
see also Mincey v.
Arizona, 437 U.S. 385, 396 (1978) (holding that the Court is not
bound by
a
state
court’s
determination
that a
statement was
voluntary; “[i]nstead, this Court is under a duty to make an
independent
evaluation
of
the
record”).
Factual
questions
4
The Appellate Division held as follows: “[c]ontrary to the further
contention of defendant, the court was not required to suppress his statements
based on his mental disabilities. The intelligence of a defendant is only one
factor to be considered by a court when determining whether his or her waiver of
Miranda rights was voluntary. Here, the evidence presented at the suppression
hearing established that defendant understood the meaning of the Miranda warnings
prior to waiving his rights.” Guinyard, 72 A.D.3d at 1546 (internal citations
and quotations omitted).
-20-
underlying a legal determination are entitled to a presumption of
correctness under 28 U.S.C. § 2254(d); Nelson, 121 F.3d at 833-34.
Specifically, this Court is required to give deference to the state
court’s factual determinations, and petitioner bears the burden of
rebutting those determinations by clear and convincing evidence. 28
U.S.C. § 2254(e)(1);
see also Boyette v. Lefevre, 246 F.3d 76, 88
(2d Cir. 2001) (holding that under AEDPA, “‘a determination of a
factual issue made by a State court shall be presumed to be
correct[, and t]he applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence’”
(quoting 28 U.S.C. § 2254(e)(1))). However, the Second Circuit has
noted that the “statutory presumption refers to historical facts,
that is, recitals of external events and the credibility of the
witnesses narrating them.”
internal quotation omitted).
Nelson, 121 F.3d at 833 (citation and
Thus, “[i]f the material facts were
not adequately developed at the State court hearing or the District
Court finds that the factual determination is not fairly supported
by the record, the presumption of correctness is set aside.”
(citation and internal quotation omitted).
Id.
When evaluating the
voluntariness of a confession, no one factor is determinative;
rather, the totality of the circumstances must be evaluated. Green
v. Scully, 850 F.2d 894, 901 (2d Cir. 1988).
The factors to be
considered include (1) the characteristics of the accused, (2) the
-21-
conditions
of
the
interrogation,
enforcement officials.
and
(3)
the
conduct
of
law
Id. at 901-02.
Petitioner argues that, due to his mental retardation and his
inability to read and write, he was unable to knowingly waive his
Miranda rights.
However, low IQ by itself does not render the
waiver involuntary.
Instead, for a waiver of Miranda rights to be
deemed involuntary, an individual must be “so incompetent that he
was not aware ‘both of the nature of the right being abandoned and
the consequences of the decision to abandon it.’” United States v.
Male Juvenile, 121 F.3d 34, 40 (2d Cir. 1997) (quoting Colorado v.
Spring, 479 U.S. 564, 573 (1987) and citing Toste v. Lopes, 701 F.
Supp. 306, 313-14 (D. Conn. 1987), aff’d, 861 F.2d 782, 783
(2d Cir. 1988) (per curiam) (although psychological testimony
indicated that petitioner was ‘mildly retarded’ and of ‘dull normal
intelligence,’ the evidence did not show an inability to knowingly
waive his rights”));
see also Clark v. Mitchell, 425 F.3d 270,
283-84 (6th Cir. 2005) (“[Borderline retardation . . . or ‘low
average intellect’ . . . is not dispositive” of the voluntariness
of a defendant’s waiver of his constitutional rights);
People v.
Williams, 62 N.Y.2d 285, 287 (1984) (a borderline mentally retarded
man was capable of waiving his constitutional rights).
Here, there is more than sufficient evidence to support the
state
court’s
circumstances,
determination,
that
Petitioner
under
the
voluntarily
-22-
totality
made
of
the
incriminating
statements
after
being
advised
of
his
Miranda
rights.
