Pitre v. Griffin

• Decision Date: 26 December 2016
• Docket Number: 16 Civ. 6258 (BMC)
• Parties: JOHN PITRE, Petitioner, v. SUPERINTENDENT GRIFFIN, Respondent.
• Court: U.S. District Court — Eastern District of New York

JOHN PITRE, Petitioner,
v.
SUPERINTENDENT GRIFFIN, Respondent.

16 Civ. 6258 (BMC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

December 26, 2016

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

Petitioner seeks habeas corpus relief pursuant to 28 U.S.C. § 2254, setting aside his conviction for second degree murder and first degree drug possession, for which he was sentenced to consecutive terms of 25 years to life and 23 years, respectively. This was the result of his second trial; the first trial, which was only on the murder charge, resulted in a hung jury. The murder and drug indictments were thereafter consolidated, resulting in the conviction that is the subject of this action.

The facts will be set forth below as necessary to address each of petitioner's points of error, but to summarize, the crimes arose out of an argument on the street where a witness, Jacinto Sanchez, saw petitioner stab the victim, Sarid Morgan, to death, and then moments later, two other individuals, Shatia Rodriguez and Shawn Autry, who knew the victim, heard petitioner boast about it. Sanchez called 911 and the police arrived almost immediately. Rodriguez identified petitioner, who was still on the scene, as the assailant, and the police gave chase when petitioner fled to his apartment. The police forcibly entered petitioner's apartment after he attempted to deflect them and then refused to let them in to his apartment. Once inside, the

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police found a large, sales-quantity volume of heroin. Sanchez and Autry both picked petitioner out of a lineup and confirmed their identification of petitioner at trial.

Petitioner raises four points of error: (1) ineffective assistance of appellate counsel for failing to raise several arguments; (2) Confrontation Clause violations resulting from the use of testimony from petitioner's first trial and the live testimony of a DNA expert that did not conduct the DNA analyses about which he was testifying; (3) insufficient evidence to sustain either the murder or drug convictions; and (4) violation of petitioner's due process rights when the trial court allowed both a father and his daughter to serve on the jury. Each of these points is either procedurally barred from habeas corpus review or without merit and, accordingly, the petition is denied.

I. Ineffective Assistance of Appellate Counsel

In his habeas petition, petitioner asserts that his appellate counsel was ineffective because he failed to challenge: (1) the trial court's decision to consolidate the drug and murder charges; (2) the use of a witness's testimony from the first trial as violating his right to confrontation under the Sixth Amendment; and (3) the trial court's failure to meaningfully respond to a jury note. Petitioner had previously brought a coram nobis motion challenging his conviction on the ground that his appellate counsel omitted these three strong arguments on direct appeal in favor of two weaker arguments.¹ The Appellate Division summarily denied this motion on the merits.

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People v. Pitre, 133 A.D.3d 792, 19 N.Y.S.3d 189 (2d Dep't 2015), leave to app. denied, 26 N.Y.3d 1148, 32 N.Y.S.3d 63 (2016).

Since the Appellate Division rejected this claim on the merits, my review of that decision attracts the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254(d). AEDPA provides for habeas corpus relief only if the state court's adjudication of the claim was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. The decision of a state court is "contrary" to clearly established federal law within the meaning of § 2254(d)(1) if it is "diametrically different" from, "opposite in character or nature" to, or "mutually opposed" to the relevant Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 1519 (2000) (internal quotation marks omitted). A state court decision involves "an unreasonable application" of clearly established Federal law if the state court applies federal law to the facts of the case "in an objectively unreasonable manner." Brown v. Payton, 544 U.S. 133, 141, 125 S. Ct. 1432, 1439 (2005).

