Dark v. Crowley
Filing
10
DECISION ORDER re 1 Petition for Writ of Habeas Corpus filed by K. Crowley. The application under 28 U.S.C. § 2254 is denied. The Clerk of the Court is directed to close this case. Pursuant to 28 U.S.C. § 2253, the Court declines to issue a certificate of appealability, since Petitioner has not made a substantial showing of the denial of a constitutional right. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be tak en in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.Signed by Hon. Charles J. Siragusa on 10/27/20. Copy of this NEF and decision and order mailed to pro se petitioner at 483 Jefferson Ave,Buffalo, NY 14204. (KAP)-CLERK TO FOLLOW UP-
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________________
DAVAN DARK,
Petitioner,
DECISION AND ORDER
-vs6:16-CV-6432 CJS
K. CROWLEY,
Respondent.
_________________________________________
INTRODUCTION
Petitioner Davan Dark (“Dark” or “Petitioner”) brings this pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, who was convicted of illegally
selling and possessing narcotics under New York State law, contends that his federal
constitutional rights were violated in several ways. For the reasons explained below, the
petition for a writ of habeas corpus is dismissed.
BACKGROUND
The following is a summary of the relevant facts. On April 11, 2011, after a bench
trial in Erie County Court, Dark was convicted of Criminal Sale of a Controlled Substance
in the Third Degree, New York Penal Law (“PL”) § 220.39[1] 1 and Criminal Possession of
a Controlled Substance in the Third Degree, PL § 220.16[1] 2 and sentenced to 10 years
of imprisonment and 3 years of post-release supervision. Evidence adduced by the
1
“A person is guilty of criminal sale of a controlled substance in the third degree when he knowingly and
unlawfully sells: 1. a narcotic drug;” N.Y. Penal Law § 220.39 (McKinney)
2 “A person is guilty of criminal possession of a controlled substance in the third degree when he
knowingly and unlawfully possesses: 1. a narcotic drug with intent to sell it;” N.Y. Penal Law § 220.16
(McKinney)
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Government at trial indicated that Plaintiff had sold crack cocaine to undercover police
officers. Dark did not testify at trial.
Plaintiff appealed his conviction to the New York State Supreme Court, Appellate
Division, Fourth Department (“Fourth Department”), arguing that that there was legally
insufficient evidence to sustain his conviction concerning identification; that his conviction
was against the weight of the evidence concerning identification; that his attorney was
ineffective for failing to request a Wade haring prior to trial; that there was a Brady
violation due to the fact that a cell-phone photo taken by one of the undercover officers
during the controlled purchase of narcotics from Dark had not been disclosed or
preserved; that his attorney was ineffective for failing to pursue an agency defense; 3 and
that the sentence was unduly harsh.
The Fourth Department found that all of Dark’s
arguments lacked merit.
As mentioned earlier, the alleged Brady violation involved the failure to disclose or
preserve a cell-phone photo that one of the subject undercover officers had taken as he
and his partner were purchasing crack cocaine and marijuana from Dark.
More
specifically, on the date of the undercover operation, February 4, 2010, the two officers
approached Dark in a convenience store, during the daytime, asking to buy narcotics.
Prior to that, the officers had received information that an individual using the name “Day
Day” was selling narcotics from that location. 4 Dark told one of the officers to return to
the pair’s car while he took the other officer behind the convenience store and sold him a
3
See, People v. Lam Lek Chong, 45 N.Y.2d 64, 72, 379 N.E.2d 200, 205 (1978) (Discussing agency
defense.).
4 See, Resp’t’s Mem. of Law, ECF No. 5 at p. 5 (“Acting on information provided by the Buffalo Police,
Bonafede and Slusser went to a convenience store at the intersection of Ernst and Ferry Street in the city
of Buffalo (Id.) . They were told to look for a large black male, approximately 6’3” and 250 pounds, known
as “Day
Day””).
