Loliscio v. Goord

Citation263 F.3d 178
Decision Date15 May 2001
Docket NumberPETITIONER-APPELLANT,RESPONDENT-APPELLEE,Docket No. 00-2594
Parties(2nd Cir. 2001) CHRISTOPHER LOLISCIO,v. GLENN GOORD, AS WARDEN, CLINTON CORRECTIONAL FACILITY, Argued:
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Appeal from a judgment of the United States District Court for the Eastern District of New York (Edward R. Korman, Chief Judge) denying Christopher Loliscio's petition for a writ of habeas corpus. Petitioner argues that (1) the jury's consideration of extra-record information violated his Sixth Amendment rights; (2) the state trial court's post-verdict hearing regarding the effect of the extra-record information on the verdict was constitutionally inadequate; and (3) his trial counsel's performance was constitutionally ineffective. The state courts rejected each of these federal claims. Finding that the state courts' adjudication of these claims was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent, we affirm the judgment of the district court.

Affirmed.

[Copyrighted Material Omitted] Richard M. Asche, Litman, Asche & Gioiella, Llp, New York, N.Y., for Petitioner-Appellant.

Mark Cohen, Assistant District Attorney, Suffolk County, N.Y. (James M. Catterson, Jr., District Attorney of Suffolk County, Glenn Green, Assistant District Attorney, on the brief), for Respondent-Appellee.

Before: Feinberg, Oakes, and Sotomayor, Circuit Judges

Sotomayor, Circuit Judge

Petitioner-appellant Christopher Loliscio appeals from a judgment of the United States District Court for the Eastern District of New York (Edward R. Korman, Chief Judge) dismissing pursuant to 28 U.S.C. § 2254(d)(1) his petition for a writ of habeas corpus. Petitioner argues that (1) his rights to a jury trial and to confront his accusers under the Sixth Amendment of the United States Constitution were violated by the jury's consideration of extra-record rumors about his prior bad acts; (2) the trial court's post-verdict hearing concerning the effect of the rumors on the jury's deliberations abridged his Fourteenth Amendment due process rights; and (3) his Sixth Amendment right to effective assistance of counsel was violated by his trial counsel's (a) failure to have the victim's brassiere tested for salinity content, and (b) decision to introduce evidence of an alleged jailhouse confession by petitioner. Finding that the state court's rejection of these claims was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent we affirm the district court's denial of the petition for habeas corpus.

BACKGROUND

In January 1991, following a jury trial, petitioner was convicted in Suffolk County Court of two counts of murder in the second degree (intentional murder and felony murder) and rape in the first degree for the March 1989 killing of a fourteen-year-old girl, Jessica Manners (the "victim"). Petitioner was sentenced to concurrent terms of imprisonment of 25 years to life on each of the murder counts, and to a concurrent term of 8 1/3 to 25 years on the rape count.

The evidence presented at trial indicated that petitioner and the victim had known each other prior to the victim's death. Sometime between 11:45 P.M. on March 25, 1989, and 12:15 A.M. on March 26, 1989, the victim contacted petitioner by telephone. People v. Loliscio, 187 A.D.2d 172, 174-75 (2d Dep't 1993). After initially telling the police that he had not been with the victim the night of the murder, petitioner conceded at trial that he and the victim had engaged in sexual intercourse during the first hour of March 26th. Id. at 174, 176. Petitioner's parents testified that petitioner had told them that he had thereafter dropped off the victim at a convenience store at approximately 1:00 A.M.

The victim's body was found by a passerby at approximately 9:15 A.M. the next morning (March 26, 1989) near Scott's Cove in Setauket, New York. The passerby testified that he saw the body of a girl lying face down in spartina grass at the high tide mark and that the body appeared to be tide-washed. Id. at 174. The medical examiner determined that the primary causes of death were strangulation and blunt-force head trauma, and that the time of death was no later than 2:30 A.M. on March 26th. Id. at 174. A prosecution expert testified that the body was placed on the beach no later than 2:52 A.M. on March 26th.

