Lugo v. Lavalley et al
Filing
9
-CLERK TO FOLLOW UP- DECISION AND ORDER dismissing the petition for a writ of habeas corpus. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/26/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL LUGO,
Petitioner,
-vs-
No. 6:13-CV-6125(MAT)
DECISION AND ORDER
THOMAS LAVALLEY, Superintendent of
Clinton Correctional Facility, and
ATTORNEY GENERAL OF THE STATE OF
NEW YORK,
Respondents,
I.
Introduction
Represented by counsel, Michael Lugo (“Lugo” or “Petitioner”),
filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 alleging that he is being held in Respondent’s custody in
violation of his federal constitutional rights. Petitioner’s state
custody arises from a judgment of conviction entered on June 13,
2008, in New York State County Court, Monroe County, following a
jury
trial,
convicting
him
of
Burglary
in
the
First
Degree
(New York Penal Law (“P.L.”) §§ 20.00, 140.30(4)), and Criminal
Possession of a Weapon in the Second Degree (P.L. § 265.03(3)), and
sentencing him to two concurrent determinate terms of 11 years
imprisonment followed by 5 years of post-release supervision.
II.
Factual Background and Procedural History
A.
Overview
Just after midnight on December 1, 2006, Petitioner and
Michael D. Caldwell (“Caldwell”) knocked on the front door of the
two-floor apartment occupied by Kenneth Critten (“Critten”) and his
wife,
Angela
Spencer
(“Spencer”),
at
11
Lamberton
Park
in
Rochester, New York. Critten answered the door, and Petitioner and
Caldwell forced their way inside. While Petitioner pointed a loaded
sawed-off shotgun at Critten’s head, he and Caldwell robbed Critten
of currency and jewelry. Spencer, having heard the robbery from
upstairs, called 911 for assistance. When the police arrived,
Petitioner and Caldwell attempted to flee but were arrested as they
left the building.
A Monroe County grand jury charged Petitioner and Caldwell
with two counts of Robbery in the First Degree (P.L. §§ 20.00,
160.15(4)) and one count of Burglary in the First Degree (P.L.
§§ 20.00, 140.30(4)). Petitioner, but not Caldwell, was charged
with Criminal Possession of a Weapon in the Second Degree (P.L.
§ 265.03(3)). Prior to trial, however, the prosecution withdrew the
two robbery counts.
B.
Jury Selection
Jury selection commenced on January 14, 2008, with Monroe
County Court Judge Dennis S. Cohen presiding. Petitioner was
represented
by
assigned
counsel,
venirepersons were sworn in,
Mark
Young,
Esq.
After
the
Juror Number 12, Michelle Dovan
(“Juror Dovan”), stated that she had been a schoolteacher for
12 years, and now volunteered “in the City” at 22 schools, working
-2-
in
“literacy
programs”
and
fundraisers.
T.30-31,
58-59.1
She
initially assured the trial court that if she were selected, she
would be “fair and impartial and render a verdict in accordance
with the evidence and the law” as the court explained it. T.59-60.
Later, however, Juror Dovan realized that she previously had had
Petitioner as a student, and she informed a courtroom deputy of
this fact.
When Juror Dovan was questioned outside the presence of the
other jurors regarding her relationship with Petitioner, she stated
that she was “sure” that he was in her second grade class.
T.109-11. As Petitioner’s sole habeas claim relates to trial
counsel’s performance in connection with the empanelment of Juror
Donovan, the Court will set forth the relevant portions of the
transcript in some detail below:
THE COURT: Do you have any good or bad experiences with
him that you recollect?
[JUROR]: I can’t remember anything specifically negative.
I remember the mother more than the child, not in a
necessarily positive manner.
THE COURT: Okay. Well, would you hold that against him?
Would this keep you from being a fair and impartial juror
on this thing because you have had him in class, that
he’s one of your students, that that would make a
difference or not? Would that make a difference to you
that one of your students is on trial?
[JUROR]: I don’t know. It’s tough. No. I mean honestly,
the few times I looked at him it didn’t even dawn on me.
