Tisone v. Schneiderman, 12-CV-5219 (SJF)
| Decision Date | 25 November 2015 |
| Docket Number | 12-CV-5219 (SJF) |
| Parties | DANIEL TISONE, Petitioner, v. ERIC SCHNEIDERMAN, ATTORNEY GENERAL, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
In 2007, a jury convicted petitioner Daniel Tisone ("Tisone" or "petitioner") of attempted robbery, hindering prosecution, and assault, for which he was sentenced to a six (6)-year term of imprisonment. Now on supervised release, he has moved pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing ineffective assistance of counsel, improper admission of certain photographic evidence, and improper prosecutorial remarks. For the following reasons, the petition is DENIED.
In the early morning hours of November 14, 2006, petitioner entered Donald Stanton's (Stanton) dormitory room at Hofstra University in Hempstead, New York under the pretext of purchasing cocaine, then produced a TEC-9 semiautomatic weapon and demanded Stanton's cocaine and laptop. Resp't's Aff. ¶ 5, Trial Transcript (Tr.) 254:11-256:18, As petitioner struggled to load the magazine into the weapon, a scuffle ensued during which petitioner pistol-whipped Stanton before fleeing and leaving the magazine behind. Resp't's Aff. ¶ 5. One of Stanton's roommates witnessed the scuffle and identified petitioner, while another identified petitioner as he entered a pickup truck driven by his accomplice, Evan Steele (Steele). Tr 38:15-39:9, 136:19-137:2, 139:1-17. Petitioner discarded the TEC-9 and washed Stanton's blood out of his clothing. Resp't's Aff. ¶ 5, Tr. 392:2-394:20. He was arrested, along with Steele, and another accomplice on November 17, 2006, and immediately confessed both orally and in writing. Tr. 545:1-9, 554:12-556:24, 541:24-544:19, 398:19-399:1.
Petitioner was indicted for first-degree attempted robbery, NEW YORK PENAL LAW (NYPL) §§ 110.00, 160.15[4]; second-degree attempted robbery, NYPL §§ 110.00, 160.10[2]; hindering prosecution in the second degree, NYPL § 205.60; and second-degree assault, NYPL§ 120.05[2].
In his opening statement, petitioner's counsel stated that Steele had made statements to him and to petitioner, and that Steele's testimony would be inconsistent with those statements because he entered into a plea agreement. Tr. 35:20-36:9. The prosecution and the court expressed the view that if defense counsel questioned Steele regarding those statements, he would effectively inject himself as a witness. Tr. 49:1-50:21. The court explained that defense counsel could question Steele regarding prior inconsistent statements, but could not ask Steele about statements made to him. Tr. 246:7-14. On cross-examination, Steele denied that he told his lawyer and petitioner's mother that the police coerced his and petitioner's confessions, and also denied that he told petitioner's mother that he did not see petitioner with a firearm. Tr. 468:18-480:14.
On October 24, 2007, a jury convicted petitioner on all charges, and he was remanded to custody. Tr. 848:19-852:2. Petitioner was sentenced to a term of imprisonment of six (6) years,followed by a five (5)-year period of supervised release. Sentencing Transcript (Sent. Tr.) 26:9-27:11.1
Following the guilty verdict, petitioner retained new counsel, and moved for a new trial pursuant to NEW YORK CRIMINAL PROCEDURE LAW (CPL) § 330.30, arguing ineffective assistance of counsel arising out of a conflict-of-interest. Petitioner's Appellate Brief (Pet'r's App. Br.) 26, [Docket No. 6-3]. He submitted an affidavit of trial counsel stating that, prior to trial, Steele admitted that he and petitioner did not intend to rob Stanton, that petitioner did not possess a firearm, that petitioner was trying to recover a laptop which was stolen by Stanton, and that the police coerced his and petitioner's confessions with violence. Pet'r's App. Br. 26. Moreover, trial counsel stated that the trial court precluded him from questioning Steele regarding these prior inconsistent statements. Pet'r's App. Br. 26.
