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finding prejudice sufficient to warrant habeas relief where, inter alia , counsel failed to take sufficient steps to secure material witness for trial who would have called into question the testimony of the government's lone eyewitness
Summary of this case from United States v. VelazquezOpinion
97-CV-2378 (JEW), 03-MISC-0066 (JEW)
August 26, 2003
MEMORANDUM, JUDGMENT ORDER
Petitioner Floyd Batten, convicted in 1984 of the second degree murder of the owner of a furniture store, seeks a writ of habeas corpus. His conviction was achieved almost solely on the testimony of the one eyewitness to the shooting. Batten proclaims his innocence and argues that his conviction is due primarily to Brady violations and his trial lawyer's ineffectiveness.
A hearing was held in this matter. Batten was present by telephone. Appointed counsel was present in person.
Because petitioner makes a serious allegation that his trial lawyer was ineffective, efforts were made by petitioner's counsel to procure his attendance. See Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir. 1998) (per curiam) ("[A] district court facing the question of constitutional ineffectiveness of counsel should, except in highly unusual circumstances, offer the assertedly ineffective attorney an opportunity to be heard and to present evidence, in the form of live testimony, affidavits, or briefs."). These efforts were unsuccessful.
For the reasons stated orally at the hearing on August 26, 2003, the application for a writ of habeas corpus is granted. This memorandum addresses petitioner's claims. The oral statements and findings at the hearing are deemed part of this memorandum.
I. Facts and Procedural History
Batten was put on trial for the murder of the owner of a furniture store in Brooklyn in 1983. The primary evidence against him was the testimony of Robert Evans, an employee of the store. Evans stated that he and the store's owner were working on the morning of the incident when Batten and another man came into the store and looked around, asking for prices of pieces of furniture for ten or fifteen minutes. No one else was in the store at the time. Eventually the men started to walk out of the shop but instead closed the door and turned around, pulling out guns and demanding money from the store's owner. The men ordered Evans and his boss to the back of the store. As Evans went to the back of the shop he heard gunshots. He then jumped out a window and into the street. When he returned to the shop he found the store's owner, shot and dying. The entire incident took place over the course of about fifteen minutes, roughly from11:30 to 11:45 a.m. Police and an ambulance were called at "approximately 1200 hours; 12 o'clock noon." Trial Tr. at 5 (testimony of Detective D'Elia). Evans was brought to the police station where he looked through four albums of photographs compiled by the Robbery Unit. After about an hour he found a mug shot of Batten, whom he identified as one of the assailants.
Although Evans testified that the perpetrators had touched various items of furniture in the store, none of the usable fingerprints or palm prints recovered from the store matched petitioner's. No physical evidence linking petitioner to the crime was recovered.
Batten testified in his own defense. He stated that he had spent the morning with some acquaintances, mostly doing errands in the car of a man named "Rocky" whom he had recently met. He testified that he was in the car with Rocky and two acquaintances from roughly 9:15 to 11:55 a.m., at which point he visited his godfather at the elementary school where the godfather was a teacher. Batten called two alibi witnesses. His godfather, with whom he lived, testified that on the day of the shooting Batten was with him from 12:12 p.m. to 12:35 p.m. at the schoolhouse. Another alibi witness, an acquaintance of several years, stated that he was with Batten continuously from about 10:00 until about 11:53 or 11:54 a.m.
In rebuttal, the prosecution elicited testimony from a police detective that the schoolhouse and the furniture store are 3.2 miles apart and that the detective had driven the route, in noontime weekday traffic in 13 minutes.
In his summation, defense counsel argued that Batten was the victim of mistaken identity. In particular he asked the jury to give weight to the fact that Evans told police after the incident and testified at trial that the shooter was "clean-shaven," had a "little mustache," no beard, and no goatee, Trial Tr. at 177, 261, 309, but that petitioner — as evidenced by the arrest photograph taken three days after the incident — had prominent sideburns, mustache and goatee. No mention was made during the summation of petitioner's alibi defense.
The prosecutor, in his summation, acknowledged that this was a single-eyewitness identification case. He emphasized, however, that Evans had spoken with the perpetrator for ten or fifteen minutes and was able to identify Batten as the perpetrator from a series of hundreds of mug shots only hours after the incident. The prosecutor also noted that the jury had no reason to believe Evans' testimony lacked credibility, particularly since none of his testimony was contradicted. Trial Tr. at 722.