1
Numerals preceded by “T.” refer to pages from the transcript
of Petitioner’s trial.
-3-
THE COURT: Now that you know, would that keep you from
being fair and impartial?
[JUROR]: I have some negative feelings.
[DEFENSE COUNSEL]: Toward mom?
[JUROR]: Yeah.
[DEFENSE COUNSEL]: But not towards [Petitioner]?
[JUROR]: He wasn’t an angel. I mean -[DEFENSE COUNSEL]: Who was in second grade?
[JUROR]: Exactly. I mean I taught in the City. When you
talk about predisposed feelings towards -[DEFENSE COUNSEL]: We’re trying to get -- I mean can you
put that all aside and be fair and impartial here to
listen to the evidence and decide based on the evidence,
not your feelings?
THE COURT: This is really different than anything that
may happen in school.
[JUROR]: I know. I don’t know how honest you want me to
be. I mean she wasn’t supportive. She wasn’t nice. He
would get in some difficult situations. She didn’t make
it any easier. It was, you know -- am I a fair person?
Absolutely.
[DEFENSE COUNSEL]: Can you separate mom and son?
[JUROR]: Yeah. Yeah. Yeah. I can do that. It’s funny.
We’re all a product of our parents though and I feel like
the influence that he’s gotten, I don’t want that to
influence me, but I think I can be fair. I know you don’t
want to hear think. Yes. I will be fair.
THE COURT: Well, you are going to hear some evidence and
it’s whether you can hear some evidence and restrict it
to that. Him being a student or any relationship with his
mother, that that wouldn’t have a bearing on how you
determine the evidence.
[JUROR]: Right. Right. I can do that.
-4-
[DEFENSE COUNSEL]: Kind of went a little different than
I thought.
[JUROR]: I’m sorry. Were you looking for the sympathy
card? I got no sympathy.
[DEFENSE COUNSEL]: I thought she [the prosecutor] would
be wanting to get rid of you because you knew him and
liked him.
[JUROR]: No. Not necessarily. Not either way.
THE COURT: You understand none of it can be brought up in
jury deliberations.
[JUROR]: Absolutely. Nothing. Nothing prior. Only what
we’ve got here. No. It’s fine.
THE COURT: You’re confident that you won’t bring that up,
that you are not going to?
[JUROR]: Right. Sorry.
THE COURT: No. That’s fine.
T.111-14.
Juror Dovan then left the judge’s chambers, and the parties
discussed the matter further. The prosecutor urged Judge Cohen to
strike Juror Dovan for cause, arguing that her presence on the jury
could
be “grounds for appeal.” T.114. Trial counsel opposed the
challenge, stating, “If I keep her on, that’s my choice here.” Id.
The prosecutor
persisted
in
arguing
in
favor of
a
for-cause
challenge, noting that “just because she says at the end after
being asked ten times that she thinks she can be okay and then
[says] yes, I think I can be okay, everything else she said, if
someone were to review this, I think would negate her one time
saying yes, I could do it.” T.115. Trial counsel then explained his
-5-
reasons for opposing a for-cause challenge and for not opposing
Juror Dovan’s empanelment. He acknowledged it was “kind of a funny
situation” but thought that of all the jurors, she came across as
someone who would listen to the evidence with an open mind.
Judge Cohen concurred that it was “difficult” but did not think her
past experience and preconceived notions (which mainly related to
Petitioner’s mother) were sufficient to qualify as the basis for a
challenge-for-cause. See T.115-16. The prosecutor then appeared to
concede the point, and the trial judge stated, “So, no [challenge
for] cause.” T.116. Neither defense counsel nor the prosecutor
asserted a peremptory challenge against Juror Dovan, although each
had many peremptories available. Id.
3.
Trial, Verdict, and Post-Verdict Motions
The prosecution presented testimony from Spencer and Critten,
along with a recording of the 911 call. Several police officers
also testified regarding the sawed-off shotgun in Petitioner’s
possession and Petitioner’s arrest. Jury deliberations began at
10:53 a.m. on January 17, 2008, and at 1:00 p.m. that day, the jury
found Petitioner guilty, as charged, of first-degree burglary and
second-degree criminal possession of a weapon T.705-07.
