Lyons v. Graham, 15-CV-1246 (ERK)

• Decision Date: 10 August 2018
• Docket Number: 15-CV-1246 (ERK)
• Parties: RICARDO LYONS, Petitioner, v. HAROLD GRAHAM, Respondent.
• Court: U.S. District Court — Eastern District of New York

RICARDO LYONS, Petitioner, v. HAROLD GRAHAM, Respondent.

15-CV-1246 (ERK)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 10, 2018

NOT FOR PUBLICATION

MEMORANDUM & ORDER

KORMAN, J.:

As a criminal trial would later reveal, one evening in 2002, in a house in Far Rockaway, Queens, an argument arose among three of the residents—Wright; Peynado; and petitioner, Ricardo Lyons. Trial Transcript ("T") 613-16, 834, 841. Yelling quickly turned to worse, and Wright shot Peynado in the face. T772-76. Peynado still tried to escape, but as he did, Lyons caught him in a bear hug in front of the house. T960-62. Lyons held Peynado's hands behind his back while Wright approached and shot Peynado in the head a second time. T962-63. Wright then went back inside and came out with two shirts, which he and Lyons changed into. T780-81, 963. They ran off together while, from the window, Peynado's daughter watched her father lie dying in the street. T781, 964.¹

Wright's whereabouts are unknown. But police found Lyons two years later using an alias in Columbus, Ohio, and brought him back to Queens for a jury trial. T1003-07. Although he did not call witnesses or testify himself, T1193, 1195-96, Lyons suggested the defense, based on a statement he had made to police when arrested, that he had never shared Wright's intent to kill, T614-15, 1237-38. Rather, according to Lyons, Peynado had been going outside to his car where Lyons believedPeynado kept his own gun. So Lyons restrained Peynado not to help Wright kill, but only to protect himself from being shot by Peynado. As the statement said:

[Peynado] came to the house and started an argument basically saying that we should leave today in a very violent tone as if he was ready to get his gun. ... [Wright] went and fired a shot at [Peynado] and it caught him in the face and he ran outside toward his car as if he was going to get his gun. So I ran behind him and held on to him. Next thing I saw [Wright] coming out and [Wright] fired another shot that hit [Peynado] in the head killing him.

T1028-29.

The jury didn't buy it. Lyons was convicted of second-degree murder and is now serving an indeterminate sentence of seventeen to life. T1380. New York state courts rejected a direct appeal and a post-conviction petition alleging ineffective assistance of appellate counsel. See People v. Lyons, 94 A.D.3d 1020 (2d Dep't 2012), leave to appeal denied, 19 N.Y.3d 975 (2012); People v. Lyons, 113 A.D.3d 797 (2d Dep't 2014), leave to appeal denied, 24 N.Y.3d 1003 (2014), reconsideration denied, 26 N.Y.3d 931 (2015). Lyons now timely petitions this court for a writ of habeas corpus based on seven purported grounds of constitutional error. See 28 U.S.C. § 2254. These grounds all concern either Lyons's rejected defense or a quirk of the trial—that the court never swore in the venire panel.

LEGAL STANDARD

Because all Lyons's arguments are legal rather than factual, I can grant relief only if the state court adjudications "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." Id. at § 2254(d)(1). This means that I cannot grant relief if "fairminded jurists could disagree [about whether the state courts' arguments] are inconsistent with the holding in a prior decision of" the Supreme Court. Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)). It also means that I usually cannot grant relief if the state court decisions turned on "independent and adequate state procedural grounds." Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Coleman v. Thompson, 501 U.S. 722, 730 (1991)).

ANALYSIS

I. The venire oath

Lyons's first point is that the trial court conducted voir dire without putting the prospective jurors under oath. Pet. 6-7.² Under New York law, once prospective criminal jurors are called, they "shall be immediately sworn to answer truthfully questions asked them relative to their qualifications to serve as jurors." N.Y. Crim. Proc. Law § 270.15(1)(a).³ For whatever reason, very likely oversight, that did not happen during Lyons's trial. Once the prospective jurors were called, the judge began questioning them immediately. T179-82.⁴ Lyons is surely right that if no oath was given, it was an error under New York law. But his trial counsel never objected, so the Appellate Division deemed the claim forfeited when Lyons's appellate counsel raised it on direct appeal. Lyons, 94 A.D.3d at 1020.