The jury did not learn of several additional pieces of evidence. First, a woman named Fortunio Clark told police detectives and an assistant district attorney that she was in the furniture store with her aunt before the shooting. She left when a "Spanish man with an Afro" came in who "looked suspicious." Id. at 508. She and her aunt left the store and, two or three minutes later, heard a commotion and soon saw police arrive. Id. at 509 ("we found out that the guy we had just left about two or three minutes [before] was shot"). The trial court noted that her testimony might be probative because it contradicted Evans' testimony about being alone in the store with the perpetrators and his boss, and that it might also call into question the length of time he spoke with the perpetrators. In addition, Clark viewed a lineup with petitioner in it but did not recognize him. Clark was subpoenaed by the defense but refused to appear because she had had nightmares about the case and was bothered and disturbed by it. A subpoena served by the district attorney also was not honored. When given the opportunity to have her produced through the material witness provisions of the New York statutes, defense counsel refused on the ground that Clark would likely be hostile to his client if forced to testify.
Second, the jury did not hear from several other alibi witnesses. One, Ivan Smith, was expected to testify that he was with petitioner in Rocky's car the morning of the incident. The other two potential alibi witnesses were security guards at the elementary school, one of whom stated to a defense investigator that he had seen petitioner on the day of the incident sometime between 11:00 a.m. and 1:30 p.m. The other security guard stated that he saw petitioner at the school between 12:05 and 12:10. p.m. Although notice of these alibi witnesses was provided late at trial, the trial court told defense counsel that the witnesses would be allowed to testify. Defense counsel chose not to call the witnesses. The record is silent as to why.
Third, the jury did not learn that a confidential informant, who claimed to be a friend of the victim, called police five days after the November 4, 1983 shooting — after petitioner had been arrested for the crime. The informant stated, in sum, that prior to the robbery his girlfriend was approached by an employee of another furniture store owned by the victim, and that the employee asked her if she "had any friends that would rob the store for him on Thursday or Friday [November 3 or November 4]." May 12, 2003 Letter from Kenneth D. Wasserman, Ex. J at 1. When the informant asked the employee whether he worked for the furniture store, the employee cursed and asked if he were going to give the information to the police. The detective who took the statement noted, "In view of the above stated facts, it is requested that the case be further investigated and marked open." Id. This detective's report does not appear to have been turned over to Batten until 1990, six years after his trial, in response to a Freedom of Information Law ("FOIL") request. Two other reports, discussed below, were provided to petitioner pursuant to his FOIL request.
Batten was convicted, following a jury trial, of second degree murder. He was sentenced to 20 years to life in prison.
His conviction was affirmed by the Appellate Division. Leave to appeal to the New York Court of Appeals was denied. A motion to reargue his appeal before the Appellate Division was denied.
A motion to vacate judgment was denied by the trial court. A motion to reargue the denial of his motion to vacate judgment was granted, but the court again denied the motion to vacate judgment. Another motion for reconsideration was denied. Leave to appeal to the Appellate Division was denied.
Batten next filed a federal petition for a writ of habeas corpus in April 1997. The petition was dismissed as time-barred. The Court of Appeals for the Second Circuit vacated the order dismissing the petition in light of its recent decision in Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998) (granting prisoners whose convictions became final before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 a one-year grace period in which to file a habeas application).
The petition was ordered reinstated by the district court in December 1998. Batten's motion to amend his application was granted in August 1999. Counsel was appointed to assist Batten in July 2000.
In the instant application for a writ of habeas corpus, as amended, Batten claims (1) that his trial counsel was ineffective in a number of respects, most importantly for failing to procure the testimony at trial of a material witness; (2) that the evidence was legally insufficient to support his guilt because an eyewitness testified that the perpetrator was clean shaven but a police photograph made four days after this description was given shows Batten to have prominent sideburns, a mustache and goatee; (3) that the evidence was legally insufficient and the verdict was against the weight of the evidence; (4) that the prosecution failed to disclose Brady material to Batten in violation of his due process rights; (5) that he was denied a fair trial when the trial court failed to charge the jury that the state had to disprove Batten's alibi beyond a reasonable doubt; and (6) that errors at the WadelHuntley hearing resulted in evidence being improperly admitted at trial, thus requiring a new trial.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, L, concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Torres v. Berbary, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
III. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en bane).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state,") — In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
IV. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court "says that a claim is `not preserved for appellate review' and then ruled `in any event' on the merits, such a claim is not preserved." Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
V. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const, amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also Wiggins v. Smith, 539 U.S. ___, No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective — assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v, Keane, 42 F.3d 738, 741 (2d Cir. 1994), Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
VI. Certificate of Appealability
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
VII. Analysis of Claims
A. Ineffective Assistance of Trial Counsel
Batten claims that his trial counsel was ineffective on a number of grounds, most importantly for failing to procure the testimony at trial of a material witness, Fortunio Clark. The ineffectiveness claim with respect to the failure to secure Clark to testify at trial has been exhausted in state court, where it was denied on the merits. Review of the claim thus proceeds under the deferential standards of AEDPA.
