Opinion
No. 01 Civ. 10752 (WHP).
March 31, 2005
Edgar Quinones, Eastern Correctional Facility, Napanoch, NY, Plaintiff pro se.
Susan Axelrod New York County District Attorney's Office, New York, NY, Counsel for Defendants.
MEMORANDUM AND ORDER
Edgar Quinones ("Petitioner" or "Quinones") brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). Petitioner seeks reversal of his conviction in New York State Supreme Court for second degree murder and second and third degree criminal possession of a weapon. On June 3, 2003, Magistrate Judge Andrew J. Peck issued a comprehensive report and recommendation (the "Report") recommending that this Court deny the Petition and issue a certificate of appealability. Quinones v. Miller, No. 01 Civ. 10752, 2003 WL 21276429 (S.D.N.Y. June 3, 2003). Quinones and the Respondent filed objections to the Report.
This Court has endeavored to consolidate Petitioner's objections into relevant areas of inquiry to facilitate their consideration.
This Court reviews the findings and recommendations of a magistrate judge and "may accept, reject, or modify [them], in whole or in part." 28 U.S.C. § 636(b)(1). This Court reviews de novo those parts of the Magistrate's Report to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). For the following reasons, this Court adopts the Report, denies the Petition and grants a certificate of appealability.
Respondent objects to the Report's finding that Petitioner's conflict of interest claim was not barred by laches. Respondent also objects to certain criticisms of Petitioner's counsel and to the Magistrate Judge's recommendation that this Court issue a certificate of appealability. This Court has thoroughly considered Respondent's objections and finds each of them to be without merit for the reasons set forth in the Report.
BACKGROUND
A. The Conviction and State Court AppealsOn December 31, 1992, Lamont Carter was murdered on the corner of 132nd Street and Fifth Avenue in Manhattan. (Trial Transcript, dated June 12-14, 1995 ("Tr.") at 524.) Two eyewitnesses — Carol Deans and Marion Scarlett — placed Quinones at the scene of the crime. (Tr. at 431, 474.) In particular, both Deans and Scarlett identified Quinones from separate photo arrays. (Wade Hearing, dated June 1, 1995 ("Wade Hrg.") at 9, 13-14, 46.) Deans also identified Quinones in a police lineup as the gunman in the fatal shooting. (Wade Hrg. at 17-22.) Quinones was arrested on August 20, 1993. (Tr. at 599.)
This Section recites only the facts relevant to the discussion herein. In the Report, the Magistrate Judge provides a fuller and more detailed version of events. See Quinones v. Miller, 2003 WL 21276429.
Before trial, Quinones requested that the court replace his counsel, Alvin Morris, because of Morris' alleged failure to interview witnesses and file necessary motions. (Pre-trial Proceeding Transcript, dated Apr. 24, 1995 ("Pre-trial Tr.") at 3.) The trial court denied the motion, noting that defense counsel had filed several motions. (Pre-trial Tr. at 3.) On June 1-2, 1995, the trial court conducted a Wade hearing and found no impropriety in the photo array identifications by Deans and Scarlett and the lineup identification by Deans. (Wade Hrg. at 46.)
After a two-day trial, Quinones was convicted of second degree murder and second and third degree criminal possession of a weapon. (Tr. at 816-17.) On July 10, 1995, Petitioner was sentenced to an indeterminate prison term of twenty years to life. (Sentencing Transcript, dated July 10, 1995, at 7-8.) Over four years later, Quinones appealed his conviction to the First Department, claiming, inter alia, ineffective assistance of counsel. (Quinones First Department Brief, dated Sep. 29, 1999 ("1st Dept. Br.") at 39.) The First Department affirmed the conviction, concluding that Quinones "received meaningful representation," and that his counsel's "alleged deficiencies did not deprive defendant of a fair trial." People v. Quinones, 272 A.D.2d 228, 229, 708 N.Y.S.2d 616 (1st Dep't May 23, 2000) (internal citations omitted). The New York Court of Appeals denied leave to appeal, People v. Quinones, 95 N.Y.2d 870, 715 N.Y.S.2d 224 (N.Y. Aug. 14, 2000), and Quinones' subsequent motion for reconsideration, People v. Quinones, 95 N.Y.2d 968, 722 N.Y.S.2d 485 (N.Y. Dec 26, 2000).
