Opinion
04-CV-0856 (JG).
December 22, 2004
CHRISTOPHER VASSELL, No. 95A0473, Southport Correctional Facility, Pine City, NY, Petitioner Pro Se.
CHARLES J. HYNES, District Attorney, Kings County, Brooklyn, New York, Morgan J. Dennehy, Assistant District Attorney, Attorneys for Respondent.
MEMORANDUM AND ORDER
Christopher Vassell petitions for a writ of habeas corpus, challenging his convictions in state court. The petition is denied for the reasons set forth below.
BACKGROUND
The government's evidence at trial established that, on March 7, 1994, Christopher Vassell and Andre Gunning entered the small back room of a store named Brother's Arts and Crafts on Nostrand Avenue in Brooklyn. Vassell went to the store to sell a gun to Roan Lynch, who was in the back room along with several other people, including Annette Roberts, Neil Duncan, Stanford Douglas, and Dennis Aubin, the owner of the store. While Lynch examined the gun brought by Vassell, Aubin asked Annette Roberts to get Ian Jobity, who was outside of the back room. Aubin expected that Jobity, a "rough-type guy" (Tr. at 456), could convince Vassell, Gunning, and Lynch to leave the store. Soon after Jobity entered the back room, shots were exchanged between Vassell and Jobity.
There was conflicting testimony about the sequence of events surrounding this shooting. Douglas testified, for example, that Jobity stood in the doorway and that Jobity and Vassell stared at each other for a moment before shots started to fire. (Tr. at 67.) Aubin testified that Vassell began firing after Jobity cursed at him, and that Jobity then left the room, came back with a gun, and started firing at Vassell. (Tr. at 457-462.) Vassell testified that Jobity came into the back room and started firing. (Tr. at 599.) Of the six witnesses who testified to the shooting, four testified that Vassell was either the first to fire or that the first shots emanated from the area where he was standing. Vassell and Gunning, on the other hand, testified that Jobity was the first to fire. As a result of the shooting, Jobity and Duncan were killed; Gunning and Douglas were seriously injured; Vassell was shot in both legs.
Vassell was charged with murder in the second degree (four counts); manslaughter in the first degree (two counts); manslaughter in the second degree (two counts); attempted murder in the second degree (two counts); assault in the first degree (four counts); reckless endangerment in the first degree; criminal possession of a weapon in the second degree; and criminal possession of a weapon in the third degree.
The jury found Vassell guilty of one count of murder in the second degree (for the charges related to Neil Duncan); and two counts of assault in the first degree (for the charges related to Gunning and Douglas). Vassell was sentenced to concurrent terms of imprisonment of twenty-five years to life for the murder count; and seven and one-half to fifteen years for each assault count.
Vassell, through counsel, appealed to the Appellate Division, Second Department. Appellate counsel argued that Vassell should receive a new trial, alleging that: (1) the evidence was legally insufficient to disprove his justification defense; (2) the evidence was legally insufficient to prove that he had acted with a depraved indifference to human life; and (3) after the jury requested further information on the criteria for justification where someone was acting in self-defense, the court erroneously failed to re-instruct the jury that a person may lawfully use deadly physical force to defend a third person as well as himself.
The Appellate Division rejected all of these challenges, and affirmed Vassell's conviction on May 19, 1997. People v. Vassell, 239 A.D. 2d 531 (2d Dep't 1997). The court found that (1) the evidence was legally sufficient to establish Vassell's guilt; (2) the verdict was not against the weight of the evidence; and (3) Vassell's remaining contentions were without merit. Id. The Court of Appeals denied Vassell's application for leave to appeal on September 18, 1997. People v. Vassell, 90 N.Y.2d 943 (1997) (Titone, J.).
By pro se motion dated April 22, 1998, Vassell moved in New York Supreme Court, Kings County, to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10. Vassell argued that the trial court erred when it permitted the prosecutor to impeach Vassell with his prior statements without first holding a Huntley hearing.
The Kings County Supreme Court denied defendant's motion on October 19, 1998. The court held that (1) Vassell's claim was procedurally barred because Vassell had failed to raise the on-the-record claim on his direct appeal, see N.Y. Crim. Proc. Law § 440.10(2)(c); and (2) Vassell's claim was meritless. By decision and order, the Appellate Division denied Vassell's application for leave to appeal on May 3, 1999 (Luciano, J.).
