Brito v. Phillips

• Citation: 485 F.Supp.2d 357
• Decision Date: 10 April 2007
• Docket Number: No. 05 Civ. 8972(RJH).,05 Civ. 8972(RJH).
• Parties: Wande BRITO, Petitioner, v. William E. PHILLIPS, Superintendent of Green Haven Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

485 F.Supp.2d 357

Wande BRITO, Petitioner, v. William E. PHILLIPS, Superintendent of Green Haven Correctional Facility, Respondent.

No. 05 Civ. 8972(RJH).

United States District Court, S.D. New York.

April 10, 2007.

David S. Zapp, Attorney at Law, New York City, for Petitioner.

MEMORANDUM OPINION AND ORDER

HOLWELL, District Judge.

Petitioner Wande Brito brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state court conviction of depraved indifference murder in the second degree. In his petition, Brito argues that he was denied effective assistance of counsel at trial and on appeal in violation of the Sixth and Fourteenth Amendments.

On September 18, 2006, Magistrate Judge James C. Francis IV issued a Report and Recommendation (the "Report") recommending that Brito's petition be denied. Brito filed his objections to the Report in a timely manner and requested that the Court conduct a de novo review of certain issues contained in the petition pursuant to 28 U.S.C. § 636(b)(1). Having done so, and for the reasons that follow, the Court denies the petition.

BACKGROUND

Petitioner Wande Brito and his brother Jarlyn Brito were at a restaurant in the Bronx during the early morning hours of February 14, 1999. (Trial Tr. 412.) Adrian Medina was also at the restaurant with his uncle, Juan Ferreira. Id. Medina and Jarlyn Brito got involved in a fight outside of the restaurant, during which Ferreira was present. (Trial Tr. 173-74.) Brito, who was wearing a black sweater, became involved in the altercation, aimed a gun at Medina's head and fired two shots, both of which missed. Id. The police arrived at the restaurant ten to fifteen minutes after Brito fired his gun at Medina. (Trial Tr. 174.)

Shortly thereafter, the police found Ferreira's body lying in the street several blocks from the restaurant. (Trial Tr. 308-09.) A police officer encountered Brito to nearby, and when a police officer shouted to Brito, Brito began to run. (Trial Tr. 310-11.) Brito was apprehended and arrested not long afterwards. Id.

At trial, an eyewitness testified that he was sitting in a bread delivery truck near the scene of the crime when he saw a man in a black sweater chase after Ferreira, stab him once in the head and flee. (Trial Tr. 91-106.) This witness later identified Brito in a lineup. (Trial Tr. 97.) A second witness testified that he had seen the stabbing from a nearby first floor window, (Trial Tr. 322-24.) This witness testified that after an argument, a man in a black sweater stabbed Ferreira once in the head and then ran away. Id.

Brito was charged with intentional murder in the second degree for the killing of Ferreira, depraved indifference murder for the killing of Ferreira, attempted murder in the second degree for shooting at Medina and criminal possession of a weapon. At trial, Brito's counsel presented a defense based on misidentification, but also requested that the jury be charged on the alternative defense of justification. (Trial Tr. 35-37, 100-14, 325-32, 385-88, 417-24, 427-28.) At the close of evidence, Brito's trial counsel made a motion to dismiss the charges against his client "on the basis that it is not sufficient credible evidence [sic] for a jury to return a verdict of guilt in this case." (Trial Tr. 361.) The motion was denied. (Trial Tr. 361-62.)

The jury found Brito not guilty of intentional murder in the second degree and also acquitted him of attempted murder in the second degree for shooting at Medina. (Trial Tr. 571.) The jury convicted Brito of depraved indifference murder for the killing of Ferreira and criminal possession of a weapon in the second degree. Id. Brito was sentenced to twenty-three years to life in prison on the murder count and fifteen years on the weapon possession count, the sentences to be served concurrently. (Sentencing Mins. 13.)

