Mayo v. Henderson

• Decision Date: 03 January 1994
• Docket Number: D,No. 566,566
• Parties: Maurice MAYO, Petitioner-Appellee, v. Robert J. HENDERSON, Superintendent, Respondent-Appellant, Robert Abrams, Attorney General of the State of New York, Respondent. ocket 93-2446.
• Court: U.S. Court of Appeals — Second Circuit

Page 528

13 F.3d 528

Maurice MAYO, Petitioner-Appellee, v. Robert J. HENDERSON, Superintendent, Respondent-Appellant, Robert Abrams, Attorney General of the State of New York, Respondent.

No. 566, Docket 93-2446.

United States Court of Appeals,

Second Circuit.

Argued Nov. 1, 1993.

Decided Jan. 3, 1994.

David A. Lewis, New York City (Legal Aid Society, Federal Defender Services Unit, on brief), for petitioner-appellee.

David J. Mudd, Asst. Dist. Atty., New York City (Robert M. Morgenthau, Dist. Atty., New York County, Marc Frazier Scholl, Asst. Dist. Atty., on brief), for respondent-appellant.

Before: OAKES, KEARSE, and ALTIMARI, Circuit Judges.

KEARSE, Circuit Judge:

Respondent Robert J. Henderson, Superintendent of New York State's Auburn Correctional Facility (the "State") appeals from a final judgment of the United States District Court for the Southern District of New York, Lawrence M. McKenna, Judge, granting the petition of Maurice Mayo, a New York State prisoner, for a writ of habeas corpus on the ground that he was denied his constitutional right to effective assistance of counsel when his state appellate attorney failed to raise an issue that the New York Court of Appeals, when the issue was raised on appeal by Mayo's codefendant, called a per se ground for reversal. For the reasons stated below, we affirm.

I. BACKGROUND

In 1981, Mayo and his codefendant John Buster were convicted in New York state court on one count of robbery in the first degree and two counts of robbery in the second degree. The events leading to conviction were described at the state trial as follows.

In the early morning hours of September 20, 1980, Columbia University student Aquilino Benitez returned to his apartment building and in the lobby encountered two men, whom he later identified as Mayo and Buster, waiting for the elevator. All three entered the elevator. When they reached the sixth floor, Mayo turned to Benitez, pulled out what appeared to be a .22-caliber revolver, and told Benitez to hand over his money and jewelry. Buster pulled out a black folding knife with a panther on its handle and demanded Benitez's wallet. Benitez handed Mayo and Buster about $100 in cash as well as his jewelry, which included a silver ring inscribed with his nickname, "Tuto."

Eight days later, Mayo and Buster were arrested in connection with an investigation of a series of robberies. When arrested, Mayo was carrying a .22-caliber starter's pistol and was wearing a silver ring with "Tuto" engraved on it. When Buster was arrested, he had in his possession a black pocket knife with a panther on the handle. Each man also had receipts for sales of jewelry.

A. The State Court Proceedings

At trial, Benitez identified Mayo and Buster and testified that he had also identified them in separate pre-trial line-ups. The gun and ring seized from Mayo and the knife seized from Buster were introduced into evidence, and Benitez identified those objects as well.

The defense theory was that Benitez had misidentified the defendants. Buster's attorney called two police officers and elicited that the reports they had filed following their interviews of Benitez immediately after the incident ("incident reports") contained descriptions of the robbers that differed in important ways from the physical appearances of the defendants. The prosecutor, however, in her cross-examination of the two officers, introduced memo books, which had not previously been furnished to the defense, containing the officers' original notes of Benitez's statements. The notes revealed that the discrepancies identified by defense counsel were simply errors that had occurred in the officers' transcription of their notes of Benitez's statements from the memo books to the incident reports. Benitez's in-court identifications were therefore consistent with the officers' notes as to his initial descriptions of the robbers.

Both defendants immediately moved for a mistrial on the ground that the prosecutor's failure to turn these memo books over to The trial court called the prosecutor's failure to turn over the memo books "inexcusable" and "shocking" but denied the mistrial motions. The court gave a limiting instruction, telling the jury to disregard the officers' testimony concerning the memo books.

                them prior to trial was a violation of the rule of disclosure formulated in People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied, 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 (1961), and later codified in the New York Criminal Procedure Law.  Under that rule, the prosecutor has an obligation, prior to trial, to "make available to the defendant ... [a]ny written or recorded statement ... made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness's testimony."   N.Y.Crim.Pro.L. Sec. 240.45(1)(a).  Buster's counsel also reminded the court that he had expressly asked the prosecutor, in the court's presence, to produce any documents such as the memo books and had stated that the defense did not want to be "sandbagged."   The prosecutor admitted that she knew of the existence of the documents but had not given them to counsel
                

The jury convicted Mayo and Buster of the charges against them. Mayo was sentenced to serve 10-20 years in prison.