Following the verdict but prior to sentencing, Petitioner
filed a pro se motion for vacatur in the trial court dated April 9,
2008, claiming that (1) Juror Dovan was biased; and (2) trial
counsel was ineffective because he failed to challenge the biased
-6-
juror and failed to investigate and call certain police witnesses.
Petitioner then filed a counseled motion and an amended counseled
motion to set aside the verdict under New York Criminal Procedure
Law (“C.P.L.”) § 330.30, arguing that the trial court should have
excluded the 911 recordings, and that the trial evidence was
legally insufficient.
On April 28, 2008, at the prosecution’s request and in light
of Petitioner’s ineffective assistance claim, the trial judge
agreed to
relieve
trial
counsel
and
assign
new
counsel.
The
prosecution submitted an answering affirmation to Petitioner’s pro
se motion, asserting that the motion was premature and, in any
event, without merit because trial counsel’s decision regarding
Juror Dovan was a matter of strategy.
4.
Sentencing
On June 13, 2008, Petitioner appeared for sentencing with
substitute
counsel,
Peter
J.
Pullano,
Esq.
At
the
parties’
suggestion, the trial court decided to treat Petitioner’s pro se
motion, to the extent it related to record-based matters, as
another C.P.L. § 330.30 motion to set aside the verdict. To the
extent that Petitioner’s pro se motion related to matters dehors
the record, it would be treated as a C.P.L. § 440.10 motion to
vacate the judgment, and it would be decided after sentencing.
Judge Cohen ruled from the bench and denied Petitioner’s
C.P.L. § 330.30 claims. S.3-4, 8-9. With regard to the juror-bias
-7-
claim, Judge Cohen noted, “[W]e did have a pretty comprehensive
voir
dire
of”
Juror
Dovan
in
chambers,
and
trial
counsel
“strategically . . . chose to keep the juror.” S.4. According to
Judge Cohen, trial counsel “made . . . what appeared to be, [a]
reasoned decision to have that juror.” S.4. Furthermore, at the
time of voir dire, Judge Cohen found there was “no indication that
[Petitioner] felt that [Juror Dovan] wasn’t an acceptable juror,”
but that, to the contrary, Petitioner and counsel “seemed to confer
and accept the juror.” S.4.
Judge Cohen proceeded to sentence Petitioner, as a violent
felony offender, to two concurrent determinate terms of 11 years
followed by 5 years of post-release supervision. S.22-23. According
to Judge Cohen, the evidence against Petitioner was “overwhelming.”
S.21. Following sentencing, Judge Cohen issued an oral ruling
denying Petitioner’s C.P.L. § 440.10 claim that trial counsel had
erred by not investigating witnesses. S.24-27. Judge Cohen stated
that trial counsel “did a marvelous job of defending this case”,
that he “zealously” and “vigorously defended” the case, and that he
“gave Mr. Lugo the finest representation.” S.26-27.
5.
After
The 2009 C.P.L. § 440.10 Motion to Vacate the
Judgment of Conviction
Petitioner
had
filed
a
direct
appeal
from
his
conviction, but before the appeal had been perfected, he filed with
the trial court a pro se motion dated November 17, 2009, pursuant
to C.P.L. § 440.10, arguing that (1) Juror Dovan was biased and
-8-
impermissibly allowed to remain on the jury; (2) Juror Dovan
“flared both of her hands in a suggestive motion to the prospective
jurors in the panel”; (3) Juror Dovan tainted the entire jury
process due to her bias against Petitioner; (4) trial counsel was
ineffective
(5)
in
substitute
failing
counsel
to
was
challenging
ineffective
Juror
for
not
Dovan;
and
supplementing
Petitioner’s pro se post-verdict motion. The prosecution opposed
the motion, citing both procedural grounds and lack of merit to the
claims. Petitioner filed a reply affidavit.
On February 23, 2010, Judge Cohen denied the motion “for all
of the reasons stated in the People’s answering affirmation.” See
Respondent’s
Exhibit
“[s]pecifically”
(“Resp’t
denied
the
Ex.”)
