Opinion
No. 02-CV-6577.
June 21, 2005
REPORT AND RECOMMENDATION
INTRODUCTION
Petitioner John Reynolds ("Reynolds") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Cattaraugus County Court on one count of second degree manslaughter (N.Y. Penal Law § 125.15). On May 2, 2005, the Honorable David G. Larimer referred this matter to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). See Docket #16. For the reasons set forth below, the Court recommends that the petition be denied.
JURISDICTION
At the outset, the Court notes that Reynolds is no longer in state custody, having been released after completing six years of his indeterninate sentence. "The federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are ' in custody in violation of the Constitution or laws or treaties of the United States.'" Maleng v. Cook, 490 U.S. 488, 490 (1989) (quoting 28 U.S.C. § 2241(c)(3) and citing 28 U.S.C. § 2254(a)) (emphasis in original). The Supreme Court has "interpreted the statutory language as requiring that the habeas petitioner be 'in custody' under the conviction or sentence under attack at the time his petition is filed." Maleng, 490 U.S. at 490-91 (citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)).
In the present case, Reynolds filed his federal habeas petition on or about November 11, 2002. See Docket #1. He was released from custody on parole on March 17, 2005. Thus, because Reynolds was incarcerated at the time he filed his habeas petition, he fulfills the "in custody" requirement of 28 U.S.C. § 2241, and the Court has jurisdiction to hear this case. Furthermore, Reynold's habeas petition has not been rendered moot by the fact that he has been released from prison on parole. See, e.g., Jones v. Cunningham, 371 U.S. 236, 240, 243 (1963) (concluding that the conditions typically placed on parolees, along with the possibility of re-arrest if parole officers believe a violation of those conditions has occurred, constitute restraints on liberty significant enough to render parole a type of "custody" for habeas purposes); accord, e.g., Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 893-94 (2d Cir. 1996); see also Spencer v. Kemna, 523 U.S. 1, 12 (1998) ("[I]t is an 'obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.'") (quoting Sibron v. New York, 392 U.S. 40, 55 (1968)).
Respondent does not assert the defense of non-exhaustion with respect to any of Reynolds's claims. Indeed, it appears that all of the claims have been fully exhausted and are properly before the Court on habeas review. See 28 U.S.C. § 2254(b)(1); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Reynolds's conviction stems from a brawl that occurred on October 22, 1994, in which a young man named Kevin King ("King") was killed. As a result of his participation in the incident, Reynolds was indicted, along with nine accomplices, by a Cattaraugus County Grand Jury on charges of second degree murder (N.Y. Penal Law § 125.25), first degree manslaughter (N.Y. Penal Law § 125.20), second degree manslaughter (N.Y. Penal Law § 125.15), first degree assault (N.Y. Penal Law § 120.10), and second degree assault (N.Y. Penal Law § 120.05). Prior to trial, the prosecution moved to dismiss the first degree manslaughter and first degree assault counts pending against Reynolds. The charges against two accomplices, Carl Hollamby ("Hollamby") and Matthew Sweatland ("Sweatland"), eventually were dismissed. The remaining seven co-defendants pled guilty to charges ranging from third degree assault to second degree manslaughter, and they received varying prison terms, the longest of which was an indeterminate sentence of two and one-third to seven years. Reynolds was tried before a jury in Cattaraugus County Court (Himelein, J.) from September 8 to September 17, 1997.
At trial, the prosecution introduced proof that on the evening of King's death, Reynolds and a number of his friends met at their friend Keri Haggerty's apartment before going out for the evening. The group included co-defendants Brian Mooney ("Mooney"), Cory Shea, Shane Appleby, Shawn Appleby, Sandra Sue Haggerty, Troy Fusco, Hollamby, and Sweatland. Everyone present at the apartment was drinking alcohol. After leaving the apartment, the group went out drinking and stayed at the bar until closing time at about 2 a.m. The group then went to Eastside Pizzeria in the Town of Olean to get something to eat. See T.611-18.
Citations to "T. ___" refer to the trial transcript.
There were several customers at the Eastside Pizzeria that night: Dale Cummings ("Cummings") and his wife; Pam Brochu ("Brochu") and her fiancé; Larry Bedow ("Bedow"); Robert Doxey and his son Jack; Bob Burgett; Pat and Debbie Morgan; and Lester Harris. T.946, 949-51. Gayle Wheeler ("Wheeler") was working as a waitress, and Ray Seeley ("Seeley") was the cook. T.903-04, 941. 943.