Mayo and Buster filed separate appeals, and Mayo's appeal was perfected first. In his brief to the Appellate Division, First Department, Mayo's appellate counsel detailed the course of the trial, including the events surrounding the Rosario violation and the trial court's denial of the mistrial motions, and he raised a number of issues, asserting several evidentiary and other trial errors. However, he did not mention the Rosario violation as a ground for reversal. Mayo's conviction was affirmed by the First Department without opinion, see People v. Mayo, 100 A.D.2d 983, 474 N.Y.S.2d 157 (1st Dep't 1984), and leave to appeal to the New York Court of Appeals was denied, see People v. Mayo, 62 N.Y.2d 808, 477 N.Y.S.2d 1033, 465 N.E.2d 1276 (1984).

Following the affirmance of Mayo's conviction, Buster perfected his appeal and raised the Rosario issue as a ground for reversal. The Appellate Division affirmed Buster's conviction without opinion. See People v. Buster, 110 A.D.2d 1093, 488 N.Y.S.2d 942 (1st Dep't 1985). Leave to appeal to the Court of Appeals, however, was granted, and that court reversed Buster's conviction sub nom. People v. Ranghelle, 69 N.Y.2d 56, 511 N.Y.S.2d 580, 503 N.E.2d 1011 (1986). The Court of Appeals held that a Rosario violation like this one, in which the prosecutor had failed to deliver Rosario material prior to trial, constitutes "per se error requiring that the conviction be reversed and a new trial ordered." People v. Ranghelle, 69 N.Y.2d at 63, 511 N.Y.S.2d at 585, 503 N.E.2d at 1016.

When Buster's conviction was vacated, Mayo promptly sought reconsideration of his own application for discretionary review in the Court of Appeals; his motion was denied. See People v. Mayo, 69 N.Y.2d 883, 515 N.Y.S.2d 1031, 507 N.E.2d 1101 (1987). He then filed a petition for a writ of error coram nobis in the Appellate Division, claiming that he had been denied the effective assistance of counsel. That petition, too, was denied, see People v. Mayo, 134 A.D.2d 205, 520 N.Y.S.2d 721 (1st Dep't 1987), and leave to appeal that denial to the Court of Appeals was refused on the ground that the Appellate Division's coram nobis decision was not appealable, see People v. Mayo, 70 N.Y.2d 957, 525 N.Y.S.2d 841, 520 N.E.2d 559 (1988).

B. The Present Habeas Proceeding

In June 1988, proceeding pro se, Mayo filed the present petition in the district court for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1988). As amended, the petition raised all of the grounds asserted in Mayo's original state appeal and added the claim of ineffective assistance of appellate counsel. The State opposed the petition. Pointing out that the Appellate Division had rejected the Rosario argument when it was made by Buster, the State argued that the failure of Mayo's attorney to raise that argument could not be viewed as unreasonable.

The petition was referred to Magistrate Judge Leonard Bernikow, who, in a Report and Recommendation dated October 16, 1990 ("1990 Report"), recommended that all of the At the hearing before the magistrate judge, the parties stipulated that Mayo's appellate attorney did not remember why he had not raised the Rosario issue; indeed, he did not even remember preparing Mayo's brief. Mayo introduced the expert testimony of Stanley Neustadter, a professor of appellate advocacy at Cardozo Law School and Brooklyn Law School, and a former deputy chief and director of training at the Legal Aid Society's Criminal Appeals Bureau. Neustadter gave his opinion that, despite any uncertainty as to whether a Rosario violation constituted a per se ground for reversal or instead was subject to harmless error analysis, Mayo's state appellate counsel should have raised the Rosario claim on the appeal. Neustadter testified that the trial court's error was unmistakable and had been properly preserved. Moreover, because the memo books had "obliterated" the defense and "embarrassed" defense counsel, the Rosario error had clearly been prejudicial to the defendant's case. Neustadter testified that appellate counsel's failure to raise the Rosario claim was especially egregious in light of the weak nature of the claims he did raise. He concluded that there was "no reasonable ground" for not raising the Rosario issue.

claims except ineffectiveness of appellate counsel be dismissed, that an attorney be appointed to represent Mayo in the present proceeding, and that an evidentiary hearing be held as to the reasons for Mayo's state appellate counsel's not raising the Rosario issue and as to the practice of the New York defense bar with respect to such claims. The...