J
motion
at
2.
Judge
pursuant
to
Cohen
C.P.L.
§ 440.10(2)(b) because the judgment against Lugo was pending on
appeal at the time of the motion, and sufficient facts appeared in
the record for review of petitioner’s claim on appeal. Id. Although
the prosecution timely served Petitioner with notice of entry of
Judge
Cohen’s
order,
he
failed
to
seek
leave
to
appeal
the
Appellate Division, Fourth Department, of New York State Supreme
Court (“the Appellate Division”).
6.
The Direct Appeal
Represented by new counsel, Petitioner appealed his conviction
to the Appellate Division on the grounds that, inter alia, trial
counsel was ineffective because he (1) failed to join in the
-9-
prosecutor’s challenge-for-cause to Juror Dovan; and (2) consented
to the trial court’s decision to hold a charge conference after
summations.
On
September
30,
2011,
the
Appellate
Division
unanimously affirmed the conviction, denying all of Petitioner’s
claims.
People
v.
Lugo,
87
A.D.3d
1403
(4th
Dep’t
2011).
Petitioner’s counsel filed an application for leave to appeal to
the New York Court of Appeals, raising, inter alia, the claim that
trial counsel
was
ineffective
in
allowing Juror
Dovan
to
be
empaneled. On December 28, 2011, the New York Court of Appeals
denied leave to appeal. People v. Lugo, 18 N.Y.3d 860 (2011).
7.
The Federal Habeas Petition
Petitioner filed his counseled federal habeas petition with
this Court on March 7, 2013, asserting a single claim – that trial
counsel was ineffective for failing to join in the prosecutor’s
challenge for cause to Juror Dovan, who was allegedly biased.
Respondent answered the petition, conceding that it is timely and
that
Petitioner’s
ineffective
assistance
claim
is
properly
exhausted. Respondent argues that the Appellate Division’s denial
of
the
Petitioner’s
claim
was
neither
contrary
to,
nor
an
unreasonable application of, clearly established Supreme Court law,
and therefore habeas relief is not warranted. Petitioner’s habeas
counsel filed a reply brief.
For the reasons that follow, Lugo’s request for a writ of
habeas corpus is denied, and the petition is dismissed.
-10-
IV.
Legal Principles Applicable to Section 2254 Petitions
A federal court may “entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in custody
in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. 2254(a). Section 2254, as amended in 1996 by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), provides
new limitations on when habeas relief
may be granted. If a claim
was “adjudicated on the merits in State court proceedings[,]” the
writ may not issue “unless the adjudication of the claim . . .
(1) 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;
or
(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.”
28
U.S.C.
§
2554(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)).
Under 28 U.S.C. § 2254(d)(1), a state court's determination
that a claim lacks merit precludes federal habeas relief so long as
“fairminded jurists could disagree” on the correctness of the state
-11-
court's decision. Harrington v. Richter, ___ U.S. ____, 131 S. Ct.
770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). The same standard holds, even where a state court’s
decision is unaccompanied by an explanation; in such cases, the
petitioner must show that “there was no reasonable basis for the
state court to deny relief.” Harrington, 131 S. Ct. at 784.
V.
The Merits of the Petition
A.
The
Appellate
Division
Adjudicated
Petitioner’s
Ineffective Assistance Claim on the Merits.
Petitioner asserts that same ineffective assistance claim as
he asserted on direct appeal. The Appellate Division summarily
“reject[ed] [Petitioner’s] contention that he was denied effective
assistance of counsel.” Lugo, 87 A.D.3d at 1405 (citing People v.
Baldi, 54 N.Y.2d 137, 147 (1981)). Because “[a] summary disposition
constitutes
a
disposition
‘on
the
merits’[,]”
the
Appellate
Division’s decision is entitled to AEDPA deference. Hawthorne v.
Schneiderman,
695
F.3d
192,
196
(2d
Cir.
2012)
(“AEDPA
unquestionably requires deference to a state court's ‘summary
disposition’ of an appeal.”) (citing Harrington v. Richter, 131 S.
