Henry v. Scully

• Citation: 918 F. Supp. 693
• Decision Date: 14 July 1995
• Docket Number: No. 91 CIV. 7632.,91 CIV. 7632.
• Parties: Hugh HENRY, Petitioner, v. Charles J. SCULLY, Superintendent, Green Haven Corr. Facility, and Robert Abrams, Attorney General, State of New York, Respondents.
• Court: U.S. District Court — Southern District of New York

918 F. Supp. 693

Hugh HENRY, Petitioner, v. Charles J. SCULLY, Superintendent, Green Haven Corr. Facility, and Robert Abrams, Attorney General, State of New York, Respondents.

No. 91 CIV. 7632.

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

July 14, 1995.

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Mark B. Gombiner, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York City, for petitioner.

Monica R. Jacobson, Assistant Attorney General, State of New York Law Department, New York City, for respondents.

OPINION & ORDER

KIMBA M. WOOD, District Judge.

Hugh Henry petitioned this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 12, 1991, and on November 29, 1991, the petition was referred to Magistrate Judge Gershon for a Report and Recommendation ("Report"). On April 25, 1995, the Magistrate Judge issued the attached Report, recommending that I grant the petition. Counsel for respondent timely filed objections to the Report, and petitioner filed a brief response to respondents' objections. Having undertaken a de novo review of the Report and of respondents' objections, I adopt Magistrate Judge Gershon's thorough and well-reasoned Report.

I. Discussion

Although petitioner raised several claims of constitutional error, the Magistrate Judge accepted only one: that the performance of petitioner's attorney at trial violated petitioner's Sixth Amendment right to effective assistance of counsel. In particular, the Magistrate Judge found deficient the attorney's failure to object to the admission into evidence against petitioner of his co-defendant's confession, and his subsequent failure either to object to the prosecutor's reliance on this statement in his summation, or to request a limiting instruction as to the jury's use of the co-defendant's statement against petitioner. (Report at 37-38).¹

While there is no per se rule that this particular type of trial error — that is, the failure to contend adequately with incriminating statements made by a co-defendant — automatically constitutes an error of constitutional magnitude, a review of the record in this case shows that counsel's failure both fell below an objective standard of reasonableness, and prejudiced the petitioner's defense such that there is a reasonable probability the outcome would have differed in the absence of the unprofessional error. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2582-83, 91 L.Ed.2d 305 (1986) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984)).

With respect to the "objective incompetence" prong, I note that although the Supreme Court has cautioned that "judicial scrutiny of counsel's performance must be highly deferential," Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65, Magistrate Judge Gershon properly found it impossible to conclude that petitioner's counsel's omissions in this case were merely tactical decisions, given that the co-defendant's hearsay statement implicating petitioner, if believed by the jury, was devastating to petitioner's claim of innocence. The oversights were particularly prejudicial when compounded with other egregious errors made by counsel, including his failure to object to hearsay testimony offered by Detective Palmieri (Tr. at 192), and his failure to request a missing witness charge regarding the absence of the confidential informant at trial. (Report at 43.)

With respect to the prejudice prong, I agree with the Magistrate Judge that the admission of the co-defendant's statement was disastrous to petitioner's defense: it provided highly prejudicial evidence, that, contrary to petitioner's claim, he and his co-defendant were acquainted, and that petitioner was in the vicinity of the "buy and bust" operation not for innocent reasons, but rather, because he was actively involved in the sale of narcotics. (Tr. at 487-88). See generally Bruton v. United States, 391 U.S. 123, 136, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476 (1968) (describing in detail prejudice suffered by defendant when co-defendant's testimony is admitted against defendant at joint trial).

II. Conclusion

Because I agree with Magistrate Judge Gershon that petitioner has shown both that counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, see Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, I find that petitioner has established a constitutional claim for ineffective assistance of counsel. Accordingly, I adopt the Magistrate Judge's Report in full, and order petitioner's writ of habeas corpus granted. Respondent is directed either to release petitioner from custody, or to retry him within ninety days of this order.

SO ORDERED.

REPORT AND RECOMMENDATION

GERSHON, United States Magistrate Judge:

Hugh Henry seeks, by this petition for a writ of habeas corpus under 28 U.S.C. § 2254, an order vacating a judgment of conviction imposed on July 28, 1981, after a jury trial, by the Supreme Court of the State of New York, New York County (Alexander, J.), for one count of the sale of a controlled substance, first degree, and one count of possession of a controlled substance, first degree, in violation of New York Penal Law §§ 220.43 and 220.21. His co-defendant, Conrad Taylor, was convicted of the same charges. Both were sentenced to concurrent prison terms of from 15 years to life.