According to the customers and employees present, Reynolds and his friends ("the Reynolds group") were extremely boisterous from the moment they arrived in the parking lot. Once inside the pizzeria, the Reynolds group sat at two tables in the front of the restaurant where they continued to be loud and obnoxious. At some point, Wheeler warned the Reynolds group that if they did not settle down, she would call the police. T.413-15, 879, 948.
Shortly after Reynolds and his friends sat down, Kevin King ("King"), Kevin Kenyon ("Kenyon") and Steve Hellwig ("Hellwig") ("the King group") arrived. From that moment on, taunts began to fly back and forth between the two groups. According to Cummings, as the King group walked through the door, Shawn Appleby said, "[T]he more they come in, the uglier they fuckin' look." T.415. Other witnesses, including Kenyon and Robert Doxey, testified that several more insulting comments were made by unidentified members of the Reynolds group, such as, "[L]ook what the dog drug [ sic] in," and "[W]hat's that red-eyed cocksucker doing in here?" (made in reference to Kenyon, who apparently had a bloody eye at the time of the incident). See T.435, 719, 908.
At one point, Kenyon walked out of the restaurant and waved his arms, beckoning the Reynolds group to come out to the parking lot; the Reynolds group just laughed, and Kenyon re-entered the pizzeria. Seeley suggested to King and Hellwig that they should find someplace else to eat, but the two young men assured him that there would not be any problems. The taunts and insults from the Reynolds group continued after the King group sat down, however. Kenyon finally approached Reynolds and said, "[Y]our friends are being assholes. You should know better." T.438. Kenyon then went to the restroom where he was approached by one of the boys from the Reynolds group. This individual taunted Kenyon and called his father, a former police officer, a "pig." T.439. Kenyon told the person to leave him alone, and he returned to his seat. According to Kenyon, King repeatedly advised Kenyon just to ignore the Reynolds group. King did not react at all to the taunts and was not involved in the barrage of insults flying back and forth. T.412, 691.
At around this time, having had enough of the Reynolds group's antics, Cummings and his wife left the pizzeria. Cummings believed that there was going to be a fight and feared for his and his wife's safety. T.421. As he left, he told Kenyon and King to "stay cool and stay out of trouble." T.422. They replied, "[N]o problem." Several other individuals present at the Eastside, including Bedow, Robert Doxey, and Wheeler, also feared that a fight was imminent.
Throughout this time, Reynolds, who was related by marriage to Hellwig, was shuttling back and forth between his friends and Kenyon's group. Reynolds told Hellwig not to blame Reynolds for his friends' obnoxious behavior and that he (Reynolds) was trying to calm his friends down. T.475. However, Brochu, who knew some of the individuals in the restaurant, then heard Reynolds tell his friends that Kenyon and company were "just skuzbags." T.870-71. According to Hellwig, the taunts worsened after Reynolds came over; it seemed to Hellwig as though Reynolds was "playing both sides" rather than acting as a peacemaker. T.551. To Hellwig's knowledge, Reynolds did not try to get his friends to leave Hellwig and his friends alone, nor did Reynolds indicate to his friends that he knew who Hellwig was. T.475-76. In fact, Shawn Appleby testified that he only found out during trial that Reynolds was related to Hellwig by marriage.
Finally, when King, Kenyon and Hellwig stood up to leave, one of Reynolds's friends turned to Hellwig and said, "[Y]ou are a skuzbag . . . we are gonna kick your ass and we are gonna shave your hair and I'll break your f'ing [ sic] glasses." T.872. Hellwig said, "[A]ll right, you wanna fuck with us, come on outside, let's go." T.670.
It was at this point that what proved to be a fateful comment was made. According to Shane Appleby and Shawn Appleby, who both pled guilty to second degree manslaughter and agreed to testify on behalf of the prosecution, Reynolds said to Mooney, "[A]re you gonna take that shit?" T.631, 670-71. Brochu heard the comment, but she could not identify who uttered it. T.872. Hollamby, who testified for the defense, also heard the comment but did not know who said it. T. 1002-05.
The testimony similarly conflicted as to who was the first individual out the door of the pizzeria. Shawn Appleby testified that Mooney ran to the door first, but that he stopped Mooney and ran out the door first. Shane Appleby also testified that his brother, Shawn, left first. Hellwig recalled that Reynolds left first.