Clark spoke with an Assistant District Attorney three days after the shooting in the furniture store. She stated that she was in the store just prior to the shooting and that she left when she observed a man in the store that made her nervous:
When I came into the store with my son and my aunt and Igor, I think his name. I think him named as, they usually call him. He took us to the back of the store to show us a piece of furniture that we were looking for. And after he showed us the furniture, we came to the front of the store. We got to the front of the store, we saw a man, he's, he could be his — he strike me as being Spanish man with an Afro. He had on dark green sunglasses that were kind of tiny, I guess what they call the punk rock or sunglasses. He had on a long green Army color, like, trench coat. He was about 125 pound, about five feet five inches tall and he was standing in the, like, almost like in a corner of the store with his hands in his pocket.
When I saw him, I told my aunt, I says, "Let's get out of the store, let's get out of here," because he had looked suspicious to me. I didn't know why he was there, but I just had the feeling that I just had to get out of there in a hurry. So we got out of there. We got to the front of the store, you know, like going across the street of Flatbush Avenue. As you know, that's a large street. You know, I did remember other people going in the store behind me. Before we got, like to the store, which is — it was like a commotion but we didn't pay it any mind. About two or three minutes later we just saw the cops and everything coming and we waited there. And then when the cops and people gathered around, then we went back across the street to see what really had happened and then we found out that the guy we had just left about two or three minutes was shot.
Trial Tr. at 508-09.
This statement was not turned over to the defense until the middle of the trial, after Batten's alibi witnesses had testified. The trial court noted that the statement had probative value — because it contradicted Evans' assertion that the store was empty except for he and his boss and the two assailants just prior to the incident. Defense counsel had earlier subpoenaed Clark to testify because she had been unable to identify Batten in a line-up. Clark had then stated that she would not appear in court because she had "had nightmares about the case," that "she'd been bothered and disturbed by too many people about it," and that rather than testify she would "take 25 to life myself." Trial Tr. at 502.
Batten now argues that trial counsel did not make a sufficient effort to procure Clark's attendance at the trial. Batten's counsel, recognizing the potential utility of Clark's testimony, sought service of a second subpoena on Clark, The subpoena was served but ignored by Clark. Trial counsel considered moving for a material witness order but decided not to, since forcibly taking Clark to the courthouse by police might result in testimony hostile to the defense. See Trial Tr. at 521, Counsel sought admission into evidence of Clark's hearsay statement to the Assistant District Attorney, but the motion was denied. He also requested a missing witness charge, which was denied.
Trial counsel's efforts to secure Clark's testimony were inadequate and cannot be excused as reasonable trial strategy. Clark's testimony would potentially have established that the prosecution's lone eyewitness, Evans, did not observe the perpetrator of the crime for a lengthy period of time, as he contended in his statements at trial. The jury's might well have determined that a brief interaction with the shooter was less likely to result in a trustworthy identification than a ten-minute encounter. In a case that relied solely on the eyewitness identification, with no physical evidence linking Batten to the crime, such testimony would have been important. She could have directed him towards other witnesses and described matters differently from the way in which the eyewitness did.
It is of no moment that Clark might have been hostile to the defense for dragging her into court pursuant to a material witness order. Having failed to honor duly executed subpoenas, Clark would not have been allowed to testify by the trial court before being questioned by counsel and the court at a hearing outside of the presence of the jury. Petitioner could in no way have been prejudiced by such testimony. Counsel's failure to take advantage of the procedural mechanisms available to him for the production of this key witness was performance that fellow below a reasonable professional standard.
Petitioner has demonstrated that he was prejudiced by counsel's failure. Particularly when evaluated in light of the Brady evidence — discussed below — that was either not turned over to the defense or that was turned over but inexplicably not presented to the jury, there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Petitioner has demonstrated that he was denied the effective assistance of counsel pursuant to Strickland. The Appellate Division's conclusion to the contrary is both contrary to and an unreasonable application of Strickland. Habeas relief on this ground alone is warranted.
Petitioner's remaining allegations of ineffective counsel are either meritless or procedurally barred.
Batten claims that trial counsel was ineffective for failing to object when the prosecutor questioned him during cross-examination about a pretrial statement he made that was ordered suppressed by the trial court. This claim is exhausted and is reviewed under the deferential standard of AEDPA.