2
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quantity of crack cocaine. The undercover officer who was with Dark then asked Dark to
come to the car, telling him that the other undercover officer was interested in purchasing
marijuana. Evidently, as Dark was approaching the car, the undercover officer in the car
surreptitiously took a picture of Dark with his cell phone camera. Neither the prosecution
nor the defense became aware that the photograph had been taken until a third officer,
to whom one of the undercover officers had shown the phone photo, testified at trial. The
officer who took the photo testified that he had used a police-issued cell phone with only
basic features, having no memory card and no means of transferring the photograph to
another device, and that he had turned the phone in to be destroyed, when he had been
issued a new phone, prior to Dark’s arrest some months after the undercover operation.
In response to a defense motion to dismiss the indictment, County Court dismissed two
counts of the indictment 5 charging Dark with Criminal Sale of Marijuana in the Fourth
Degree (PL § 221.40), reasoning that such sanction was appropriate since the
photograph had been taken during the marijuana-sale phase of the transaction (as
opposed to the crack cocaine-sale phase) between Dark and the undercover officers.
The Fourth Department rejected Defendant’s argument that County Court should
have dismissed the entire indictment, stating:
The record demonstrates, however, both that the People learned at the
same time as defendant that the photograph had been taken, and that the
photograph was no longer in existence by the time that defendant was
arrested. Thus, the prosecution was not required to impart identifying
information unknown to them and not within their possession. Moreover,
inasmuch as the exculpatory potential of this evidence is purely speculative,
its destruction by the police does not violate the Brady rule.
5 See, Resp’t’s Mem. of Law, ECF No. 5 at p. 3 (“Under Indictment No. 00788-2010, defendant was
charged with criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1]), criminal
possession of a controlled substance in the third degree (Penal Law § 220.16[l]), and two counts of
criminal sale of marihuana in the fourth degree (Penal Law § 221.40).”).
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ECF No. 1 at p. 14 (citations omitted).
The Fourth Department similarly rejected Dark’s claim that his attorney had been
ineffective for failing to raise an agency defense, stating:
We conclude with respect to the failure to assert an agency defense that
defendant received meaningful representation because there is no denial
of effective assistance based on the failure to make a motion or argument
that has little or no chance of success. Defendant engaged in salesmanlike behavior by touting the quality of the product, and he lacked a
preexisting relationship with the buyers, who were undercover police
officers. Thus, there was no basis for defense counsel to assert an agency
defense on behalf of defendant.
ECF No. 1 at pp. 13–14 (citations omitted).
The Fourth Department also rejected Dark’s assertion that his attorney had been
ineffective by failing to request a Wade hearing. In that regard, on March 3, 2010, one
month after Dark had sold narcotics to the two undercover officers, he was arrested on
another matter. At that time, while Dark was handcuffed in the back of a police car, one
of the two undercover officers who had purchased drugs from Dark on February 4, 2010
came to the scene and, using binoculars from fifty feet away, identified Dark. Dark
maintains that this identification procedure was impermissibly suggestive. 6 The Fourth
Department found that defense counsel had indeed requested a Wade hearing, but that
6 See, e.g., People v. Tavares, 212 A.D.2d 646, 646–47, 622 N.Y.S.2d 579, 580 (1995) (“We also find
that, prior to any retrial of the defendant, a hearing should be held regarding the circumstances of the
undercover police officer's viewing of the defendant following his arrest, eight days after the officer had
allegedly purchased cocaine from the defendant for the last time (see, People v. Gordon, 76 N.Y.2d 595,
600–601, 561 N.Y.S.2d 903, 563 N.E.2d 274). The defendant is entitled to a Wade hearing (United States
v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149) in order to determine whether the undercover
police officer's viewing of him was merely confirmatory or an impermissibly suggestive identification
procedure and, in the latter case, whether the officer nevertheless had an independent source for his incourt identification of the defendant (see, People v. Adams, 53 N.Y.2d 241, 251–252, 440 N.Y.S.2d 902,
423 N.E.2d 379).”)
4
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County Court had never ruled on the request. Consequently, the Fourth Department
reserved decision and remitted the matter to County Court for a ruling on the motion for
a Wade hearing.
During a subsequent appearance on the matter in County Court, the court and
counsel agreed that defense counsel had withdrawn the request for a Wade hearing:
On remittal, the parties appeared before the trial Court on June 3, 2013
(APR 4; numbers in parentheses preceded by “APR” refer to pages of the
Appearance Post-Remittal) . During that proceeding, the prosecutor stated
that defense counsel had waived the hearing (APR 5) . The trial court also
recollected that defense counsel had informed it, during a bench
conference, that a hearing would not be necessary (APR 6) . Defense
counsel also confirmed that he had agreed to withdraw the motion (Id.).