B. Motion to Vacate Judgment for Alleged Conflict of Interest
On June 26, 2002, Quinones filed a Motion to Vacate the Judgment of Conviction pursuant to Criminal Procedure Law § 440.10 ("C.P.L. § 440 motion"). He repeated his earlier allegations of ineffective assistance of counsel and added a new allegation of "conflict of interest" for his attorney's "simultaneous representation" of Petitioner and Petitioner's brother Dennis Quinones ("Petitioner's brother" or "Dennis"). (Quinones C.P.L. § 440 Memorandum Of Law ("Pet.'s C.P.L. Mem.") at 1.)
Dennis was arrested in the Bronx on February 14, 1993, six weeks after Carter's murder, for criminal possession of a ".380 caliber handgun." (Quinones C.P.L. § 440 Motion Ex. I: Criminal Complaint.) On February 19, 1993, Morris filed a notice of appearance for Dennis on that arrest. (Quinones C.P.L. § 440 Motion Ex. K: Notice of Appearance; Letter by A.D.A. Rosen, dated Sept. 2, 2002 ("Rosen Letter 9/2/02") ¶ 17.) Thereafter, Dennis absconded.
On January 3, 1994, Morris filed a notice of appearance for Petitioner in the Lamont Carter murder case. Throughout the time Morris represented Petitioner, Dennis was a fugitive. On September 5, 1996, Dennis was apprehended. (Rosen Letter 9/2/02 ¶¶ 16.) By that time, Petitioner's defense counsel was deceased. (Pet.'s C.P.L. Mem. at 15; Rosen Letter 9/2/02 ¶ 17-18.) Dennis died before Petitioner raised any conflict of interest claim. (Rosen Letter 9/2/02 ¶¶ 14, 21.)
On September 18, 2002, the state trial court denied Quinones' C.P.L. § 440 motion (C.P.L. § 440 Decision), and denied leave to appeal on December 12, 2002. (Quinones Mot. to Amend Pet. Ex. A: 1st Dept. Order.)
C. Habeas Corpus Proceedings
Quinones' habeas petition repeats the claims in his C.P.L. § 440 Motion. The Magistrate Judge found that Petitioner failed to meet his burden of showing that his trial counsel suffered an actual conflict of interest which adversely affected Petitioner; that Petitioner was not subject to a conflict of interest because of Morris' earlier representation of Petitioner's brother; and that Petitioner had failed to demonstrate that his counsel's alleged ineffective assistance prejudiced his case. After an exhaustive review of the trial record and defense counsel's performance, the Magistrate Judge recommended denying a writ. However, the Magistrate Judge recommended granting a certificate of appealability, because "the questions of whether Morris' alleged conflict or trial performance constituted ineffective assistance of counsel are not altogether free of doubt." (Report at 136.)
DISCUSSION
Petitioner objects to the Report on the grounds that (1) despite his failure to object based on a conflict of interest at trial, he should not have to demonstrate adverse effect because he was unaware of the conflict at that time; (2) the Magistrate Judge erred by separately examining the "actual conflict" and "adverse effect" elements of the conflict of interest inquiry; (3) Morris concurrently represented Petitioner and his brother; and (4) Morris' representation of Petitioner's brother created an actual conflict of interest that adversely affected Petitioner.A. Applicable Legal Standards
1. Standard of Review under the Antiterrorism and Effective Death Penalty Act (AEDPA)
A writ of habeas corpus will not be granted unless the state court's adjudication of the claim "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 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)(1) and (2).
2. The Sixth Amendment Right to Conflict-Free Counsel
Petitioner has the burden of proving a violation of his constitutional rights by a preponderance of the evidence. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). To establish that his trial counsel's performance was constitutionally defective, Petitioner must show that the "deficient performance prejudiced [his] defense." Strickland v. Washington, 466 U.S. 668, 688 (1984). Where a habeas petitioner claims ineffective assistance of counsel based on his trial counsel's conflict of interest, prejudice is presumed if he can show that his counsel "actively represented conflicting interests" that "adversely affected his lawyer's performance."Cuyler v. Sullivan, 446 U.S. 335, 350, 348 (1980); see Mickens v. Taylor, 535 U.S. 162, 174 (2002) (noting that petitioner bears the burden of establishing that the "conflict of interest adversely affected his counsel's performance");Armienti v. United States, 234 F.3d 820, 824 (2d Cir. 2000);Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000).