At the suppression hearing, a detective testified that Batten stated that he was with a corrections officer when the crime was committed. According to the detective, Batten asked him where the crime had taken place, and when told that it happened at 1200 Flatbush Avenue, petitioner said "I don't know the area, never been around there. I'm a 73 boy." Trial Tr. at 49. By "a 73 boy," petitioner presumably meant that he lives in the 73rd police precinct, rather than in the precinct in which the crime occurred. Petitioner then reportedly said, "I'm not worried, I was with some reliable people." Id. The detective also testified that petitioner told him the man he was with was a corrections officer. The court ruled all of the statement admissible except for the part about petitioner stating he was with a corrections officer, because the detective could not recall exactly when Batten made that elaboration.
Notwithstanding the court's ruling, the prosecutor asked Batten the following questions on cross examination at trial:
Q. During the time you were with the police from late Monday night until Tuesday morning, didn't you tell the police that you were with a Corrections officer on the 4th?
A. No.
Q. Didn't you tell Det. D'Elia that you didn't have anything to worry about because you were with this Corrections officer?
A. No, I did not tell him that.
Q. Do you recall Det. D'Elia saying to you what's the name of this Corrections officer?
A. No.
Q. You never said that?
A. No, I never said anything about a correction officer.
Q. And you never said to Det. D'Elia that you don't know the name of this correction officer; is that true?
A. That's correct.
Q. So, there was no conversation sometime during that evening concerning a Corrections officer that you were with on November 4th, 1983, is that correct?
A. That is correct.
Q. With someone else?
A. In court.
Q. You said you were with a Corrections officer?
A. Excuse me?
Q. In court you said you were with a Corrections officer?
A. No, at the time I had — they assigned me a lawyer, an 18-B lawyer.
Q. And you told this lawyer that you were with a Corrections officer?
A. Yes. At the time —
Q. Well, wasn't it with the police that you told —
A. No.
MR. BOOTH: May I ask the answer be completed? He was in the midst of the answer when another question —
THE COURT: If there is more to your answer, certainly, by all means answer it,
A. Yes. At the time I was in court I didn't know whether the person was Corrections officer or not. I said to the person that was my lawyer, I believe he's a Corrections — the person that I was with is a Corrections officer, you can contact him.
Q. That was after you were charged with this crime, right?
A. Yes.
Q. And after you had a lawyer, you told the lawyer this?
A. Yes.
Q. You never told Det. D'Elia this?
A. No.
Q. You never told any police officers in the 67 Precinct this?
A. No.
Trial Tr. at 617-19.
No objection was made by defense counsel. Counsel likewise did not object during the prosecutor's summation, where he argued the following:
I submit that if the defendant were to say I am a 73 person, I don't have to worry, was with reliable witnesses, that obviously, at the 67 Precinct, first of all, he knew where the crime occurred, he knew when the crime had occurred and he knew that he's going to have to find some witnesses.
Then you heard Det. D'Elia say he doesn't recall exactly where or how this other conversation occurred. He believes the defendant had had — gave additional information at some other point, where the defendant said, "I was with a corrections officer," D'Elia says, "What's his name?" "I don't know,"
You know, it's very interesting, what's the significance of that? In and of itself, nothing. However, who are the witnesses who the defendant said he was with on November 4th? Someone who was a friend of his, Mr. Kirk Windlay. Certainly not a character or an individual who one should be ashamed of, a man who worked for the Transit Authority. Regular respectable person. Another person he said he was with, a friend of his; why did he say a Corrections officer and not the names of people he knew?
It doesn't take much to think or to realize that when he says a Corrections officer, wasn't talking about anybody who existed. He then says, "Oh yeah. I told my lawyer this. I told my lawyer this a couple of days after I was arrested and I told him it was this guy Rocky." Why would he tell him about Rocky and not tell him about Mr. Windlay and Mr. Smith? Perhaps Mr. Windlay and Mr. Smith were not with the defendant that day. Perhaps there was no Corrections officer that day. Perhaps the whole thing is being fabricated.
I submit to you that if you evaluate what the defendant said he said and what the defendant said he didn't say, that you can come up with some very logical conclusions. That there are stories being fabricated. And I submit to you that when you look at the inconsistencies and their logic in the stories, you can come to the conclusion that what the defendant said occurred was not true. And I submit to you that when you find out and you go through the defendant's alibi, you realize it makes no sense.