N.Y. Crim. Proc. Law § 440.10(2)(c) reads, in pertinent part: [the court must deny a motion to vacate a judgment when, although] sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him.
By an undated pro se motion, received by the District Attorney on May 21, 1999, Vassell moved in the Appellate Division for a writ of error coram nobis. Vassell argued that his appellate counsel had been ineffective because she failed to claim that the verdict was repugnant. The Appellate Division denied the application on October 18, 1999, finding that Vassell failed to establish that he was denied the effective assistance of appellate counsel. People v. Vassell, 265 A.D.2d 511 (2d Dep't 1999). The Court of Appeals dismissed Vassell's application for leave to appeal on December 30, 1999. People v. Vassell, 94 N.Y.2d 868 (1999) (Levine, J.).
By pro se motion dated January 14, 2000, Vassell moved in New York Supreme Court, Kings County, to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10. Vassell argued that his trial counsel was ineffective because he had failed to request: (1) a missing witness charge with respect to Saint Clair, a witness to the shooting; and (2) a proper justification charge — specifically, an instruction explaining the possibility that if one was justified in using deadly force against an aggressor, one may still be justified though non-aggressors were injured or killed.
The Kings County Supreme Court denied defendant's motion on May 11, 2000. The court held that (1) Vassell's claims were procedurally barred because Vassell had failed to raise the on-the-record claim on his direct appeal, see N.Y. Crim. Proc. Law § 440.10(2)(c); (2) Vassell was in a position to raise these claims in his earlier § 440.10 motion, and accordingly, under § 440.10(3)(c), the court may deny the motion if it is otherwise meritless; and (3) Vassell's claims were meritless. By decision and order, the Appellate Division denied Vassell's application for leave to appeal on January 27, 2003 (Luciano, J.).
N.Y. Crim. Proc. L. § 440.10(3)(c) reads: [The court may deny a motion to vacate a judgment when] "[u]pon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so."
By pro se motion dated March 7, 2003, Vassell again moved in the New York Supreme Court, Kings County, to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10. Vassell argued that newly discovered evidence warranted the vacatur of his judgment of conviction. Specifically, Vassell attached to his motion an affidavit dated June 29, 2000 from Dexter Joseph, who stated that he was the brother-in-law of Annette Roberts, a prosecution witness. Joseph stated that Roberts had told him that she had testified falsely at trial, and that she told Joseph a version of the events where Jobity began shooting wildly after a plan to steal the guns from Vassell went awry.
The Kings County Supreme Court denied defendant's motion on May 22, 2003. The court held that (1) Vassell failed to exercise due diligence after discovery of the newly discovered evidence; (2) Joseph's affidavit was hearsay, and because Joseph could not testify to the contents of the alleged statements made by Roberts, the affidavit was legally insufficient to establish that there was newly discovered evidence; (3) although it was possible that Joseph's testimony about Roberts' alleged statements would have affected the credibility of Roberts, evidence used for impeachment does not meet the criteria of newly discovered evidence; and (4) Roberts' alleged statements were not believable, because they contradicted certain undisputed facts, were internally inconsistent, and were provided by someone whose credibility was questionable. By decision and order, the Appellate Division denied Vassell's application for leave to appeal on October 6, 2003 (Townes, J.).
Vassell applied for permission to appeal to the New York Court of Appeals from the Appellate Division's denial of his leave application. On November 26, 2003, the Court of Appeals dismissed the application because the order sought to be appealed from was not appealable under Criminal Procedure Law § 450.90(1) (Graffeo, J.).
On January 5, 2004, Vassell filed a pro se petition for a writ of habeas corpus in this Court, raising the following grounds: (1) the evidence at trial was legally insufficient to support his conviction; (2) the trial court erred by giving an improper charge of justification; and (3) Vassell's counsel at both the trial and appellate stages provided ineffective assistance. In addition, under the heading "Post-Conviction Collateral Attacks," Vassell generally raised the claims previously raised in the three § 440.10 motions and the motion for a writ of error coram nobis discussed above. Vassell cited three specific claims: the deprivation of a Huntley hearing, the ineffectiveness of trial counsel, and that newly discovered evidence (the affidavit of Joseph discussed above) warranted a vacatur of his conviction.
DISCUSSION
A. The Standard of ReviewThe Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if 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). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, 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 [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).