Ct. at 784).
B.
Relevant Law
The Sixth Amendment’s right to counsel “is the right to the
effective assistance of counsel.” McMann v. Richardson, 397 U.S.
759, 771, n. 14 (1970) (emphasis supplied); accord Strickland v.
Washington, 466 U.S. 668, 686 (1984). An ineffective assistance
-12-
claim “has two components: A petitioner must show that counsel’s
performance was deficient, and that the deficiency prejudiced the
defense.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citing
Strickland, 446 U.S. at 687).
For
purposes
of
this
Court’s
AEDPA
analysis,
Strickland
represents “the relevant ‘clearly established Federal law, as
determined by the Supreme Court of the United States.’” Aparicio v.
Artuz, 269 F.3d 78, 95 & n. 8 (2d Cir. 2001) (quoting 28 U.S.C. §
2254(d)(1)). A habeas petitioner is “not required to further
demonstrate that his particular theory of ineffective assistance of
counsel is also ‘clearly established[,]’” Aparicio, 269 F.3d 95 &
n. 8, but he “must do more than show that he would have satisfied
Strickland’s test if his claim were being analyzed in the first
instance. . . .” Bell v. Cone, 535 U.S. 685, 698–99 (2002). Rather,
he must show that the state court applied Strickland to the facts
of his case in an objectively unreasonable manner. Id. (citation
omitted). The Supreme Court has characterized habeas review of an
ineffective
assistance
under
AEDPA
as
“doubly”
deferential.
Harrington, 131 S. Ct. at 788; Knowles v. Mirzayance, 556 U.S. 111,
123 (2009)(stating that the relevant question “is not whether a
federal court believes the state court’s determination under the
Strickland standard was incorrect but whether that determination
was unreasonable—a substantially higher threshold”) (citations
omitted). As the Supreme Court explained in Harrington, “[t]he
-13-
Strickland standard is a general one, so the range of reasonable
applications is substantial.” Harrington, 131 S. Ct. at 788 (citing
Knowles, 556 U.S. at 123).
1.
Strickland’s Performance Prong
The sole basis for Petitioner’s attack on trial counsel’s
performance is that counsel did not move to strike, for cause,
Juror Dovan as an impliedly biased venireperson. Respondent argues
that Petitioner cannot establish that trial counsel’s performance
in connection with Juror Dovan was deficient, for two reasons: (1)
Juror Dovan was not biased, meaning that counsel had no basis to
assert a for-cause challenge; and (2) trial counsel’s decision not
to challenge Juror Dovan was based on a reasonable trial strategy,
which should not be second-guessed on habeas review. As discussed
further below, the Court finds that trial counsel made a reasonable
strategic decision to retain Juror Dovan on the panel hearing
Lugo’s case.
Scrutiny
of
counsel’s
performance
must
be
“highly
deferential,” and the habeas petitioner must overcome “the strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689;
see
also
Knowles,
556
U.S.
at
123.
Stated
another
way,
the
petitioner must show that the challenged action cannot reasonably
be considered sound trial strategy under the circumstances of the
case. Strickland, 466 U.S. at 689.
-14-
An
attorney’s
determination
to
“accept
or
strike”
a
prospective juror is a strategic or tactical decision. Alvord v.
Wainwright, 469 U.S. 956, 959 n. 4 (1984) (citation omitted); see
also Hughes
v.
United
States,
258
F.3d
453,
(6th
Cir.
2001)
(“Counsel is also accorded particular deference when conducting
voir dire. An attorney’s actions during voir dire are considered to
be matters of trial strategy.”) (citing Nguyen v. Reynolds, 131
F.3d
1340,
1349
(10th
Cir.
1997);
other
citation
omitted)).
Actions or omissions by counsel that “might be considered sound
trial strategy” do not constitute ineffective assistance. Michel v.
Louisiana, 350 U.S. 91, 101 (1955); accord Strickland, 466 U.S. at
689; see also, e.g., Kieser v. People of State of N.Y., 56 F.3d 16,
18 (2d Cir. 1995).