Why would Det. D'Elia make up those stories? Why would Det. D'Elia say the defendant said "I'm a 73 boy, I have nothing to worry about. I was with a Corrections officer I don't know his name"? It seems to me that if D'Elia wanted to really nail it in, man on the force many years, certainly could've gotten a more incriminating statement. The statement in and of itself doesn't say very much. Doesn't link this defendant to 1200 Flatbush Avenue at all. However, when you evaluate how the defendant explained it away, how the defendant's case continued and how the defense witnesses came in and testified, it makes a lot of sense.
Trial Tr. at 727-29.
Although Batten was the beneficiary of the trial court's evidentiary ruling with respect to his statement that a probation officer could verify his alibi, defense counsel chose not to object when the prosecutor repeatedly referred to the suppressed statement. Failing to object was not, however, incompetent representation under these circumstances. First, petitioner on redirect examination explained that he was told by "Rocky" — whom he states accompanied him in a car for much of the morning — that he was a corrections officer. He also explained that he gave this information to his 18-B lawyer. Although the information was not presented to the jury in the most cogent manner, counsel may well have concluded that, notwithstanding the trial court's ruling, petitioner would be derive strategic benefit from suggesting to the jury that petitioner was accompanied by a corrections officer on the morning of the incident. The apparent unavailability of "Rocky" to testify at trial would make direct contradiction of the claim impossible. Whether wise or not, counsel's choice not to object appears to have been motivated by trial strategy.
Batten, through appointed habeas counsel, has submitted a letter to this court raising six additional grounds for trial counsel's ineffectiveness: (1) failure to call two other prospective alibi witnesses; (2) failure to interview and prepare the defense alibi witnesses prior to trial; (3) failure to impeach the prosecution's primary witness with his prior statements; (4) failure to compare a bullet that had been recovered at the crime scene to a bullet recovered from the victim's body; (5) failure to redact Batten's arrest photograph before moving to admit it into evidence; and (6) failure to visit the alibi and crime scenes.
None of these grounds of alleged ineffectiveness have ever been presented to the state courts during the more than eight years since Batten was convicted. They are therefore unexhausted. Nonetheless, this court may deem the claims exhausted because, as respondent has argued, it would now be futile for Batten to attempt to return to state court to exhaust them. See Second Supp. Aff. in Opposition to Petition for a Writ of Habeas Corpus at 4. Because there were "sufficient facts appear[ing] on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review" of each of these half dozen grounds for trial counsel's ineffectiveness, a motion to vacate judgment would have to be denied if now initiated. N.Y. Crim. Pro. Law § 440.10(2). The ineffective assistance claims may thus be deemed procedurally barred. See Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994) (if a state prisoner has not exhausted his state remedies with respect to a claim, but no longer has a state forum in which to raise the claim, the claim is procedurally barred). Batten has offered no cause for the default and has not demonstrated that failure to consider the claims will result in a fundamental miscarriage of justice. Further review in this court is precluded.
Although these separate allegations of ineffective assistance may not factor into this court's decision to grant habeas corpus relief, it must be noted that some of the claims are troubling. Most disturbing is defense counsel's failure to call two additional alibi witnesses to testify. The prospective witnesses were security guards who both, according to an "Investigation Report" prepared by the defense, saw Batten at the elementary school on the morning of the incident. One guard stated to he had seen Batten on the day of the incident sometime between 11:00 a.m. and 1:30 p.m. The other security guard stated that he saw Batten at the school between 12:05 and 12:10. p.m. It is unclear from the record why defense counsel chose not to call these men as alibi witnesses. The first guard's testimony would have been valuable to corroborate the testimony of Batten's godfather, whom jurors might have concluded had reason to prevaricate in order to protect his godson. The second guard's more exact testimony, that he saw Batten at the school between 12:05 and 12:10 p.m., would have served both to bolster the godfather's testimony and to narrow the time (albeit by only two to seven minutes) during which petitioner could have traveled from the scene of the shooting to the school. Such evidence would have been neither cumulative nor irrelevant.
Batten also argues that trial counsel was ineffective for failing to interview and prepare defense alibi witnesses prior to trial. The claim would not have merited habeas relief. Batten cannot explain how the failure to prepare prejudiced him. He notes, for example, that one alibi witness testified during trial that he was "uncertain" as to whether petitioner had a goatee or not on the day of the incident. Unless trial counsel intended to elicit perjurious testimony from this witness, it is unclear how "better preparation" would have impacted this presumably truthful testimony,
Batten argues that trial counsel failed to impeach the prosecution's primary witness, Evans, with his prior statements. None of the discrepancies between Evans' testimony at trial and his earlier statements to police or at the grand jury were of any real consequence; they need not be enumerated here. His credibility would not have been appreciably impeached by raising them on cross examination. Batten was not prejudiced in this regard. Habeas relief on this ground alone would not have been warranted.