Wheeler stated that when Reynolds got up to leave, she tried to stop him from going outside; he responded that he "just wanted to go talk to Stevie Hellwig because it was his sister's brother-in-law" and "kinda pushed [her] aside and proceeded out the door." T.952-53. According to Wheeler, Shawn Appleby followed; she tried to stop him as well, but with no luck. Seeley recalled that Reynolds was the first to follow Hellwig, Kenyon and King outside. T.910. Seeley also tried to keep the rest of Reynolds's friends in the restaurant, but there was no stopping them. T.912-13.
According to Hellwig, Reynolds came striding quickly out of the restaurant. Hellwig walked towards him and said, "Johnny, what the hell is this shit[?]" because he "wanted to stop the fight right there with him." T.480. In an instant, "[s]ome guy come [ sic] over his [Reynolds's] shoulder and started hitting" Hellwig. T.480. Immediately after that, Hellwig felt individuals all around him beating him from every angle; they pushed him against a truck and hit him in the head, ribs and back. T.481. Hellwig feared that he was going to be killed. T.481. At one point, he was held by each arm and punched repeatedly in the face and stomach. T.482. Because he lost his glasses during the fight, Hellwig could not identify any of his attackers. T.498. However, he did notice that one of the boys who beat him was wearing a blue, red, and tan sweater. T.483. Hellwig was unable to see what was happening to Kenyon or King. T.483. When interviewed by the police after the fight ended, Hellwig indicated that he did not see Reynolds do anything during the fight. T.520. As a result, Reynolds was not detained by the police at that time.
Shawn Appleby admitted that he first hit Kenyon, causing Kenyon to fall to the ground. T.631. Shawn next hit King in the mouth, and King crumpled to the ground. (King was 5'5" tall and weighed 156 pounds.) Shane Appleby also took a slug at King. However, neither Appleby would admit to participating in kicking, or seeing anybody else kicking, King. T.637, 678-79.
According to Shawn Appleby, Reynolds was not acting as a "peace-keeper out there." T.637. Rather, Shawn testified, Reynolds was "in the vicinity" of the seven-foot area where "people were just kicking and punching" King. T.653-54. Shawn conceded that "of course it wasn't a fair fight." T.639. During the melee, Robert and Jack Doxey observed King's body lying on the ground; it would "fluff up like a pillow" each time one of the six attackers kicked it. T.697-98, 736. Both Robert and Jack Doxey heard people pleading at the attackers to stop kicking King because they were killing him. T.699, 737.
After calling 911, Wheeler went outside and saw a "bunch of people crowded together and down on their knees and on their feet and saw fists flying and feet swinging." T.955. Although she saw that everyone in the group was reaching over one another and punching and kicking King, Wheeler could not identify who was making contact with King's body. T.955-56, 958, 960-61, 964. Wheeler yelled at them to stop and tried to pull them off of King; she was the only one who was trying to stop the fight. T.956.
According to Wheeler and Seeley, there was not anyone standing close to the fight area who was not participating in the brawl. T.915-17, 956, 958. However, Wheeler recalled, neither Sweatland nor Hollamby were involved in the ruckus.
Brochu did not know any of the participants in the fight except Hellwig, her neighbor. Brochu observed people kicking King so hard that his body moved with the force of each kick. T.879. As did Wheeler and Seeley, Brochu noted that there was no one was standing at the corner of the pizzeria where the fight took place who was not involved in the fight. T.880.
The group began to disperse after 911 was called a second time at 3:25 a.m., leaving King dying on the ground. Wheeler saw Reynolds running from the pile of individuals who had been assaulting King. T.957. Brochu saw Wheeler point at Reynolds and say, "[D]on't you leave, you were involved in this, you stay." However, Reynolds just held up his hands and walked away, got into his truck, and drove out of the parking lot. T.886. Brochu wrote down the license plate number and gave it to the police. Brochu also gave a statement to the police in which she described the perpetrators by clothing and hair color.
On the morning after the fight, Dr. Justin Uku performed an autopsy on Kevin King. Unaware of the x-rays taken of King's body at Olean Hospital that showed fractured ribs, and under the misapprehension that King had been squashed at the bottom of a football-type "pile-on," Dr. Uku performed his autopsy before any bruises on the body had the opportunity to appear. T.801-02. Thus, Dr. Uku initially ruled that the cause of death was traumatic asphyxia as the result of King's body being crushed. T.794-95. The case was closed at that time, and no one was prosecuted in connection with King's death.
