Bell v. Miller, Docket No. 05-5235-pr.

Citation500 F.3d 149
Decision Date31 August 2007
Docket NumberDocket No. 05-5235-pr.
PartiesDerrick BELL, Petitioner-Appellant, v. David L. MILLER, Superintendent of Eastern Correctional Facility, Andrew Cuomo, Attorney General of New York, and Raymond Cunningham, Superintendent of Woodbourne Correctional Facility,<SMALL><SUP>*</SUP></SMALL> Respondents-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
500 F.3d 149
Derrick BELL, Petitioner-Appellant,
David L. MILLER, Superintendent of Eastern Correctional Facility, Andrew Cuomo, Attorney General of New York, and Raymond Cunningham, Superintendent of Woodbourne Correctional

[500 F.3d 150]

Facility,* Respondents-Appellees.
Docket No. 05-5235-pr.
United States Court of Appeals, Second Circuit.
Argued: August 29, 2007.
Decided: August 31, 2007.

[500 F.3d 151]

Anne S. Raish (Mark Pomerantz, of counsel, Stephen H. Yuhan, on the brief) Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York, NY, for Petitioner-Appellant.

Lara M. Shalov, Stillman, Friedman, & Shechtman, P.C., New York, NY, for Petitioner-Appellant.

Steven Banks, Lawrence T. Hausman, The Legal Aid Society, New York, NY, for Petitioner-Appellant.

Howard B. Goodman, Assistant District Attorney (Ann Bordley and Leonard Joblove, of counsel, Charles J. Hynes, District Attorney, Kings County, on the brief), Office of the Kings County District Attorney, Brooklyn, NY.

Before: JACOBS, Chief Judge, KATZMANN, and HALL, Circuit Judges.


Petitioner-appellant Derrick Bell, who was convicted of robbery and assault in New York State Supreme Court, Kings County, is seeking a writ of habeas corpus on the ground that his lawyer was constitutionally deficient for having failed to consult a medical expert regarding the reliability of the complaining witness's identification—the only evidence tying Bell to the crime. The witness was shot in the thigh, lost half his blood, was heavily medicated, lapsed into a coma for eleven days, and identified Bell by name after recovering consciousness—notwithstanding that

500 F.3d 152

at the scene of the attack he had described his attacker generically, as though the attacker was unknown to him. The District Court denied the petition on the ground that the state court's rejection of Bell's claims was not based on an unreasonable application of federal law, see 28 U.S.C. § 2254(d). We reverse.


Brentonol Moriah was held up at gunpoint as he was walking in Brooklyn at 2:30 a.m. on July 16, 1996. His assailant, armed with a full-length shotgun, demanded money. Soon after Moriah surrendered the contents of his pockets, headlights flashed from a nearby intersection and the assailant fired into Moriah's thigh and fled, weapon in hand.

When the police came to the scene, Moriah was lying on the street, having lost copious amounts of blood. Moriah told the officers that someone tried to rob him and then shot him in the thigh. A police officer testified that Moriah described the perpetrator (in Moriah's words) as "a male black, wearing a lemon-colored shirt." Moriah said nothing to the officers that would evince any familiarity with the shooter; accordingly, the police reports from the crime scene list the perpetrator's identity as "unknown" and "unidentified."

For the following eleven days, Moriah was hospitalized in a heavily sedated state, comatose if not actually in a coma. When he regained consciousness on July 28, 1996, Moriah told the detective that his assailant was one Derrick Bell, who had been his neighbor in a rooming house.

Bell was arrested on August 14, 1996, and charged with first-degree assault, second-degree assault, fourth-degree grand larceny, and two counts of first-degree robbery. Bell had no prior criminal record.

On August 19, 1996, Moriah again named Bell in videotaped grand jury testimony given from his hospital bed. Moriah stated that he continued to take painkillers every four hours and to suffer from memory lapses and dizziness.

