Garner v. Lee

• Decision Date: 15 November 2018
• Docket Number: August Term 2017,No. 17-78-pr,17-78-pr
• Citation: 908 F.3d 845
• Parties: Blair GARNER, Petitioner–Appellee, v. William LEE, as Superintendent of Greenhaven Correctional Facility, Respondent–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

908 F.3d 845

Blair GARNER, Petitioner–Appellee,

v.William LEE, as Superintendent of Greenhaven Correctional Facility, Respondent–Appellant.

No. 17-78-pr

August Term 2017

United States Court of Appeals, Second Circuit.

Argued: January 3, 2018

Decided: November 15, 2018

For Petitioner-Appellee: Norman Trabulus, Law Office of Norman Trabulus, New York, New York

For Respondent-Appellant: Michael J. Miller, pro bono publico, for Timothy D. Sini, District Attorney of Suffolk County, Riverhead, New York

Before: Raggi, Livingston, and Lohier, Circuit Judges.

Debra Ann Livingston, Circuit Judge:

One night in April 2002, Karl Keith ("Keith"), a 20-year-old student at Westchester Community College who lived with his parents, and Jesse Merkelson ("Merkelson"), his cousin and a 23-year-old college student at Carnegie Mellon University, met in a parking lot with Petitioner-Appellee Blair Garner ("Garner") for the purpose of purchasing ecstasy and cocaine. Within a few hours, Keith had been robbed of thousands of dollars, shot in the head, and left to die in a pool of his own blood in the middle of an unlit, deserted street in North Amityville, New York. Keith thought that he would bleed to death but, remarkably, he survived. Thinking that he was going to die, he told the first responding police officer what he could: namely, he had been shot by Garner, a supposed friend whose wedding he had attended. In a stroke of luck, while the police officer was trying to learn as much as he could about Garner, Garner called Keith and told the police officer (who answered Keith’s phone) that he was "on the parkway[,]" Trial Tr. 317, 331, a damning contemporaneous statement that obliterated Garner’s alibi (both at trial and still today) that he was at home at the time of the shooting.

At Garner’s workplace the next day, a supervising police officer clandestinely observed him on the phone "speaking in urgent tones" and "pleading to the party on the other end." Id. at 655. Garner’s behavior suggested to the supervising officer that Garner "was about to leave [the] building" and that he was "about to leave the Long Island area." Id. Three police officers promptly arrested Garner, recovering (1) thousands of dollars of cash from his car that Garner does not dispute had been placed there temporarily by Keith not long before he was shot, and (2) a portfolio full of collection notices for unpaid bills.

At trial, Keith’s account of the night in question was substantially corroborated by the physical evidence and by the testimony of many other witnesses—including Merkelson, who had been with Keith for many of the key events, and several police officers. In contrast, Garner took the stand in his own defense, claiming incredibly, and without corroboration, to have been home during the relevant period.

Unsurprisingly, given the prosecution’s strong evidence, the jury found Garner guilty of all five counts, including attempted murder, assault, and robbery, after deliberating for only two or three hours. The trial court imposed the maximum sentence and twice described the evidence of Garner’s guilt as "overwhelming." Nov. 21, 2002 Sentencing Tr. at 18; Oct. 12, 2006 Resentencing Tr. at 18. Garner variously filed a direct appeal, petition for a writ of error coram nobis , and collateral attack in state court. All failed. In Garner’s state collateral attack, he alleged that his trial counsel—who, like Keith, attended Garner’s wedding and who had also represented him successfully during a 1997 double murder trial—was constitutionally ineffective. This claim was denied without a hearing. Garner next filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York. The district court (Chen, J. ) granted Garner’s petition, determining that trial counsel’s conduct with respect to certain phone records—including counsel’s failure to obtain the records before trial and to object to their admission at trial—constituted prejudicially deficient performance.

We vacate the district court’s judgment and remand for further proceedings consistent with this opinion. To establish an ineffective assistance of counsel claim under Strickland v. Washington , 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the likelihood of a different result in the absence of the alleged deficiencies in representation "must be substantial, not just conceivable." Harrington v. Richter , 562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ; see also Strickland , 466 U.S. at 693, 104 S.Ct. 2052 ("It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding."). Having carefully reviewed the state court and district court proceedings, we conclude that, given the strong evidence of Garner’s guilt, he has not shown that his defense was constitutionally prejudiced by trial counsel’s conduct even assuming, arguendo , that it was deficient. The district court accordingly erred in granting Garner’s petition.