In
particular, the following evidence from Petitioner’s pre-trial
suppression hearing regarding the circumstances of the questioning
supports the reasonableness of that determination:
agreed
to
accompany
police
to
headquarters
(1) Petitioner
for
questioning;
(2) Detective Acquino advised Petitioner of his Miranda warnings
and Petitioner said he understood them; (3) Petitioner said that he
was illiterate and the interviewing detectives took steps to insure
their
questions
and
his
answers;
(4)
during
the
interview,
Petitioner was not restrained in any way, he was offered food and
drink, and no promises or threats were used and no coercion was
used;
(5) Petitioner did not invoke his right to remain silent or
his right to counsel before making the statements to police;
(6)
Petitioner
changed
his
story
several
times
after
being
confronted with incriminating evidence and finally asked for a
lawyer at 12:45 a.m.; (7) the police immediately ceased their
questioning upon Petitioner’s assertion of his right to counsel;
(8)
Petitioner
proceeded
to
make
further
statements
to
the
interviewing detectives without prompting or any questions being
asked of him; (9) Petitioner has 10 prior arrests dating back to
1987.
See Suppression Decision at 2-4 at Resp’t Ex. B.
In
addition, with respect to Petitioner’s mental capacity, it was
established at the pre-trial suppression hearing that Petitioner
was
articulate
and
coherent
when
-23-
answering
the
detectives’
questions, that he did not appear confused or unknowing, that he
lived with his girlfriend for three and a half years, that he had
significant exposure to the criminal justice system with ten prior
arrests dating back to 1974, and that he asserted his right to
counsel once he was confronted with incriminating evidence by the
detectives.
Based upon all of this evidence, there was sufficient
evidence to refute the claim that Petitioner’s IQ was low enough to
invalidate his waiver.
In short, there is no basis to disturb the
state court’s finding after a full hearing on this issue that
Petitioner was properly given Miranda warnings, and his waiver was
voluntary.
In
sum,
the
Court
concludes
that
the
trial
court’s
determination of Petitioner’s claim, as affirmed by the Appellate
Division, was not contrary to, or an unreasonable application of,
clearly
established
federal
law,
nor
was
it
based
on
an
unreasonable determination of the facts in light of the evidence
presented.
4.
Petitioner’s claim is meritless and therefore denied.
Ineffective Assistance of Counsel (Ground Four)
At ground four of the petition, Petitioner argues, as he did
on direct appeal,5 that he was deprived of his right to effective
5
The Appellate Division rejected this claim on the merits, finding that:
“[w]e reject the further contention of defendant that he was denied effective
assistance of counsel.
To the extent that defendant contends that defense
counsel failed to make certain motions, it is well settled that the failure to
make motions with little or no chance of success does not constitute ineffective
assistance of counsel. Viewing the evidence, the law and the circumstances of
this case in totality and as of the time of the representation, we conclude that
defense counsel provided meaningful representation.” Guinyard, 72 A.D.3d at
-24-
assistance of counsel.
ineffective
because
Specifically, he claims that counsel was
he:
(1)
he
failed
to
investigate
the
information contained in the P-73 police reports; (2) failed to
make an “adequate” motion to dismiss for legal insufficiency at the
close of the People’s case; and (3) failed to challenge the
credentials of two of the prosecution’s expert witnesses, Schmitz
and Vertes.
See Pet., Point IV; Mem. of Law at 4-5; Reply at 9-12.
The Appellate Division adjudicated this claim on the merits, and
the AEDPA therefore applies.
Under that standard, Petitioner’s
claim is meritless.
In
order
to
establish
that
he
received
the
ineffective
assistance of trial counsel, Petitioner must show both that his
attorney provided deficient representation and that he suffered
prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687
(1984).
Petitioner must show that “counsel’s representation fell
below an objective standard of reasonableness,” and that counsel’s
conduct “so undermined the proper functioning of the adversarial
process” that the process “cannot be relied on as having produced
a just result.”
there
is
a
Id. at 686, 688.
“reasonable
Prejudice has occurred where
probability
that,
but
for
counsel's
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome."
1546-57 (internal citations omitted).
-25-
Id. at 694.
Although the
Strickland standard is two-pronged, a reviewing court need not
address both.
See id. at 697 (noting that most ineffectiveness
claims falter on the prejudice prong and stating that where a court
can “dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice,” which will often be the case, the court
should do so).
(A)
Failure to Investigate Information Contained in P-73s
Petitioner argues that he received ineffective assistance of
trial
counsel
due
to
counsel’s
failure
to
investigate
information contained in the P-73 police reports.
the
He argues that,
“[a]fter receiving this information[,] defense counsel neither met
with Mr. McAllister to learn precisely and directly what his wife
had told him about her interactions with her neighbors and did not
seek to have a brief adjournment needed to have Mr. McAllister
testify.”
