Pratt v. Greiner

• Decision Date: 04 October 2002
• Docket Number: No. 01-2460.,01-2460.
• Parties: Shawn PRATT, Petitioner-Appellant, v. Charles GREINER, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 1190

306 F.3d 1190

Shawn PRATT, Petitioner-Appellant, v. Charles GREINER, Respondent-Appellee.

No. 01-2460.

United States Court of Appeals, Second Circuit.

Argued: April 12, 2002.

Decided: October 4, 2002.

Fern H. Schwaber, Schwaber & Kafer, New York, NY, for Petitioner-Appellant Shawn Pratt.

Tziyonah M. Langsam, Assistant District Attorney, Kings County, N.Y. (Diane R. Eisner, Leonard Joblove, Assistant District Attorneys, of counsel; Charles J. Hynes, District Attorney, on the brief), for Respondent-Appellee Charles Greiner.

Before: McLAUGHLIN, POOLER, and B.D. PARKER, Jr., Circuit Judges.

B.D. PARKER, Jr., Circuit Judge.

Petitioner-appellant Shawn Pratt ("Pratt") appeals from a judgment of the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge), denying his petition for a writ of habeas corpus which principally alleged the ineffective assistance of trial counsel. He was incarcerated following his 1994 conviction for murder in the second degree and criminal possession of a weapon in the second degree. Prior to filing his federal habeas petition, Pratt moved in state court pursuant to New York Criminal Procedure Law ("CPL") § 440.10 to vacate his conviction on the ground that the prosecution improperly withheld an investigative report constituting Rosario material but withdrew the motion shortly before the state court issued a decision. See People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961) (holding that trial court erred by failing to compel prosecution to turn over witnesses' prior statements relating to their trial testimony). If "properly filed" under 28 U.S.C. § 2244(d)(2), this motion would toll the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). If not "properly filed," Pratt's petition would be untimely and federal habeas review would be precluded. Whether Pratt's motion was "properly filed" depends on the extent to which a federal habeas court can assess the legitimacy of the state court filing.

To prove that the prosecution improperly withheld evidence, Pratt annexed to his motion a police report of highly dubious authenticity. However, because Pratt withdrew the motion, the state court never made any findings as to its authenticity. After conducting a hearing, the District Court concluded that the report was a forgery, that Pratt knew it to be such, and that Pratt deliberately sought to mislead the courts by attaching it to his motion. Notwithstanding these factual findings, the District Court concluded that the motion tolled AEDPA's statute of limitations. On the merits of Pratt's habeas petition, the District Court concluded that Pratt was not denied effective assistance of counsel, but nonetheless granted a Certificate of Appealability on this issue.

The respondent urges us not to consider the merits of Pratt's habeas petition because Pratt's fraudulent motion to vacate his conviction was not "properly filed" under 28 U.S.C. § 2244(d)(2). We disagree. Guided by Bennett v. Artuz, 199 F.3d 116, 122 (2d Cir.1999), aff'd, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000), we hold that our inquiry into whether a state court motion was "properly filed" is limited to ensuring adherence to state court filing procedures and does not extend to scrutinizing the merits of the motion. Thus, even if Pratt's state court motion relied on a forged document, it still was "properly filed" under AEDPA.

Alternatively, the respondent urges our affirmance of the District Court's denial of Pratt's ineffective assistance petition on the merits. We are unable to review this denial. At the time of its ruling, the District Court did not have the benefit of our decision in Rudenko v. Costello, 286 F.3d 51 (2d Cir.2002), emphasizing the importance of decisions "sufficiently informative to permit meaningful appellate review...." Id. at 64. Consequently, we remand to afford the District Court the opportunity to make such findings.

BACKGROUND

This case arises from a brutal killing that occurred during the early morning hours of May 31, 1993, in Brooklyn, New York. The prosecution's proof at trial was that, at approximately 3:00 a.m. on May 31, Pratt drove a green Cutlass past 360 Stockton Street in Brooklyn. Sitting on a stoop at 360 Stockton Street were William Lebron, Lebron's cousin Julio Aponte, Lisa Lugo, and two other men. While slowly driving past these individuals, Pratt stared at Aponte, and Aponte stared back at Pratt for approximately five seconds. Soon thereafter, a second car slowly passed the stoop. At approximately 4:00 a.m., Aponte and Lugo left 360 Stockton Street, while Lebron and the other two men remained. As Aponte and Lugo were walking away, Pratt and another individual, both armed with guns, returned, grabbed Lebron, and forcefully pulled him off the stoop. Pratt and his accomplice instructed Lebron to put his hands in the air and Pratt demanded, "Where is it at?" Lebron pointed and responded, "right there, right there." After Pratt held a gun to Lebron in front of 360 Stockton Street, Lebron ran away from Pratt. Pratt then shot Lebron in the back, causing his death, and fled in the opposite direction. Aponte and Lugo witnessed these events from approximately fifty feet away.