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." Gilchrist, 260 F.3d at 93 (quoting Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 539 U.S. at 520-521 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . 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." Gilchrist, 260 F.3d at 93 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.261 F.3d 303, 312 (2d Cir. 2001).
B. Vassell's Claims
1. The Sufficiency of the Evidence
Vassell claims that the evidence was legally insufficient to support a guilty verdict, thus violating his due process rights under the Fourteenth Amendment. I disagree.
A petitioner challenging the sufficiency of the evidence bears "a very heavy burden." Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (quotation marks omitted); Einaugler v. Supreme Court of New York, 109 F.3d 836, 840 (2d Cir. 1997) (quotation marks omitted). A state criminal conviction will be upheld if, "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) (emphasis in original); see also Ponnapula, 297 F.3d at 179 ("we review the evidence in the light most favorable to the State and the applicant is entitled to habeas corpus relief only if no rational trier of fact could find proof of guilt beyond a reasonable doubt based on the evidence adduced at trial.").
In making this assessment, a court may neither "disturb the jury's findings with respect to the witnesses' credibility," United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989), nor "make credibility judgments about the testimony presented at petitioner's trial or . . . weigh conflicting testimony." Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (citing United States v. Zabare, 871 F.2d 282, 286 (2d Cir. 1989)). Thus, under this "rigorous standard," a "federal habeas court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994) (quoting Jackson, 443 U.S. at 326).
Vassell argues that the evidence against him was legally insufficient because: (1) the evidence showed that he was acting in self-defense, as can be inferred from his acquittal on the charges related to the shooting of Jobity; (2) Gunning, one of the victims, testified for the defense that he was shot by Jobity, not Vassell; (3) the ballistic and forensic evidence did not support the verdict; and (4) the prosecution witnesses were largely biased and lacked credibility.
a. Acting in Self-Defense
Vassell's argument that the evidence was insufficient for a conviction because it established that he was acting in self-defense runs as follows: (1) the jury acquitted Vassell of any charges connected to the shooting of Jobity; (2) Vassell shot Jobity; accordingly (3) the jury must have determined that the state had not proven beyond a reasonable doubt that Vassell was not justified in using deadly force against Jobity; and (4) if the justification defense attached to Vassell's use of deadly force against Jobity, it should also attach to the shooting of Duncan, Douglas, and Gunning; and thus (5) the acquittal of the charges relating to Jobity establishes the insufficiency of evidence supporting his convictions on the charges relating to the other victims.
Vassell and Gunning both testified that it was Jobity who shot Gunning.
Viewing the evidence in the light most favorable to the prosecution, however, a rational trier of fact could find Vassell guilty beyond a reasonable doubt of the charges for which he was convicted despite his acquittal on other charges. At trial, Vassell testified that, in addition to the guns he was selling, he carried a loaded nine millimeter handgun in his pants pocket. (Tr. at 613-14; 620.) All the witnesses who were in the back room at the time the shooting occurred, including Vassell, testified that Vassell fired his gun within the small confines of the back room. Several witness testified that Vassell fired many shots, and fired rapidly. For example, Douglas testified that initially, "maybe five or six shots" were rapidly fired by Vassell before "a whole lot of shots" were fired (Tr. at 67-71); Roberts testified that Vassell began shooting rapidly "at everyone" (Tr. at 206); Lynch and Aubin testified that Vassell fired "a lot of shots." (Tr. at 393, 461.)
Based on that testimony, a rational trier of fact could find that the state had failed to prove beyond a reasonable doubt that Vassell was not justified in using deadly force against Jobity, while also finding beyond a reasonable doubt that Vassell acted unjustifiably, and with depraved indifference, in connection with the use of deadly force against Duncan, Douglas, and Gunning.
Similarly, Vassell's contention that Gunning's testimony helps establish that the evidence was insufficient also fails. Gunning testified that Vassell rapidly fired shots within the small confines of the back room, and that the shots were fired in response to shots fired by Jobity. (Tr. at 551, 564-65.) Such testimony does not establish that no rational trier of fact could have acquitted Vassell of the charges related to Jobity while finding Vassell guilty of the charges for which he was convicted.