The record clearly indicates that, based on his questioning of
Juror Dovan and his response to the trial court during the various
colloquys, trial counsel carefully considered the issue of whether
Juror Dovan should or should not be seated. The record is devoid of
any suggestion that trial counsel’s decision not to challenge Juror
Dovan for cause was based on ignorance or inattention. Rather,
trial counsel explained, at some length, the basis for his decision
keep Juror Dovan:
I don’t think it’s a [challenge for] cause. Certainly
it’s kind of a funny situation. I thought after what she
said, I would be looking to get rid of her, you know,
because she hated my client’s mom and, you know, she said
[the] apple [doesn’t fall far from the] [ ] tree, but I
think she, of the people we’ve talked to, she certainly
-15-
has come across as being [a person who believes,] [“]I
can listen to the evidence.[”]
T.115.
Indeed,
Judge
Cohen
later
opined
that
trial
counsel
“strategically . . . chose to keep” Juror Dovan. S.4. It bears
noting that Judge Cohen did not think that Juror Dovan warranted a
challenge
for
cause.
See
T.116
(“She
has
some
preconceived
thoughts. First of all, they are a long time ago and they are
mainly not related to the defendant on this, but is that enough for
her not to be fair and impartial? I don’t think I quite get there
on this and that doesn’t qualify as a grounds [for challenge].”)
(emphasis supplied).
In the context of reviewing a judge’s determination regarding
juror bias, the Supreme Court has explained that “the question
whether a venireman is biased . . . is based upon determinations of
demeanor and credibility that are peculiarly within a trial judge’s
province.” Wainwright v. Witt, 469 U.S. 412, 428 & n. 9 (1985)
(citing Reynolds v. United States, 98 U.S. 145, 156-57 (1879)
(“[T]he manner of the juror while testifying is oftentimes more
indicative of the real character of his opinion than his words.
That
is
seen
below,
but
cannot
always
be
spread
upon
the
record.”)). Surely this principle applies as well to a defense
attorney, who, like a trial judge, has the opportunity to see and
hear the jurors first-hand.
As the Supreme Court has held, “[a]lthough courts may not
indulge ‘post hoc rationalization’ for counsel’s decisionmaking
-16-
that contradicts the available evidence of counsel’s actions,
neither may
they
insist counsel
confirm
every
aspect
of
the
strategic basis for his or her actions.” Richter, 131 S.Ct. at 790
(citations
and
internal
quotation
marks
omitted;
emphasis
supplied). Here, as Respondent argues, the facts of record provide
reasonable grounds for trial counsel’s affirmative decision to
retain Juror Dovan on the jury. As noted above, trial counsel had
the opportunity to observe Juror Dovan’s demeanor, and he opined
that
she
seemed
more
open
than
the
other
venirepersons
to
“listen[ing] to the evidence.” T.115. Trial counsel also may have
reasonably concluded that Juror Dovan’s teaching background and
volunteer activities in the City school district might make her
more sympathetic to the defense. T.58-59. There are many cases
involving discriminatory peremptory strikes in which prosecutors
cite, as a race-neutral reason for striking a juror, the juror’s
employment in a so-called “helping profession” (e.g., teaching and
social work) because such individuals tend to favor the defense
position. See, e.g., Rosado v. Unger, No. 11 Civ. 3747, 2012 WL
5871607, at *4 (S.D.N.Y. May 4, 2012) (prosecutor explained that it
“generally did not seat people who were social workers; were
preschool or elementary school teachers . . . .”), report and
recommendation adopted, 2012 WL 5871606, at *3 (S.D.N.Y. Nov. 20,
2012); Robinson v. Smith, No. 09 Civ. 8222, 2011 WL 1849093, at *21
n.34 (S.D.N.Y. May 17, 2011) (prosecutor may have challenged jurors
-17-
who were teachers or social workers because “such workers tend to
sympathize
with
defendants”)
(collecting
cases),
report
and
recommendation adopted, 2011 WL 3163466 (S.D.N.Y. July 26, 2011);
McLeod v. Moscicki, No. 02 Civ. 9335, 2003 WL 22427757, at *2
(S.D.N.Y. Oct. 22, 2003) (prosecutor “always challenged people
employed as either teachers or social workers, since it was his
view that individuals with such occupations tended to hold views
that were favorable to the defense”).