Resp’t’s Mem. of Law, ECF No. 5 at p. 13. Defense counsel indicated that it was his
recollection that he had withdrawn the request for a Wade hearing after discussing the
matter with Defendant. County Court subsequently concluded that Dark had withdrawn
his request for a Wade hearing, which prompted Dark to argue, again before the Appellate
Division, that his attorney was ineffective for withdrawing the request. However, the
Appellate Division rejected that argument, stating:
An attorney’s failure to make a motion or argument that has little or no
chance of success does not amount to ineffective assistance. Here, two
undercover officers were involved in the purchase of narcotics from
defendant on February 4, 2010. Defendant was not arrested at that time,
but he was arrested for a different offense on March 3, 2010. One of the
two undercover officers involved in the February 4, 2010 transaction went
to the scene of defendants March 3, 2010 arrest and, while at the scene,
the officer used binoculars to identify defendant, who was handcuffed in the
back of a police vehicle less than 50 feet away. The People correctly
concede that such identification was not merely confirmatory, but even
assuming, arguendo, that defense counsel could have established
suggestiveness of the identification of defendant by the subject undercover
officer at trial, we agree with the People that defense counsel could have
concluded that there was an independent source for the identification of
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defendant by the subject undercover at trial. Specifically, during the
February 4, 2010 transaction, the interaction between the subject
undercover officer and defendant lasted for about 10 minutes, and the
subject undercover officer was only 2 ½ feet away from defendant when the
transaction occurred. We therefore conclude that any attempt by defense
counsel to suppress the identification of defendant by the subject
undercover officer through a Wade hearing would have failed, and that
defense counsel thus was not ineffective.
ECF No. 1 at p. 17.
Dark sought leave to appeal from the New York State Court of Appeals (“Court of
Appeals”) on the issues of “ ineffective assistance of counsel,” “Brady violation,” “verdict
was against the weight of the evidence” and “ failure of the courts to have a Wade
hearing,” but the Court of Appeals denied the application.
On April 11, 2015, Petitioner filed a motion seeking coram nobis relief. However,
by order dated June 12, 2015, the Fourth Department denied the application.
On
November 27, 2015, the Court of Appeals denied Dark’s request for leave to appeal. On
May 17, 2016, the Court of Appeals denied Dark’s application for reconsideration.
On June 24, 2016, Dark filed the subject habeas petition proceeding pro se. The
petition purports to assert four claims: 1) a Brady claim based on the failure to produce
or preserve the cell-phone camera photo: 2) an ineffective assistance of counsel claim
based on trial counsel’s failure to pursue an agency defense at trial; 3) an ineffective
assistance of counsel claim based on trial counsel’s withdrawal of his demand for a Wade
hearing; and 4) a claim that Erie County Court erred by failing to conduct a Wade hearing
upon remittitur from the Appellate Division.
On September 1, 2016, Respondent filed a response opposing the Petition on the
merits. Respondent contends that the Brady claim lacks merit since the potential of the
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photo to exculpate Dark or impeach the officers is speculative. Respondent states that
the ineffective assistance claims, involving counsel’s failure to pursue an agency defense
and to pursue a Wade hearing, lack merit since counsel had no duty to pursue meritless
defenses or applications. In that regard, Respondent contends that the evidence clearly
indicates that Dark was not acting as the agent of the undercover police officer buyers,
and that a Wade hearing would not have resulted in a ruling favorable to Dark since, even
assuming that the undercover officer’s identification of Dark on March 3, 2010 was
suggestive, the officer had an independent source for his in-court identification of Dark,
namely, his observation of Dark, at close range in broad daylight, over a period of
approximately ten minutes, during the drug purchase on February 4, 2010. Respondent
further argues that insofar as Dark contends that his attorney was ineffective for
withdrawing the request for a Wade hearing, the contention lacks merit since that was a
strategic decision committed to counsel’s discretion, for which he did not need Dark’s
consent.