Reply at 10.
This claim is meritless.
As discussed supra, defense counsel did not become aware of
the information contained in the P-73s until mid-trial, although he
was indeed provided with the reports, inter alia, on the second day
of jury selection.
Nonetheless, he was subsequently permitted to
recall Huddleston and Pettigrew (which he did not do), and also was
permitted
to call
Detective
Evans
and
was
granted
leeway
in
questioning her with respect to the information contained in the P73s.
T.T. 834.
Notably, the prosecutor commented that giving
defense counsel the ability to question Detective Evans in this
-26-
manner was beneficial to the defense in that it “grant[ed] [defense
counsel] the benefit of knowing that Detective Evans will relay
that that was their conversation when frankly we don’t know that
Mr. McAllister would even say that.”
T.T. 833.
The record
reflects that Detective Evans subsequently testified and, in doing
so, conveyed to the jury the information contained in the P-73s,
namely that, prior to her death, the victim had mentioned to her
husband that her neighbor across the hall had threatened her with
a knife and that she had complained to him about the upstairs male
neighbor.
suggests
There is nothing in the record before this Court that
there
McAllister’s
was
any
other
statements,
and
evidentiary
value
Petitioner’s
to
Irving
after-the-fact
contentions now that Irving McAllister may have been able to
provide additional or different information that would have been
beneficial to Petitioner’s case are pure speculation.
Thus,
Petitioner has failed to demonstrate that he was provided with
constitutionally
ineffective
meaning of Strickland.
assistance
of
counsel
within
the
This portion of Petitioner’s ineffective
assistance of counsel claim is meritless and is denied.
(B)
Failure to “Adequately” Make Motion to Dismiss for Legal
Insufficiency
Petitioner claims that trial counsel was ineffective for
failing
to
make
insufficiency.
an
“adequate”
motion
This claim is meritless.
-27-
to
dismiss
for
legal
The record reflects that, at the close of the People’s case,
defense counsel moved for a trial order of dismissal, pursuant to
CPL § 290.10.
T.T. 961.
In support of that motion, he argued
“that the People have failed to present a prima facie case . . .
there were no eyewitnesses to this case and that the physical
evidence that they submitted with regard to boots prints and DNA
evidence could be explained by the alleged admissions given by the
defendant to law enforcement in that he did admit to being at the
crime scene at one point.
And importantly . . . [Petitioner] never
allegedly gave any admissions to committing the crime itself.”
T.T. 960-961.
Petitioner argues now that counsel’s motion was
inadequate because “[c]ounsel failed to address the elements of the
crimes charged and the People’s failure to prove each elements.”
Pet. at 23.
As Respondent point outs, Petitioner’s claim fails
insofar as he has failed to demonstrate –- or even allege for that
matter
–-
how
prejudicial.
or
in
what
way
counsel’s
alleged
failure
was
Petitioner does not allege what element(s) of the
crimes of which he was convicted that the People failed to prove
beyond a reasonable doubt, or otherwise demonstrate how or in what
counsel’s
motion was
“inadequate”
or
in
way
explain
how
the
evidence was legally insufficient to support his convictions for
second-degree murder and third-degree criminal possession of a
weapon.
In this respect, Petitioner has failed demonstrate that
there is any probability that the outcome of his trial would have
-28-
been different had counsel “adequately” challenged the sufficiency
of
the
evidence.
This
portion
of
Petitioner’s
ineffective
assistance of counsel claim provides no basis for habeas relief and
is therefore denied.
(C)
Failure to Adequately Cross-Examine and Challenge
Credentials of Two of Prosecutions’ Expert Witnesses
Petitioner claims that trial counsel was ineffective because
he
failed
to
credentials
adequately
of
the
cross-examine
prosecution’s
and
expert
to
challenge
witnesses,
to
the
wit:
Schmitz, who testified about the footprints at the crime scene and
Vertes, who testified as to the cause of death of the victim.
This
claim is also meritless.
“The conduct of examination and cross examination is entrusted
to the judgment of the lawyer, and an appellate court on a cold
record should not second-guess such decisions unless there is no
strategic or tactical justification for the course taken."
