Cornell v. Kirkpatrick

• Decision Date: 01 December 2011
• Docket Number: Docket No. 10–561–pr.
• Citation: 665 F.3d 369
• Parties: Jason CORNELL, Petitioner–Appellant, v. Robert KIRKPATRICK, Superintendent, Wende Correctional Facility, Alden, New York, Respondent–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

665 F.3d 369

Jason CORNELL, Petitioner–Appellant,

v.Robert KIRKPATRICK, Superintendent, Wende Correctional Facility, Alden, New York, Respondent–Appellee.

Docket No. 10–561–pr.

United States Court of Appeals, Second Circuit.

Argued: Aug. 23, 2011.Decided: Dec. 1, 2011.

Sally Wasserman, New York, NY, for Petitioner–Appellant.

Ashlyn Dannelly, Assistant Attorney General (Eric T. Schneiderman, Attorney General, on the brief, and Barbara D. Underwood, Solicitor General, and Roseann B. MacKechnie, Deputy Solicitor General, of counsel), State of New York, New York, NY, for Respondent–Appellee.

Before: NEWMAN, CABRANES, and STRAUB, Circuit Judges.

STRAUB, Circuit Judge:

Petitioner–Appellant Jason Cornell appeals from an order entered by the United States District Court for the Western District of New York (Michael A. Telesca, Judge ) denying and dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). Among other claims, Cornell argued that he was denied his Sixth Amendment right to counsel as a result of the ineffective performance of his trial counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Upon review, we conclude that trial counsel's failure to object to venue as to “Victim # 2,” ¹ when venue was improper, was an “ ‘omission[ ] [that] cannot be explained convincingly as resulting from a sound trial strategy, but instead arose from oversight.’ ” Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir.2009) (quoting Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir.2003)). Moreover, but for trial counsel's deficient performance, there is a “reasonable probability” that the outcome of the proceedings would have been different and that Cornell would not have been convicted of raping one of the two alleged victims. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Consequently, Cornell's Sixth Amendment right to effective assistance of counsel was violated. The conclusion of the Supreme Court of New York, Appellate Division, Fourth Department—that Cornell received effective assistance of counsel—to the contrary “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Accordingly, we reverse the judgment of the District Court denying habeas relief and remand the case. On remand, the District Court shall issue a writ of habeas corpus to Cornell by the sixtieth calendar day after the issuance of our mandate unless the District Attorney of Monroe County has, by that point, indicated an intention to retry Cornell for the alleged rape of Victim # 2.

BACKGROUND

Petitioner–Appellant Jason Cornell was convicted, after a jury trial in Ontario County, New York, of two counts of Rape in the First Degree pursuant to N.Y. Penal Law § 130.35(1).² These convictions stem from two separate incidents with two different female victims that occurred in the course of automobile trips in July 2000. On each trip, Cornell drove from Watkins Glen in Schuyler County, New York, to Rochester in Monroe County, New York, with a female companion, for the purpose of purchasing narcotics. During these drives, he allegedly stopped his car and raped his passenger.

The first alleged incident occurred on July 15, 2000, or in the early morning of July 16, when Cornell allegedly raped Victim # 2. The day before the incident, Cornell invited Victim # 2 to accompany him to Rochester to purchase narcotics. The next evening, Cornell picked up Victim # 2 from her home, and they consumed alcoholic drinks and smoked marijuana while driving to Rochester. When they arrived, Cornell visited a house; upon returning from the house, he informed Victim # 2 that the narcotics he intended to purchase would not arrive until the next morning. In response to this news, Cornell suggested to Victim # 2 that they spend the night in the city, to which she acquiesced. They drove to a motel in the Rochester area, and Cornell parked the car in the motel's lot after noticing that there were no vacancies. The prosecution, in both its opening and closing statements, acknowledged that the motel was located in Monroe County, New York. In the motel parking lot, Cornell allegedly forced himself upon Victim # 2 and raped her. Cornell and Victim # 2 then spent the night in the car. The next morning, they returned to the house visited the previous night, where Cornell purchased narcotics. Cornell then drove Victim # 2 back to her home in Watkins Glen. Victim # 2 did not report to the police what happened until August 16, 2000, after she spoke to Victim # 1, a friend, who confided that Cornell had allegedly forced himself upon her as well.