Petitioner appealed his conviction to the Appellate Division, Second Department (Appellate Division), arguing: (1) trial counsel was ineffective based upon his inability to impeach Steele using his prior inconsistent statements and had a conflict-of-interest; and (2) "the cumulative effect of the improper admission of certain photographs and the prosecutor's improper summation remarks deprived him of a fair trial and constituted reversible error." People v. Tisone, 85 A.D.3d 1066, 1067, 925 N.Y.S.2d 843 (2011); Pet'r's Br. 29. The Appellate Division rejected petitioner's contentions, holding: (1) that trial counsel's alleged conflict-of-interest neither affected his defense nor "operated on the representation," (2) thatpetitioner's challenge to the admission of the TEC-9 photograph and to the prosecutor's remarks were unpreserved for appellate review, and (3) that the admission of the other photographs, including a photograph of an AR-15 owned by petitioner's accomplice, was proper. Id., 925 N.Y.S.2d at 844. Petitioner's leave to appeal was denied by the Court of Appeals. People v. Tisone, 17 N.Y.3d 905, 957 N.E.2d 1164 (2011).
Having construed petitioner's arguments liberally and interpreting them "to raise the strongest arguments that they suggest[,]" Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), he appears to advance the same arguments as he did before the Appellate Division: (1) that he "was deprived of the right to present important evidence on his behalf, and the right to conflict-free counsel"; and (2) that the admission of photographs of a TEC-9 firearm, the admission of evidence that his accomplice had an AR-15 rifle, and improper prosecutorial remarks deprived him of a fair trial. Petition (Pet.) 6-7.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) permits a person in state custody to obtain a writ of habeas corpus "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). To obtain habeas corpus relief under this provision, a petitioner must demonstrate: (1) that he or she has exhausted state remedies, 28 U.S.C. § 2254(b)(1) and (c); (2) that he or she has not procedurally defaulted on those claims, Coleman v. Thompson, 501 U.S. 722, 731-32, 11 S. Ct. 2546 (1991); and (3) that the state court's decision was "contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of theUnited States," or "was based on an unreasonable determination of facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254(d)(1)-(2), meaning that the state court reached a conclusion that was "opposite" to that of the Supreme Court or that it decided a case differently than the Supreme Court decision "on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The AEDPA contemplates a deferential review of state court decisions because "habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 102 (2011) (internal quotation marks and citation omitted). A federal court may not grant a habeas corpus application "so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 88, 131 S. Ct. 770, 778 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140 (2004)).
Petitioner asserts that trial counsel had a conflict-of-interest, and this conflict rendered his assistance ineffective because he was unable to impeach Steele's credibility effectively. Pet. 6; Pet'r's App. Br. 34-40. Additionally, he contends that the trial court erred by failing to ascertain whether he intelligently waived his attorney's conflict-of-interest.
A habeas corpus petitioner asserting ineffective assistance of counsel must demonstrate both that: (1) counsel's performance fell below an objective standard of reasonableness; and (2) counsel's deficient representation prejudiced petitioner's defense, meaning that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 669, 687-96 (1984).
A court view's trial counsel's performance deferentially, and must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Petitioner must show that trial counsel's deficient performance caused a breakdown of the adversarial process such that it "undermine[s] confidence" that the trial "produced a just result." Id. at 686, 694. Petitioner has a heavy burden of proving both prongs. Byrd v. Evans, 420 F. App'x 28, 30 (2d Cir.2011) (citing Kimmelman v. Morrison, 477 U.S. 365, 381 (1986)); Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001)). A federal court performs a "doubly deferential judicial review" of a state court's determination that trial counsel was effective. Knowles v. Mirzayance, 556 U.S. 111, 112, 129 S. Ct. 1411, 1413 (2009).
The Sixth Amendment's guarantee of effective assistance of counsel also guarantees a criminal defendant "conflict free" representation. Woods v. Georgia, 450 U.S. 261, 271 (1981). The Second Circuit "has delineated three levels of conflicts of interest in evaluating this type of Sixth Amendment claim: (1) a per se conflict requiring automatic reversal without a showing of prejudice; (2) an actual conflict of interest that carries a presumption of prejudice; and (3) a potential conflict of interest that requires a finding of both deficient performance by counsel and prejudice, under the standard established in Strickland v. Washington[.]" United States v. John Doe No....
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