BACKGROUND

I. Factual Background¹

Garner’s jury trial commenced on October 18, 2002. He stood trial for five counts: (1) attempted murder in the second degree (Count One); (2) assault in the first degree (Count Two); (3) robbery in the first degree (Count Three); (4) criminal use of a firearm in the first degree (Count Four); and (5) criminal possession of a weapon in the second degree (Count Five).

A. The Prosecution’s Case

During the prosecution’s case in chief, Keith testified that he met Garner through a mutual friend, Michael Waring ("Waring"), Keith’s former high school classmate, who worked at the Hempstead car dealership where Garner also worked at the time. As of April 13, 2002, the day of the crime, Keith had known Garner, who he sometimes called "Blizzie" or "Bliz," for about a year and a half. Before the crime, Keith thought that he knew Garner well, having been in contact with him on essentially a daily basis, attended Garner’s wedding, and helped Garner paint his fence.

During April 2002, Keith asked Garner if he could help Keith obtain 2,000 pills of ecstasy for his cousin, Merkelson, and two ounces of cocaine for himself. Neither Keith nor Merkelson had ever participated in a large drug purchase of this sort before, nor had either ever been convicted of a crime. But Keith and his cousin had a plan to sell these drugs for a profit. After some back and forth, it was agreed that Merkelson would pay $8,000 for the ecstasy and also front $1,700 to his cousin for the cocaine, with Keith, whose life was "hectic" during this period, Trial Tr. 466, promising to pay back the $1,700 once Keith had sold the cocaine at Carnegie Mellon, Merkelson’s school. Garner agreed to arrange for the purchase. As of the day before the crime, Keith’s understanding was that he and Merkelson were supposed to go with Garner to buy the drugs, but Keith had no idea where or from whom.

On April 13, 2002, the day of the crime, Garner told Keith that he was coming straight from work and asked Keith if he had the money; Keith replied in the affirmative. Keith testified that the money he brought with him to purchase the drugs was divided into thousand-dollar segments, with each thousand dollar segment separately rubber-banded, the $1,700 for the cocaine separately rubber-banded, and a few rubber bands around the whole $9,700. This testimony was corroborated by Merkelson, who testified at trial that he counted the bills in preparation for the purchase, "rubber-band[ed] it up, and then ... double-check[ed] ... to make sure that all the bunches were correct." Id. at 351. Merkelson used beige, red, and blue rubber bands.

Garner instructed Keith that he should meet him at a McDonald’s parking lot in Long Island. Keith estimated that he and Merkelson met Garner there at around 9:15 p.m.² Garner was driving a blue-green car. Initially, Keith alone entered Garner’s car and spoke to Garner. Then, Merkelson, who had never met Garner, came over and was introduced. Merkelson testified at trial that Garner "appeared somewhat older than us, than like me and my cousin, and that kind of gave me a little bit of a start. ... because what was this older guy doing hanging out with my cousin?" Id. at 363. Garner, who was wearing glasses, "seemed very cold and he didn’t ... talk much at all." Id. Garner had told Keith as Merkelson approached that it would be better if just Keith (and not Merkelson) was present when they went to buy the drugs. Garner said that he had to go home and change out of his business suit, and directed Keith to meet at a second parking lot, near a Home Depot on Long Island. When advised of the change in plans, Merkelson told Keith that he "didn’t think [the change] was such a good idea." Id. at 481. Keith reassured Merkelson that he had known Garner "for a long time," and that he "d[id]n’t think [Garner would] do anything." Id.

Keith and Merkelson proceeded to the second parking lot near the Home Depot. Keith had the money that Merkelson had provided. They arrived before Garner. Keith, who testified that he often spoke to Garner using the walkie-talkie function on his Nextel phone, spoke to him repeatedly that evening while waiting in the parking lot. Instead of driving to where Keith was parked, however, Garner called Keith and told him to find Garner’s car near the Home Depot entrance. Keith left his cousin behind and found Garner, who was now driving a dark red car (a different car than the car that Garner was driving in the first parking lot near the McDonald’s).³ For his part, Merkelson did not see or converse with Garner in the second parking lot, but he testified that Keith was in "pretty much constant contact" with Garner through the walkie-talkie function on Keith’s Nextel phone, and there was "no question in [Merkelson’s] mind" that Keith would be meeting Garner in the second parking lot. Id. at 398. At the conclusion of these walkie-talkie exchanges, Keith left to join Garner, and Merkelson...