Finally, Vassell's argument is based on a false premise. Even if he were correct in contending that his acquittal on the counts relating to Jobity was inconsistent with his convictions, that would not constitute grounds for habeas relief. See U.S. v. Powell, 469 U.S. 57, 64-65 (1984) (where truly inconsistent verdicts have been reached, "the most that can be said . . . is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt." (quoting Dunn v. United States, 284 U.S. 390 (1932). Such inconsistencies may favor the criminal defendant, and "often are a product of jury lenity." Id. at 65.).
b. Forensic and Ballistic Evidence
Vassell provides no support for his assertion that the ballistic and forensic evidence undermined the verdict. Vassell states in his petition that: "[n]o weapon was recovered, and no bullets were taken from the bodies of neither the deceased nor injured, including petitioner, who suffered three gunshot wounds." Even assuming for the purposes of argument that this statement is true, it would not prevent a rational trier of fact from convicting Vassell. There is no dispute (and Vassell himself testified) that he brought a handgun with him and he fired the gun repeatedly within the small confines of the back room of the store. (Tr. at 614, 621.) Vassell's core argument is that he was justified in shooting, and not that the evidence suggested that he was not the shooter.
c. Biased witnesses
Vassell argues that the evidence was insufficient to support the verdict against him in part because of the purported biases of the witnesses who testified against him. Specifically, Vassell contends that one of the witnesses, Roberts, was the girlfriend of Jobity, and that several of the other witnesses were Jobity's friends. Vassell's counsel, however, elicited from Roberts that the people in the store that night were friends of Jobity's, and that she had been Jobity's girlfriend for eight years. (Tr. at 218.) Counsel reminded the jury of Roberts long relationship with Jobity in his closing argument, (Tr. at 666), and I assume the jury took this into account in their deliberations. In any event, habeas courts may not disturb a jury's findings regarding the credibility of witnesses, and must presume that any conflicting testimony was resolved in favor of the prosecution. Accordingly, these purported biases of the prosecution witnesses do not establish an insufficiency of evidence.
In sum, ample evidence was presented to the jury to support its verdicts. At the very least, the Appellate Division, in concluding that the evidence against Vassell was legally sufficient to establish guilt beyond a reasonable doubt, did not unreasonably apply federal law in so holding. Accordingly, Vassell is not entitled to habeas relief on the claim of insufficiency of evidence.
2. The Trial Court's Instruction on Justification
Vassell contends that the trial court erred by failing to instruct the jury correctly regarding justification, violating his right to due process under the Fourteenth Amendment. I disagree.
For an error in the jury charge to give rise to federal habeas corpus relief, a petitioner must carry a heavy burden. "The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154 (1977). The petitioner must show
not merely that the instruction is undesirable, erroneous, or even "universally condemned," but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment. . . . [T]he question is not whether the trial court failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process."Cupp v. Naughten, 414 U.S. 141, 146-47 (1973); see also Estelle v. McGuire, 502 U.S. 62, 72 (1991). In making this determination, a court "must consider the challenged portion of the charge not in `artificial isolation,' but rather `in the context of the overall charge.'" Justice v. Hoke, 45 F.3d 33, 34 (2d Cir. 1995) (quoting Cupp, 414 U.S. at 146-47).
a. Defense of a third person
As a preliminary matter, respondent addresses a claim that Vassell has not clearly raised in his petition, but that he had previously advanced on direct appeal: that the justification charge was erroneous because, after the jury requested further information on the criteria for justification, the court failed to re-instruct the jury that a person may lawfully use deadly physical force to defend a third person. Because the government has apparently interpreted Vassell to have again raised this claim, I too will address it.
There are no grounds for habeas relief based on this facet of the trial court's justification instruction. After the trial court's original instructions, the jury sent a note to the judge stating that: "We need clarification about the criteria of justification in the event someone is acting in self-defense." (Tr. at 818.) After re-instructing the jury, the following colloquy took place:
THE COURT: Any requests or exceptions?
MR. WEISWASSER [defense counsel]: Yes, I have a request, that in talking about self-defense you said protect himself. You left out or another.
THE COURT: I did say that in the beginning.
MR. WEISWASSER: Originally.
THE COURT: No, I said it here too, once or twice. Who else was he protecting?
MR. WEISWASSER: Andre [Gunning].
THE COURT: I am not bringing them back to tell them that. That is not their note. Their note deals — they wanted to know the criteria for justification. But I did mention it in the beginning when I read it.
(Tr. at 829.)
