ERIC N. VITALIANO, District Judge.
On December 10, 2002, petitioner Cory Sanders was charged in Supreme Court, Queens County with murder in the second degree and criminal possession of a weapon in the second degree. His first trial ended in a mistrial, on December 6, 2004, when the jury failed to reach a unanimous verdict. At the second jury trial, petitioner was convicted on both counts. He was sentenced, on March 30, 2006, to a term of imprisonment of 25 years to life on the murder charge, with all other time to run concurrently. The Appellate Division, Second Department affirmed his conviction on May 13, 2008. The Court of Appeals denied him leave to appeal on August 8, 2008. Sanders then filed a motion to vacate the judgment of conviction in Supreme Court, pursuant to C.P.L. § 440.10, which was denied on April 22, 2009; the Appellate Division denied leave to appeal on August 3, 2009.
Sanders, appearing pro se, then filed the instant petition, dated February 28, 2010, for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254.
In 1996, petitioner's friend, Gregory Hamilton, was murdered by an unknown assailant. Six years later, on December 9, 2002, during an altercation on Guy Brewer Boulevard in Queens, Hajj Buchanan—who was rumored to have been responsible for Hamilton's murder—made a comment to Sanders about "tak[ing] [him] back to '96." (Tr. 485:24).
Andrew Forrester, who was 12 years-old at the time, witnessed the shooting, and the next day was interviewed by police about what he had seen. Forrester was asked to view a lineup, where he identified Sanders as the shooter. (Tr. 295:1-5; 302-305:18-12). Following the lineup, Detectives Edward Hendrickson and Robert Reed interviewed Sanders. They told him that he had been identified by a witness. The detectives then showed Sanders a photograph depicting the scene of Hamilton's murder in 1996, at which point Sanders became "quite emotional" and confessed to killing Buchanan. (Tr. 484-86:11-12). He was then charged.
Trial commenced on November 16, 2004. About two weeks later, on December 2, the jury began deliberations. By December 6, the third day of deliberations, the jury had sent three notes to the trial court, each advising that they were deadlocked, in spite of the trial court's repeated charge that the jurors had a duty to deliberate with a view toward reaching a verdict. (Tr. Dec. 6, 2004, 4:5-23). In their third note, the jury related that not only were they deadlocked, but that "[s]ome of the jurors are scared for their life and family in giving their verdict in front of the defendant and his family." (Tr. Dec. 6, 2004, 6:8-13). The trial court then gave an Allen charge,
The second trial was of a duration similar to the first. It began on January 17, 2006, and concluded with convictions on January 30, 2006. These convictions were well-supported. The People had introduced eyewitness testimony from Forrester, forensic evidence of petitioner's fingerprints on a bottle found near the crime scene, bullets matched forensically to the murder weapon, found in petitioner's closet, and the detectives' account of the tearful confession volunteered by Sanders. See (Tr. 928-29:14-14). On appeal to the Second Department, Sanders argued that his conviction violated double jeopardy, the jury had been tainted by improper exposure to his past criminal history, and that he had been deprived of effective assistance of counsel. The Appellate Division affirmed. People v. Sanders, 51 A.D.3d 825, 858 N.Y.S.2d 291 (2d Dep't 2008). The Court of Appeals declined to hear the case. People v. Sanders, 11 N.Y.3d 741, 864 N.Y.S.2d 399, 894 N.E.2d 663 (2008).
As noted above, Sanders later moved to vacate his sentence, pursuant to C.P.L. § 440.10, on the ground that the trial court failed to swear the jurors in his second trial.