Brito appealed his conviction to the Appellate Division, First Department, asserting that he received ineffective assistance of counsel at trial. Brito argued that his trial counsel was ineffective for requesting a justification charge that lacked evidential support and that was inconsistent with the misidentification defense. (Defs Br., attached as Ex. 1 to Aff. of Christopher J. Blira-Koessler.) The Appellate Division affirmed Brito's conviction on April 1, 2003, finding that his trial counsel's offering an alternative theory, although risky, did not constitute ineffective assistance of counsel at trial. People v. Brito, 304 A.D.2d 320, 758 N.Y.S.2d 23, 24 (N.Y.App. Div.2003). The Court of Appeals denied leave to appeal. People v. Brito, 100 N.Y.2d 592, 766 N.Y.S.2d 167, 798 N.E.2d 351 (2003).

Brito then filed a motion before the trial court to vacate the judgment pursuant to New York Criminal Procedure Law § 440.10 on the ground that he received ineffective assistance of counsel at trial. Brito again argued that trial counsel should not have requested the justification charge and added that his trial counsel should have raised the affirmative defense of extreme emotional disturbance. The trial court denied the motion on September 23, 2004. (Order dated Sept. 23, 2004, attached as Ex. 8 to Aff. of Christopher J. Blira-Koessler.) The Appellate Division denied leave to appeal. (Order dated Aug. 4, 2005, attached as Ex. 15 to Aff. of Christopher J. Blira-Koessler.)

Finally, Brito moved by a writ of error coram nobis for a new appeal on the ground that he received ineffective assistance of counsel on appeal. The Appellate Division denied the motion, the Court of Appeals denied leave to appeal, and neither court issued an opinion. People v. Brito, 5 N.Y.3d 804, 803 N.Y.S.2d 33, 836 N.E.2d 1156 (2005).

STANDARD OF REVIEW

A district court judge may designate a magistrate to hear and determine certain motions and to submit to the court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Within ten days of service of the recommendation, any party may file written objections to the magistrate's report. Id. Upon review of those portions of the record to which objections were made, the district court judge may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).

Where neither party makes a timely objection to the magistrate judge's findings, a district court "`need only satisfy itself that there is no clear error on the face of the record.'" Johnson v. Reno, 143 F.Supp.2d 389, 391 (S.D.N.Y.2001) (quoting Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985) (citations omitted)); see also Bryant v. New York State Dep't of Corr. Servs. Albany, 146 F.Supp.2d 422, 424-25 (S.D.N.Y.2001) (courts may accept those portions of report to which no written objection has been made, so long as they are "not facially erroneous").

Reviewing courts should review a report and recommendation for clear error where objections are "merely perfunctory responses," argued in an attempt to "engage the district court in a rehashing of the same arguments set forth in the original petition." Vega v. Artuz, No. 97 Civ. 3775(LTS), 2002 WL 31174466, at *1, 2002 U.S. Dist. LEXIS 18270, (S.D.N.Y. Sept. 30, 2002); accord Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985). On the other hand, where objections to a report are "specific and ... address only those portions of the proposed findings to which the party objects," district courts should conduct a de novo review of the issues raised by the objections. Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F.Supp. 380, 381-82 (W.D.N.Y.1992); see also Fed.R.Civ.P. 72(b).

Because the petitioner does not object to Judge Francis' recommendations regarding the effectiveness of the petitioner's trial counsel, the Court finds no clear error and adopts Judge Francis' recommendations on this issue. Conversely, because the petitioner made specific timely objections to Judge Francis' findings regarding the effectiveness of appellate counsel, the Court will review those findings de novo.

DISCUSSION

Brito filed his petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Thus, this Court applies the standard of review established by Section 2254(d) of AEDPA. Torres v. Berbary, 340 F.3d 63, 67-68 (2d Cir.2003); Vasquez v. Strack, 228 F.3d 143, 147 (2d Cir.2000). Under AEDPA, a federal court may grant a petition for a writ of habeas corpus, notwithstanding a contrary state court adjudication on the merits, in accordance with the following provisions:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Brito argues that the New York Court of Appeals' rejection of his motion for a writ of error coram nobis for a new appeal on the basis of his receiving ineffective assistance of appellate counsel was an unreasonable application of clearly established federal law as determined by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Brito claims he is entitled to a writ of habeas corpus based on a violation of his Sixth and Fourteenth Amendment rights to effective assistance of counsel. Ineffective assistance of counsel claims are analyzed under the two-part test set forth in Strickland. See 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674; Lynn v....