Batten argues that trial counsel failed to compare a bullet that had been recovered at the crime scene to a bullet recovered from the victim's body. He claims that if the bullets did not match it would undermine Evans' testimony that the two robbers used different types of guns. The nature of his argument here is unclear. If the bullets were of different calibers, Evans' testimony that the assailants had different guns and that he heard one shot that sounded different from another would be consistent with the physical evidence. Even if the bullets were of the same caliber, Evans' testimony would not be appreciably called into question.
Batten next argues that trial counsel failed to redact his arrest photograph before moving to admit it into evidence. Although some trimming would have made the exhibit look less like a mug shot, nothing would have prevented a typical juror from recognizing that the front-on and side-view shots were arrest photographs. Batten was not prejudiced in any appreciable way.
Batten also argues that trial counsel failed to visit the alibi and crime scenes. Even assuming to be true Batten's contention that counsel did not visit the crime or alibi scenes, this failure alone would not have merited habeas relief. Failure to investigate a crime scene, particularly where the charge is murder, may constitute performance falling below an objective standard of reasonableness measured under prevailing professional norms. See Thomas v. Kuhlman, 255 F. Supp.2d 99, 112 (E.D.N.Y. 2003). Nonetheless, unlike the situation in Thomas, Batten has not demonstrated any way in which he was prejudiced by counsel's failure to investigate. He has not, for instance, in this court contested the prosecution's estimate of the distance between the furniture store and the elementary school as being 3.2 miles, nor has he challenged the prosecution's estimate of the travel time between the two locations as roughly 13 minutes by car. Habeas relief on this ground would not be warranted.
B. Brady Violations
Batten claims that the prosecution failed to disclose Brady material to him in violation of his due process rights. In particular, he urges that several police reports were not turned over to the defense and that these reports were exculpatory. The prosecution in a criminal matter has a constitutional obligation to disclose exculpatory evidence to the defendant. See Brady v. Maryland, 373 U.S. 83 (1967), Giglio v. United States, 405 U.S. 150 (1972). "A finding of materiality of the evidence is required under Brady." Giglio v. United States, 405 U.S. 150, 154 (1972). Exculpatory evidence is considered material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Strickler v. Greene, 527 U.S. 263, 280 (1999) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Nondisclosure merits relief only if the prosecution's failure "`undermines confidence in the outcome of the trial.'" Kyles v. Whiffy, 514 U.S. 419, 434 (1995) (quoting Bagley 473 U.S. at 678).
This claim was raised in petitioner's pro se motion to vacate judgment and is exhausted. It is a close question whether the claim was denied by the trial court on procedural grounds, as alleged by respondent, or on the merits, as petitioner contends. In denying the claim, the trial court first observed that petitioner's claim that the defense had not been supplied with the documents was unsupported by any evidence besides petitioner's own assertions:
Other than the defendant's naked assertion that the reports were not provided by the People, there is no other affidavit or evidence to support that contention either from his trial lawyer or anybody else.
CPL Section 440.30 Subdivision 4D (i) in applicable part requires that the Court deny any such claim without a hearing because, quote, "An allegation of fact essential to support the motion is made solely by the defendant and is unsupported by any other affidavit or evidence."
Not withstanding that provision, the Court has looked into the matter further. . . .
July 8, 1992 Decision at 5. The court went on to determine that the reports were not exculpatory. It did not find, and respondent has never asserted, that the reports were actually turned over to the defense.
Based on the above passage, petitioner's claim appears to have been deemed procedurally barred. Petitioner, however, filed a motion for reconsideration of the court's decision, annexing several letters from his attorney and his attorney's law office indicating that the reports had never been received by the defense. The motion to reconsider was granted but the denial of the motion to vacate judgment was adhered to. Under these circumstances, this court concludes that the trial court found that petitioner had cured the procedural defect of the initial motion to vacate judgment (by supplying additional evidence that the reports had not been produced to the defense) and had simply determined that its merits decision was sound. Batten's Brady claim was decided on the merits and was not, in the end, procedurally barred. Review of the claim proceeds in this court under the deferential standards of AEDPA.
As noted above, the jury did not learn that a confidential informant told police five days after the shooting that, prior to the robbery, his girlfriend was approached by an employee of another furniture store owned by the victim, and that the employee asked her if she "had any friends that would rob the store for him" on one of the days on which the shooting occurred.