Under the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), a writ of habeas corpus shall not issue with respect to any claim that was adjudicated on the merits in state court unless the state court's decision: (1) "was contrary to," or involved an unreasonable application of, "clearly established federal law" as determined by the United States Supreme Court, or, (2) "was based on an unreasonable determination of the facts" in light of the evidence presented. 28 U.S.C. § 2254(d); see also Gutierrez v. McGinnis, 389 F.3d 300, 304 (2d Cir. 2004) (describing this standard as "AEDPA deference"). AEDPA's deferential review applies whenever a state court disposes of a state prisoner's federal claim on the merits, regardless of whether it gives reasons for its determination or refers to federal law in its decision. Harrington v. Richter, 131 S.Ct. 770, 785 (2011); see also Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). Where AEDPA deference applies, "a state court's findings of fact are `presumed to be correct' unless rebutted `by clear and convincing evidence.'" Drake v. Portuondo, 553 F.3d 230, 239 (2d Cir. 2009) (quoting 28 U.S.C. § 2254(e)(l)).
For the purposes of federal habeas review, "clearly established federal law" refers to the holdings, as opposed to dicta, of Supreme Court decisions in effect at the time of the relevant state court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court decision is "contrary to clearly established federal law" within the meaning of§ 2254(d) if it contradicts relevant Supreme Court precedent or arrives at a different conclusion based on "materially indistinguishable" facts. Id. at 405-06. A state court decision involves an "unreasonable application" of federal law if it "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts or' the case. Id at 413. In construing and applying federal law, even erroneous state court decisions, if deemed reasonable, will survive habeas review. Id. at 411. The state court decision need not be "so far off the mark as to suggest judicial incompetence" before habeas relief may be granted, Francis S. v. Stone, 221F.3d 100, 111 (2d Cir. 2000) (internal quotations omitted), but a federal court may reverse a state court ruling only where it was "so lacking in justification that there [is no] possibility for fairminded disagreement." Vega v. Walsh, 669 F.3d 123 (2d Cir. 2012) (quoting Harrington, 131 S. Ct. at 786-87).
Sanders argues that, having dismissed the jury and declared a mistrial on the third day of deliberations, the trial judge violated the Double Jeopardy Clause when the court ordered a second trial. The argument overlooks the obvious: it has been long-established that "a failure of the jury to agree on a verdict [is) an instance of `manifest necessity' which permit[s) a trial judge to terminate the first trial and retry the defendant, because `the ends of public justice would otherwise be defeated.'" Richardson v. United States, 468 U.S. 317, 323-24 (1984) (quoting United States v. Perez, 9 Wheat. 579, 580 (1824)); accord Arizona v. Washington, 434 U.S. 497, 509 (1978) ("without exception, the courts have held that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial"). In this case, the jurors were obviously and hopelessly deadlocked after three days of deliberations. They sent four jury notes informing the trial court that they were resolute in their respective determinations.
Substantively attacking the fairness of the second trial, Sanders argues that his due process right was violated by a series of missteps during the testimony of Pedro Martinez, a Department of Corrections counselor, and that the trial court compounded the error and abused its discretion in denying his follow-up applications for mistrial. In particular, Sanders claims that his criminal history was improperly disclosed to the jury, and that no curative instruction could have corrected the taint. The meat of the complaint is that, when Martinez was first called as a witness, he was identified as a "corrections counselor" by a court officer, prompting the first motion for a mistrial by the defense. The trial court denied the motion, instructing the jury to "disregard the reference." (Tr. 822-23:23-18). Martinez went on, in his testimony, to note that Sanders "was in supervision" and that his business card, which Sanders had possessed, was one that would have been "given to an inmate." (Tr. 827:3-19). Before he could continue, Martinez was interrupted by the trial court, which struck the answer from the record, but denied Sanders's second application for a mistrial. (Tr. 827-28:17-8).
