Farrington v. Senkowski
| Decision Date | 01 August 1999 |
| Docket Number | Docket No. 98-2939 |
| Citation | 214 F.3d 237 |
| Parties | (2nd Cir. 2000) MICHAEL FARRINGTON, Petitioner-Appellant, v. DANIEL SENKOWSKI, Superintendent, Clinton Correctional Facility, Respondent-Appellee |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from a dismissal by the United States District Court for the Southern District of New York (Barrington D. Parker, Jr., Judge) of appellant's habeas petition. Appellant principally claims that his trial counsel's failure to cross-examine a witness based on a videotaped statement constituted ineffective assistance of counsel. Because such cross-examination would not have affected the outcome, we affirm.
Domenick J. Porco, Scarsdale, New York, for Petitioner-Appellant.
John J. Sergi, Assistant District Attorney, Westchester County (Jeanine Pirro, District Attorney, and Joseph M. Latino, Assistant District Attorney, of counsel), White Plains, New York, for Respondent-Appellee.
Before: WINTER, Chief Judge, KEARSE, and STRAUB, Circuit Judges.
Michael Farrington appeals from Judge Parker's dismissal of his habeas petition brought pursuant to 28 U.S.C. § 2254. Appellant argues that: (i) the evidence at trial was insufficient as a matter of law to support his felony murder and attempted robbery convictions; (ii) he was deprived of effective assistance of counsel when his attorney failed to cross-examine a witness based on a videotaped statement and to object to certain jury instructions; and (iii) the prosecutor's statements to the jury deprived him of a fair trial. We affirm.
In the early morning hours of July 16, 1991, in Mount Vernon, New York, appellant met four of his friends, Victor Byrd, Anthony Burts, Kenya Forrester, and Lamont Gainey. The five teenagers went to a public park where they drank beer and smoked marijuana. Burts had a loaded pistol, which he passed around. Gainey took the bullets out of the gun, slit the tops off, and put them back in the gun, purportedly to make them more likely to open upon impact. The group briefly discussed robbing a restaurant but rejected the idea because they were likely to be recognized by workers or patrons.
The group then left the park and decided to steal a car. While going to Forrester's house to get a screwdriver to be used in the theft, they came upon Joseph Hanna, who was delivering newspapers and had left his car idling. They asked him for a newspaper, and he threw them one. They then decided to steal Hanna's car.
After appellant got into the car, Hanna ran over to the vehicle and began to struggle with appellant. At some point, the car crashed into a parked vehicle. After some time, Burts fired a shot in the air. Appellant and Hanna continued to struggle. Gainey took the gun from Burts, ran over to the car, and shot Hanna, killing him. The teenagers fled on foot.
When apprehended, each of the teenagers gave videotaped testimony to the police. In appellant's videotaped statement, he stated that he did not know or expect that his friends would intervene but admitted that he attempted to move the car forward when Hanna reached into the car and attempted to move the gearshift into park. He stated that he struggled with Hanna over the gearshift and the keys.
Forrester was the state's primary witness at appellant's trial. In the videotaped statement made after his arrest, Forrester related the following:
Then, the man came over to the window, and was grabbin' him and then, [he] kept on putting the car in drive and then the man threw it in park and he's tryin' to put it back in drive. Then the man grabbed his hands and was goin' to pull him out the window, couldn't get him out the window.
Later on the tape, Forrester was asked whether Hanna said anything during the struggle, to which he replied:
He didn't say nothing. [Appellant] had said that he was talking to the man while the man was grabbing his hand. That he was talking to the man.
Prior to the trial, appellant's trial counsel reviewed Forrester's videotaped interview. At that time, he did not believe Forrester's statements on the tape to "undermine[] the legal theory of the prosecution's case against [appellant]," as he understood it. He viewed Forrester's quoting of appellant as saying, "You better let me leave this car or my friends will come over and kill you," as strengthening the prosecution's case. Later, in a pretrial interview with counsel, Forrester denied that appellant had made a statement about his friends killing Hanna.
Appellant was tried in the County Court, Westchester County. Forrester testified that at the time of the struggle he had heard appellant exclaim only, "Get away from the car." Forrester also testified that appellant later admitted to him that "[H]e like told the man to get away from the car before his boys come over here and kill him." Appellant's trial counsel did not attempt to impeach Forrester or to refresh his recollection with the videotaped statement that attributed the "let me get out . . . let me leave" exclamation to appellant. Rather, he sought to impeach Forrester with his denial in the pretrial interview that appellant had ever warned Hanna about the "boys" coming over and killing him. Forrester answered with the explanation that he had reviewed his videotaped statement and that it had refreshed his recollection. In a post-trial affidavit, appellant's trial counsel stated that he "did not confront [Forrester] with the video-tape because [he] perceived no distinction between the two versions" of the story.
Appellant was convicted of one count of felony murder in the second degree, two counts of attempted robbery in the first degree, one count of attempted robbery in the second degree, one count of attempted grand larceny in the fourth degree, and one count of criminal possession of a weapon in the second degree. Appellant moved to vacate the judgment pursuant to N.Y. Crim. Proc. Law § 440.10(h), contending that he had been denied his Sixth Amendment right to the effective assistance of counsel because of his attorney's failure to confront Forrester with the videotaped statement. Noting that appellant's "counsel at trial conducted a thorough and extensive cross examination" of Forrester and that "the videotape [was not] as compelling or damaging to the prosecution's case as [appellant] now urges," the Westchester County Court denied the motion. On a consolidated appeal from the judgment and the denial of the Section 440.10 motion, the Appellate Division affirmed. See People v. Farrington, 639 N.Y.S.2d 436, 436 (App. Div. 1996). The New York Court of Appeals denied leave to appeal. See People v. Farrington, 670 N.E.2d 453, 453 (N.Y. 1996).
Appellant then filed the instant habeas petition pursuant to 28 U.S.C. § 2254. The district court denied the petition, see Farrington v. Senkowski, 19 F. Supp. 2d 176, 181 (S.D.N.Y. 1998), but granted a certificate of appealability.
We review a district court's denial of a petition for a writ of habeas corpus de novo. See Einaugler v. State, 109 F.3d 836, 839 (2d Cir. 1997); Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996).
Appellant first argues that his convictions for attempted robbery and felony murder violate due process because the evidence was insufficient as a matter of law to support his attempted robbery convictions. Appellant contends that the government failed as a matter of law to meet its burden to show that he used physical force to retain the property he was attempting to steal.
"[A] state prisoner 'is entitled to habeas corpus relief [only] if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'" Einaugler, 109 F.3d at 839 (quoting Jackson v. Virginia, 443 U.S. 307, 324 (1979)). Appellant bears the burden of rebutting the presumption that all factual determinations made by the state court were correct. See 28 U.S.C. § 2254(e).
New York defines robbery as N.Y. Penal Law § 160.00(1). In appellant's own videotaped pretrial statement, which was shown to the jury, he admitted that he struggled with Hanna over the keys and gearshift and tried to drive the car away with Hanna hanging on. See Farrington, 19 F. Supp. 2d at 181. This level of actual physical force was easily sufficient under New York law to elevate attempted larceny to attempted robbery. See People v. Santiago, 402 N.E.2d 121, 121 (N.Y. 1980) (); see also N.Y. Penal Law § 160.10(3) (); id. § 160.15(3) ().
Appellant next claims that he was denied effective assistance of counsel because his trial attorney failed to use Forrester's prior videotaped statement and to object to allegedly...
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