In giving his principal charge, the trial court instructed the jury several times regarding how a defense of justification included the possibility that one could act in defense of a third party. See, e.g., Tr. at 784 ("According to the law a person may lawfully use deadly physical force against another person when one, he reasonably believes that such use of deadly physical force is necessary to defend himself or a third person from; two what he reasonably believes to be the imminent use of deadly physical force against himself or a third person by such other person.") (emphasis added); see also Tr. at 788-89; Tr. at 791-92. The trial court's decision not to reiterate that a person can act in self-defense of another in response to the jury's note, viewed in the context of the overall charge, was not an unreasonable decision, and the Appellate Division's determination that this claim lacked merit does not constitute an unreasonable application of constitutional or federal law.
b. Justification against non-aggressors
Vassell argues that the trial court erred by not properly instructing the jury how to consider justification against non-aggressors. Specifically, Vassell states that the "self-defense charge giv[en] to the jury applied to all victims despite of Petitioner['s] adhered contention that only one such victim was using force against him and another, and that it was to sole victim he directly acted in defense of." Further, Vassell states that: "no supplemental charge was given to secure an unprejudiced deliberation in defense of the other victims, who petitioner never contended were using any type of force against petitioner and another could only find petitioner not guilty of that one victim."
At trial, the following colloquy took place, followed by the court's clarification of its justification instruction to the jury:
MS. LEONARDI [the prosecutor]: The People request concerning the justification that it should be considered separately as to each one just because they may find him justified as to maybe one of the victims, that it is not necessary that the justification would apply to other victims.
THE COURT: That is fair enough. I will do that. On those things they find him guilty, they have to apply the justification defense to each one separately?
MS. LEONARDI: Correct.
THE COURT: In other words, you don't have an all over blanket. He could be acting justifiably in one instance and not in the other instance?
MS. LEONARDI: Yes.
THE COURT: Assuming that they find Ian was an initial aggressor and he starts shooting at Ian, he is so angry he starts shooting at the other people; is he justified?
MR. WEISWASSER [defense counsel]: If he shoots at the rest of them, no. But if they are all in the tight confines, therefore, they still have to consider the fact of the size of the area.
THE COURT: All I am telling you is they have to consider the justification as to each of the crimes individually that they find him guilty of.
MR. WEISWASSER: I am therefore asking that you add the words in there they must consider the size of the area.
THE COURT: No, I am not doing that. We are now back to marshaling the evidence.
MR. WEISWASSER: Or under the totality of the circumstances. MS. LEONARDI: I would object. . . .
THE COURT: All right, you must consider justification as to each count you have found the defendant guilty of separately, and take into account in the totality of the circumstances. (Open Court.)
THE COURT: Ladies and gentlemen, with respect to the justification charge, I don't know if I was clear on this.
As to each of the counts, the charges, you have to first find that the People have proved beyond a reasonable doubt the guilt of the defendant before you can apply justification. I think you understand that. But when you do it, it is not a blanket type of thing. You can't say he was justified and then blanketly find him not guilty. You have to do it individually as to each count.
In other words, it is possible that a person could be justified as to one count and not justified as to another. Or it could be justified as to all or justified as to none. But you must do it separately as to each count. And when you do that, you have to take the totality of the evidence in so doing it and analyze the evidence to see if it applies to individual counts or all of the counts as to what is justified because you have reckless endangerment in the first degree, you have assault, you have transferred intent assault, and you have murder in different degrees. So you have to apply it and apply this to each.
(Tr. at 802-805.)
Vassell contends that this instruction was erroneous, but he has failed to marshal any authority for his argument. Moreover, the challenged instruction is plainly an accurate statement of the law. For example, New York's model instruction for defensive use of deadly physical force is constructed around justification for a particular crime. See 1 CJI NY 35.15(2)(a) at 864-873. The court's initial justification instruction properly stated that the justification defense correlated to each charged crime. See, e.g., Tr. at 782 ("It is only if you find as to a particular crime that [Vassell] is guilty of it, that you start to consider justification to see whether or not he should still be found not guilty because of . . . self-defense."); Tr. at 792 ("If the people failed to convince you beyond a reasonable doubt [that the defendant was not acting in self-defense], then you must find the defendant acted in self-defense. And if you do so, you must find him not guilty of the particular crimes; namely Murder Two, Attempted Murder Two, Assault One, Reckless Endangerment One."). The court's agreement to clarify the justification instruction to reinforce the idea that the defense was part of a particularized analysis of each count was not erroneous, and accordingly cannot be said to have "so infected the entire trial process that the resulting conviction violate[d] due process." Cupp, 414 U.S. at 147.
