Howell v. Superintendent, Fishkill Corr. Ins.
| Decision Date | 27 August 2013 |
| Parties | DONALD HOWELL, DAVID HOWELL, Petitioners-Appellants, v. SUPERINTENDENT, FISHKILL CORRECTIONAL INSTITUTION, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
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At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of August, two thousand thirteen.
Circuit Judges.
FOR PETITIONERS-APPELLANTS:
JONATHAN I. EDELSTEIN, Edelstem &
Grossman, New York, NY.
on the brief), for Charles J. Hynes, District
Attorney, Kings County, Brooklyn, NY.
Appeal from the judgment of the United States District Court for the Eastern District of New York (Brian M. Cogan, Judge), entered January 10, 2012.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that judgment of the District Court, entered January 10, 2012, be AFFIRMED.
Petitioners, the brothers Donald and David Howell, appeal the judgment of the District court denying their respective petitions for writs of habeas corpus. They contend that they were convicted of manslaughter in state court in violation of their Sixth Amendment rights to be confronted with the witnesses against them and to have the effective assistance of counsel. we assume familiarity with the underlying facts and procedural history of this case.
In 2004, after a trial by jury in New York Supreme Court, Kings County, Donald Howell was convicted of manslaughter and David Howell of murder. According to the facts put on at trial, early in the morning of December 24, 2002, Tyrone Dortch was walking down the street with his girlfriend, when he stopped to tie his shoes, leaned against the Howells' car, and set off the car alarm. The Howells came out of their apartment and shot Dortch with a shotgun. Donald's conviction was affirmed on appeal by the Appellate Division, Second Department, though David's conviction was reduced to manslaughter. Notably, the Second Department rejected, on the basis that they had failed to make an appropriate objection before the trial court, both David's and Donald's claims that they had been denied their Sixth Amendment confrontation rights when the trial court permitted an officer to testify as to an identification made by Dortch's girlfriend at the scene of the crime. Leave to appeal was denied by the New York Court of Appeals. The Howells then moved in state court, pursuant to New York's Criminal Procedure Law § 440.10,1 to vacate their sentences on the ground that their respective attorneys provided constitutionally ineffective assistance. That relief was denied.
The Howells next brought petitions for writs of habeas corpus in the District Court, pursuant to 28 U.S.C. § 2254,2 arguing both that their rights under the Confrontation Clause were violated and that they received constitutionally ineffective assistance of counsel. The District Court held (1) that their Confrontation Clause claims were procedurally barred; and (2) that their ineffective assistance of counsel claims failed on the merits. The Howells now appeal, and we review de novo a district court's ruling on a petition for a writ of habeas corpus, Corby v. Artus, 699 F.3d 159, 166 (2d Cir. 2012).
We "'will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that is independent of the federal question and adequate to support the judgment,'" Downs v. Lape, 657 F.3d 97, 101 (2d Cir. 2011) (quoting Cone v. Bell, 556 U.S. 449, 465 (2009)), lest we risk "ignor[ing] the State's legitimate reasons for holding the prisoner," Coleman v. Thompson, 501 U.S. 722, 730 (1991). The Second Department refused to consider the Howells' Confrontation Clause claims on direct appeal due to their failure to raise the issue before the trial court, in violation of New York's so-called contemporaneous objection rule. Under the contemporaneous objection rule, a party fails to preserve an issue for appeal if he or she does not "object to what he or she believes is a legal error in a trial court's ruling or instruction 'at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.'" Gutierrez v. Smith, 702 F.3d 103, 110 (2d Cir. 2012) .3
The District Court held that the Second Department's reliance on the contemporaneous objection rule constitutes an independent and adequate state-law ground to support the judgments at issue here. Substantially for the reasons stated in the District Court's clear and comprehensive Memorandum Decision and Order of January 9, 2012, we agree. The Howells argue that the contemporaneous objection rule is not an adequate state-law ground here because (1) the rule is not "firmly established and regularly followed," Walker v. Martin, 131 S. Ct. 1120, 1127 (2011), when defendants who failed to raise a Confrontation Clause claim at a trial that occurred before the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 68 (2004),4 seek to raise a claim under Crawford on appeal; and (2) the procedural bar was removed when the state court reached the merits of the Confrontation Clause claim in addressing the motions under Criminal Procedure Law§ 440.10, see Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) ().
Neither contention is convincing. First, as the District Court aptly explained, New York courts do regularly refuse to consider Confrontation Clause claims brought on appeal after Crawford where the defendant failed to raise a Confrontation Clause challenge contemporaneously at his pre-Crawford trial. See Special App'x 6-7; see also, e.g., People v. Drummond, 824 N.Y.S.2d 126, 126 (2d Dep't 2006); People v. Lopez, 808 N.Y.S.2d 648, 649 (1st Dep't 2006). That the Howells have identified a lone case from one Department of the Appellate Division (the Third Department) deviating from this rule does not undermine the conclusion that the rule is firmly established and regularly followed. See Downs, 657 F.3d at 103 ().
Second, we agree with the District Court that, in ruling on the § 440.10 motions, the state court did not reach the merits of the Confrontation Clause claim. Rather, the § 440.10 court merely explained that it did not believe that the Howells' trial attorneys were deficient for not raising a Confrontation Clause claim because such a claim was unlikely to succeed. See Special App'x 10; Joint App'x 394. We fail to see how this statement has anything to do with whether the state court denied the Confrontation Clause claims on the basis of an independent and adequate state-law ground. If the § 440.10 court had found some merit to the Howells' Confrontation Clause claims, it is conceivable that the court would have vacated their convictions because their trial attorneys were constitutionally ineffective for failing to raise an objection at trial based on the Confrontation Clause. But the court would certainly not have vacated the Howells' convictions based on violations of their Confrontation Clause rights, which were not the subject of the § 440.10 proceedings. There is no ambiguity that the Second Department denied the Confrontation Clause claims based on the Howells' failure to make a timely objection before the trial court. See Harris v. Reed, 489 U.S. 255, 261-62 (1989). Whether the Howells' attorneys were ineffective for failing to lodge that objection is a distinct question, and it was only on that issue that the state court rendered a decision on the merits.
Finally, the Howells argue that their failure to raise the Crawford objection at trial should be excused because they have shown cause and prejudice. See, e.g., Walker, 131 S. Ct. at 1127 (). We need not decide whether the fact that Crawford was decided only after the Howell's trial satisfies the cause requirement. See, e.g., Reed v. Ross, 468 U.S. 1, 17 (1984) (). Even assuming it weresufficient, the Howells have failed to demonstrate prejudice by showing "a reasonable probability that the result of the trial would have been different" if the identification had been excluded. Strickler v. Greene, 527 U.S. 263, 289 (1999) (citation and internal quotation marks omitted). Although the prosecution mentioned the identification of the Howells once in its summation, it primarily relied on other, overwhelming evidence of their guilt: The Howells matched the description of the shooters; the victim bumped into their...
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