Lively v. Royce
| Decision Date | 10 December 2021 |
| Docket Number | 19-CV-6844L |
| Citation | 575 F.Supp.3d 344 |
| Parties | Devonte S. LIVELY, Petitioner, v. Mark ROYCE, Superintendent of the Green Haven Correctional Facility, Respondent. |
| Court | U.S. District Court — Western District of New York |
Brian Shiffrin, Easton Thompson Kasperek Shiffrin, LLP, Rochester, NY, for Petitioner.
Priscilla I. Steward, New York State Attorney General's Office, New York, NY, for Respondent Mark Royce.
DECISION AND ORDER
Petitioner Devonte S. Lively ("Lively"), through counsel, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his June 13, 2013 conviction in New York Supreme Court, Monroe County for murder in the second degree, N.Y. Penal L. § 125.25(1). Respondent has filed a response in opposition to the petition.
Early in the morning of March 25, 2012, Karen Snipes called the Rochester, N.Y. Police Department ("RPD") to report that her daughter, 17-year-old Larie Butler, was missing. Snipes stated that Butler had called her the previous afternoon to ask permission to go to the mall with Lively, and that Snipes gave her permission, but that Butler was supposed to return home that evening.
When Butler did not return home, Snipes went to Lively's house at 18 Danforth Street in Rochester. Lively told her that while he was with Butler, she received a text message from someone, and that at Butler's request he dropped her off at the corner of East Main and Ohio Streets in Rochester.
A police officer went to Lively's home and spoke to him. Lively told the officer that after dropping off Butler on East Main Street, he drove alone to his grandmother's house at 174 Dorington Road in Irondequoit, a suburb of Rochester.
Police investigators contacted the service provider for Butler's cell phone and obtained the historical cell site location data ("CSLI") for her phone. That data showed that she had made some calls to Lively's phone between 5:23 p.m. and 5:54 p.m. on March 24, and that she called another person at 7:06 p.m. The CSLI for that last call was consistent with her being in the area of Dorington Road, but not near East Main Street.
On March 25, RPD Officer Aaron Eyrich went to 174 Dorington Road. No one answered the door. He then went over to a green garbage tote next to the house, opened it, and saw inside it a torn black bag. Through the hole created by the tear (which he spread open to see better), Eyrich saw an orange sweatshirt with what appeared to be blood stains.
Other officers at the scene observed the backing of a cell phone and a cell phone battery in the front yard of the home. The officers secured the scene and obtained a warrant to search the tote and seize the phone parts, which were later identified by Butler's family as being from her cell phone.
On March 27, police investigators obtained information about Lively's cell phone from his service provider. That information showed at on March 24, at 10:14 p.m., a text message was sent from that phone to a phone registered to Todd Douglass, reading, "Yall got n e rthing [sic] 2 clean up blood out a rug." A response was received at 10:20 stating, "I think so bt I dnt got no way 2 get it." At 10:25, another text was sent to Douglass from Lively's phone reading, "Fck well u kno a hood mixture." The phone data also showed that Lively's phone was active at around the same time as Butler's last call at 7:06 p.m., and that both phones were in the same vicinity on or near Dorington Road (which tended to contradict Lively's statements that he had dropped Butler off on East Main Street a short time earlier).
The police then obtained a second warrant, this time to search the premises both at Lively's house on Danforth Street and his grandmother's house on Dorington Road. The police searched the Dorington Road residence on the morning of March 29. The officers found apparent blood stains, a piece of an artificial fingernail, and a "drag mark" on a carpet inside the house.
Suspecting that Butler's body might be somewhere nearby, the officers noticed that the house next door had a swimming pool with a cover on it. They searched the pool (apparently with the homeowner's consent) and discovered Butler's body. An autopsy revealed that the cause of her death was multiple stab wounds and blunt force injury to the head
.
Lively was then charged with murder. Prior to trial, Lively's lawyer moved to suppress physical evidence seized from 174 Dorington Road pursuant to the search warrants, and the trial court denied the motion, primarily due to Lively's lack of standing as to his grandmother's house. Trial counsel also moved to suppress the CSLI obtained from Lively's phone without a warrant, and the trial court denied the motion, largely on the ground that it was untimely filed.