3. Ineffective Assistance of Trial Counsel
Vassell contends that his trial counsel was ineffective because he failed to: (1) object to the "improper" justification charge discussed above; (2) direct the court to clearly explain to the jury that the defense of justification may extend to defending a third person against the use of unlawful force; and (3) visit the crime scene or interview the prosecution witnesses prior to trial.
The Supreme Court has established the following standard for ineffective assistance claims:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687 (1984).
Thus, to make out this type of claim, the petitioner must demonstrate both (1) that his attorney's performance "fell below an objective standard of reasonableness," id. at 688, and (2) 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. In assessing the reasonableness of counsel's performance, judicial scrutiny "must be highly deferential," and the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (quotation marks omitted); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998); see also Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) ("[C]ounsel has wide latitude in deciding how best to represent a client. . . .").
In assessing counsel's performance, I "must conduct an objective review . . . measured for `reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen `from counsel's perspective at the time.'" Wiggins v. Smith, 539 U.S. 510, 523 (2003) (quoting Strickland, 466 U.S. at 688-89)). The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct" and has instead emphasized that "`the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Id. at 521 (quoting Strickland, 466 U.S. at 688).
To establish the requisite effect of counsel's performance on the outcome of the proceeding, it is not sufficient if the petitioner shows merely that counsel's errors had "some conceivable effect" on the outcome. Strickland, 466 U.S. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. This determination, unlike the determination whether counsel's performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
a. Failure to object to "improper" justification charge
i. Justification against non-aggressors
Vassell contends that his counsel's failure to object to the "improper" justification charge led to his conviction, which in turn demonstrates that he received ineffective assistance of counsel. Vassell argues that his counsel should have asked the court to clarify the manner in which a person acting in self-defense against an aggressor may still be justified even though he uses deadly force against a non-aggressor. As quoted above, the government asked the trial court to instruct the jury to consider the justification defense separately for each charge; Vassell's counsel asked the court to instruct the jury that they must consider the size of the area in which Vassell and Jobity were standing. After the court refused this request on the grounds that it would be marshaling the evidence, defense counsel asked the court to clarify that the jury must take into account the totality of the circumstances, which the trial court included in his supplemental instruction. While defense counsel could have requested an instruction from the trial court regarding justification in connection with non-aggressors, his conduct did not fall below an objective standard of reasonableness. Even if Vassell were able to make such a showing, at best his argument suggests that counsel's "error" could conceivable have effected the outcome of the trial. Vassell has not shown that there is a reasonable probability that, but for counsel's failure to request an instruction in the form Vassell, in hindsight, would prefer, the result of the proceeding would have been different. Accordingly, habeas relief is unavailable.
ii. Justification in defense of a third person
Vassell argues that after the jury requested a supplemental instruction on the criteria for justification where someone was acting in self-defense, defense counsel failed to ask the court to clearly explain to the jury that the defense of justification may extend to defending a third person against the use of unlawful force. First, as discussed above, defense counsel did request that the court augment the supplemental instruction by reminding the jury that one could act in defense of a third person. Second, the trial court instructed the jury several times regarding defense of a third person, and his refusal to do so again after the supplemental instruction was not error. Because there was no error in the instruction, there accordingly can be no error, i.e., a Strickland violation, in counsel's failure to object.
Respondent argues that this Court is procedurally barred from reviewing this claim because the state court rejected the claim on an independent and adequate state ground. See Harris v. Reed, 489 U.S. 255, 260-61 (1989). While the state court did review this claim in connection with Vassell's January 14, 2000 § 440.10 motion, Vassell had not asserted the claim, instead arguing that the ineffective assistance was in connection with the failure of counsel to request an instruction regarding justification when non-aggressors were injured. Because of this disconnect between what Vassell argued and what the state court ruled upon, and because of my decision on the merits, I will not address the procedural bar.
b. Failure to visit the crime scene or interview the prosecution witnesses
Vassell argues that his counsel was ineffective because he failed to visit the crime scene or interview the prosecution witnesses prior to trial. As the government correctly argues, Vassell has made no showing of what counsel should have done in these regards, or how such conduct might have affected the outcome. Vassell's argument is without merit, and no habeas relief is available on this ground.