Furthermore, trial counsel actively participated in voir dire,
challenging for cause eight venirepersons and exercising peremptory
challenges as to the three for-cause challenges that the trial
court had denied. See T.105-09, 180-84, 231-34, 248-49. Notably,
trial counsel declined to exercise a peremptory challenge against
Juror Dovan, even though he had peremptories available to use.
Trial counsel’s “active participation in voir dire coupled with his
challenges to a number prospective jurors reveals that the decision
not to exclude [Juror Dovan] was the product of sound trial
strategy rather than ineffective assistance.” Baxter v. Conway, No.
07 Civ. 2759(VB)(GAY), 2011 WL 5881846, at *20 (S.D.N.Y. July 29,
2011) (citing Figueroa v. Heath, No. 10–CV–0121, 2011 WL 1838781,
at *11 (E.D.N.Y. May 13, 2011) (finding significant that counsel
challenged
venirepersons
who
expressed
“any
reservations
or
hesitations regarding [their] ability to hold the prosecution to
its burden”); Charlemagne v. Goord, No. O5 Civ. 9890, 2008 WL
-18-
2971768, at *27 (S.D.N.Y. June 30, 2008); Nova v. Ercole, No. 06
Civ. 562, 2007 WL 1280635, at *8 (S.D.N.Y. Apr. 30, 2007)), report
and recommendation adopted, No. 07 CV 2759 VB, 2011 WL 5881190
(S.D.N.Y. Nov. 23, 2011).
2.
Strickland’s Prejudice Prong
Given that the Court has found that a consciously-made,
reasonable strategic decision supported defense counsel’s retention
of Juror Dovan, the Court need not proceed to examine the prejudice
component of the Strickland test. See Strickland, 466 U.S. at 697
(“[T]here
is
no
reason
for
a
court
deciding
an
ineffective
assistance claim . . . to address both components of the inquiry if
the
defendant
makes
an
insufficient
showing
on
one.”).
Nevertheless, for the sake of completeness, the Court addresses
Petitioner’s argument that by permitting Juror Dovan, who suffered
from an implied bias against Petitioner, to sit on the jury, trial
counsel prejudiced the defense.
“The constitutional standard of fairness requires that a
defendant have ‘a panel of impartial, ‘indifferent’ jurors.’”
Murphy v. Florida, 421 U.S. 794, 799 (1975) (quoting Irvin v. Dowd,
366 U.S. 717, 722 (1961)). The Supreme Court has stated that “[t]o
hold that the mere existence of any preconceived notion as to the
guilt or innocence of an accused, without more, is sufficient to
rebut the presumption of a prospective juror’s impartiality would
be to establish an impossible standard.” Irvin, 366 U.S. at 723;
-19-
accord Murphy, 421 U.S. at 800; Skilling v. United States, 130 S.
Ct. 2896, 2925 (2010). The defendant thus has the burden of showing
that the prospective juror was actually biased against him. Murphy,
421 U.S. at 800 (citing Irvin, 366 U.S. at 723).
Petitioner points to several of Juror Dovan’s answers during
voir dire and argues that they are more than sufficient to show an
implied
bias.
In
particular,
Petitioner
cites
Juror
Dovan’s
comments that Lugo got “in some difficult situations” and “wasn’t
an angel.” T.111-14. Respondent, however, notes that when defense
counsel followed up by asking, “[w]ho was [an angel] in second
grade,” Juror Dovan agreed, stating, “[e]xactly.” T.112.