On September 30, 2016, Dark filed a reply. (ECF No. 6). Regarding the Brady
claim, the reply states, in pertinent part:
Petitioner argues that the cell phone photograph was material and that there
was a reasonable possibility that its disclosure would have caused a
different result at the trial.
***
This error herein was not harmless, as the identification of Petitioner as the
actual suspect was the central issue, and the credibility of the identification
made by Officers Bonafede and Slusser was [a] pivotal consideration.
ECF No. 6 at p. 9. As for the ineffective assistance claim based on defense counsel’s
decision to withdraw the request for a Wade hearing, the reply denies that Dark agreed
with counsel to withdraw the request, and contends that, by withdrawing the request,
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counsel took a position that was adverse and prejudicial to Dark. Indeed, Dark alleges
that his attorney “became a witness against him” when he indicated that he had withdrawn
the request for a Wade hearing, and therefore was ineffective.
Pursuant to Rule 8 of Rules Governing Habeas Corpus cases under Section 2254
in the United States District Courts and upon review of the answer, transcript and record,
the Court determines that an evidentiary hearing is not required. After considering the
parties' submissions and the entire record, the petition is denied for the reasons set forth
below.
DISCUSSION
Petitioner’s Pro Se Status
Since Petitioner is proceeding pro se, the Court has construed his submissions
liberally, “to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir.1994).
Section 2254 Principles
Petitioner brings this habeas corpus petition pursuant to 28 U.S.C. § 2254, and the
general legal principles applicable to such a claim are well settled:
[A] federal court may grant habeas corpus relief to a state prisoner on a
claim that was adjudicated on the merits in state court only if it concludes
that the state court's 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.” 28 U.S.C. § 2254(d)(1)–(2).
A state court decision is contrary to clearly established Federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court confronts facts that are
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materially indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to the Supreme Court's result.
A state court decision involves an unreasonable application of clearly
established Federal law when the state court correctly identifies the
governing legal principle but unreasonably applies it to the facts of the
particular case. To meet that standard, the state court's decision must be
so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement. It is well established in this circuit that the objectively
unreasonable standard of § 2254(d)(1) means that a petitioner must identify
some increment of incorrectness beyond error in order to obtain habeas
relief.
Santana v. Capra, No. 15-CV-1818 (JGK), 2018 WL 369773, at *7–8 (S.D.N.Y. Jan. 11,
2018) (Koeltl, J.) (citations and internal quotation marks omitted). Here, the state courts
adjudicated Dark’s claims on the merits.
The Alleged Brady Violation
Petitioner claims to be entitled to habeas relief under Brady, and the legal
principles concerning such claims are clear:
The due process principles applicable here are well and clearly established.
“The prosecution [has an] affirmative duty to disclose evidence favorable to
a defendant . . . .” Kyles[ v. Whitley], 514 U.S. [419,] 432, 115 S.Ct. 1555
[(1995)]. That duty
can trace its origins to early 20th-century strictures against
misrepresentation and is of course most prominently
associated with th[e Supreme] Court's decision in Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
See id., at 86, 83 S.Ct. 1194 (relying on Mooney v. Holohan,
294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935), and
Pyle v. Kansas, 317 U.S. 213, 215–216, 63 S.Ct. 177, 87
L.Ed. 214 (1942)).
Kyles, 514 U.S. at 432, 115 S.Ct. 1555. The contours of the duty have
progressively been refined. In Brady, the Supreme Court held “that the
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suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of the
prosecution.” 373 U.S. at 87, 83 S.Ct. 1194. In United States v. Agurs, 427
U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Court held that the
duty to disclose such evidence is applicable irrespective of whether the
accused made a request. In United States v. Bagley, 473 U.S. 667, 676,
105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the Court held that the duty to
disclose exists irrespective of whether the information bears on the
defendant's innocence or a witness's impeachment. And if the withheld
evidence contains material for impeachment, it falls within the Brady
principles even if it may also be inculpatory: “Our cases make clear that
Brady's disclosure requirements extend to materials that, whatever their
other characteristics, may be used to impeach a witness.” Strickler v.
