Moseley v. Scully

Decision Date10 November 1995
Docket NumberNo. 90-CV-1048.,90-CV-1048.
Citation908 F. Supp. 1120
PartiesWinston MOSELEY, Petitioner, v. Charles J. SCULLY, Superintendent, Greenhaven Correctional Facility, Respondent.
CourtU.S. District Court — Eastern District of New York

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Barry Gene Rhodes, Brooklyn, NY, for petitioner.

Richard A. Brown, Queens County District Attorney by Steven J. Chananie, Robin A. Forshaw, and John M. Castellano, Assistant District Attorneys Kew Gardens, NY, for respondent.

MEMORANDUM AND ORDER

BLOCK, District Judge:

This case involves one of the most infamous and brutal murders committed this century, which shocked the nation when it was committed in 1964, and continues to trouble the public today. As recently reported by the New York Law Journal, the 1964 murder of Katherine "Kitty" Genovese ("Genovese") in Queens, New York "symbolized urban apathy since 38 people heard her screams but did nothing." N.Y.L.J., July 25, 1995, at 1, col. 1. This Court is now called upon to decide whether it should grant the plea for freedom requested almost 25 years later by Genovese's confessed murderer, Winston Moseley ("Moseley"), pursuant to his petition for a writ of habeas corpus under 28 U.S.C. § 2254.

The focus of this proceeding is on a disclosure made during the sentencing phase of Moseley's trial by his lead lawyer, Sidney Sparrow, Esq. ("Sparrow"), that he had previously represented Genovese, and his rather startling admission that, as a result, he "didn't try this case ... objectively, calmly, just as a lawyer defending a client should." Record on Appeal to New York Court of Appeals ("Record") at 484-85. This disclosure and admission compelled the Court to conduct a hearing on July 24, 1995 to inquire into the nature, duration, breadth and bounds of this prior representation for the purpose of determining whether Sparrow labored under a Constitutionally impermissible conflict of interest that adversely affected his representation.1 The Court addresses this issue, which it decides against Moseley, only after determining that neither the passage of time nor other procedural grounds bar Moseley's claim, and that the "automatic reversal rule," applicable to a trial court's failure to inquire into a possible conflict, post-dates both the time Moseley's trial concluded in June 1964 and his conviction became final in June 1967.

I. FACTS AND PROCEDURAL BACKGROUND
A. The Confessed Murder

At his trial, Moseley took the stand in support of an insanity defense and confessed to killing Genovese. According to his testimony, he left his house in the early morning hours of Friday the 13th, March 1964, with a hunting knife for the purpose of "finding a woman and killing her." Record at 233. At approximately 3:00 a.m., he spotted a red car, driven by Genovese, which he followed for approximately ten blocks. Id. at 235. Both Genovese and Moseley got out of their respective cars, and upon seeing Moseley, Genovese started to run. Id. at 236. Moseley caught her and, as he stated, "stabbed her twice in the back." Id. Because someone had called out from an open window, Moseley returned to his car and moved it, but he "could see that Genovese had gotten up and that she wasn't dead." Id. Since he "did not think that the person that called would come down to help Genovese regardless of the fact that she had screamed, he came back and ... looked for her in the Long Island Railroad station." Id. Not finding her there, Moseley looked in some nearby apartment buildings, where he found her in a hallway. Id. As he testified: "As soon as she saw me, she started screaming, so I stabbed her a few other times to stop her from screaming, and I had stabbed her once in the neck.... She only moaned after that." Id.

During the commission of this brutal attack, Moseley could hear that he had awakened residents of the apartment building. He heard a door open "at least twice, maybe three times, but when he looked up ..., there was nobody up there." Id. at 238. Since he "didn't feel that these people were coming down the stairs anyway," id., he decided to rape Genovese. He removed her undergarments and, upon discovering that she was menstruating, took "the knife and stuck it in her vaginal tract." Id. at 239. He said that he "would have pulled the knife straight up, but the bone had stopped him from being able to do that." Id. Thereafter, Moseley attempted to rape her, but could not because of impotence. Id. He nevertheless had an orgasm. Id. After stealing her wallet, keys and some cosmetics, Moseley left Genovese dead. Id.

B. Arrest Through Appeal

Five days later, when Moseley was arrested for an unrelated burglary, he confessed to all of the above and also to murdering two other women, raping a third, attempting to rape yet another, and numerous burglaries. Moseley was indicted on March 23, 1964 for first-degree murder under former N.Y.Penal Law § 1045 for killing Genovese. Two days later, Justice J. Irwin Shapiro assigned Sparrow as lead counsel to represent Moseley at trial, along with two co-counsel, Julius Lipitz, Esq. ("Lipitz") and Martha Zelman, Esq.