Because this argument is without merit, I need not address the apparently meritorious procedural default argument advanced by the government.
4. Ineffective Assistance of Appellate Counsel
Vassell contends that his appellate counsel was also ineffective because she failed to argue: (1) ineffective assistance of trial counsel along the lines that Vassell has argued in this petition; and (2) that the verdict was repugnant.
Although the Supreme Court formulated the Strickland test in the context of examining a claim of ineffective assistance of trial counsel, the same test applies to claims regarding the performance of appellate counsel. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel need not present every nonfrivolous argument that could be made. See Mayo, 13 F.3d at 533 (citing Jones v. Barnes, 463 U.S. 745, 754 (1983)); see also Evitts v. Lucey, 469 U.S. 387, 394 (1985) (emphasizing that appellate counsel "need not advance every argument, regardless of merit, urged by the appellant"). (emphasis in original.) Moreover, reviewing courts should not employ hindsight to second-guess an appellate attorney's strategy choices. See Mayo, 13 F.3d at 533 (citing Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)). A petitioner, however, may establish constitutionally inadequate performance if he shows that his appellate counsel omitted material and obvious issues while pursuing matters that were patently and significantly weaker. Cf. Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("[R]elief may be warranted when a decision by counsel cannot be justified as a result of some kind of plausible trial strategy.").
Here, appellate counsel focused her substantial appellate brief on two claims: the insufficiency of the evidence; and the court's failure to include in its supplemental justification charge a reminder that one could be justified in defending a third person. As part of the insufficiency of the evidence argument, appellate counsel argued that the acquittal of Vassell on charges related to the shooting of Jobity meant that the jury must have found Vassell had justification for using deadly force. Accordingly, counsel argued, Vassell was justified for the shooting of all the victims. Counsel argued that the court's instruction that the jury must analyze justification for each count, without giving an instruction that the unintended result of the use of justified force may also be justified, misled the jury.
Vassell's claim here fails because there is no requirement that appellate counsel argue every possible claim. See Jones, 463 U.S. at 754. Counsel's decision to focus her brief on the arguments described above constituted a plausible strategy that should not be second-guessed. The claims Vassell would prefer counsel to have raised — ineffectiveness of counsel and repugnancy of the verdict, are not such strong claims that their omission deserves closer scrutiny. For the reasons discussed above, a claim of ineffectiveness of trial counsel would have almost certainly failed under Strickland's high bar. A claim that the verdict was repugnant would have likewise failed. Under New York law, whether verdicts are repugnant or inconsistent is determined by examining the charge to see the essential elements of each count, as described by the trial court, and determining whether the jury's finding on those elements can be reconciled. Sweet v. Bennett, 353 F. 3d 135, 143 (2d Cir. 2003) (Walker, C.J., concurring) (citing People v. Loughlin, 76 N.Y.2d 804 (1990)). Here, the elements that the jury must have found to convict Vassell for the shooting of Duncan, Gunning and Douglas can be reconciled with its finding that the government had failed to prove beyond a reasonable doubt that Vassell was not justified in shooting Jobity. Accordingly, Vassell cannot prevail on his claim that his appellate counsel was ineffective.
5. Post Conviction Collateral Attacks
Under the heading post-conviction collateral attacks, Vassell appears to generally raise all claims made in the several collateral motions that he brought in state court. Specifically, I understand him to be advancing three claims: (1) that he was deprived of a Huntley pre-trial hearing; (2) that his trial counsel was ineffective; and (3) that there was "newly discovered evidence in the form of `affidavit' from one of the witness's brother-in-law," which entitles defendant to a new trial.
Vassell's argument regarding ineffective assistance of counsel was discussed earlier in this memorandum, and will not be repeated here.
a. Deprivation of a Huntley hearing
Vassell argued in his first § 440.10 motion that he was erroneously deprived of a Huntley hearing. As an initial matter, such a claim is procedurally barred from review on habeas corpus. Federal habeas review of a state prisoner's claim is prohibited if a state court judgment denying the claim is based on an "adequate and independent state ground." Harris v. Reed, 489 U.S. 255, 261 (1989); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d. Cir. 1995). A procedural default in state court is an adequate and independent ground barring federal habeas review. Coleman v. Thompson, 501 U.S. 722, 744, 750 (1991) (noting the state's interest in "channeling the resolution of claims to the most appropriate forum, in finality, and in having the opportunity to correct [their] own errors"); but see Lee v. Kemna, 534 U.S. 362, 376, 381 (2002) (noting the existence of a "small category" of "exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question").