After an outcry by the victim's family, the district attorney's office reopened the case and had the body exhumed so that a second autopsy could be performed. Dr. Michael Baden, who performed the autopsy on April 17, 1995, opined that King died from cardiac arrhythmia due to multiple blunt force trauma to the chest. T.843-44. According to Dr. Baden, it typically takes twenty-four hours for a body to show evidence of bruises or hemorrhages, which is why the bruises found at the second autopsy were not apparent at the first autopsy. T.823.
When the police re-interviewed Reynolds on April 28, 1995, Reynolds indicated that, during the fight, he stood at a point just off the sidewalk at the corner of the restaurant. T.759. (This was the area in which King's dead body was discovered. T.764) According to Reynolds, "one of the Applebys" left the restaurant first. Reynolds told the officer that he then went outside where he could see three fights occurring, but he could not say who was participating in which fight. When the police officer suggested that Reynolds should have been able to see who was in the fights because he was standing so close to them, Reynolds accused the police of not believing him. T.764, 769-71.
At the conclusion of the prosecution's case, defense counsel moved to dismiss the indictment on the basis that the prosecution had not introduced any proof that Reynolds had thrown a punch, kicked or wrestled with anyone, or been involved in any way in the fight that led to King's death. T.966. Moreover, defense counsel argued, no witnesses testified that Reynolds had instigated the altercation or had acted with the mental state necessary to establish criminal culpability. T.967-68. The trial judge reserved decision on the second-degree murder charge but denied the defense motion with respect to the remaining counts.
Reynolds's friend, Hollamby, testified on his behalf. Hollamby was among the friend with whom Reynolds went to the East Side Pizzeria on the night of the incident. Hollamby denied that his friends were throwing food or cursing. T.984-85. When King, Kenyon and Hellwig walked in to the restaurant, Hollamby heard Shawn Appleby make an innocuous comment about Kenyon's bloody eye: "Hey, this must be the kid . . . that got in the fight at the Haskell Inn." T.985-86. Although Kenyon then challenged Shawn to a fight, nothing came of it. T.986. Hollamby also observed words being exchanged between Mooney and Hellwig later in the evening. T.987. Hollamby did not have any idea who made the statement, "Are we going to take this shit?" T.991. Hollamby did not participate in the brawl outside the pizzeria, remaining inside the restaurant because he did want to be involved; he testified that he feared that his friends were going to be arrested. He never saw Reynolds importune anyone to get into a fight or encourage the fighting to continue. T.996-97. Nor did he see Reynolds actually fighting. T.997. The defense rested after Hollamby's testimony
The jury deliberated for two days and returned a mixed verdict, finding Reynolds guilty of second degree manslaughter and not guilty of second degree murder, second degree assault or third degree assault. T. 1153-54. Represented by the attorney who would be his appellate counsel on direct appeal, Reynolds moved to set aside the verdict pursuant to New York Criminal Procedure Law § 330.30. That motion was denied, and Reynolds was sentenced on January 29, 1999, to an indeterminate sentence of four to twelve years.
The Appellate Division, Fourth Department, of New York State Supreme Court, unanimously affirmed his conviction on February 16, 2000. People v. Reynolds, 269 A.D.2d 735, 704 N.Y.S.2d 398 (4th Dept. 2000). Leave was denied by the New York Court of Appeals on June 2, 2000. People v. Reynolds, 95 N.Y.2d 838, 713 N.Y.S.2d 145 (2000). The Supreme Court denied a writ of certiorari. Reynolds v. New York, 531 U.S. 945 (2000). Reynolds's motion to vacate the judgment pursuant to New York Criminal Procedure Law § 440.10 was denied on June 29, 2001, by the trial court. The Appellate Division denied leave to appeal on April 17, 2002. This habeas petition followed in which Reynolds raises the following grounds for relief: (1) trial counsel was ineffective in failing to properly advise petitioner regarding whether he should accept a guilty plea; and (2) trial counsel was ineffective in failing to investigate and present exculpatory evidence at trial.
DISCUSSION
Standard of Review
To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking a federal writ of habeas corpus must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000)
Merits of the Petition
I. Ineffective assistance of trial counsel
Both of Reynolds's habeas claims stem from the alleged incompetence of his trial attorney. First, Reynolds contends that counsel provided "negligent legal advise [ sic]" regarding the pre-trial plea offer. Second, Reynolds faults counsel for failing to investigate and present allegedly exculpatory evidence.