3. Concurrent Representation
When an attorney concurrently represents two defendants with adverse interests, a conflict of interest may arise threatening the "defendant's Sixth Amendment right [to] . . . representation by conflict-free counsel." United States v. Schwarz, 283 F.3d 76, 90 (2d Cir. 2002) (quoting United States v. Blau, 159 F.3d 68, 74 (2d. Cir. 1998)). "[G]enerally, it is more difficult to prove that successive representation caused an actual conflict of interest than that simultaneous representation did so." Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir. 1999), cert. denied 528 U.S. 817 (1999) (internal quotations omitted). Indeed, there is no "presumption of prejudice to a case of successive representation." Moss v. United States, 323 F.3d 445, 460 (6th Cir. 2003).
B. Petitioner's Objections
1. Petitioner's Burden to Object at Trial
Although, prior to his state court trial, Petitioner expressed dissatisfaction with Morris' performance and asked for a new lawyer (Pre-Trial Tr. at 3), he made no objection based on a conflict of interest. Quinones claims to have been unaware that Morris represented Petioner's brother. (Petitioner's Objections to Report, dated June 3, 2003 ("Obj.") at 6-7.)
In Sullivan, the Supreme Court held that "a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." 446 U.S. at 348. Quinones argues that theSullivan rule should not apply, and that he should not be "faulted" for failing to raise a conflict of interest objection because he was not aware of it. (Obj. at 6-7.) The burden to show conflict of interest applies with equal force to petitioners who are aware of a conflict but do not object as well as those like Quinones who claim to have been unaware of the conflict at trial.See Sullivan, 446 U.S. at 348.
2. Concurrent Representation
In his petition, Petitioner claims that Morris represented him and his brother concurrently. (Pet.'s Mem. at 1; Obj. at 8; Quinones C.P.L. § 440 Motion at 14.) Quinones argues that this concurrent representation prevented Morris from zealously representing him because his brother Dennis' interests were adverse to Petitioner's. (Obj. at 2-3.)
The state court determined that Morris' representation of the two brothers was successive, finding that "after defendant's brother absconded and was returned to court, he was represented by Victor Dailey Rivera Esq. and not Alvin Morrison [sic, Morris] Esq." (C.P.L. § 440 Decision.) While the Magistrate Judge questioned the state court's analysis, he agreed with the result "on alternative grounds." (Report at 57-58.) In particular, the Magistrate Judge found
the passage of time [between Morris' representation of Petitioner and that of Petitioner's brother Dennis], combined with Dennis' disappearance (and the lack of any evidence of later contacts between Dennis and Morris) and, as far as the record shows, Morris' `transient and insubstantial' role in Dennis' criminal case, may provide firmer evidence that the relationship effectively was terminated before Quinones' trial.
(Report at 59.)
A finding of an actual conflict of interest because of dual representation requires consideration of multiple factors: "the temporal relationship between the prior and subsequent representations," whether "the defense counsel's prior representation [was] unambiguously terminated," and "the character and extent of the prior representation." Perillo v. Johnson, 205 F.3d 775, 798-99 (5th Cir. 2000). Further, "whether the facts of a particular case give rise to an actual conflict depends . . . upon . . . factors that illuminate whether the character and extensiveness of the prior representation were such that counsel is prevented by his interest in another's welfare from vigorously promoting the welfare of his [current] client."Perillo, 205 F.3d at 799 (internal citations and quotation marks omitted).
a. The Temporal Relationship
Petitioner argues that the eleven months between Morris' appearance for his brother Dennis and his appearance in this case for Petitioner strongly suggests that the two engagements were concurrent. (Obj. at 8-9.) The Magistrate Judge framed analysis of the temporal relationship issue in terms of whether Morris was Dennis' counsel "at the time of Quinones' June 1995 trial and July 1995 sentencing." (Report at 58). This Court does not discern any error in this analysis. The record shows that Morris entered a notice of appearance for Quinones in January 1994, eleven months after he appeared for Dennis. (C.P.L. § 440 Motion Ex. K.) Indeed, there is no evidence that Morris represented Dennis after February 19, 1993. Based on these facts, this Court cannot say that the state court's finding was an "unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d)(2).