The second alleged rape occurred approximately three days after the first, on July 18, 2000, when Victim # 1 accompanied Cornell to Rochester to purchase narcotics. Just as with the other victim, Victim # 1 and Cornell consumed alcoholic beverages and smoked marijuana on the journey. Victim # 1 testified that while en route to Rochester, Cornell attempted to inappropriately touch her. Cornell's actions scared Victim # 1, and she called her friends to complain about Cornell's behavior while he was in a Rochester house, presumably purchasing narcotics. Cornell and Victim # 1 did not spend the night in Rochester, but returned to Watkins Glen the same evening. During the drive back, Cornell brought Victim # 1 to a secluded location in Ontario County, New York, where he allegedly raped her. Cornell then returned Victim # 1 to her friend's house, located in Watkins Glen. After Cornell left, Victim # 1 went to the hospital, where hospital staff used a “rape kit” and a police officer took her statement.

On October 27, 2000, Cornell was charged in a three-count indictment in Ontario County, New York. Counts One and Two of the indictment, respectively, charged Cornell with raping and sodomizing Victim # 1. Count Three charged Cornell with the rape of Victim # 2. The Ontario County District Attorney alleged that, because the attack on Victim # 2 occurred “in an automobile that traversed through Ontario County,” he had jurisdiction to simultaneously prosecute both alleged rapes—the one that occurred in Ontario and the one that occurred in Monroe—under New York Criminal Procedure Law § 20.40(4)(g) (the “private vehicle exception”). That provision states that “[a]n offense committed in a private vehicle during a trip thereof extending through more than one county may be prosecuted in any county through which such vehicle passed in the course of such trip.” N.Y.Crim. P. Law § 20.40(4)(g). Cornell did not object to venue during the trial, but argued that the charges related to Victim # 1 should have been severed from those associated with Victim # 2 because “there [was] a substantial likelihood that a jury would be unable to separately consider the proof related to the separate offenses and [would] convict Mr. Cornell in the aggregate.” The trial court denied Cornell's request for severance, and the trial was held from March 19 until March 21, 2001, when the jury convicted Cornell on both rape counts and acquitted him of the sodomy count. Cornell was sentenced as a second felony offender to twelve-and-a-half years of incarceration on each rape count, set to run consecutively.

Following his conviction, Cornell filed a motion to vacate the judgment pursuant to New York Criminal Procedure Law § 440.10, which was denied without analysis.³ He also appealed his convictions to the Appellate Division, Fourth Department, of the Supreme Court of the State of New York (“Appellate Division”). In his § 440.10 motion and on direct appeal, Cornell, represented by new counsel, argued for the first time that Ontario County was not the proper venue for the prosecution of the rape charge concerning Victim # 2. Cornell's new counsel argued that, in People v. Moore, the New York Court of Appeals limited the application of Criminal Procedure Law § 20.40(4)(g) to cases where it is “impossible to determine in what county the offense occurred.” 46 N.Y.2d 1, 8, 412 N.Y.S.2d 795, 385 N.E.2d 535 (1978). Later in People v. Greenberg, the Court of Appeals explained that “the purpose of the private vehicle exception was to ensure a forum for prosecution in those cases where it was impossible to determine in what county an offense committed during an automobile trip actually occurred. Where the site of the crime could be identified, however, the statutory exception was unnecessary and, thus, inapplicable.” People v. Greenberg, 89 N.Y.2d 553, 557, 656 N.Y.S.2d 192, 678 N.E.2d 878 (1997) (citing Moore, 46 N.Y.2d at 7–8, 412 N.Y.S.2d 795, 385 N.E.2d 535). At the time of trial, Cornell's counsel and the Ontario County prosecutor were ignorant of Moore and its effect on § 20.40(4)(g). Apparently, the trial court was also unaware of Moore as it made no mention of the case or its limitation on § 20.40(4)(g) to the parties. As such, along with his contention that § 20.40(4)(g) was improperly applied to his case, Cornell argued, in his reply brief to the Appellate Division, that he was denied effective assistance of counsel due to his trial counsel's “failure to ... discover the existence of People v. Moore ... and present it to the trial court.”

The Appellate Division held that Cornell waived his challenge to venue because he did not raise the issue at trial. People v. Cornell, 17 A.D.3d 1010, 1011, 794 N.Y.S.2d 226 (4th Dep't 2005) (hereinafter “ Cornell I ”). The Appellate Division noted that “[o]ne rape occurred in Ontario County, and from the testimony it appears that the second rape occurred in Monroe County.” Id. However, because Cornell “fail[ed] to move to dismiss the count of rape that occurred in Monroe County on the ground of improper venue or to request a jury charge on venue, [he] failed to preserve for ... review and waived his ... contentions that venue was not proper and that the court erred in its instructions to...