Mingo v. Artuz

• Decision Date: 05 April 1999
• Docket Number: No. 1390,D,1390
• Parties: Gregory MINGO, Petitioner-Appellant, v. Christopher ARTUZ, Supt. Greenhaven Corr. Facility, Respondent-Appellee. ocket 97-2462.
• Court: U.S. Court of Appeals — Second Circuit

Page 73

174 F.3d 73

Gregory MINGO, Petitioner-Appellant, v. Christopher ARTUZ, Supt. Greenhaven Corr. Facility Respondent-Appellee.

No. 1390, Docket 97-2462.

United States Court of Appeals Second Circuit.

Argued March 20, 1998.

Decided April 05, 1999.

Philip L. Weinstein, The Legal Aid Society, New York, N.Y., for Petitioner-Appellant.

Cheryl Hone, Assistant District Attorney, Kew Gardens, N.Y. (Richard A. Brown, District Attorney, Queens County, and John M. Castellano, Assistant District Attorney, Kew Gardens, N.Y., Of Counsel), for Respondent-Appellee.

Before: JACOBS, LEVAL, and GIBSON, ^* Circuit Judges.

LEVAL, Circuit Judge:

Petitioner Gregory Mingo appeals from an order of the United States District Court for the Eastern District of New York (Johnson, District Judge ) denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mingo contends that his Sixth Amendment right of confrontation was violated at trial, but concedes that his appellate counsel's failure to raise the issue on direct appeal resulted in procedural default. He contends that the cause for the default was either that his Confrontation Clause claim did not reasonably exist in the New York courts at the time of the direct appeal, or that his appellate counsel was ineffective in failing to raise it. We vacate the judgment of the district court and remand for consideration of (i) whether Mingo's rights under the Confrontation Clause were violated by the receipt against Mingo of hearsay testimony of a codefendant's implication of Mingo, (ii) whether Mingo forfeited this claim by failing to raise it on his direct appeal, and (iii) whether any violation of Mingo's rights under the Confrontation Clause substantially and injuriously affected the jury's verdict so as to require vacating the conviction.

BACKGROUND

Mingo, Willie Holmes, and Susan King were charged in 1981 with the September 1980 robbery and murder of James Parker and Karen Sheets. King cooperated with the People and became a witness against Mingo and Holmes.

The People's evidence included testimony by Paul Perry to the effect that Holmes had told him how he and Mingo murdered Parker and Sheets. The evidence also included King's testimony that Mingo had told her how he and Holmes had murdered Parker and Sheets.

The cases of Mingo and Holmes were consolidated for trial. Id. Mingo moved for a severance under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), to avoid prejudice from the receipt of admissions by Holmes that implicated Mingo. The trial court denied the motion on the basis of New York's "interlocking confessions" doctrine as stated in People v. Berzups, 49 N.Y.2d 417, 426 N.Y.S.2d 253, 402 N.E.2d 1155 (1980), and People v. McNeil, 24 N.Y.2d 550, 301 N.Y.S.2d 503, 249 N.E.2d 383 (1969). Because Holmes's admissions mirrored the admissions by Mingo, the trial judge found that the potential prejudice resulting from Mingo's jury hearing Holmes's admissions (implicating Mingo) was overcome. See Transcript of Hearing of August 31 and September 1, 1992, ("Hearing") at 3-4. Prior to trial Mingo objected to the receipt against him of Holmes's admissions. See Hearing at 4-6. The trial judge denied the motion, ruling that the testimony would be received against Mingo.

A first joint trial ended in a hung jury for both defendants. At the second joint trial, Mingo and Holmes were convicted of murder, robbery, and related crimes.

On direct appeal, Mingo did not raise the issue of the receipt of Holmes's hearsay declaration. His contentions were that the second trial had placed him in double jeopardy, that trial counsel was constitutionally ineffective, and that the trial court should have not polled the first divided jury to determine the division of voting. The Appellate Division affirmed his conviction without opinion, see People v. Mingo, 101 A.D.2d 1031, 475 N.Y.S.2d 964 (2d Dep't 1984), and the Court of Appeals denied his application for leave to appeal. See People v. Mingo, 63 N.Y.2d 948, 483 N.Y.S.2d 1031, 473 N.E.2d 48 (1984).