The prosecution's case relied heavily on eyewitness testimony from Aponte and, to a lesser extent, Lugo. Aponte recognized the shooter as the driver of the green Cutlass that had passed by at approximately 3:00 a.m. and recalled the shooter to be tall and chubby with dark skin and a mustache. Lugo agreed that the man who pointed a gun at Lebron was chubby and "kind of big." She also testified that the shooter's hair was styled into short braids. Aponte also could tell that the shooter sported a "flattop" hairstyle and remembered seeing him previously in the neighborhood. Several months later, Aponte saw an individual he recognized as the shooter exit a Cutlass, recorded the car's license plate number, and contacted the police. Investigators soon learned that this car was registered to Pratt and that an individual who went by the street name "Bear" sometimes frequented the neighborhood. One of the state's investigators eventually learned that Pratt's street name was "Bear." On August 28, 1993, the investigator showed Aponte a photograph array that included a photograph of Pratt taken in 1990 and photographs of five other individuals. Aponte positively identified Pratt from this array. Lugo also viewed this array but was unable to identify the assailant because, at the time of the incident, she could not view his face. At some point, Aponte also viewed a photograph of "Bear" from a friend and recognized him as the person who killed Lebron. Aponte testified inconsistently as to when he viewed this individual photograph. Pratt was arrested on September 16, 1993. Aponte and Lugo were brought to the police station to view a lineup of Pratt and five other individuals. Aponte identified Pratt as the killer, but Lugo remained unable to make an identification.

On October 18, 1994, essentially on the testimony of a single eyewitness, Pratt was convicted in New York State Supreme Court, Kings County, of murder in the second degree, N.Y. Penal Law § 125.25(1), and criminal possession of a weapon in the second degree, id. § 265.03. Pratt was sentenced to concurrent terms of twenty-one years to life for murder and seven and one-half to fifteen years for criminal possession of a weapon. On direct appeal, Pratt raised a number of claims including the ineffective assistance of trial counsel as follows:

Whether defense counsel's conduct at trial, which included repeatedly eliciting damaging evidence on cross examination, opening the door to unduly prejudicial testimony which would otherwise have been inadmissible, failing to object to the introduction to [sic] inadmissible bolstering and other hearsay evidence, refusing the court's offer to charge acting in concert and manslaughter, and delivering an ineffective summation deprived appellant of the effective assistance of counsel.

(App. Div. Br. at 2 (citing U.S. Const. amends. VI, XIV; N.Y. Const. art. I, § 6).) The Appellate Division rejected Pratt's claim of ineffective assistance of counsel after examining "the evidence, the law, and the circumstances of [this] particular case." People v. Pratt, 237 A.D.2d 467, 655 N.Y.S.2d 968 (N.Y.App.Div.1997) (alteration in original) (citations and quotations omitted). On July 16, 1997, the New York Court of Appeals denied Pratt's application for leave to appeal. People v. Pratt, 90 N.Y.2d 896, 662 N.Y.S.2d 439, 685 N.E.2d 220 (1997). On March 19, 1998, Pratt applied to the Appellate Division for a writ of error coram nobis alleging ineffective assistance, and, on June 22, 1998, this application was denied. People v. Pratt, 251 A.D.2d 602, 673 N.Y.S.2d 944 (N.Y.App.Div.1998). On none of these occasions did Pratt allege as a ground for ineffectiveness his trial counsel's failure to pursue an alibi defense. The alibi defense allegation surfaced for the first time in a reply memorandum submitted during federal habeas proceedings.

On August 27, 1998, Pratt moved pursuant to CPL § 440.10 to vacate his conviction alleging that the State improperly withheld Rosario material at his trial. Pratt's motion annexed a DD-5 police report, allegedly prepared by one of the investigating officers, that memorialized taking Aponte on a neighborhood canvass on June 17, 1993 in hopes of locating Pratt. The report indicated that before Aponte viewed the photograph array and the lineup, the detective took Aponte on a neighborhood canvass and displayed a photograph of Pratt to a person identified as Juan Rodriguez. Pratt argued that by deliberately withholding this form, which suggested that Aponte had access to a photograph of Pratt before the lineup, the prosecution engaged in misconduct by attempting to mislead the court at the Wade he...