The state court focused on whether Morris represented Dennis after he was returned to the state court on a bench warrant, rather than whether Morris represented Dennis while simultaneously representing Petitioner. (C.P.L. § 440 decision.)
b. Unambiguous Termination
Petitioner also claims that the relatively short time period between Morris' last appearance for him and his brother demonstrates that Morris' representation of Petitioner's brother had not "unambiguously terminated" prior to his representation. (Obj. at 10 (citing to Manoir-Electroalloys Corp. v. Amalloy Corp., 711 F. Supp. 188 (D.N.J. 1989)).) Petitioner argues that the passage of time is not sufficient to render counsel's representation successive and not concurrent. (Obj. at 10.) InAmalloy, a civil disqualification case, the court found that the four year period during which the attorney performed no legal work for his client did not provide an "escape hatch" from a conflict of interest for the attorney's later representation of an adverse party. 711 F. Supp at 194. However, in Amalloy, the lawyer's relationship to his former client was deemed "ongoing" because the attorney had represented him for more than a decade prior to a four-year lapse, and because the attorney's legal services provided during the representation were not "insubstantial." 711 F. Supp. at 194; see also Perillo, 205 F.3d at 799 ("Where defense counsel's involvement in the prior representation was either transient or insubstantial, we have been less inclined to find an actual conflict.") Thus, based on the short time period between Morris' representation of Petitioner and his representation of Petitioner's brother, this Court cannot conclude that Morris' representation of Dennis had "unambiguously terminated." As a result, this Court must examine the character and extent of that relationship to determine whether the representation was "ongoing" when Morris began representing Petitioner.
c. Character and Extent of the Prior Representation
Petitioner objects to the Magistrate Judge's characterization of the attorney-client relationship between Dennis and Morris as "brief." (Obj. at 8.) Urging the Court to expand the record pursuant to Rule 7 of the Rules Governing 2254 Cases, Petitioner submits an affidavit from his sister, Lillian Chaparro. (See Affidavit of Lillian Chaparro, dated July 22, 2003 ("Chaparro Aff."); Obj. at 10). Relying on this affidavit, Petitioner argues that when Morris appeared on his behalf in January 1994, the relationship between Morris and Petitioner's brother was ongoing. (Obj. 12.) The Chaparro affidavit does not persuade this Court. It merely parrots Petitioner's conclusory contention that Morris had an ongoing attorney-client relationship with Dennis. Indeed, Chaparro makes the statement that "Mr. Morris was Dennis' retained attorney, who had, in fact, represented Dennis on several of his prior cases" (Chaparro Aff. ¶ 3), without any evidentiary support.
Petitioner next argues that even "brief" representations can constitute "actual" conflicts of interest. (Obj. at 13 (citingUnited States v. Malpiedi, 62 F.3d 465 (2d Cir. 1995)).) InMalpiedi, defense counsel accompanied a government witness to a grand jury that ultimately indicted his client. Malpiedi, 62 F.3d at 467. Petitioner's reliance on Malpiedi is misplaced. There, the court determined that an actual conflict of interest existed because the witness the attorney was representing testified against the defendant who the attorney also claimed to represent. Malpiedi, 62 F.3d at 467. Here, there is no evidence that Morris "actively represented conflicting interests" while serving as Petitioner's attorney.Sullivan, 446 U.S. at 350. Based on the record, this Court concludes that Morris' attorney-client relationship with Dennis was brief and insubstantial.
Petitioner seeks additional discovery pursuant to Rule 6(a) of the Rules Governing 2254 Cases. (Obj. at 33.) In particular, Petitioner asks for the minutes from his brother's February 19, 1993 arraignment and the March 16, 1993 hearing where his brother failed to appear and a bench warrant was issued. He also seeks the medical and visitation records of his brother from the Fishkill Correctional Facility. (Obj. at 16, 18 n. 15, 33.) These requests are denied because Petitioner has had ample time to develop the record during the pendency of the state court proceedings. Further, Petitioner's subjective belief that this evidence will establish an actual conflict of interest is speculative and does not constitute "good cause" for ordering discovery. See Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (finding good cause "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief" (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969))).