May 12, 2003 Letter from Kenneth D. Wasserman, Ex. J at 1, Not until six years after his trial, in response to a Freedom of Information Law request, was the detective's report and his statement that, "In view of the above stated facts, it is requested that the case be further investigated and marked open" id. — turned over to Batten. At that time, petitioner was also provided with three other documents.
One was a report of a detective's interview with Douglas Barnes, "believed to be the individual implicated in this incident by an informant." June 18, 2003 Letter from Kenneth D. Wasserman, Ex. A at 1. The detective states in the report that Barnes was read Miranda warnings, after which he stated that on the date of the incident "he was working at 1184 Flatbush Ave., [when] Michael Duggins, another employee, came down from the other store at 1200 Flatbush Ave [the scene of the shooting] and picked up a broom and left," and that a few minutes later he was informed that his boss had been shot. Id. Barnes denied knowing anything else about the incident. When shown a photograph of petitioner, he stated that he recognized the individual as a man he knew as "Slick." Finally, the report stated that Barnes refused to cooperate further.
The second document is a detective's interview with Michael Duggins, described in the report as a twenty-four year old black male, five-foot seven-inches, 165 pounds with a small mustache and light beard. He stated that he was sent by the victim, his boss, to the other store to pick up a push-broom, and that when he returned he learned about the shooting. Id., Ex. B at L
The third document is a detectives' report stating that "[a] check with Agent Sabella of US Immigration revealed that Douglas Barnes apparently entered this country illegally. He was taken into custody by the assigned, taken to BCB and then delivered to 26 Federal Plaza." Id., Ex. C at 1.
No factual finding with respect to whether these reports were turned over to the defense was ever made in the state courts. This court finds as a matter of fact, for purposes of this proceeding, that the reports were not turned over. Defense counsel and his law office denied having ever seen the reports and petitioner denies having seen the reports.
For the reasons discussed below, it seems inconceivable that if defense counsel had in fact been provided with these reports he would not have used them in some manner at trial. If counsel had in fact seen the reports and failed to use them, his representation of petitioner would not have met minimum constitutional standards.
Respondent argues that, at any rate, there was no Brady violation because the information in the reports was not exculpatory. Respondent suggests that even if the reports implicate Barnes, Batten could still have been the man whom Barnes hired to rob the furniture store. This argument is not compelling. No evidence was introduced at trial linking Barnes to petitioner. That such a link could be established is itself merely speculative. While evidence that the robbery may have been an "inside job" does not itself demonstrate petitioner's innocence, this information — along with the fruits of a defense investigation that would undoubtedly have been spurred by its production — casts the case in a different light. Petitioner would have gained some traction out of the mere fact that detectives seem to have prematurely abandoned investigation of Barnes. At the very least, somebody besides petitioner was implicated by the confidential informant in the crime, and the police for some reason did not follow through on their investigation of this lead. It is also curious that detectives arguably went to lengths to assure that Barnes was not available to the defense by turning him over to federal immigration authorities.
In this weak case, there is a reasonable probability that, had this evidence been disclosed to the defense, the result of the proceeding would have been different. The state courts' conclusion otherwise was both contrary to and an unreasonable application of Brady and its Supreme Court progeny.
C. Insufficiency of the Evidence
Batten also claims that the evidence was legally insufficient to support his guilt because the eyewitness testified that the perpetrator was clean shaven but a police photograph made four days later shows Batten to have prominent sideburns, a mustache and goatee. Batten also makes a more general claim that the evidence was legally insufficient and the verdict was against the weight of the evidence. To the degree Batten claims that is guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v, Virginia, 443 U.S. 307, 319 (1979). Batten "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree Batten claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
This is not a case in which the evidence of petitioner's guilt was overwhelming. There was no definitive physical evidence linking petitioner to the crime and there was the testimony of only a single eyewitness. Nonetheless, viewing the evidence that was actually presented to the jury in the light most favorable to the prosecution, a reasonable juror could conclude that Evans' identification of petitioner as one of the robbers and a shooter was credible. Habeas relief on this ground alone is not warranted.
D. Jury Charge
Batten claims that he was denied a fair trial when the trial court failed to charge the jury that the state had to disprove Batten's alibi beyond a reasonable doubt. "In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the Batten must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985). In weighing the prejudice from an allegedly improper charge, a reviewing court must view the instruction in its total context, Cupp v. Naughten, 414 U.S. 141, 146-41 (1973). The question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147.