The case went to trial, and Lively was convicted upon a jury verdict of murder in the second degree. The conviction was affirmed by the Appellate Division, Fourth Department, 163 A.D.3d 1466, 82 N.Y.S.3d 671, and the New York Court of Appeals denied leave to appeal, People v. Lively , 32 N.Y.3d 1065, 89 N.Y.S.3d 120, 113 N.E.3d 954 (2018).
Lively filed his habeas corpus petition in this Court on November 15, 2019. He asserts a single ground for relief, ineffective assistance of counsel, based on several alleged failures and errors by his trial attorney.
At the outset, certain principles must be kept in mind. First, in reviewing state criminal convictions in a federal habeas corpus proceeding, a federal court does not sit as a super-appellate court, to decide matters of state law. See Estelle v. McGuire , 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). That long-established principle was reinforced by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, when a claim has been adjudicated on the merits in state court, federal courts must give deference to the state courts’ findings and conclusions. On questions of pure fact, "[s]tate court fact-findings, if fairly made, are accorded a presumption of correctness unless the objecting party rebuts the presumption by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). On "mixed" questions involving both factual findings and conclusions of law, federal habeas corpus relief is available only if the state court proceeding: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). That standard poses "a formidable obstacle to habeas relief ...." Clark v. Noeth , 351 F.Supp.3d 369, 371 (W.D.N.Y.), appeal dismissed , 2019 WL 7876471 (2d Cir. 2019).
Where a state court rejects a petitioner's habeas claim on the merits, then, "the federal court must ‘focus its review on whether the state court's ultimate decision was an ‘unreasonable application’ of clearly established Supreme Court precedent.’ " Aparicio v. Artuz , 269 F.3d 78, 94 (2d Cir. 2001) (quoting Sellan v. Kuhlman , 261 F.3d 303, 311-12 (2d Cir. 2001) ) (additional citations omitted). "A state court decision slips into the ‘unreasonable application’ zone ‘if the state court identifies the correct governing legal principle from [the Supreme Court's] decision but unreasonably applies that principle to the facts of the prisoner's case.’ " Id. (quoting Williams v. Taylor , 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ) (modification in original). To meet that standard, it is not enough that this Court may have decided the question of law differently; rather, to deem habeas relief appropriate, the state court's application must demonstrate some additional "increment of incorrectness beyond error." Francis S. v. Stone , 221 F.3d 100, 111 (2d Cir. 2000).
As stated, all of petitioner's grounds for relief are based on the allegedly ineffective performance rendered to him by his trial attorney. To prevail on such a claim, a habeas petitioner must demonstrate both that "counsel's representation fell below an objective standard of reasonableness" and that he suffered actual prejudice as a result, i.e. , that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington , 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This two-part test imposes a heavy burden on one claiming ineffective assistance of counsel. Both prongs must be established to warrant relief. Id.
In determining whether the test has been met, the court "must apply a ‘strong presumption’ that counsel's representation was within the ‘wide range’ of reasonable professional assistance." Harrington v. Richter , 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ). As such, "decisions which fall squarely within the ambit of trial strategy ... if reasonably made, will not constitute a basis for an ineffective assistance claim." United States v. Nersesian , 824 F.2d 1294, 1321 (2d Cir. 1987). The court must also bear in mind that the Strickland standard "does not guarantee perfect representation, only a reasonably competent attorney." Harrington , 562 U.S. at 110, 131 S.Ct. 770 (internal quotation marks and citations omitted).
A habeas petitioner presenting a claim of ineffective assistance of counsel "faces an additional hurdle: the high standard of deference that this Court owes to the state court's finding that he received constitutionally adequate assistance." Rupert v. Noeth , 510 F.Supp.3d 3, 7 (W.D.N.Y. 2020) (citing Winfield v. Dorethy , 956 F.3d 442, 451 (7th Cir. 2020) ). He would have to show not...
To continue reading
Request your trial