According to Sanders, from these errors flowed an extremely prejudicial inference. The argument has some resonance in New York jurisprudence. See People v. Cuiman, 229 A.D.2d 280, 284-85 (1st Dep't 1997) (testimony that defendant had an arrest photo "fatally compromised" the fairness of trial). However, the Second Department, on the facts here, rejected petitioner's argument, holding that "any prejudice was alleviated by the court's prompt curative instructions." Sanders, 51 A.D.3d at 826. The cleansing power of curative instructions also has resonance in New York law. See People v. Smith, 299 A.D.2d 500, 500, 749 N.Y.S.2d 739 (2d Dep't 2002) (finding that prejudice was overcome by curative instruction when witness testified to bringing defendant "back to Riker's Island"); People v. Boston, 296 A.D.2d 576, 577, 746 N.Y.S.2d 28 (2d Dep't 2002) (instead of declaring a mistrial in such a case, "[t]he trial court providently exercised its discretion in giving the jury a curative instruction"). Putting aside AEDPA deference for the moment, it is hard to say, following these curative instructions, that if allusion to Sanders's involvement in a past, uncharged crime had injected prejudice into the evidentiary mix, any measure of it remained. Nor, especially in the totality of the evidence, that denial of the mistrial application was somehow constitutionally improper. Certainly, it remains "unlikely that the `uncharged crime' evidence which [Sanders] disputes deprived him of a fundamentally fair trial." Clanton v. Rivera, No. 06-civ-475, 2008 WL 2839712, at *21 (S.D.N.Y. 2008), report and recommendation adopted, No. 06-civ-4756, 2010 WL 1685414 (S.D.N.Y. 2010); see also Oakley v. Artuz, No. 95-cv-2088, 1999 WL 325362 at *2 (E.D.N.Y. 1999) (habeas relief inappropriate where "record contained overwhelming evidence of Petitioner's guilt" in spite of improper criminal history evidence).
With similar certitude, the evidence that Sanders shot and killed Buchanan as charged is overwhelming. An eyewitness—who observed the murder in broad daylight—identified Sanders as the killer, and Sanders himself confessed to the crime. There was forensic evidence, too. Indeed, a deprivation of due process is not typically found upon the admission of improper evidence unless such evidence "was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'" Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992) (quoting Collins v. Scully, 775 F.2d 16, 19 (2d Cir. 1985)). The contentions Sanders advances do not approach the standard for relief. The Appellate Division has found no deprivation of any constitutional right in the trial court's decisions to give the curative instructions it gave and its denial of a mistrial. Even without—but surely with—AEDPA deference, these determinations are by no means an unreasonable application of controlling United States Supreme Court precedent. The writ will not issue on this ground.
Finally, Sanders argues that he was denied effective assistance of trial counsel, generally, by his attorney's lack of preparation for trial, and, specifically, when he (1) failed to object to alleged Trowbridge violations created by the testimony of Detectives Reed and Hendrickson; (2) failed to impeach the eyewitness; and (3) elicited testimony, tending to favor the prosecution, that other, non-testifying eyewitnesses had also implicated Sanders in the shooting.
In order to prevail on a claim of ineffective assistance, a petitioner must "meet both a `performance' test, showing that counsel's representation `fell below an objective standard of reasonableness,' and a `prejudice' test, demonstrating that' `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Palacios v. Burge, 589 F.3d 556, 561 (2d Cir. 2009) (quoting Strickland v. Washington, 466 U.S. 688, 694 (1984)); see also Cullen v. Pinholster, 131 S.Ct. 1388, 1404 (2011), reh'g denied, 131 S.Ct. 2951 (2011) ("[R]easonable probability" has been defined as "a `substantial,' not just `conceivable,' likelihood of a different result." (quoting Harrington, 131 S. Ct. at 791)). Because of the inherently deferential nature of the Strickland standard, "[a] criminal defendant has a high burden to overcome to prove the deficiency of counsel." Lynn v. Bliden, 443 F.3d 238, 247 (2d Cir. 2006). For habeas petitioners, this burden is "enhanced by the hurdle posed by the highly deferential review accorded state court adjudications under [AEDPA]." Mosby v. Senkowski, 470 F.3d 515, 519 (2d Cir. 2006) (quoting Eze v. Senkowski, 321F.3d 110, 112 (2d Cir. 2003)); see also Pinholster, 131 S. Ct. at 1403 (The standard of review for ineffective assistance claims in the habeas context is "doubly deferential" because courts take a "highly deferential look at counsel's performance through the deferential lens of§ 2254(d)." (internal citations omitted)).