Even if I ignore the preservation problem, see Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011), a state-law error alone does not entitle a habeas petitioner to relief. The error must also clearly arise under the Constitution. 28 U.S.C. § 2254(d)(1). And—although mistakes do happen—it has not been clearly established by the Supreme Court that the Constitution prohibits the error here. Lyons cites no Supreme Court case saying so, see Pet. 6-7, 105-13; Reply 1-8, nor has my own research uncovered one. Granted, the Supreme Court has held that, in specific circumstances such as capital cases, voir dire must include certain specific questions if requested. See Morgan v. Illinois, 504 U.S. 719, 729-31 (1992). But, if anything, hundred-year-old Supreme Court precedent strongly suggests that at least the form of a venire oath is a matter of state law alone. See Baldwin v. Kansas, 129 U.S. 52, 54-57 (1889) (petit jury oath); see also Theard v. Artus, 2012 WL 4756070, at *12-13 (E.D.N.Y. Aug. 27, 2012), R&R adopted,2012 WL 4757897 (E.D.N.Y. Oct. 4, 2012) (venire oath); McLeod v. Graham, 2010 WL 5125317, at *2, *6 (E.D.N.Y. Dec. 9, 2010) (venire oath); Gaskin v. Graham, 2009 WL 5214498, at *27-28 (E.D.N.Y. Dec. 30, 2009) (venire oath). Indeed, Lyons's appellate counsel (in a letter that Lyons attached to his petition) explained this seven years ago: "[the] violation does not implicate a federal constitutional claim and therefore would not be able to be presented as such in a federal habeas petition." Pet. 130.

I also note that a thorough Tenth Circuit opinion recently deemed the question whether the Constitution requires a sworn jury—surely at least as important as sworn prospective jurors—an issue "of first impression in the federal courts." United States v. Turrietta, 696 F.3d 972, 981 (10th Cir. 2012). "[A]ware of no binding authority, whether in the form of a constitutional provision, statute, rule, or judicial decision, addressing whether the Sixth Amendment right to trial by jury necessarily requires the jury be sworn," id., the Tenth Circuit explicitly left the question open because, regardless, the issue was treated as forfeited and any error was not plain, id. at 973-74. By extension, the failure here to swear in prospective jurors is also not clearly established as constitutional error.

II. Assistance of appellate counsel

On top of challenging the missing oath directly, Lyons also raises a related, but somewhat complicated, ineffective-assistance claim. Pet. 12-13, 123-28. By the time of his direct appeal, Lyons had concluded that his trial counsel was ineffective for not objecting to the missing oath. Id. at 130-32. He wanted his new, appellate counsel to say so. But appellate counsel did not raise that argument. So Lyons now claims that his appellate counsel was ineffective—for failing to argue that his trial counsel was ineffective.⁵ The Appellate Division rejected this argument when Lyons presented it, in a petition for a writ of error coram nobis. Lyons, 113 A.D.3d at 797.

In federal habeas petitions, ineffective-assistance challenges are exceedingly difficult. First, counsel must have performed deficiently, causing prejudice. Strickland v. Washington, 466 U.S. 668, 700 (1984). Deficient performance means that "the identified acts or omissions were outside the wide range of professionally competent assistance." Id. at 690. Then, this "'highly deferential' look at counsel's performance" is itself examined "through the 'deferential lens of'" the federal habeas statute, which requires that errors be clearly established. Cullen, 563 U.S. at 190 (quoting Strickland, 466 U.S. at 689, and Knowles v. Mirzayance, 556 U.S. 111, 121 n.2 (2009)).⁶

Particularly under this standard, Lyons's ineffective-assistance claim fails. Appellate counsel and Lyons discussed raising the missing oath; they just had a strategic disagreement about how to raise it. Appellate counsel chose a direct challenge only and argued that the missing oath was a "mode of proceedings error" such that no objection at trial was required. He explained his thinking in another letter that Lyons attached to his habeas petition:

I have raised the failure to swear the jury as a "mode of proceedings" error that does not require an objection to preserve because I must, since there was no objection by your trial counsel to this error. The Court can agree, in which case, no objection is required to preserve the issue. The Court can disagree, ruling that the issue is unpreserved, and decline to address the issue because it was not preserved. Finally, the Court can find that the issue was not preserved however address it anyway, in the Court's interests of justice jurisdiction (which allows, but does not require, consideration of unpreserved legal issues).

We could argue that to the extent preservation is required and trial counsel did not preserve it, that omission constituted ineffective assistance. I am reluctant to raise this argument because is [sic] there is no chance we will prevail on a claim that this was ineffective assistance, it does not improve our chances to [sic] of success on the non-swearing of the panel issue, and it would not form the basis for a federal habeas claim later.

Pet. 132.

This is precisely the sort of "strategic choice[] made after thorough investigation of law and facts" that is "virtually unchallengeable." Strickland, 466 U.S. at 690. "[A]ppellate cou...