Petitioner's girlfriend, Nicole Vento, testified that on March 27th and 28th petitioner implored her to provide him with an alibi for the night of the murder. Id. at 175. Petitioner's mother testified that petitioner had taken his car to a car wash on March 26th. There was testimony by petitioner's neighbors that petitioner thoroughly vacuumed his car at approximately 7:30 A.M. on the morning of March 27th, and that no member of the Loliscio household had theretofore been seen cleaning a car at that time of day. Id. at 176. Another witness testified that she observed deep cuts and scratches on petitioner's arms on March 29th, but had not seen such cuts and scratches one week earlier. Id. at 176. This testimony was contradicted, however, by (1) Nicole Vento's testimony that she did not notice any such cuts or scratches when she saw petitioner on the day after the murder, and (2) photos of petitioner taken the day after the murder. Another witness testified that, on March 29th, she observed petitioner with an uneven haircut with clumps of hair missing and wearing glasses, and that she had never seen him wear glasses during the previous year. Id. at 176. On the basis of this testimony, the prosecution argued that petitioner had attempted to change his appearance after the murder.

The lead police investigator, Detective White, testified during cross-examination that, shortly after the murder, a woman reported to the police that her boyfriend had told her that he, rather than petitioner, had killed the victim. Detective White also testified, however, that the woman later told police that she did not believe her boyfriend. A defense witness testified that, between 2:30 and 2:45 A.M. on March 26th, she drove past the area where the victim's body had been found and saw two young males standing near a tan Toyota pickup. There was also testimony that the victim's ex-boyfriend had a friend who drove a tan Toyota.

On April 20, 1989, the police executed a search warrant on petitioner's car. The search yielded (1) a shirt found inside the car that contained head hair combings consistent with the victim's hair, and (2) fibers taken from the floor of the car later found to be consistent with synthetic fibers recovered from the victim's shirt. Id. at 175. Petitioner's blood was thereafter compared with traces of semen recovered from the victim's body, and the two were found to match. A prosecution expert testified that the chance of this match occurring coincidentally was one in 25 million. On the other hand, the fibers found in the car did not match the fibers found under the victim's fingernails.

Petitioner was arrested and taken to police headquarters on December 13, 1989. A detective testified that, when petitioner was told that he would have to remove his clothes for processing, petitioner stated: "You don't have me good enough."

The jury trial commenced on October 15, 1990. During cross-examination of Detective White, defense counsel elicited testimony (1) that a jailhouse informant had reported to White that petitioner had confessed to murdering the victim; and (2) that White had subjected the informant to a lie detector test. When defense counsel then asked White if the informant had failed the test, the trial court sustained the prosecution's objection to the question.

Jury deliberations began on November 16, 1990, and concluded on November 20th. At approximately 6 P.M. on November 17, 1990, Jurors Wolford and Kelly sent the following note to the trial judge:

In the heat of deliberations, two unsubstantiated rumors - one concerning each, the defendant and the deceased - were brought forward. Although all jurors agree that this would not in any way bias them on reaching a verdict, I would like this brought out just right now.

The trial court then questioned the two jurors in camera about the rumors. Kelly stated that only she and Wolford had heard the rumors, while Wolford stated that one or two other jurors had also heard it. Wolford also stated that the rumors were introduced by a juror other than he or Kelly. The trial court instructed the two jurors not to discuss this colloquy with the other jurors.

The next morning, relying on the note's representation that all the jurors agreed that the rumors would not in any way bias them in reaching a verdict, the trial court decided to take no further action with respect to the rumors, and deliberations were permitted to resume. The trial court specifically rejected defense counsel's request to give a curative instruction to the jury.

On November 20th, the jury returned a verdict of guilty on two second-degree murder counts (intentional murder and felony murder) and a first-degree rape count. Immediately after the verdict was announced, the trial court questioned each of the twelve jurors individually about the rumors that were introduced during deliberations. Wolford answered as follows:

What was said - and I did not hear it in its entirety - what I heard is something concerning allegations of unlawful imprisonment concerning the defendant. And I don't know how many people did hear it. It was at one end of the table and discussions were going on, myself and of course Miss Kelly that did hear it felt very strongly it should be brought forth.

At that point somebody said it was just a rumor. "I heard a rumor that Jessica Manners was a prostitute." I think we both then basically, in discussing, it was never mentioned again what it was, what was said to start the whole damn business...

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