Eze v.
Senkowski, 321 F.3d 110, 127 (2d Cir. 2003) (citations and internal
quotation marks omitted).
Petitioner has failed to demonstrate
that counsel’s decisions with respect to the method/conduct of his
cross-examination of Schmitz and Vertes were anything other than
reasonable, strategic decisions made after careful consideration of
the facts and circumstances of Petitioner’s case.
In this case, Schmitz testified that she was a forensic
chemist
with
extensive
training
and
experience
in
footprint
comparison, and stated that she was qualified in courts of law as
-29-
an expert in footprint comparison.
T.T. 949.
Schmitz clearly was
sufficiently qualified, and her conclusion that the footprints
found at the scene of the crime matched the soles of Petitioner’s
shoes was based upon the comparison analysis she performed with
regard to the footprints that were found at the scene of the crime.
T.T. 950.
counsel
Notably, Petitioner has not explained how or in what way
could
Schmitz.
have
specifically
attacked
the
credentials
of
Rather, he asserts that counsel was ineffective because
“[he] did not ask one single question in cross-examination of this
witness.”
Mem. of Law at 24.
The defense asserted by Petitioner
at trial, however, was that someone other than Petitioner had
murdered McAllister and that he had simply entered the victim’s
apartment after she was murdered because her door had been left
open.
Counsel’s
decision
not
to
cross-examine
Schmitz
was
therefore reasonable insofar as Schmitz’s findings –- that the
footprints at the crime scene matched the soles of Petitioner’s
shoes -- were consistent with Petitioner’s defense that he entered
McAllister’s apartment but did not kill her.
Similarly, Vertes, the deputy chief medical examiner for Erie
County, was a highly credentialed expert in the field of medicine,
had conducted over 3,000 autopsies herself, and had testified
“hundreds” of times in court.
not personally
perform
the
T.T. 870-871.
autopsy
of
the
Although Vertes did
victim
herself
–-
information that was elicited on direct examination and highlighted
-30-
on cross-examination –- she testified that an autopsy of the victim
had been performed on April 19, 2007 in the medical examiner’s
office by a Dr. Baik, and that her conclusions with respect to the
cause of the victim’s death were based upon the report that Dr.
Baik prepared in the normal course of business, her training and
experience, and the autopsy performed.
T.T.
874-881.
Despite
these qualifications, Petitioner appears to be arguing, as he did
on direct appeal, that an in-depth cross-examination of Vertes was
required since she did not personally perform the autopsy herself.
See Pet. at 24; see also Pet’r Br. on Appeal, Point IV at Resp’t
Ex. B.
He appears to suggest that counsel should have done this by
cross-examining Vertes on an alleged error that she made on a
former murder case that she worked on as the medical examiner. Id.
Given that employing this line of questioning on a collateral issue
would have been extremely prejudicial to the People’s case -–
possibly even grounds for a mistrial –- it was entirely reasonable
for counsel not to have challenged Vertes’s qualifications by
raising her involvement in the unrelated case.
Accordingly, this
portion of Petitioner’s ineffective assistance of trial counsel is
meritless and is denied.
In
sum,
the
state
court’s
adjudication
of
Petitioner’s
ineffective assistance of counsel claim was neither contrary to nor
an unreasonable application of settled Supreme Court law.
claim is meritless and is therefore denied in its entirety.
V.
Conclusion
-31-
The
For the reasons stated above, the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 1) is denied,
and the petition is dismissed.
Because Petitioner has failed to
make “a substantial showing of a denial of a constitutional right,”
28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate
of appealability.
See, e.g., Lucidore v. New York State Div. of
Parole, 209 F.3d 107, 111-113 (2d Cir. 2000).
The Court also
hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal from this judgment would not be taken in good faith and
therefore denies leave to appeal as a poor person.
Coppedge v.
United States, 369 U.S. 438 (1962).
Petitioner must file any notice of appeal with the Clerk’s
Office, United States District Court, Western District of New York,
within thirty (30) days of the date of judgment in this action.
Requests to proceed on appeal as a poor person must be filed with
United States Court of Appeals for the Second Circuit in accordance
with the requirements of Rule 24 of the Federal Rules of Appellate
Procedure.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
June 26, 2012
Rochester, New York
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