Greene, 527 U.S. 263, 282 n. 21, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999);
see, e.g., Bagley, 473 U.S. at 676, 105 S.Ct. 3375.
However, the withholding of such evidence does not violate the accused's
due process right unless the evidence is “material,” in the sense that “there
is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” Id. at 682,
105 S.Ct. 3375. In Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256, 157
L.Ed.2d 1166 (2004), the Supreme Court stated,
[o]ur touchstone on materiality is Kyles v. Whitley, 514 U.S.
419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Kyles instructed
that the materiality standard for Brady claims is met when “the
favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine
confidence in the verdict.” 514 U.S. at 435, 115 S.Ct. 1555.
Banks, 540 U.S. at 698, 124 S.Ct. 1256 (emphases ours). Thus, the Brady
materiality
question is not whether the defendant would more likely than
not have received a different verdict with the evidence, but
whether in its absence he received a fair trial, understood as
a trial resulting in a verdict worthy of confidence. A
“reasonable probability” of a different result is accordingly
shown when the government's evidentiary suppression
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“undermines confidence in the outcome of the trial.” Bagley,
473 U.S. at 678, 105 S.Ct. 3375.
Kyles, 514 U.S. at 434, 115 S.Ct. 1555 (emphases ours). The “defendant
need not demonstrate that after discounting the inculpatory evidence in light
of the undisclosed evidence, there would not have been enough left to
convict.” Id. at 434–435, 115 S.Ct. 1555. He need only show, considering
the record as a whole, a “reasonable probability”—and “the adjective is
important,” id. at 434, 115 S.Ct. 1555 (internal quotation marks omitted)
(emphasis ours)—of a different result great enough to “undermine[ ]
confidence” that the jury would have found him guilty beyond a reasonable
doubt, id. (internal quotation marks omitted).
Fuentes v. T. Griffin, 829 F.3d 233, 246 (2d Cir. 2016).
However, the Court does not agree with Petitioner that this case presents a
Brady claim. Rather, where, as here, a claim “really involves the loss or destruction
of evidence,” that is, a failure to preserve evidence that can no longer be produced,
it
“poses problems slightly different from Brady.” United States v. Bakhtiar,
994 F.2d 970, 975 (2d Cir.), cert. denied, 510 U.S. 994, 114 S. Ct. 554
(1993). As such, “a due process claim arising in these circumstances should
be treated as a claim for loss or destruction of evidence rather than as a
Brady claim.” United States v. Tyree, 279 Fed.Appx. 31, 33 (2d Cir.), cert.
denied, 555 U.S. 963, 129 S. Ct. 443 (2008). “Destruction of evidence by
the government only rises to a constitutional violation when three
requirements are met: (1) the government must have acted in bad faith in
destroying the evidence; (2) the ‘evidence must . . . possess an exculpatory
value that was apparent before [it] was destroyed’; and (3) the defendant
must be ‘unable to obtain comparable evidence by other reasonably
available means.’” United States v. Tyree, 279 Fed.Appx. at 33 (quoting
California v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 2534 (1984));
accord, e.g., United States v. Hunley, 476 Fed.Appx. 897, 898-99 (2d Cir.
2012); Clark v. Capra, 14 Civ. 2507, 2017 WL 4685298 at *10 (S.D.N.Y.
June 22, 2017), R. & R. adopted, 2017 WL 4685104 (S.D.N.Y. Oct. 17,
2017).
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DeJesus v. Superintendent of Attica Corr. Facility, No. 17CIV3932GBDAJP, 2017
WL 6398338, at *33 (S.D.N.Y. Dec. 13, 2017) (footnotes omitted, collecting cases),
report and recommendation adopted sub nom. Dejesus v. Superintendent of the
Attica Corr. Facility, No. 17CIV3932GBDAJP, 2018 WL 4043144 (S.D.N.Y. Aug.
7, 2018); see also, Clark v. Capra, No. 14 CV 2507 (VB), 2017 WL 4685104, at *3
(S.D.N.Y. Oct. 17, 2017) (“Regarding the failure to preserve evidence claim,
petitioner objects to Judge Smith’s finding that the accidental deletion of crime
scene photographs did not deprive him of due process. Petitioner cites Brady v.