Petitioner also cites the negative feelings Juror Dovan had
towards his mother, i.e., that “she wasn’t supportive” and “wasn’t
nice.” Juror Dovan answered, “[w]e’re all a product of our parents”
when asked if she would hold those negative feelings against
Petitioner. Respondent counters by noting that when defense counsel
followed up on this line of questioning, Juror Dovan ultimately
stated, “I will be fair.” T.112. Petitioner rejoins that before
Juror Dovan said, “I will be fair,” her answers amounted to
“waffling at best” (i.e., “I think I can be fair. I know you don’t
want to hear think. . . .”), and were “hardly unequivocal.” After
reviewing the transcript, the Court agrees that Petitioner has not
unreasonably
interpreted
some
of
Juror
Dovan’s
answers
as
vacillating; yet, Respondent is correct that Juror Dovan ultimately
-20-
confirmed, in response to the trial judge’s questioning, that she
would restrict her verdict to the evidence presented at trial, and
that “[a]bsolutely” none of her prior experiences with Petitioner
and
his
mother
could
be
brought
up
in
jury
deliberations.
Respondent reasonably argues that since Juror Dovan herself came
forward
and
forthrightly
related
her
prior
experiences
with
Petitioner and his mother, the trial judge was entitled to credit
her later sworn assurances that she would be impartial. See Smith
v. Phillips, 455 U.S. 209, 217 n.7 (1982) (“[S]urely one who is
trying as an honest man to live up to the sanctity of his oath is
well qualified to say whether he has an unbiased mind in a certain
matter.”).
The Supreme Court has consistently instructed that the trial
judge is in the best position to assess a juror’s impartiality,
especially where, as here, the juror has been asked searching
follow-up
questions
and
the
court
has
witnessed
the
juror’s
responses. See Skilling, 130 S. Ct. at 2922-23 (“This face-to-face
opportunity
to
gauge
demeanor
and
credibility,
coupled
with
information from the questionnaires regarding jurors’ backgrounds,
opinions, and sources of news, gave the court a sturdy foundation
to assess fitness for jury service.”). Because the trial judge’s
“determination
[regarding
juror
bias]
is
essentially
one
of
credibility, and therefore largely one of demeanor, . . the trial
court’s resolution of such questions is entitled, even on direct
-21-
appeal, to ‘special deference,’” as a finding of fact. Patton v.
Yount, 467 U.S. 1025, 1036-38 (1984) (citation omitted). If such a
finding is entitled to deference on direct review, it necessarily
is entitled to even greater deference on habeas review under AEDPA.
Relatedly, the Court finds that Petitioner has not succeeded
in demonstrating prejudice as a result of trial counsel’s handling
of the juror issue, because there is no reasonable probability that
the outcome would have been different had trial counsel joined the
prosecutor’s for-cause challenge of Juror Dovan. As noted above,
the trial court stated that any preconceptions Juror Dovan had
about Petitioner did not rise to the level of warranting a forcause challenge. Thus, there is nothing in the record to lead this
Court to suspect that Judge Cohen would have changed his mind had
Petitioner’s counsel joined the prosecutor’s for-cause challenge.
Cf. Wallace v. Artus, No. 9:06-CV-464(FJS/VEB), 2011 WL 1302228, at
*9 (N.D.N.Y. Mar. 31, 2011) (“[G]iven the extensive voir dire
questioning, even if Petitioner’s trial counsel had challenged [the
venireperson] for cause, there is no indication that the state
court would have granted his application. [The venireperson] never
outright stated that he would be biased against Petitioner because
the incident occurred in a bar; and, in fact, he stated that he
‘could try’ to be impartial when individually asked and also stated
that he would judge the case solely on the facts when the court
posed the question to a number of potential jurors all at once.”).
-22-
Because Petitioner cannot fulfill either the “performance” or
the “prejudice” elements of Strickland under a de novo standard of
review, he necessarily cannot demonstrate that the state court’s
rejection of his ineffective assistance claim was an “unreasonable
application of” or “contrary to” Strickland for purposes of AEDPA.
Accordingly, habeas relief may not issue on his habeas claim.
V.
Conclusion
For the foregoing reasons, the petition (Dkt #1) for a writ of
habeas corpus is dismissed.
Because Petitioner has failed to make
a substantial showing of a denial of a constitutional right, see
28 U.S.C. § 2253(c)(2), no certificate of appealability shall
issue. The Clerk of the Court is requested to close this case.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
December 26, 2013
Rochester, New York
-23-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?