Given Moseley's confession, the strategy at trial, which commenced on June 8, 1964, was to rely on the insanity defense. In addition to his testimony admitting killing Genovese, Moseley also repeated his confessions to the other murders, the rape, the attempted rape, and the burglaries. He expressed no regret or sorrow. Two noted psychiatrists testified for the defense, opining that Moseley could not distinguish right from wrong. Sparrow cross-examined the prosecution's psychiatrist on the ground that he had not personally examined Moseley. Ultimately, however, the jury rejected the insanity defense and rendered a guilty verdict.

On June 15, 1964, pursuant to former N.Y.Penal Law § 1045-a, a separate sentencing proceeding commenced before the same jury to determine whether the trial court should impose the death penalty. See People v. Moseley, 20 N.Y.2d 64, 66, 228 N.E.2d 765, 766, 281 N.Y.S.2d 762, 764 (1967). In his final argument to the jury, Sparrow told the jury (in Moseley's presence): "I didn't try this case involving Kitty Genovese objectively, calmly, just as a lawyer defending a client, because I knew Kitty Genovese, and represented her for years." Record at 484-85. Justice Shapiro immediately interrupted Sparrow and forbade him from continuing with this argument, stating that "we don't know anything about that; that's not in the record," id. at 485, whereupon Sparrow concluded without further comment on the issue.

On July 6, 1964, after the jury recommended that the court sentence Moseley to death, Justice Shapiro imposed that sentence. Moseley, 20 N.Y.2d at 66, 228 N.E.2d at 766, 281 N.Y.S.2d at 764. Sparrow moved to set aside the conviction and sentence, which motion was denied. Thereafter, Sparrow appealed directly to the New York State Court of Appeals pursuant to former N.Y.Crim.Proc.Law § 517(1). On June 1, 1967, the Court of Appeals affirmed the conviction, but set aside the sentence because the trial court had barred Sparrow from recalling two psychiatrists to testify on Moseley's behalf during the sentencing phase. 20 N.Y.2d at 70, 228 N.E.2d at 768, 281 N.Y.S.2d at 767. On remand, Moseley was sentenced to life imprisonment, in conformity with the Court of Appeals' directive.2 Id.; see also former N.Y.Penal Law § 1045-a(6) (requiring automatic sentence of life imprisonment where the Court of Appeals remands after finding substantial error in the sentencing proceeding).

C. Post-Appeal Proceedings

On February 1, 1989, Moseley, proceeding pro se, moved under N.Y.Crim.Proc.Law § 440.10 to set aside his conviction on the ground that Sparrow's prior representation of Genovese created an actual conflict of interest that violated his Sixth Amendment right to effective assistance of counsel. This marked the first time Moseley raised this ineffective assistance of counsel claim. Moseley submitted with his § 440.10 motion a letter sent to him by a newspaper columnist at Newsday in which the columnist discussed Sparrow's prior representation of Genovese and the possibility of challenging the conviction on that ground. The letter was dated May 23, 1979, nearly ten years prior to his motion.

On May 1, 1989, Justice Charles J. Thomas of the New York State Supreme Court denied Moseley's motion. Decision Denying N.Y.Crim.Proc.Law § 440.10 Motion (Apr. 28, 1989) ("Thomas Decision"). Justice Thomas based his decision on three grounds. First, he held that Moseley had failed to establish that Sparrow rendered Constitutionally infirm assistance because there existed no evidence that Sparrow "actively represented conflicting interests" (or that there was a "significant possibility" of such a conflict), or that any "such conflict actually resulted in diminished representation." Id. at 2-4. Second, Justice Thomas held that state procedural rules barred granting Moseley's motion because Moseley had failed to raise the conflict of interest issue on direct appeal to the Court of Appeals, even though there existed sufficient evidence in the record for doing so. Id. at 4-5. Finally, Justice Thomas concluded that Moseley's delay in bringing the motion cast doubt on the validity of his claim because Moseley knew of Sparrow's purported conflict prior to sentencing, or at least when the Newsday columnist informed Moseley of it. Id. at 5-6. On March 30, 1990, Moseley filed this habeas petition.

II. DISCUSSION

Moseley again claims that Sparrow's prior representation of Genovese created a Constitutionally impermissible conflict of interest resulting in ineffective assistance. He also argues that the trial court's failure to conduct an inquiry regarding this purported conflict mandates automatic reversal of his conviction. Respondent, on the other hand, argues that Moseley is barred on procedural grounds from raising these claims in federal court. Respondent also argues that, if ...

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