Waiters v. Lee

• Decision Date: 22 May 2017
• Docket Number: No. 15-3487-pr,August Term 2016,15-3487-pr
• Citation: 857 F.3d 466
• Parties: General WAITERS, Petitioner-Appellee, v. William LEE, Superintendent of Greene Haven Correctional Facility, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

857 F.3d 466

General WAITERS, Petitioner-Appellee,
v.
William LEE, Superintendent of Greene Haven Correctional Facility, Respondent-Appellant.

No. 15-3487-pr
August Term 2016

United States Court of Appeals, Second Circuit.

Argued: September 13, 2016
Decided: May 22, 2017

857 F.3d 468

For Petitioner-Appellee : Megan Wolfe Benett (Gary Farrell, on the brief), New York, NY

For Respondent-Appellant : Rhea A. Grob , Assistant District Attorney (Leonard Joblove, Jodi L. Mandel, on the brief), for Kenneth M. Thompson, District Attorney of Kings County, Brooklyn, NY

Before: Jacobs, Parker, Livingston, Circuit Judges.

Judge JACOBS dissents in a separate opinion.

Debra Ann Livingston, Circuit Judge:

Petitioner-Appellee General Waiters ("Waiters") got into an argument at the home of his then girlfriend, Jacqueline Warren ("Warren"), one Sunday morning in May 2006 which began, as Warren testified, when she told Waiters that he'd had "too much to drink." Trial Tr. at 399. It ended when Waiters pulled out a revolver and fired repeatedly at Lorenzo, Warren's adult son who had intervened on his mother's behalf, injuring both Lorenzo and Warren's 14-year old daughter, and killing Warren's aunt and her aunt's three-year-old grandchild. Following a jury trial, Waiters was convicted of murder, attempted murder, and assault.

Waiters does not deny engaging in the conduct underlying these crimes. Rather, he contends that his trial counsel was ineffective for failing to call a medical expert both to interpret—and thereby render admissible—the portion of his medical records documenting his blood alcohol level ("BAC"), and to expound upon the effects of that level of intoxication. With that evidence, Waiters contends, it is reasonably likely that the jury would not have concluded that he harbored the requisite intent to commit his crimes. The state trial court judge who presided over Waiters's four-day trial rejected this claim, concluding, inter alia , that Waiters had presented nothing "establishing that medical testimony regarding the defendant's level of intoxication

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would have changed the jury's finding." Appellant's App'x at 55. The district court (Gleeson, J. ), however, disagreed and granted Waiters's petition for a writ of habeas corpus on this basis.

We vacate the district court's judgment and remand for further proceedings consistent with this opinion. To establish a Strickland claim, the likelihood of a different result in the absence of the alleged deficiencies in representation "must be substantial, not just conceivable." Harrington v. Richter , 562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ; see also Strickland v. Washington , 466 U.S. 668, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding."). Here, we cannot say with any assurance how the jury might have weighed the proffered expert evidence of the effects of intoxication on the average person's ability to form intent against Waiters's own specific behavior and statements, including his admission to Warren, about a year after the incident, that he was "aiming after" Lorenzo (and thus intending to shoot) because he felt that Lorenzo "was trying to come between" them. Trial Tr. at 466 (emphasis added). We are therefore guided by the Supreme Court's instruction that in cases like this one, governed by § 2254(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the "state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court's decision." Harrington , 562 U.S. at 101, 131 S.Ct. 770 (quoting Yarborough v. Alvarado , 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ). Here, the state trial court's determination that Waiters failed to establish prejudice was not unreasonable; it was not so lacking in justification as to be "beyond any possibility for fairminded disagreement." Id. at 103, 131 S.Ct. 770. The district court accordingly erred in second-guessing that determination and substituting its own judgment for that of the state court.