4. Successive Representation
As discussed below, this Court finds that Morris' representation of Petitioner was successive to his representation of his brother Dennis. The Second Circuit has not articulated a standard for evaluating whether trial counsel's prior representation of a client with materially adverse interests constitutes a conflict of interest adversely affecting his performance. Nevertheless, several courts have held that a petitioner is relieved of his burden to show prejudice where (1) counsel's prior representation was "substantially related" to his representation of the petitioner, or (2) counsel learned confidential information from the prior representation that was relevant to the petitioner's case. See Hall v. United States, 371 F.3d 969, 973 (7th Cir. 2004); Belmontes v. Woodford, 350 F.3d 861, 885 (9th Cir. 2003); Moss v. United States, 323 F.3d 445, 461-62 (6th Cir.), cert. denied 540 U.S. 879 (2003);Perillo, 205 F.3d at 798-99; Freund, 165 F.3d at 858. By showing that the subject matters of the two representations were "substantially related," a court may presume that confidential information relevant to the subsequent representation was disclosed. Gov't. of India, 569 F.2d at 740; see Freund, 165 F.3d at 859.
a. Substantial Relation
Petitioner objects to the Magistrate Judge's determination that Morris' representation of Petitioner and Petitioner's brother were not "substantially related" matters. (Obj. at 19; see Report at 65.)
The standard for determining whether a prior matter is "substantially related" to the subsequent representation is well developed in this Circuit in civil disqualification cases. See, e.g., Gov't of India v. Cook Indus., 569 F.2d 737, 739-40 (2d Cir. 1978); Etna Prods. Co. v. Tactica Int'l, Inc., 234 F. Supp. 2d 442, 444 (S.D.N.Y. 2002) (quoting Mitchell v. Metro. Life Ins. Co., No. 01 Civ. 2112 (WHP), 2002 WL 441194 (S.D.N.Y. Mar. 21, 2002)); United States Football League v. Nat'l Football League, 605 F. Supp. 1448, 1457-60 (S.D.N.Y. 1985). Matters are substantially related "if the facts giving rise to an issue which is material in both the former and the present litigations are as a practical matter the same." United States Football League, 605 F. Supp. at 1459 (finding substantial relation between matters where "facts which were necessary to the first representation [were] necessary to the present litigation"). The movant must show "that the relationship between issues in the prior and present cases is `patently clear'" and that the issues are "identical" or "essentially the same." Gov't. of India, 569 F.2d at 739-40 (internal citations omitted.) Establishing a "substantial relationship" requires "a high standard of proof."Gov't. of India, 569 F.2d at 739.
Quinones argues that because he was tried for criminal possession of a weapon, the same crime as his brother, the two matters are "identical," or at least "substantially related." (Obj. at 19; Ex. B, C.) However, the standard in the substantial relation test is whether the "facts giving rise" to a material issue in the two representations are the same. United States Football League, 605 F. Supp. at 1459. The basis for Petitioner's argument is that he and his brother were both charged with criminal possession of the same handgun. (Obj. at 18.) This does not establish that the two matters are "substantially related," because while the elements of the crimes are similar, the "facts giving rise" to the two unrelated charges are not. United States Football League, 605 F. Supp. at 1459.
Petitioner also objects to the Report, arguing that Morris failed to place a photograph of Dennis in the photo arrays which shows that Morris labored under a conflict of interest. (Obj. at 22.) As an initial matter, this contention does not establish any relationship between the two matters. In addition, Petitioner suggests that Morris did not place his brother's photograph in the photo array so as to implicate Petitioner while defending Petitioner's brother. This argument is unavailing, because there is no evidence that the two brothers look alike and therefore placing Dennis' photograph in the photo array would have been meaningless.
Because the "facts giving rise" to Morris' representation of Dennis were not "necessary to" his representation of Petitioner and were not "as a practical matter the same" as the underlying facts in Petitioner's case, this Court finds that the two matters were distinct and not substantially related. United States Football League, 605 F. Supp. at 1459.
b. Shared Confidences
Petitioner objects to the Magistrate Judge's determination that he failed to prove that Dennis shared relevant confidences with Morris. (Obj. at 16.) As noted above, Petitioner contends that Morris represented him and Dennis on "identical" matters because both involved a charge of criminal possession of a weapon. (Obj. at 19.) From that premise, he argues that relevant confidences were shared. (Obj. at 19.) Although this Court finds no substantial relationship between Morris' representation of Petitioner and his brother, it nevertheless reviews Petitioner's arguments with regard to confidential information that Dennis may have shared with Morris.