A. General legal standard
In order to prevail on a claim of ineffective assistance of counsel within the framework established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984) (" Strickland"), a habeas petitioner must satisfy a two-part test. First, a petitioner must demonstrate that counsel's performance was so deficient that counsel was not functioning as "counsel" within the meaning of the Sixth Amendment to the Constitution. Id. at 688. In other words, a petitioner must show that his attorney's performance "fell below an objective standard of reasonableness." Id. Second, a petitioner must show that counsel's deficient performance prejudiced him. Id. at 694. To establish the "prejudice" prong of the Strickland test, a petitioner must show that a "reasonable probability" exists that, but for counsel's error, the outcome of the trial would have been different. Id. at 694. The issue of prejudice need not be addressed, however, if a petitioner is unable to demonstrate first that his counsel's performance was inadequate. "[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697.
B. Grounds of alleged ineffectiveness
1. Counsel gave negligent legal advice regarding plea offer
Prior to trial, the district attorney's office tendered the following plea offer to Reynolds: in exchange for a guilty plea to one count of criminally negligent homicide, Reynolds would receive a sentence commitment of one year in Cattaraugus County Jail. In addition, if Reynolds chose to plead guilty, the prosecution would permit Reynolds's sentence on a felony charge of driving while intoxicated ("DWI"), which had occurred prior to trial, to run concurrently with the homicide conviction. On August 26, 1997, the date on which the plea offer expired, Reynolds rejected it in open court with both his attorneys present. The Court notes all of Reynolds's co-defendants against whom the prosecution maintained charges tendered guilty pleas and agreed to testify for the prosecution at Reynolds's trial in exchange for reduced prison terms.
Reynolds was represented by two different attorneys — one for the DWI charge and one for the murder charge. By the time of the August 26th hearing, Reynolds had dismissed the first attorney representing him on the murder charge because he believed that the attorney's fees were too high. His new attorney represented him at the hearing.
When Reynolds raised this ineffective assistance of counsel claim on his collateral motion to vacate the judgment of conviction, he apparently asked his attorney on the murder case to submit an affidavit stating that the attorney failed to advise him of the possibility that he could be convicted under a theory of accomplice liability. Counsel refused, stating,
I cannot give you an affidavit saying you were not informed of the law of accomplice liability and the definition of recklessness. I personally went over with you the elements of each charge in the indictment with my penal law in hand. If there was any ineffective assistance of counsel by me, I am sure that attorneys' [ sic] Paul Cambria and Roger Wilcox would have raised it in your appeal.
12/01/00 Letter of John Elmore, Esq. to Petitioner, attached as Exhibit ("Ex.") R to Respondent's Appendix of Exhibits ("Resp't App."). The attorney who represented Reynolds on the unrelated DWI charge submitted an affidavit stating that he discussed both matters with Reynolds and "asked Reynolds to seriously consider [the] plea offer in light of the circumstances before him[.]" 12/19/00 Affidavit of Brian O'Connell, Esq, attached as Ex. S to Resp't App.
The county court denied Reynolds's claim, stating that it was "the court's recollection that the offer was reviewed with the defendant on the record on more than one occasion and defendant made clear to the court that it was defendant's rather than someone else's decision to proceed to trial." Ex. V to Resp't App. The Appellate Division denied leave to appeal.
In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court extended the Strickland two-prong test to ineffective assistance claims arising out of the plea process. See id. at 58. Although Hill involved an ineffective assistance challenge to a petitioner's decision to plead guilty, most lower courts, including the Second Circuit, have understood the reasoning of Hill also to apply to claims involving a rejection or insufficient consideration of an offered plea. E.g., Boria v. Keane, 99 F.3d 492 (2d Cir. 1996).
In determining what constitutes objective reasonableness, courts look for guidance to "'[p]revailing norms of practice as reflected in American Bar Association standards.'" Purdy v. United States, 208 F.3d 41, 44 (2d Cir. 2000) (quoting Strickland, 466 U.S. at 688). The Second Circuit has stressed that "'[t]he decision whether to plead guilty or contest a criminal charge is ordinarily the most important single decision in a criminal case . . . [and] counsel may and must give the client the benefit of counsel's professional advice on this crucial decision.'" United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998) ( per curiam) (quoting Boria, 99 F.3d at 496-97) (alterations and omission in original). As part of this advice, "counsel must communicate to the defendant the terms of the plea offer, and should usually inform the defendant of the strengths and weaknesses of the case against him, as well as the alternative sentences to which he will most likely be exposed[.]" Purdy, 208 F.3d at 45 (internal citations omitted).