Maryland, 373 U.S. 83 (1963), as support for this claim. However, unlike in Brady,
the alleged defect “cannot be cured by ordering a new trial including the missing
evidence.” United States v. Bakhtiar, 994 F.2d 970, 975 (2d Cir. 1993). Thus,
Judge Smith’s analysis was proper because “a due process claim arising in these
circumstances should be treated as a claim for loss or destruction of evidence
rather than as a Brady claim.”) (citation omitted); United States v. Tyree, 279 F.
App'x 31, 33 (2d Cir. 2008) (“As we explained in United States v. Bakhtiar, 994
F.2d 970 (2d Cir.1993), a case which also involved a government loss of tapes, a
due process claim arising in these circumstances should be treated as a claim for
loss or destruction of evidence rather than as a Brady claim.”).
As mentioned earlier, to establish this type of due process violation a
defendant/petitioner must show three things: (1) that the government acted in bad
faith in destroying the evidence; 7 (2) that the evidence possessed an exculpatory
value that was apparent before it was destroyed; and 3) that the
7See,
Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281 (1988) (“We
therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to
preserve potentially useful evidence does not constitute a denial of due process of law.”).
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defendant/petitioner is unable to obtain comparable evidence by other reasonably
available means.
Of these, Petitioner can only establish the third element. He
has not shown that the police acted in bad faith, nor has he shown that the
photograph had apparent exculpatory value. 8
Consequently, Petitioner’s failure
to preserve evidence claim lacks merit.
Ineffective Assistance of Counsel
Plaintiff’s remaining claims relate to his contention that his trial attorney was
ineffective for failing to pursue both a Wade hearing and an agency defense. 9 The
familiar test set forth in Strickland v. Washington, 466 U.S. 668 (1984), for
evaluating an ineffective assistance of counsel claim has two prongs. The first
requires showing that counsel's performance “fell below an objective standard of
reasonableness.” Id. at 688, 694. “Constitutionally effective counsel embraces a
‘wide range of professionally competent assistance,’ and ‘counsel is strongly
presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.’” Greiner v. Wells,
417 F.3d 305, 319 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 690). Fulfilling
the second prong of an ineffective assistance claim requires a showing of prejudice
which translates to “a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S.
8
Regarding the potential exculpatory value of the photograph, the only evidence of record on this point is
the sworn testimony of Officer Slusser, one of the two undercover officers who purchased drugs from
Dark on February 4, 2010, that the photo showed Dark from the waist up.
9 Petitioner also argues that County Court erred by failing to conduct a Wade hearing after the matter was
sent back by the Fourth Department for that purpose. However, that argument lacks merit since, upon
remand, the court and counsel agreed that the request for a Wade hearing had been withdrawn,
unbeknownst to the Fourth Department. The Fourth Department found no error in that regard when it
subsequently considered the matter.
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at 694. “The habeas petitioner bears the burden of establishing both deficient
performance and prejudice.” Greiner, 417 F.3d at 319 (citing United States v.
Birkin, 366 F.3d 95, 100 (2d Cir. 2004)).
A defense attorney cannot be deemed ineffective for failing to pursue an
unmeritorious defense or application. See, United States v. Kirsh, 54 F.3d 1062,
1071 (2d Cir. 1995) (“[T]he failure to make a meritless argument does not rise to
the level of ineffective assistance, see United States v. Javino, 960 F.2d 1137,
1145 (2d Cir.), cert. denied, 506 U.S. 979, 113 S.Ct. 477, 121 L.Ed.2d 383 (1992),
and “strategic choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable[.]” Strickland v. Washington, 466
U.S. at 690, 104 S.Ct. at 2066; United States v. Eisen, 974 F.2d 246, 265 (2d
Cir.1992), cert. denied, 507 U.S. 998, 113 S.Ct. 1619, 123 L.Ed.2d 178 (1993);
United States v. Aguirre, 912 F.2d 555, 560 (2d Cir.1990).”).
Here, the failure by defense counsel to pursue an agency defense at trial
cannot be deemed ineffective assistance, since there is no indication that such a
defense would have succeeded. Rather, for the reasons identified by the Fourth
Department, the Court agrees that such a defense would have had “little or no
chance of success.” Petitioner’s bald assertion that counsel should have pursued
such a defense lacks merit.