"The People have the burden of disproving an alibi beyond a reasonable doubt and, therefore, a charge regarding an alibi must unequivocally convey that burden to the jury." People v. Victor, 465 N.E.2d 817, 818 (N.Y. 1984) (per curiam). The charge in the instant case was, in pertinent part, as follows:
Now, ladies and gentlemen of the jury, before I instruct you on the law relative to the elements necessary to constitute the crime of murder in the second degree, let us first focus our attention on the defendant's contention with respect to the charge against him. You've heard the testimony of Arthur Kemp, of Kirk Windlay and of the defendant Floyd Batten. Through that testimony, the defendant contend that on November 4th, 1983, he was not in the vicinity of the place where the crime is alleged to have occurred but was somewhere else and thus could not have committed, aided or participated in the commission of the crime. This is what we call, in law, an alibi.
Alibi is a Latin word meaning elsewhere and in law it means a defense interposed by a defendant by which he contends that at the time in question he was at some place other than the place where the crime was committed. The defendant has no burden to prove an alibi. You've already been instructed that it's up to the People to prove the defendant's guilt beyond a reasonable doubt. And this includes all of the elements of the crime, including his presence at a stated place and his committing or participating in certain acts at that place at a given time.
The alibi evidence which the defendant has placed before you seeks to convince you that the defendant was elsewhere at the time and therefore could not possibly have committed the acts charged. Whether you believe that he was or was not so present and therefore could or could not have done what he's been charged with doing is for you to decide along with all of the other facts in the case. The defendant is not obliged to establish that it would have been impossible for him to commit the acts charged. If the alibi proof raises a reasonable doubt in your minds as to whether the accused defendant was present at the time and place when and where the crime was charged to have been committed, you must find him not guilty.
Even if under the evidence he has presented you believe it might still have been possible for him to commit the crime charged, you are still faced with the duty of determining whether he actually availed himself of that possibility. If you believe there was a reasonable doubt of that, you must acquit.
Trial Tr. 767-69 (emphasis added). The instant instruction, contrary to Batten's contention, conveyed to the jury that petitioner did not have the burden to prove his alibi. Habeas relief on this claim alone would not be warranted.
E. Wade/Huntley Error
Batten finally claims that errors at the Wade/Huntley hearing resulted in evidence being improperly admitted at trial, thus requiring a new trial. For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 R2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA. See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).
He first claims that it was error to allow cross-examination of petitioner concerning his statement to the police that he was with a corrections officer at the time of the shooting. The trial court acted within its discretion in allowing the cross examination. Batten denied outright on direct examination that he told police, "I don't know the area, I'm a 73 boy. I got respectable witnesses where I was." Trial Tr. at 561-62. Only then did the prosecutor use Batten's statement — including his assertion that he was with a corrections officer — to impeach his credibility. The statement was initially ordered suppressed only because the detective to whom it was given did not recall precisely when the statement was made; there was no allegation that the statement was coerced from petitioner. It may be that another court, if sitting as a state trial court, would sua sponte have stricken the prosecutor's question from the record and disallowed further comment during summation. But the trial court's decision to allow the questioning was not an abuse of its discretion and did not deny petitioner a fundamentally fair trial.
Batten claims that the identification procedures used by police were unduly suggestive because the State did not preserve the "vast array" of photographs witness Evans perused before finding petitioner's photograph. He was not denied a fundamentally fair trial by this failure.
Petitioner argues the evidence of Evans' identification of petitioner at a de facto "show up" at the police station was improperly admitted at trial. Evans was called to the police station and allowed to wander around after petitioner had been brought in. While in the station, Evans came across petitioner and, startled, identified him as the shooter. He had previously identified petitioner as the shooter from the series of mug shots he looked at. The trial court deemed the show-up identification evidence insignificant in light of the identification from the photo array. That decision is reasonable. Petitioner was not denied a fair trial in this regard.
Finally, petitioner contends that the entire "I'm a 73 boy" statement should have been suppressed. The trial court made a factual determination that the statement was spontaneously made by petitioner and was not the result of police interrogation. This conclusion was reasonable. Petitioner was not denied a fundamentally fair trial by this decision. VIII. Conclusion
The petition for a writ of habeas corpus is granted based on petitioner's claim of ineffective assistance of counsel and violations of Brady. The prisoner shall be released unless within sixty days the state commences prosecution or takes other action appropriate in light of this decision. This decision is stayed until all appellate proceedings are completed and a final mandate is received by this court.
No certificate of appealability is granted with respect to petitioner's remaining claims, petitioner having made no substantial showing of the denial of a constitutional right. Petitioner is reminded that he may seek a certificate of appealability on these claims from the Court of Appeals for the Second Circuit.
SO ORDERED.