However, "the ultimate decision whether to plead guilty must be made by the defendant." Id. (citing Model Rules of Professional Conduct Rule 1.2(a) (1995)). A lawyer advising a defendant about the advisability of pleading guilty walks a fine line: he "must take care not to coerce a client into accepting or rejecting a plea offer." Id. (citing Jones v. Murray, 947 F.2d 1106, 1111 (4th Cir. 1991) ("[V]arious [ABA] Standards place upon counsel an affirmative duty to avoid exerting 'undue influence on the accused's decision' and to 'ensure that the decision . . . is ultimately made by the defendant.'") (quoting standards for Criminal Justice 4-5.1(b) 14-3.2(b)) (alterations in original). Cases in which a defendant faults counsel for inducing him to enter a guilty plea and forego trial are numerous. See, e.g., Hines v. Miller, 318 F.3d 157, 168 (2d Cir. 2003) (dissenting opinion) (citing United States v. Craig, 985 F.2d 175, 179 (4th Cir. 1993) ( per curiam) (raising three claims of ineffective assistance, including coercion by counsel); United States v. Trussel, 961 F.2d 685, 690 (7th Cir. 1992) (alleging counsel's erroneous advice rendered guilty plea not knowing and intelligent); United States v. Moree, 220 F.3d 65, 69-72 (2d Cir. 2000) (accusing counsel of coercing plea and ineffective assistance)).
As the Second Circuit has explained, "[c]ounsel's conclusion as to how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea," enjoys a wide range of reasonableness because '[r]epresentation is an art,' Strickland, 466 U.S. a 693, and '[t]here are countless ways to provide effective assistance in any given case, id. at 689." Purdy, 208 F.3d at 45 (alterations in original). In providing advice with respect to this critical decision, defense counsel may take into account, among other things, whether the defendant has maintained his innocence and the defendant's chances of prevailing at trial. Id.
Applying the first prong of the Strickland test to the plea context, the Second Circuit has held that a criminal defense lawyer has a duty "'to advise his client fully on whether a particular plea to a charge appears desirable,'" because "'[k]nowledge of the comparative sentence exposure between standing trial and accepting a plea offer will often be crucial to the decision whether to plead guilty.'" Id. at 380 (quoting Boria, 99 F.3d at 496, and United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992)) (alteration in original). In the context of Reynolds's case, it also would have been imperative for defense counsel to focus on the potential for the jury to convict Reynolds under a theory of accomplice liability.
Contrary to Reynolds's assertions, defense counsel evidently understood that Reynolds, under the facts of the case, could be held liable as an accomplice; counsel did not defend the case solely on the basis that Reynolds was not seen striking or kicking the deceased. Rather, counsel put forth evidence that Reynolds attempted to act as the peacemaker between the two groups; did not make the inciting comment, "Are we going to take this shit?"; and stayed to speak with the police after the fight was over. Thus, defense counsel's handling of the case reflects his understanding that accomplice liability was an issue.
Under the second prong of Strickland, a petitioner must show that a "reasonable probability" exists that but for counsel's errors with respect to considering or explaining a plea offer, the petitioner would have accepted the offer. See Boria, 99 F.3d at 497. As an initial matter, to meet this standard, a petitioner must assert in his affidavit that had it not been for counsel's allegedly erroneous advice, he would have accepted the plea. Cf. Hill, 474 U.S. at 60 (rejecting habeas claim because petitioner failed to allege that had counsel's advice on plea offer been accurate, he would not have plead guilty); see also Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991) (reasonable probability not shown without a statement by petitioner that he would have accepted plea offer). Here, Reynolds has fulfilled that requirement. However, a petitioner's post-trial statement that he would have taken a guilty plea is not sufficient, in itself, to support a finding of prejudice under Strickland. The Second Circuit has required a petitioner to demonstrate a "reasonable probability" that he would have accepted a plea offer by presenting "objective evidence" in addition to his own "self-serving, post-conviction testimony." See Gordon, 156 F.3d at 380-81 (adopting "objective evidence" rule as consistent with prior holding in Boria v. Keane, 99 F.3d at 497).
Reynolds asserts that "[i]f Mr. Elmore had properly advised the petitioner regarding the possibility that he could still be found guilty as an accomplice even if he did not touch Kevin King — and also advised the petitioner that he would be going to jail on the D.W.I. charge regardless of the outcome in the Kevin King case — then the petitioner would have accepted the proposed plea agreement." Addendum to Petition at 28-29 (Docket #3).
