Barclay v. Spitzer
| Decision Date | 09 June 2005 |
| Docket Number | No. 02-CV-2184 (JBW).,02-CV-2184 (JBW). |
| Citation | 371 F.Supp.2d 273 |
| Parties | Patrick H. BARCLAY, Petitioner, v. Eliot SPITZER, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Mark S. DeMarco, Esq., Bronx, NY, for Petitioner.
John O'Mara, Jane S. Meyers, Assistant District Attorneys, Brooklyn, NY, for Respondent.
Table of Contents
I. Introduction .................................................................274
II. Federal Proceedings ..........................................................275
A. Original Trial Level Proceedings and Opinion .............................275
B. Appellate Proceedings ....................................................275
C. First Evidentiary Hearing After Remand ...................................276
D. Second Evidentiary Hearing After Remand ..................................276
III. Analysis of Claims ...........................................................276
A. Physical Capacity ........................................................276
1. Based on the State Record and First Post-Remand Evidentiary
Hearing ............................................................276
2. Based on the Second Post-Remand Evidentiary Hearing ..................281
3. Reasonable Decision of State Trial Counsel ...........................281
B. Conflict of Interest .....................................................281
C. Skillful Defense .........................................................282
D. Evidence of Guilt ........................................................283
E. Danger in Uncritical Acceptance of Mea Culpa Claims of State Counsel .....283
F. Advantage of New York State's Over Court of Appeals for the Second
Circuit's Approach .....................................................283
IV. Conclusion ...................................................................284
The district court dismissed this petition for a writ of habeas corpus, denying a certificate of appealability. As directed by the Court of Appeals for the Second Circuit, an evidentiary hearing was held upon remand. See Barclay v. Spitzer, No. 03-2758-pr, slip op. at 2 (2d Cir. Sept. 23, 2004). The petition is once again dismissed, as without merit, but a certificate of appealability is granted in view of the interest of the Court of Appeals in the case.
This litigation reveals the need for great care before a competent attorney's representation in a state criminal prosecution is characterized as inadequate by federal courts in a habeas proceeding. In a case like the instant one the gestalt-like test for counsel competency of the New York Court of Appeals seems more useful in solving the problem of whether the defense was acceptable under notions of due process than does the federal mechanical-like rule applied by the Court of Appeals for the Second Circuit. See Henry v Poole, 409 F.3d 48, 2005 WL 1220468, at *18-*21 (2d Cir.2005) ().
This petition for a writ of habeas corpus after a state conviction in a rape case was filed on April 8, 2002. The case was reassigned to the undersigned on April 25, 2003 as part of a review of five hundred state habeas cases. After consideration of the record and oral arguments, the petition was dismissed and a certificate of appealability was denied. See Barclay v. Spitzer, Nos. 02-CV-02184, 03-Misc-0066, 2003 WL 24053776 (E.D.N.Y. Sept. 17, 2003), deemed incorporated in the present memorandum.
On appeal the Court of Appeals for the Second Circuit granted a certificate of appealability. See Barclay v. Spitzer, No. 03-2758-pr, slip op. at 1 (2d Cir. Sept. 23, 2004). It directed the trial court to "conduct an evidentiary hearing or otherwise supplement the record," allowing state trial counsel to directly respond to appellant's claims. Id. at 2. The record was considered "insufficient" on the following two issues:
(1) whether trial counsel was ineffective because he failed to call appellant's doctor as a witness to testify that appellant was not physically capable of perpetrating the attack described by the complaining witness; and (2) whether trial counsel was ineffective because the defense team was conflicted by the association of the lawyer and investigator with the complaining witness, 28 U.S.C. § 2253[(c)].
Id. at 1. These claims had been dismissed as "frivolous" by the trial court. See 2003 WL 24053776, at *19-*20, *22.
The appellate court explained its decision as follows:
While failure to call a witness "usually falls under the realm of trial strategy that [the Court is] reluctant to disturb," this decision must be "grounded in some strategy that advances the client's interests." Eze v. Senkowski, 321 F.3d 110, 129 (2d Cir.2003). In this case, counsel admitted at the sentencing hearing that he did not call the doctor as a witness because he failed to adequately prepare for trial and, thus, the failure to call the doctor apparently was not part of a reasonable trial strategy. See Pavel v. Hollins, 261 F.3d 210, 217-18 (2d Cir.2001) (). Additionally, to demonstrate that counsel was ineffective because of a conflict of interest, the petitioner must establish that "(a) counsel actively represented conflicting interests, and (b) such conflict adversely affected his lawyer's performance." United States v. Feyrer, 333 F.3d 110, 116 (2d Cir.2003). The district court should conduct an evidentiary hearing or otherwise supplement the record to allow appellant's trial counsel to directly respond to appellant's claims. See Chang v. United States, 250 F.3d 79, 86 (2d Cir.2001) (). After receipt of a direct response by trial counsel, the district court may determine if counsel's performance in these areas constituted ineffective assistance of counsel under the standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The district court appointed counsel for petitioner. Following counsel's repeated requests for adjournments, an evidentiary hearing was held on May 4, 2005. State counsel for petitioner appeared in person and was subjected to examination and cross-examination. Petitioner was present by telephone.
State counsel was credible. His testimony is credited. The hearing and documents support the conclusion that the case for the defense was tried skillfully, without any conflict of interest, and with an appropriate trial strategy that would support a decision not to call a doctor on defendant's behalf. Were the case retried, the trial would probably be conducted by any other competent defense counsel in essentially the same way without violating petitioner's constitutional rights.
A second evidentiary hearing was held in order to obtain testimony of the doctor that state defense counsel allegedly neglected to call at the state trial. It was then determined that the doctor was dead. A possible successor as treating physician was also dead. An attempt was made by counsel to obtain petitioner's medical records after consulting with his family. By letter of June 8, 2005 his counsel informed the court:
Despite repeated attempts, we have been unable to locate any of Mr Barclay's medical records. Accordingly, it is respectfully requested that Your Honor close the record on the evidentiary hearing conducted with respect to the above-referenced case.
This second hearing was not helpful in resolving the questions posed by the Court of Appeals. See supra Part II.B; infra Part III. A. 2.
The petitioner, who usually walked with a cane, had a treating physician, one Doctor Ernesto Lee, who, petitioner claims, would have testified that petitioner was not capable of the physical activity — chasing complainant about his apartment and the like — that the state trial testimony of the complaining witness reflects. During pre-trial and early in the trial, Doctor Lee was out of the country. See Tr. of May 4, 2005 Hearing ("May Hearing") at 14, 17-18. Defense counsel could not interview him before trial and, following his practice of never calling a witness without preparing him, he did not call Doctor Lee as a defense witness on the last days of trial when he was theoretically available, having just returned to the City. Id. at 18, 19-20.
After trial, but before sentencing, in a motion pursuant to New York State Penal Law section 330.30, defense counsel moved to set aside the verdict on the ground that he was remiss in not having called Doctor Lee at the trial. Id. at 17, 20-22. Counsel had determined after trial that Doctor Lee was of the opinion that petitioner was "not physically capable of engaging in the acts" described. Id. at 15. While state counsel suggested at the argument of the state post-trial motion that his failure represented neglect, possibly constituting a constitutional violation, this rhetoric did not represent his real evaluation, but was essentially a ploy to obtain a new trial by a lawyer more devoted to his...
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