In the telling of their interview with Sanders, Detectives Reed and Hendrickson explained that, before Sanders confessed, and to encourage his cooperation, they told him that he had been identified in a lineup. See (Tr. 482:4-17, 561-62:17-2). Sanders mischaracterizes this testimony as testimony about the lineup that offered to bolster the identification itself—a violation of Trowbridge. In the accurate context of the People's proffer, the Trowbridge objection Sanders claims his attorney should have interposed would not lie. To start, People v. Brown, holds that where the testifying "officers did not testify that [a specific witness) had identified defendant," there is no Trowbridge violation. 115 A.D.2d 485, 485, 495 N.Y.S.2d 716 (2d Dep't 1985). Again, the detectives' testimony was not offered to bolster the testimony of the eyewitness as to his identification of Sanders in the lineup identification testimony, or to suggest that Sanders was arrested because of the Iineup,
Nonetheless, even if this testimony amounted to a violation of Trowbridge, the failure of counsel to object cannot constitute ineffective assistance of counsel, for the error, especially in light of petitioner's confession, would not be sufficiently prejudicial to satisfy the second element of Strickland. Indeed, in New York, "[b]olstering [of another's eyewitness identification] by a police officer alone rarely constitutes reversible error, except where there is a danger that the jury will take the police officer's testimony as a substitute for identification by the eyewitness or if undue prominence is given to the bolstering testimony." People v. Middleton, 159 A.D.2d 350, 351, 552 N.Y.S.2d 629 (1st Dep't 1990); accord Franco v. Lee, No. 10-cv-1210, 2013 WL 704655, at *9 (E.D.N.Y. 2013) (though "bolstering is not permissible under New York law, it `cannot be equated with police testimony improperly implying that a witness who was not brought to testify did in fact implicate the defendant'" and is therefore understood to be harmless in light of substantial evidence of guilt (quoting People v. Polidore, 181 A.D.2d 835, 837, 581 N.Y.S.2d 827 (2d Dep't 1992)) (internal citations omitted)).
In sum, at best New York law would have given trial counsel only a faint hope that his objection would be sustained. A failure to grasp for that straw would not be second-guessed on Strickland's first prong. But, as a consequence of a legion of New York cases holding actual, not merely arguable, Trowbridge violations to be harmless in the context of, as here, mountainous evidence of guilt, the claim that counsel's failure to object established constitutional ineffectiveness of counsel would never survive Strickland's prejudice prong. Most dispositively, that the state courts found no support on this point for Sanders's ineffectiveness claim cannot be disturbed upon an application of AEDPA deference.
Sanders also takes issue with his counsel's failure to impeach Forrester, the young eyewitness, with inconsistencies in his testimony. During Sanders's second trial, Forrester testified that he had the opportunity to see Sanders's face for about "two or three minutes" before and immediately after the shooting, and that Sanders had short hair at the time. (Tr. 294:16-20; 330:6-9). In his brief to the Appellate Division, however, Sanders noted that "at the first trial, Forrester had testified that he saw the shooter for mere seconds" and "the shooter's hair and face were covered by a hat and hood." (Pet. Mem. 45, App. Div. No. 06-03820).
It is well-settled, though, that "[d]ecisions about whether to engage in crossexamination, and if so to what extent and in what manner, are . . . strategic in nature and generally will not support an ineffective assistance claim." Edmonson v. Artus, No. 04-cv-5477, at *14, 2006 WL 3486769 (E.D.N.Y. 2006) (quoting Dunham v. Travis, 313 F.3d 724, 732 (2d Cir.2002)) (alterations in original). A failure to capitalize on every possible opportunity to assault the credibility of a witness is hardly an objective failure of reasonableness for the purposes of Strickland. As the Supreme Court has observed, "[t]or judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every `colorable' claim suggested by a client would disserve the very goal of vigorous and effective advocacy." Jones v. Barnes, 463 U.S. 745, 754 (1983). Indeed, a claim of ineffective assistance, "necessarily retrospective, requires proof of true ineffectiveness rather than mere disagreement with strategies and tactics that failed," especially when "overwhelming evidence indicating defendant's guilt . . . unquestionably challenged the resources of trial counsel." People v. Benn, 68 N.Y.2d 941, 942, 502 N.E.2d 996 (1986); accord United States v. Sugar, 4 F. App'x 18, 20 (2d Cir. 2001) (affirming conviction over ineffectiveness claims where "[s]everal of counsels' alleged errors were no more than plausible strategic decisions [and] as to those decisions by counsel that were not as likely to have been strategic, any possible errors were surely harmless given the overwhelming evidence of appellants' guilt").