Once a substantial relationship between two representations is shown, it is presumed that confidences were shared during the prior representation. See Gov't. of India, 569 F.2d at 740 ("[A] court should not require proof that an attorney actually had access to or received privileged information while representing the client in a prior case."). "[A]lthough there may be an inference that an attorney has knowledge of the confidences and secrets of his firm's clients, that inference is rebuttable. . . . [T]he standard of proof to rebut this presumption should not become `unattainably high.'" Cheng v. GAF Corp., 631 F.2d 1052, 1056-57 (2d Cir. 1980) (citations omitted), vacated on other grounds and remanded, 450 U.S. 903 (1981); see also Gov't. of India, 569 F.2d at 741 (Mansfield, J., concurring); Butala v. Agashiwala, No. 95 Civ. 936 (JGK), 1997 WL 137441, at *1 (S.D.N.Y. Mar. 25, 1997).
Petitioner contends that Dennis ineluctably told Morris that the gun was "dirty." (Obj. at 17.) This contention is pure speculation. Moreover, even if it were true, Petitioner's conviction is fully supported by the evidence:
[T]he possibility that the handgun which the defendant's brother was later arrested for illegally possessing, and which defendant contends is the real murder weapon — and his brother the real murderer — is of no consequence since a witness identified the defendant as the shooter, as the person seen speaking with the decedent moments before the murder, and as the person with whom one of the identifying witnesses had a verbal exchange at the crime scene before the murder.
(C.P.L. § 440 Decision). Therefore, Petitioner has not shown that the state court's "determination of the facts" was "unreasonable . . . in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).
5. Adverse Effect
a. The Conflict of Interest Standard Under Mickens
Petitioner also objects to the Magistrate Judge's use of a two-part test in determining whether Morris labored under a conflict of interest by representing Petitioner and Petitioner's brother. (Obj. at 7 (citing Mickens, 535 U.S. at 172 n. 5).) He argues that the Report's analysis is contrary to Supreme Court precedent. This Court disagrees.
Mickens held that prejudice is presumed where a habeas petitioner shows an actual conflict of interest adversely affecting his counsel's performance. Mickens, 535 U.S. at 173. The two separate elements of a constitutionally deficient performance — actual conflict and adverse effect — are closely related such that they are parts of the same inquiry. Indeed, the proper inquiry must involve examining the issue of actual conflict along with any potential adverse effect. Mickens, 535 U.S. at 172 n. 5.
Petitioner misreads Mickens as providing a shortcut to showing adverse effect: "[I]f this Court agrees that . . . Morris labored under an "actual" conflict of interest, then, pursuant to the Supreme Court's direction in Mickens, supra, this Court must also hold that the actual conflict adversely affected Morris' pre-trial and trial performances." (Obj. at 15.)Mickens does not obviate the need to show "adverse effect" once an "actual conflict" is demonstrated. By considering both elements in a single inquiry, the Mickens court sought to stress their interrelatedness. See Mickens, 535 U.S. at 171 ("`[A]n actual conflict of interest' mean[s] precisely a conflict that affected counsel's performance."); see also Moss, 323 F.3d at 467 n. 23 ("An `actual conflict of interest' therefore is a term of art requiring a conflict of interest and adverse effect."). Thus, Petitioner's objection to this portion of the Magistrate Judge's recommendation is rejected.
b. Adverse Effect Standard Under the AEDPA
"[U]ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance." Sullivan, 446 U.S. at 350 (emphasis added). A petitioner may establish that his counsel actively represented conflicting interests by showing that the conflict "adversely affected" his attorney's representation. Mickens, 535 U.S. at 174. Generally, adverse effect is proven through specific examination of instances in the record where there is a "lapse in [the attorney's] representation" of the client. Sullivan, 446 U.S. at 349; United States v. Schwarz, 283 F.3d 76, 92 (2d Cir. 2002). "[A] defendant must demonstrate that some plausible alternative defense strategy or tactic might have been pursued and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests." Schwarz, 283 F.3d at 92 (internal citations and quotations omitted). Indeed, in the Second Circuit, a petitioner is not required to show that "the alternative strategy or tactic not adopted by a conflicted counsel was reasonable, that the lapse in representation affected the outcome of the trial or that, but for the conflict, counsel's conduct of the trial would have been different." Malpiedi, 62 F.3d at 469; see also Schwarz, 283 F.3d at 92.