A defaulted claim will be considered by the court upon a showing of cause and prejudice. See Coleman, 501 U.S. at 750; Teague v. Lane, 489 U.S. 288, 298 (1989). The existence of cause for a procedural default turns on whether the prisoner can show an objective factor external to the defense that "impeded counsel's efforts to comply with the State's procedural rule." Coleman, 501 U.S. at 753 (internal quotation marks omitted). For example, a petitioner may establish cause by showing "`that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that some interference by officials . . . made compliance impracticable.'" Coleman, 501 U.S. at 753 (ellipses in original) (quotation marks omitted) (quoting Murray v. Carrier, 477 U.S. 478, 492 (1986)). To satisfy the prejudice requirement, the alleged error must have worked to the petitioner's "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Torres v. Senkowski, 316 F.3d 147, 152 (2d Cir. 2003) (quotation marks omitted). If the petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim, i.e., "that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Schlup v. Delo, 513 U.S. 298, 321 (1995)).
Here, the state court denied Vassell's April 22, 1988 § 440.10 motion because the Huntley claim was either based upon facts contained in the record or facts that could have been made to appear on the record, and Vassell had unjustifiably failed to raise the claim on direct appeal. See New York v. Vassell, Memorandum, October 19, 1998 (Rappaport, J.); New York Crim Proc. Law § 440.10(2)(c), (3)(a). Vassell has not asserted any cause or prejudice that suggests that the procedural default should not bar his claim. In any event, the claim is without merit. As the state court discussed in denying the 440.10 motion, Vassell testified at trial to the circumstances under which his prior statements were made, and explained the reasons he had originally denied being present at the shooting. Because Vassell's testimony established that his statements were not involuntary, a Huntley hearing was not required. Here, Vassell has presented no facts to indicate that his pre-trial statements were coerced. Therefore, there is no federal claim, and accordingly no grounds for relief on habeas corpus.
N.Y. Crim. Proc. Law § 440.10(3)(a) reads, in pertinent part: [the court may deny a motion to vacate a judgment when] [a]lthough facts in support of the ground or issue raised upon the motion could with due diligence by the defendant have readily been made to appear on the record in a manner providing adequate basis for review of such ground or issue upon an appeal from the judgment, the defendant unjustifiably failed to adduce such matter prior to sentence and the ground or issue in question was not subsequently determined upon appeal.
b. Newly Discovered Evidence
In Vassell's March 7, 2003 § 440.10 motion, he asserted that there was newly discovered evidence that warranted the vacation of his conviction. Specifically, this evidence was an affidavit by Dexter Joseph, the purported brother-in-law of Annette Roberts, a witness who testified at Vassell's trial. Joseph's affidavit states, among other things, that Roberts told him that her testimony at trial had been false.
Vassell's argument has no merit. First, Joseph's testimony regarding what he was told by Roberts would be inadmissable at trial for the truth of the matter asserted because it is hearsay. Even if it were admissible for its truth, it is not evidence of a kind that would warrant relief. Under federal law, newly discovered evidence can lead to a new trial pursuant to rule 33 of the Federal Rules of Criminal Procedure only where the evidence is "so material and non-comulative that its admission would probably lead to an acquittal." United States v. Gallego, 191 F.3d 156, 161 (2d Cir. 1999), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36 (2004) (quotation marks omitted). Here, the new evidence cited by Vassell, even if accepted for the truth, is not evidence that would "probably lead to an acquittal." Joseph's statement regarding what Roberts purportedly told him is highly unreliable — the alternative version of events that he describes contradicts not only the testimony of several other eyewitnesses, but Vassell's testimony at well. Because this evidence would not likely have led to an acquittal, Vassell cannot prevail on this ground for habeas relief.
In light of my rejection of the claim on the merits, I decline to address respondent's argument that this claim is barred from review on procedural grounds.
CONCLUSION
For the foregoing reasons, the petition is denied. Because Vassell has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.So Ordered.