Palacios v. Burge, Docket No. 07-0470-pr.

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: John M. Walker, Jr.
• Citation: 589 F.3d 556
• Parties: David PALACIOS, Petitioner-Appellant, v. John W. BURGE, Superintendent, Auburn Correctional Facility, and Andrew Cuomo, New York State Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondents-Appellees.<SMALL><SUP>**</SUP></SMALL&gt
• Docket Number: Docket No. 07-0470-pr.
• Decision Date: 21 December 2009

589 F.3d 556 David PALACIOS, Petitioner-Appellant,
v.
John W. BURGE, Superintendent, Auburn Correctional Facility, and Andrew Cuomo, New York State Attorney General,^* Respondents-Appellees.^** Docket No. 07-0470-pr. United States Court of Appeals, Second Circuit. Argued: March 11, 2009. Decided: December 21, 2009.

[589 F.3d 558]

Lawrence T. Hausman (Steven Banks, on the brief), Legal Aid Society, Criminal Appeals Bureau, New York, NY, for Petitioner-Appellant.

Jill A. Gross-Marks (John M. Castellano, on the brief), Assistant District Attorneys, for Richard A. Brown, District Attorney, Queens County, Kew Gardens, NY, for Respondents-Appellees.

Before: WALKER and SACK, Circuit Judges, and KOELTL, District Judge.^***

JOHN M. WALKER, JR., Circuit Judge:

Petitioner-Appellant David Palacios appeals from the judgment of the United States District Court for the Eastern District of New York (Frederic Block, Judge) denying his petition for habeas corpus pursuant to 28 U.S.C. § 2254. Palacios claims that he is entitled to a writ of habeas corpus because the state courts unreasonably applied clearly established Supreme Court law in rejecting his claim that counsel rendered ineffective assistance by failing to move to suppress evidence of his show-up identification and confession under the Fourth Amendment. The police conducted a show-up near the crime scene, limited in scope and duration, that included individuals who were reasonably suspected of perpetrating a recent, soon-to-be fatal stabbing. We find that the state courts did not unreasonably reject the petitioner's claim of ineffective assistance of counsel. It was not ineffective assistance to fail to raise a Fourth Amendment claim challenging the show-up, which involved exigent circumstances and, based on the totality of the circumstances, was reasonable. Similarly, it was not ineffective assistance to fail to challenge the subsequent confession as the fruit of the show-up where there was an insufficient showing that the show-up was unconstitutional. Accordingly, we conclude that the state courts did not unreasonably apply Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), when they rejected Palacios's claim of ineffective assistance. Thus, we affirm the district court's denial of Palacios's petition for a writ of habeas corpus.

BACKGROUND

David Palacios was convicted following a jury trial in New York Supreme Court, Queens County, of single counts of assault and murder, and sentenced respectively to consecutive, indeterminate sentences of eleven to twenty-two years and twenty-five years to life.

I. Underlying Events

The trial evidence showed that on the evening of April 27, 1997, undercover New York City police officers Richard Crespo, James O'Boyle, and Daniel Corey conducted surveillance at the 30-30 Club in Queens, New York, which was holding a "Mexican party." (Trial Tr. 101 Feb. 10-11, 1998.) The police had information that

589 F.3d 559

"there might be problems there" between "rival Mexican gangs." (Trial Tr. 14, 101.)

The club opened at 9:00 p.m. After ten to fifteen minutes, Officer Crespo saw several men whom he thought to be Hispanic "run in front of ... people ... waiting" in line outside of the club. (Trial Tr. 14-15.) Moments later, a BMW pulled up across the street from the club, and a man, Edin Kolenovic, emerged from the car shouting and waving his arms frantically. When the officers approached Kolenovic, they saw that his shirt was bloody, and that his passenger and brother-in-law, Sanin Djukanovic, had been beaten and stabbed, and was bleeding profusely. Djukanovic was unable to speak and died later that night. Kolenovic told the officers that a group of Hispanic men tried to steal the BMW, stabbed him and Djukanovic, and ran towards the 30-30 Club. The police placed Kolenovic in an ambulance stationed in front of the club to be treated for his stab wounds.

In "secur[ing] the area" around the club, (Trial Tr. 18,) the officers arranged with the club's security personnel to let into the club the forty or fifty individuals in line outside. When one person, William Mero, stepped out of the line and tried to leave, the police stopped him and walked him in front of the parked ambulance to "conduct [] a show-up." (Trial Tr. 103). Kolenovic identified Mero as "on of the guys," (Trial Tr. 110), and Officer Corey handcuffed Mero and put him in an unmarked patrol car with a view of the club. Mero denied any involvement in the stabbing, but told the police that he had seen the fight and could identify the individuals involved.