The Supreme Court has held that the AEDPA standard of review is extremely narrow, and is intended only as "a 'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal. . . ." Ryan v. Gonzales, 133 S. Ct. 696, 708 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 103, 131 S. Ct. 770, 786 (2011)). State court decisions must "'be given the benefit of the doubt,'" Felkner v. Jackson, 562 U.S. 594, 598, 131 S. Ct. 1305, 1307 (2011) (quoting Renico v. Lett, 559 U.S. 766, 773, 130 S. Ct. 1855, 1862 (2010)), and "even a strong case for relief does not mean that the state court's

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contrary conclusion was unreasonable." Harrington, 562 U.S. at 102, 131 S. Ct. at 786. Indeed, in Harrington, the Supreme Court went so far as to hold that a habeas court may only "issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents." Id. This standard of "no possibility" of disagreement among "fairminded jurists" as to the existence of legal error is arguably the narrowest standard of judicial review in the law. Moreover, the Supreme Court has expressed a lack of patience with lower courts that view its pronouncements as permitting a substantial measure of flexibility in applying this standard. See Parker v. Matthews, 132 S. Ct. 2148 (2012).

To show a Sixth Amendment violation of effective assistance of appellate counsel, petitioner must meet the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). First, he must show that counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms." Id. at 688, 104 S. Ct. at 2064-65. The court must apply a "strong presumption of competence" and "affirmatively entertain the range of possible reasons [petitioner's] counsel may have had for proceeding as they did." Cullen v. Pinholster, 563 U.S. 170, 196, 131 S. Ct. 1388, 1407 (2011) (citation and internal quotation marks omitted). Second, the petitioner must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 669, 104 S. Ct. at 2055-56. "The likelihood of a different result must be substantial, not just conceivable." Harrington, 562 U.S. at 112, 131 S. Ct. at 792.

Although Strickland speaks to ineffective assistance of trial counsel claims, it is equally applicable to claims of ineffective assistance of appellate counsel. See Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). "On appeal,

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counsel is not required to argue every non-frivolous issue; rather, the better strategy may be to focus on a few more promising issues so as not to dilute the stronger arguments with a multitude of claims. . . . [I]nadequate performance is established only if counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." King v. Greiner, 210 F. Supp. 2d 177, 182 (E.D.N.Y. 2002) (citing Jones v. Barnes, 463 U.S. 745, 751-53, 103 S. Ct. 3308, 3312-14 (1983)). But a petitioner may not rebut the presumption of effective assistance by simply arguing that appellate counsel's decision to raise certain issues, and not others, constitutes ineffectiveness. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Appellate counsel is not required to "press nonfrivolous points . . . if counsel, as a matter of professional judgment, decides not to present those points." Jones, 463 U.S. at 751, 103 S. Ct. at 3312; see also Knowles v. Mirzayance, 556 U.S. 111, 127, 129 S. Ct. 1411, 1422 (2009) ("The law does not require counsel to raise every available nonfrivolous defense"). A petitioner must prove that there is a reasonable probability that the unraised claims would have succeeded. King, 210 F. Supp. 2d at 182-83 (citing Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992)).

A. Consolidation of Murder and Drug Chargers

As noted above, petitioner's first trial, which resulted in a hung jury, was only on the murder charge. Apparently, the prosecution had intended to try the drug charge separately thereafter had petitioner been convicted. But after the mistrial on the murder charge, the prosecution apparently moved to consolidate the charges. (I have to say "apparently," because there is no such motion in the record, but it is a solid inference for reasons shown below.)

Petitioner, in his coram nobis motion to the Appellate Division, argued that his appellate counsel was ineffective for not including a challenge to the trial court's decision to allow a single trial on both the murder and drug charges in his brief on direct appeal. He annexed a letter to his

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brief that he had received from appellate counsel, prior to filing his brief on direct appeal, in which appellate counsel assured petitioner that, "I will argue that it was improper for the court to grant the District Attorney's motion to consolidate the homicide and drug charges and to permit them to be tried together before one jury." However, the brief that appellate counsel filed contained no such argument. This was the essence of petitioner's ineffective assistance argument.

In response to petitioner's coram nobis motion attacking appellate counsel's failure to raise the point that he had said he would raise, the District Attorney primarily argued that the trial judge acted within his discretion in ordering...