The Magistrate Judge interpreted the state court's decision as relying on a more stringent adverse effect standard articulated by other circuits. (Report at 70-72.) That standard requires a petitioner to show that the strategy not pursued by trial counsel was objectively reasonable under the facts of the case. See Eisemann v. Herbert, ___ F.3d ___, 2005 WL 567331, at *4 (2d Cir. Mar. 11, 2005) (citing cases from other circuits). Petitioner objects to the application of this standard and urges this Court to adopt the relaxed Second Circuit standard. (Obj. at 23.) The Magistrate Judge's recommendation regarding the state court's decision is supported by Section 2254(d)(1) which bars a habeas grant unless 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." 28 U.S.C. § 2254(d)(1); see Yung v. Walker, 296 F.3d 129, 135 (2d Cir. 2002) ("A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent.") There is no clearly established standard for showing adverse effect, and therefore the state court's decision cannot be considered an unreasonable application of federal law. 28 U.S.C. § 2254(d)(1). Thus, this Court adopts the Magistrate Judge's recommendation on this issue.
c. Morris' Alleged Failure to Introduce Relevant Evidence
Petitioner further argues that he suffered a "lapse in representation" because Morris did not introduce his brother's photograph in any of the photo arrays. (Obj. at 22 n. 19.) Petitioner contends that displaying such a photograph to implicate Dennis in the crime would have been a "plausible alternative strategy." (Obj. at 22, 26, 29.) Petitioner also argues that Morris failed to request a ballistics test to link the murder weapon to Petitioner's brother, foreclosing a "plausible alternate strategy." (Obj. at 31.) These arguments are misdirected, because the record does not show that Morris knew that Dennis might plausibly be a suspect. Indeed, as already noted, no evidence suggests that Petitioner resembled his brother, or that Morris knew that the weapon found in Dennis' possession was the same weapon used to murder Lamont Carter.
d. Morris' Failure to Call Exculpatory Witnesses
Petitioner also objects to the Report's finding that Morris' failure to call Malik Abdullah Akili and Lee Markisha Hill (Carol Deans' daughter) as witnesses did not "adversely affect" his representation of petitioner. (Obj. at 26-28.) Petitioner reframes the question as: "[W]hether Morris, after being supplied with this pertinent information, refused to pursue any further investigation into the matter since it may have exposed Dennis as the true killer." (Obj. at 27.) Petitioner argues that Akili's proposed testimony would have been exculpatory and therefore his counsel should have called him as a witness. (Obj. at 26.) Petitioner further argues that Morris' failure to call Hill as an eyewitness deprived Petitioner of a witness that would not only have exculpated him, but also inculpated Dennis. (Obj. at 28.) In support of this argument, Petitioner cites a letter from Anthony Ricco. (Obj. at 28, Ex. F: Letter from Anthony Ricco, dated May 23, 2002 ("Ricco Letter").) That letter, however, does not name Hill as a potential eyewitness or state with any specificity the nature of her potential testimony.
The decision to call witnesses is squarely in the province of a lawyer's decision-making and "ordinarily" does not constitute a "lapse in . . . representation." United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000) (quoting United States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997)). Petitioner has pointed to no evidence to show that Morris' trial decisions were unreasonable "under the facts" of the case, Freund, 165 F.3d at 860, much less caused by Morris' "other loyalties or interests." Schwarz, 283 F.3d at 92. Therefore, this Court finds that there was no adverse effect on Morris' representation of Petitioner.
Petitioner was required to show "prejudice from counsel's errors," i.e., "whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland, 466 U.S. at 688. This Court agrees with the Magistrate Judge that Quinones fails to make such a showing.
Further, because Petitioner lodges no specific objections to the balance of the Report, this Court adopts those portions.
D. Certificate of Appealability
The Magistrate Judge noted that the question of whether Morris' trial performance or alleged conflict constituted ineffective assistance of counsel was not free of doubt, even when reviewed under the deferential AEDPA review standard. Thus, he recommended issuing a certificate of appealability. This Court agrees with the Magistrate Judge's recommendation, and issues a certificate of appealability.
CONCLUSION
This Court adopts the thorough and well-reasoned Report of Magistrate Judge Andrew J. Peck. This Court concludes that Petitioner has failed to demonstrate with a "reasonable probability that, absent the errors, the fact-finder would have had a reasonable doubt respecting [Petitioner's] guilt." Accordingly, the petition for habeas corpus is denied, and a certificate of appealability is granted.The Clerk of the Court is directed to mark this case closed.
SO ORDERED.