Reynolds has submitted a number of additional affidavits from family members and acquaintances in support of his contention that he would have accepted a guilty plea had he been properly advised of the potential for being held liable as an accessory. The affidavits from members of Reynolds's family uniformly state that defense counsel never explained the legal concepts of "recklessness" or "accomplice liability" and that Reynolds decided not to plead guilty because counsel "assured [them] that the prosecution could not prove that John hit the deceased[.]" See Ex. S to Petition (Docket #1). The fact that all of these affidavits are identical leads the Court to conclude that the documents were prepared by Reynolds himself and then later signed by the family members as opposed to recording what the individuals actually recollected regarding Reynolds's conversations with defense counsel. As such, the Court is disinclined to accord them significant weight. Furthermore, the Court cannot ignore the potential bias inherent in these statements since they all come from Reynolds's supporters.
Turning to the remaining affiants, Robert Haggerty, the father of one of the co-defendants, states in his affidavit that defense counsel informed him that "unless [the witnesses] saw [Reynolds] physically touch Kevin [the victim], [Reynolds] could not be found guilty." See Ex. T to Petition (Docket #1). William Reynolds, who does not appear to be related to petitioner, was the defense team's private investigator. He submitted an affidavit stating that "based upon the absence of any direct evidence connecting the defendant to the death of Kevin King — it was determined by [counsel] that the defendant should take his case to trial." See Ex. U to Petition (Docket #1). William Reynolds based his averments upon on his conversations with petitioner and defense counsel. See id. Finally, an individual named David Bennett ("Bennett") submitted an unsworn supporting deposition in which he asserted that he informed defense counsel that he was concerned that the prosecution was "attempting to convict [petitioner] based on the statement 'are you going to take this shit.'" See Ex. V to Petition (Docket #1). According to Bennett, defense counsel "told [him] not to worry[,] that the state had not proved that [petitioner] had hit, kicked or punched anyone." See id. Haggerty, William Reynolds, and Bennett do not appear to have had a close personal relationship with Reynolds, and their statements do not seem to have been prepared by the same individual. However, none of these affidavits indicate that defense counsel did not review the issue of accomplice liability with Reynolds. For this reason, they do not provide information pertinent to resolution of Reynolds's claim.
The Court cannot rest a determination of a "reasonable probability" that the outcomes would differ upon Reynolds's self-serving, post-conviction testimony alone, especially because Reynolds vehemently professed his innocence before and during trial. Even at sentencing, when Reynolds addressed the court, he continued to assert that he was innocent of any wrongdoing and had played no part in King's death. Furthermore, as discussed above, the affidavits submitted by Reynolds's family members and acquaintances do not, in this Court's view, constitute objective evidence that there was a "reasonable probability" that Reynolds would have accepted a plea offer if he had been given different legal advice. Thus, because Reynolds cannot show that he was prejudiced, he cannot make out a claim of ineffective assistance of counsel regarding counsel's representation with respect to the decision not to enter a guilty plea.
2. Failure to investigate and present exculpatory advice
Reynolds argues that testimony of his co-defendants would have exculpated him and that defense counsel erroneously failed to investigate and present these witnesses. "'[T]he Constitution does not oblige counsel to present each and every witness that is suggested to him.'" Pavel v. Hollins, 261 F.3d 210, 220 (2d Cir. 2001) (quoting United States v. Balzano, 916 F.2d 1273, 1294 (7th Cir. 1990)). Although the decision whether or not to call a particular witness is a strategic choice that is "virtually unchallengeable," defense counsel "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 690-91. Thus, counsel cannot "'make a "strategic" decision not to interview witnesses thoroughly, because such preparation is necessary in order to know whether the testimony they could provide would help or hinder [his] client's case, and thus is [a] prerequisite to making any strategic decisions at all.'" Fu v. Costello, 2004 WL 2053254, at *10 (S.D.N.Y. Sept. 14, 2004) (quoting Newton v. Coombe, 2001 WL 799846, at *5 (S.D.N.Y. July 13, 2001)). "'[A]n attorney's failure to present available exculpatory evidence is ordinarily deficient, unless some cogent tactical or other consideration justified it.'" Pavel, 261 F.3d at 220 (quoting Griffin v. Warden, 970 F.2d 1355, 1358 (4th Cir. 1992) (internal quotation marks omitted in original) (collecting cases) and citing Brecheen v. Reynolds, 41 F.3d 1343, 1368 (10th Cir. 1994) (similar); United States v. Moore, 554 F.2d 1086, 1093 (D.C. Cir. 1976) (in the context of an attorney who failed to contact a particular witness because the attorney was confident as to what the witness would say, holding that "counsel's anticipation of what a potential witness would say does not excuse the failure to find out")).