PROCEDURAL BACKGROUND

Petitioner appealed his conviction, and, on May 19, 1983, the Appellate Division, First Department, unanimously affirmed petitioner's conviction without opinion. 94 A.D.2d 983, 463 N.Y.S.2d 665 (1st Dept.1983). Leave to appeal to the Court of Appeals was denied on June 24, 1983. 59 N.Y.2d 973, 466 N.Y.S.2d 1034, 453 N.E.2d 558 (1983). Reconsideration was denied by Order dated November 9, 1983. 60 N.Y.2d 967, 471 N.Y.S.2d 1034, 459 N.E.2d 200 (1983). Henry apparently filed a pro se motion to vacate the judgment in 1983. (While Henry, on this petition, claims he never filed such a motion, he acknowledged that he had done so in a letter dated August 5, 1985, requesting the rehearing of the denial of his 1985 motion, described below).

In 1985, petitioner moved under Section 440.10 of the New York Criminal Procedure Law ("CPL") to set aside his conviction. By Order dated July 22, 1985, Justice Brenda Soloff denied this motion both on a procedural ground and on the ground that petitioner's claims were meritless.¹ Leave to reargue was denied by Order dated August 20, 1985. Leave to appeal to the Appellate Division was denied by Order dated November 19, 1985. No. M-5539, (1st Dept. Nov. 19, 1985).

In 1990, petitioner filed a petition for a writ of error coram nobis, claiming that appellate counsel had been ineffective in arguing the ineffectiveness of petitioner's trial counsel. This petition was denied by the Appellate Division by Order dated May 3, 1990. No. M-593, 1990 N.Y.App.Div. LEXIS 5178 (1st Dept. May 3, 1990).

Petitioner then filed a motion to vacate his conviction pursuant to Section 440.10, arguing that he was denied effective assistance of counsel. This motion was denied by Justice George F. Roberts in an Order dated June 11, 1990, which cites as the bases for denial Section 440.10(2)(a) (issue previously determined on the merits on direct appeal) and 440.10(3)(b) (issue previously determined on the merits upon a prior motion or proceeding other than an appeal). That is, Justice Roberts, in 1990, concluded that the motion before him was procedurally barred, on the ground that Henry's claims had previously been decided on the merits. Leave to appeal to the Appellate Division, was denied by Order dated October 9, 1990. No. M-4205, 1990 N.Y.App.Div. LEXIS 11868 (1st Dept. Oct. 9, 1990).

EXHAUSTION

The federal habeas corpus statute, 28 U.S.C. § 2254, requires that a state prisoner seeking federal review of his conviction first exhaust his available state remedies. A petitioner must have "fairly presented" his federal claim to the highest state court from which a decision can be had. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); see Daye v. Attorney General of the State of New York, 696 F.2d 186, 190 n. 3 (2d Cir.1982) (en banc). That is, he must have set forth in the state courts all the essential factual allegations he relies upon in this court, (Daye, 696 F.2d at 191-92), and he must have set forth in the state courts the federal constitutional legal theories upon which he relies in this court. Duncan v. Henry, ___ U.S. ___, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995).

Respondent concedes that petitioner's claims have been exhausted. Independent review of each of the claims made here reveals that Henry has presented the identical claims, in the same federal constitutional terms, to the New York courts, either on direct appeal or on one of his collateral challenges to the conviction.

SUMMARY OF EVIDENCE AT TRIAL

The People's Case

The People called six witnesses: New York City Police Detective Salvatore Palmieri, Police Officer Richard Ford, Police Officer Santiago Martinez, Police Officer Robert Lamirata, Police Chemist Richard D. Karasiewski, and Special Agent Donald Abrams of the Drug Enforcement Administration ("DEA").

Detective Palmieri testified that, on March 24, 1980, after receiving a telephone call from a confidential informant, he set up an undercover "buy and bust" operation. The undercover team with whom Palmieri planned the operation consisted of Detective Lamirata, Special Agent Donald Abrams, Police Officer Richard Ford, Special Agent Joseph Braddock, and Special Agent Thomas Fekete. The informant met with the team on March 24, 1980, at approximately 5:30 p.m. "Buy" money in the amount of $20,000 was provided. At 6:30 p.m., the team members left...