Inside the club, at the officers' request, the club owner stopped the music and announced that the police planned to escort all the male patrons outside for a show-up to identify anyone connected to the stabbing that had occurred. The officers sealed the exits, separated out the women, and lined up at the front of the club the approximately 170 men, all of whom looked to them to be Hispanic and ranged in age from about eighteen to twenty-five years. The police then had the men walk, one by one, out the front door and in front of Kolenovic and Mero, who were in the ambulance and the unmarked car, respectively. The show-up process began at approximately 10:00 p.m., and ended less than forty minutes later, after which the patrons outside were allowed back into the club. During the show-up, Kolenovic and Mero separately identified the same six men, including Palacios, as being involved in the stabbings. The officers then took Palacios to the precinct house.

The following day, after Detective Laurie Senzel read Palacios his Miranda rights in both English and Spanish, Palacios orally confessed to stabbing Djukanovic. Detective Senzel manually transcribed this confession, which Palacios signed.

II. Trial Court Proceedings

On June 17, 1997, Palacios's then-counsel Paul Testaverde filed a motion challenging the constitutionality of both the identification procedure used by the police outside of the 30-30 Club, and the confession, which Palacios claimed that he had given only under physical duress. On June 30, 1997, counsel Robert R. Race, who replaced Testaverde, filed a separate motion that challenged the reliability of Kolenovic's pre-trial identification and the voluntariness of Palacios's statements, but did not challenge the legality of the police seizure of Palacios.

On September 22, 1997, after holding a combined pre-trial hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and

589 F.3d 560

People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), the trial judge determined that "all of the witnesses testified credibly," (Trial Tr. 160,) found the show-up evidence and confession to be constitutionally permissible, and declined to suppress either item of evidence at trial. In particular, the trial judge "note[d] that the identification of the defendant through this short [show-up] procedure was both tempora[l]ly and spatially close to the events ... in question." (Trial Tr. 166.) As for the confession, the trial judge determined that Palacios knowingly, voluntarily, and intelligently waived his rights. The trial judge then denied Palacios's subsequent pro se motion to suppress the confession.

At Palacios's jury trial, Kolenovic was unable to identify Palacios as a participant in the crime. Palacios testified that he had not committed the crimes charged and that he had confessed under physical duress.

The jury found Palacios guilty of both assault and murder, and the trial judge sentenced Palacios to eleven to twenty-two years for the former and twenty-five years to life for the latter, to be served consecutively.

III. Subsequent Proceedings

In January 2002, Palacios, on appeal to the Appellate Division, Second Department, argued that he had been deprived of effective assistance of counsel under Strickland, 466 U.S. at 688, 104 S.Ct. 2052, because his counsel unreasonably failed to challenge the lawfulness of his show-up and detention, and failed to move to suppress his confession as the fruit of the unlawful detention under the Fourth Amendment. Palacios alleged that a Fourth Amendment challenge to the show-up would have been successful, because the show-up was not based upon any "individualized suspicion" of a particular individual at the 30-30 Club. See Palacios, 470 F.Supp.2d at 219. The Appellate Division affirmed Palacios's conviction, concluding that he had received "meaningful representation" at trial. People v. Palacios, 295 A.D.2d 452, 743 N.Y.S.2d 302, 302 (2002). Palacios's application for leave to appeal to the New York Court of Appeals was denied. People v. Palacios, 98 N.Y.2d 731, 749 N.Y.S.2d 482, 779 N.E.2d 193 (2002) (table decision).

Palacios then filed the instant petition for federal habeas relief, again raising the claim that trial counsel had rendered ineffective assistance. In January 2007, the district court denied the petition on the basis that Palacios had failed to show that the trial court unreasonably applied Supreme Court precedent in determining that the claim lacked merit. Palacios v. Burge, 470 F.Supp.2d 215, 221 (E.D.N.Y. 2007). Although noting that a show-up could run afoul of the United States Supreme Court's "individualized suspicion" requirement, the district court determined that, "[i]n light of the generality with which the requirement has been enunciated" by the Supreme Court, it would not be "unreasonable" to conclude that the individualized suspicion requirement was "satisfied in this case." Id. at 223. The district court concluded that under the "limited standard of [habeas] review," Palacios's petition had to be denied. Id. at 224. The district court, however, issued a certificate of appealability on Palacios's ineffective assistance claim on the basis that there was "room for reasonable debate ... addressing this ineffective-assistance/Fourth Amendment scenario." Id.

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