The same goes for Petitioner’s contention that his trial attorney was
ineffective for failing to pursue a Wade hearing. In that regard, Petitioner contends
that his attorney should have attempted to suppress the undercover officer’s
identification of him, on March 3, 2010, using binoculars while Petitioner was in the
back of a patrol car, as impermissibly suggestive. However, Petitioner fails to
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counter the fact that even if that identification was found to have been unduly
suggestive at a Wade hearing, the officer still had an independent source for
identifying him in court at trial, namely, the ten minutes that he spent with
Petitioner, at close range in broad daylight, during the drug purchase on February
4, 2010. See, Davis v. Herbert, 170 F. App'x 763, 765 (2d Cir. 2006) (“[A]n in-court
identification may be admissible, despite prior illegality relating to a line-up, so long
as there is an independent source for the identification. United States v. Wade,
388 U.S. 218, 241–42, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).”); see also, Lynn
v. Bliden, 443 F.3d 238, 247 (2d Cir. 2006) (“As a general rule, a habeas petitioner
will be able to demonstrate that trial counsel's decisions were objectively
unreasonable only if there was no tactical justification for the course taken.”)
(citation and internal quotation marks omitted), as amended (May 19, 2006).
Consequently, Petitioner cannot establish either that his attorney was ineffective
for withdrawing the request for a Wade hearing or that he suffered prejudice as a
result.
To the extent Petitioner contends that counsel was nevertheless ineffective,
or that he had a conflict of interest, when he made the decision to withdraw the
request for a Wade hearing without Petitioner’s consent, the claim still lacks merit.
See, e.g., Taylor v. Rivera, No. 07 CIV. 8668 PKC DF, 2011 WL 4471919, at *23
(S.D.N.Y. Apr. 18, 2011) (“Petitioner claims that his counsel ‘created a conflict of
interest’ by stipulating as to the accuracy of the written transcription of Clark's plea
allocution without Petitioner's consent. Petitioner cannot establish that his trial
counsel was objectively unreasonable to enter into this stipulation . . . . Moreover,
entering into a stipulation is a strategic decision that defense counsel may make
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on the defendant's behalf.”), report and recommendation adopted, No. 07 CIV.
8668 PKC DF, 2011 WL 4472146 (S.D.N.Y. Sept. 27, 2011), aff'd, 509 F. App'x 51
(2d Cir. 2013); see also, Key v. Artuz, No. 99-CV-161JG, 2002 WL 31102627, at
*7 (E.D.N.Y. Sept. 16, 2002) (“Key alleges that he was not consulted on the
decision to withdraw his motion to suppress the videotaped statement, in violation
of his due process rights. This was adjudicated on the merits and denied in state
court on Key's § 440.10 motion. This decision was not contrary to or an
unreasonable application of clearly established Federal law. Though significant,
defense counsel's decision was not one of the fundamental decisions—such as
whether to plead guilty, testify at trial, or file an appeal—about which the failure to
consult one's client would amount to a constitutional violation. Jones v. Barnes,
463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Rather, the decision
involved in this matter was a tactical one, “such as selective introduction of
evidence, stipulations, objections and pre-trial motions,” which the Second Circuit
has held can be made by defense counsel alone. United States v. Plitman, 194
F.3d 59, 63 (2d Cir.1999).”). Moreover, Plaintiff cannot demonstrate prejudice for
the reasons already discussed.
CONCLUSION
The application under 28 U.S.C. § 2254 is denied. The Clerk of the Court is
directed to close this case. Pursuant to 28 U.S.C. § 2253, the Court declines to issue a
certificate of appealability, since Petitioner has not made a substantial showing of the
denial of a constitutional right. The Court hereby certifies, pursuant to 28 U.S.C. §
1915(a)(3), that any appeal from this Order would not be taken in good faith and leave to
appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States,
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369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be
directed on motion to the United States Court of Appeals for the Second Circuit in
accordance with Rule 24 of the Federal Rules of Appellate Procedure.
So Ordered.
Dated: Rochester, New York
October 27, 2020
ENTER:
CHARLES J. SIRAGUSA
United States District Judge
17
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