A. Bell's State Trial

At Bell's trial, Moriah was the only prosecution witness who identified Bell as the assailant. Moriah testified on direct that he and Bell shared a bathroom and kitchen at a rooming house for more than a year, that they spoke occasionally and never argued or fought, and that on the night of the crime he stood face-to-face with Bell for five minutes. On cross, Moriah admitted that he first named Bell eleven days after the crime took place; and that he did not recall speaking with police officers on the night of the crime. Bell's counsel asked Moriah no questions about the medications he was administered while in the hospital (including at the time he first identified Bell as his assailant), nor did he ask about Moriah's memory loss, which, according to Moriah's grand jury testimony, persisted for at least a month after the crime.

Dr. Robert Brewer, the emergency room surgeon who treated Moriah on the night of the crime, testified for the prosecution that Moriah lost 50 percent of his blood as a result of the shooting. On cross-examination, Bell's trial counsel inquired about the effect of that blood loss on Moriah's consciousness when he arrived at the hospital. Counsel did not ask about the impact of blood loss on memory, nor did he ask about the medications that were given to Moriah at the hospital.

The prosecution called four other witnesses. The policeman who had interviewed Moriah at the crime scene testified as to Moriah's description of his assailant: "a male black wearing a lemon-colored

500 F.3d 153

shirt." The detective assigned to the case testified that Moriah first identified Bell as the perpetrator eleven days after the crime took place, and that he was unable to interview Moriah before then because Moriah had been unconscious. Martin Payne, who lived near the crime scene, testified that on the night of the crime, he heard a person scream "no" several times, followed by a gunshot; however, Payne did not see the shooting. Richard Edmonds, the landlord of the rooming house where Moriah and Bell once lived, testified about his tumultuous landlord-tenant relationship with Bell.

Bell testified that he left work around midnight to join friends, and they all played cards until five o'clock the following morning. Bell's three alibi witnesses confirmed that they played cards with Bell on the night in question.

The jury convicted Bell of first-degree robbery and second-degree assault. The trial court sentenced Bell to concurrent sentences of 12½-to-25 years on the robbery count and seven years on the assault count, the maximum term for both crimes.

B. State Appeal

Bell filed a timely notice of appeal in New York State Supreme Court. His direct appeal asserted various claims of ineffective assistance of trial counsel but did not challenge counsel's failure to consult a medical expert. The Second Department affirmed, People v. Bell, 298 A.D.2d 398, 751 N.Y.S.2d 402 (2d Dep't 2002), and the New York Court of Appeals denied leave to appeal. People v. Bell, 99 N.Y.2d 555, 754 N.Y.S.2d 207, 784 N.E.2d 80 (2002).

On February 13, 2004, Bell filed a motion to vacate his conviction pursuant to N.Y.Crim. Proc. Law § 440.10. There, for the first time, Bell argued that his trial counsel was ineffective for having failed to consult a medical expert regarding the effects of trauma, blood loss and painkillers on Moriah's memory.1 In support of his § 440 motion, Bell submitted the affidavit of Dr. Elkhonon Goldberg, a neuropsychologist affiliated with New York University and Columbia University, who reviewed the police reports from the case, Moriah's grand jury and trial testimony, and the trial testimony and affidavit of Dr. Brewer. Dr. Goldberg opined that: "Mr. Moriah's testimony contains unequivocal evidence that he suffered from retrograde amnesia for the events predating the loss of consciousness"; the retrograde amnesia was exacerbated by such anxiolytic and amnestic medications as Dr. Brewer attested were likely administered to Moriah in the emergency room;2 false memories can be persistent and dominant, overriding true memories; and Moriah was unlikely to have regained full consciousness when he first named Bell. Accordingly, Dr. Goldberg concluded that Moriah's identification of Bell was unreliable.

On October 4, 2004, the state court denied Bell's § 440 motion without a hearing. It applied N.Y.Crim. Proc. Law § 440.10(2)(c) to Bell's ineffective assistance claim, citing as unjustifiable Bell's

500 F.3d 154

failure to raise the issue on direct appeal.3 The court added: "But if the merits were reached, the result would be the same." The state court observed that Dr. Goldberg's affidavit was "fraught with hedge words," and questioned whether, at the time of Bell's trial in 1997, Goldberg's expert testimony regarding a "single witness identification issue" would have been admissible...

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