Reynolds argues that several unnamed co-defendants and Mooney, in particular, would have assisted in proving that Reynolds did not make the inciting comment, "Are we going to take this shit?" Reynolds also claims that there were other witnesses who could have testified that they saw Reynolds standing in an area away from the melee. See Petitioner's Memorandum of Law at 17-19 (Docket #2). Reynolds points to statements by Sandra Sue Haggerty, Officer Daniel McGraw, and Sweatland, see Ex. O, P and Q to Petition (Docket #1), but none of these contain exculpatory information.
In state court, defense counsel responded as follows to Reynolds's claim that additional witnesses should have been called:
The decision to rest the case after calling Carl Hollamby was made jointly by you and I [ sic]. If you recall, all of your co-defendants [Mooney included] gave statements to Diane LaValle [the prosecutor] in order to obtain their plea deals. There [ sic] testimony was locked in and none of them would have been able to testify they were watching you during the fight and that you did not participate. Additionally, some of the co-defendants' attorneys would not allow my access to their clients to prepare for their testimony. It is dangerous to call an uncooperative or unprepared defense witness."
Ex. X to Petition (Docket #1). The Court notes with interest that Reynolds does not contradict counsel's representation that Reynolds was involved in the decision regarding which witnesses to call at trial. Reynolds claims, however, that counsel's assessment about whether witnesses would cooperate was "clearly inaccurate" with respect to Mooney. Reynolds relies on Mooney's pre-trial statement to the police in which Mooney took responsibility for making the comment, "Are we going to take this shit?" See Ex. V to Petition (Docket #1).
On habeas review, Reynolds has not provided a statement from Mooney to the effect that Mooney would have testified consistently with his pre-trial statement at trial. Moreover, when Mooney's attorney wrote to Reynolds after trial and stated that there were other, unnamed witnesses who could have testified that Reynolds did not utter the inciting comment, he did not indicate that his client, Mooney, was one of those witnesses. See Ex. Y to Petition (Docket #1). This omission is significant, in this Court's opinion. Reynolds's allegations about the existence of exculpatory evidence do not amount to more than mere speculation. As such, they provide no basis for concluding that trial counsel was deficient in his selection of witnesses for the defense case.
Finally, Reynolds contends that trial counsel erred in failing to contest the medical evidence the King's death was a homicide by arguing that the second coroner's opinion was based on speculation. Prior to trial, however, all of Reynolds's co-defendants had pled guilty to charges which, in effect, conceded that King had died as a result of the beating. Notably, the first medical examiner, who originally opined that King died as a result of asphyxiation, testified at trial that he agreed with the opinion of the second medical examiner that King's death resulted from cardiac arrhythmia. Thus, trial counsel's strategic decision to base his defense theory on Reynolds's lack of participation in the fight was reasonable in light of these prior plea agreements along with the expected testimony of two medical examiners that King had died from cardiac arrhythmia due to blunt force trauma to the chest.
Had there been additional defendants remaining at the time Reynolds went to trial, the Court agrees that contesting the medical evidence might have been a plausible strategy. When all of the other defendants had conceded that King's death was a homicide, however, such a strategy was unsound and likely would have undermined the defense's credibility. Thus, the Court cannot find that trial counsel acted unreasonably in failing to contest the medical evidence that King's death was a homicide.
CONCLUSION
For the reasons set forth above, the Court recommends that petitioner John Reynolds's petition for a writ of habeas corpus be DENIED and DISMISSED. The Court does not recommend that a certificate of appealability issue because Reynolds has failed to make a substantial showing of a denial of a constitutional right. See 28 U.S.C. § 2253.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED, that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 72.3(a)(3).
The district court ordinarily will refuse to consider on de novo review arguments, case law and evidentiary material which could have been, but was not, presented to the magistrate judge in the first instance. See, e.g., Patterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985, 990-91 (1st Cir. 1988).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
The parties are reminded that, pursuant to Rule 72.3(a)(3) of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3), or with the similar provisions of Rule 72.3(a)(2) (concerning objections to a Magistrate Judge's Decision and Order), may result in the District Court's refusal to consider the objection.
Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the attorneys for the Plaintiff and the Defendant.
IT IS SO ORDERED.