About three years later, the Supreme Court decided Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), in which it rejected New York's "interlocking confessions" exception to Bruton. Id. at 193, 107 S.Ct. at 1719. In February 1993, relying on Cruz, Mingo moved in the New York Supreme Court, Queens County, to set aside his conviction on the ground that the exposure of his jury to Holmes's declaration at the joint trial violated his rights under Bruton. The motion was denied on the ground that the claim was procedurally barred by Mingo's failure to raise it on direct appeal. The Appellate Division denied leave to appeal. Mingo then petitioned the Appellate Division for a writ of error coram nobis, claiming ineffective assistance of counsel on his direct appeal. The Appellate Division denied Mingo's application, and the Court of Appeals denied Mingo's application for leave to appeal.

On September 20, 1994, Mingo petitioned the district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, contending that the admission of Holmes's declaration against him in his trial violated his confrontation right and that his counsel's failure to raise this issue on direct appeal constituted ineffective assistance. The district court denied the petition but certified appealability. The court found Mingo's failure to bring a Bruton claim on direct appeal was not excused by cause. It reasoned that, while the failure of counsel to raise the Bruton issue on direct appeal fell below an "objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), there was no prejudice because raising the issue would not have changed the result of the appeal under New York's interlocking confessions rule. Mingo v. Artuz, 1997 WL 285024 at * 5-6 (E.D.N.Y. May 22, 1997).

DISCUSSION

We remand for reconsideration. Perhaps because Mingo was acting pro se at the time, the district court failed to focus on the key claim raised in his petition. Based on Mingo's pro se presentation to the district court, the district judge believed the issue involved the problem considered in Bruton, the New York interlocking confession cases, and Cruz--that is: the prejudice to a defendant arising from the receipt in a joint trial of a non-testifying codefendant's confession solely against the codefendant, where the confession also implicates the defendant. Bruton ruled that, in these circumstances, instructions to the jury limiting its consideration of the confession to the case of the confessing codefendant were incapable of protecting the defendant from prejudice. See 391 U.S. at 126, 88 S.Ct. at 1622. The New York interlocking confession cases ruled that the prejudice found in Bruton would not occur if the codefendant's statements implicating the defendant were mirrored by the defendant's own confession; thus, in New York, each confession could be received in the joint trial against the defendant whose confession it was, with proper limiting instructions. See, e.g., People v. McNeil, 24 N.Y.2d 550, 552-53, 301 N.Y.S.2d 503, 504, 249 N.E.2d 383 (1969). Finally, however, in Cruz the Supreme Court rejected New York's interlocking confession exception to Bruton, ruling that, notwithstanding the defendant's own interlocking confession, limiting instructions were incapable of protecting him from the prejudice resulting from his codefendant's confession implicating him. See Cruz, 481 U.S. at 191-93, 107 S.Ct. at 1717-19.

In response to the State's contention that Mingo forfeited the Bruton claim by failing to raise it on his direct appeal, Mingo argues that the failure was excused either because New York's adherence to the interlocking confessions exception deprived him of any remedy for his Bruton claim at the time of his direct appeal, or because his counsel's failure to raise the Bruton claim on direct appeal constituted ineffective assistance.

In our view, however, the key issue raised by Mingo's petition was slightly but significantly different from the issue on which the district court ruled. At trial, Holmes's declaration was received not only against Holmes, but also against Mingo. Consistent with that ruling, no limiting instructions were given. The constitutional issue that arose from Mingo's trial was therefore not whether, in the interlocking confession situation, limiting instructions were adequate to protect the defendant from the receipt of the non-testifying codefendant's confession solely against the codefendant. It was a much simpler issue: whether Mingo's rights under the Confrontation Clause were abridged by the receipt of Holmes's declaration against Mingo, where Mingo had no opportunity to cross- examine Holmes. Mingo's habeas corpus petition raises this issue.

This was not the problem considered in Bruton, in the New York interlocking confession cases, or in Cruz. The New York interlocking confessions doctrine did not authorize such admission of one defendant's confession as evidence against another defendant. See, e.g., People v. McNeil, 24 N.Y.2d at 552, 301 N.Y.S.2d at 504, 249 N.E.2d 383 (noting that codefendants' confessions were received in evidence with clear, forceful limiting instructions that each confession should be considered only against the declarant); People v. Safian, 46 N.Y.2d 181, 184, 413 N.Y.S.2d 118, 119-120, 385 N.E.2d 1046 (1978) (same). At the time Mingo was tried and at the time counsel filed his direct appeal, the receipt of a non-testifying defendant's confession as evidence against another defendant was ordinarily understood to be impermissible irrespective of Bruton, see Bruton, 391 U.S. at 128 n. 3, 88 S.Ct. at 1623-24 n. 3, and irrespective of the New York cases establishing an exception to Bruton for interlocking confessions.

The question whether Mingo should benefit from a finding of cause under ...