Sanders, of course, has now seized on the unexplored in consistences in Forrester's testimony as fatal chinks in the People's case which only an unconstitutionally ineffective lawyer would overlook. Still, his trial counsel aggressively and ably pursued many other avenues in cross-examining (and impeaching) Forrester. Counsel elicited extended testimony about the considerable distance between Forrester's point of observation and Sanders's location. (Tr. 324-29:23-15). He caused Forrester to invoke the Fifth Amendment.
The short of it is that counsel's efforts to undermine Forrester's credibility were quite thorough. That those efforts did not include everything on petitioner's complaint list, in the totality of the circumstances here, does not matter a whit under Strickland. It is clear beyond all cavil that the rejection by the state courts of Sanders's ineffective assistance of counsel claim on this item of complaint was neither contrary to, nor involved an unreasonable application of, federal law, whether considered de novo or with AEDPA deference.
Relatedly, Sanders takes aim at certain testimony that his counsel seemed to purposefully elicit, which, in hindsight, arguably tended to favor the prosecution's case. Highlighted is counsel's questioning, in cross-examining Detective Reed, which elicited evidence that William Verdon—a friend of Forrester's who had been with him that afternoon—had also identified Sanders in a lineup. (Tr. 601:8-19). But, on the other hand, this line of questioning revealed, at the same time, the fact that Shavona Trapper—who had been with Forrester and Verdon—had/ailed to identify Sanders in the lineup. (Tr. 598:6-13). Additionally, counsel led Detective Reed to confirm that Verdon had only seen Sanders running from the scene, not actually committing the crime, which diminished the value of his identification, and Forrester's by implication. (Tr. 601:21-24).
What jumps out is that there was rhyme and reason in defense counsel's plan. "In case after case," the Second Circuit has "declined to deem counsel ineffective notwithstanding a course of action (or inaction) that seems risky, unorthodox or downright ill-advised." Tippins v. Walker, 77 F.3d 682, 686-87 (2d Cir. 1996) ("Of course, the buried assumption in our Strickland cases is that counsel is present and conscious to exercise judgment, calculation and instinct, for better or worse"); see also Cuevas v. Henderson, 801 F.2d 586, 590 (2d Cir. 1986), cert. denied, 480 U.S. 908 (1987) (no ineffective assistance where counsel's questioning "opened the door" to damaging evidence). Even ifit proved counterproductive, and that is hard to say here even in hindsight, Sanders's trial counsel had a clear strategy in pursuing this line of questioning: to blur the clarity and conclusiveness of all eyewitness testimony.
In addition to pinpoint complaints, petitioner scatters in his papers general complaints about his trial counsel's preparation, judgment, and canniness. None of these grumbles, specific or general, singularly or collectively, establishes that his trial counsel was constitutionally deficient. Even though some grumbles might, in retrospect, give pause on Strickland's first prong, success on the second prong is well beyond Sanders's reach. The conclusion of the state courts that counsel was not ineffective cannot, especially under AEDPA's "doubly deferential" standard of review, be deemed unreasonable or in conflict with federal law. As such, Sanders's claim of ineffective assistance of counsel must, and does, fail on this application as well.
For the foregoing reasons, the writ of habeas corpus sought by Sanders is denied and his petition is dismissed.
Since petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability shall not issue. 28 U.S.C. § 2253(c)(2).
Additionally, the Court certifies pursuant to 28 U.S.C. § 1915(a) that any appeal from this Order would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to enter judgment in favor of respondent and to close this case.
SO ORDERED.