BACKGROUND

I. Factual Background¹

A. The Offense Conduct

On the afternoon of Saturday, May 6, 2006, Warren threw Waiters a party at her apartment, in which Waiters also resided, to celebrate his 36th birthday.² The party was attended by members of Warren's family, including her teenage children Derrick and Shatashia, who lived with Warren; her sister and sister's husband; and her aunt Mary Lee Clark ("Clark") and Clark's five grandchildren, who ranged in age from only a couple of months old to about ten.

Waiters had begun drinking earlier in the day, and had additional Bacardi Light and soda with Warren and Clark during the party. According to Warren, she and Waiters drank every day; sometimes a fifth of rum managed to last them two days. Waiters regularly became verbally abusive when he drank, though he did not so behave that afternoon. The party lasted until about 11:00 p.m., when Warren's sister and brother-in-law left. Clark and her grandchildren stayed the night. Warren's 23-year-old son, Lorenzo, a letter carrier with the Postal Service who lived at the

857 F.3d 470

apartment but did not attend the birthday party, returned home at about 2:00 a.m.

The next day, Waiters was up before 9:30 and went out to purchase cereal and milk for the crowd. Then, before 11:00 a.m., he resumed drinking with Warren and Clark for about half an hour. Shortly thereafter, Warren took the bottle from Waiters, telling him he'd had "too much to drink." Suppl. App'x at 43. Waiters resisted, exclaiming loudly, "Fuck you, bitch," after which an argument ensued. Id. at 44. According to Warren, the pair feuded for a period, until Waiters abruptly left the apartment, only to return about 10 minutes later.³

Upon his return, Waiters proceeded directly to the couple's bedroom. He remained there for 15 to 20 minutes before reappearing in the living room, now wearing a jacket. By this point, he was "screaming[,] ... yelling[,] and ... calling [Warren] names." Id. at 46. Clark implored him to calm down. Waiters and Warren exchanged curses before Warren demanded that he leave.

Lorenzo Warren testified that he heard the arguing and came out from his bedroom to the living room to intervene, telling Waiters to "step away from [his] mother" and to not "get in [her] face."⁴ Id. at 19. Waiters told Lorenzo that the argument did not "concern" him. Id. at 20. Lorenzo then moved closer to Waiters, at which point Warren and Clark pushed the two men to opposite ends of the room.

Derrick, then 17, and his younger sister Shatashia, 14, by this time drawn to the living room by the commotion, heard, respectively, Waiters tell Lorenzo, "I got something for you," Trial Tr. at 483, and "you don't want me to pull what I got out of my jacket," id. at 309. Lorenzo nonetheless openly doubted that Waiters had anything in his jacket. Waiters then pulled out a revolver and pointed it at Lorenzo, who, according to his trial testimony, continued to taunt Waiters, saying, "That gun isn't loaded. You don't have any bullets in that gun." Suppl. App'x at 32.

Waiters thereafter rapidly fired multiple shots. Derrick observed Waiters aim "[s]traight" at his brother, Trial. Tr. at 504, from a distance of about seven or eight feet. Warren saw Waiters shoot at Lorenzo as "he started going toward where Lorenzo was standing." Id. at 414. Waiters's first shot hit Lorenzo in the thigh, and the remainder hit Shatashia in the thigh; Clark in the head, abdomen, and leg; and three-year-old Tajmere Clark, who had run out to her grandmother during the tumult, in the head and chest. Clark was rendered comatose and succumbed to her injuries after trial; Tajmere died at the scene.

Waiters thereafter attempted to leave. According to Derrick, who stood between Waiters and the front door, Waiters pointed the gun, a .357 revolver, point-blank at Derrick's face. Waiters then "pulled the trigger." Id . at 508. When the gun "clicked," id . at 508, indicating to Derrick that it was out of ammunition, Waiters moved toward the exit but Derrick tackled him to the ground and began punching. Lorenzo, though injured, then got on top of Waiters and instructed his brother to leave, all while Waiters continued squeezing the trigger of his gun and "pointing it wildly." Id . at 248. Lorenzo began punching

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Waiters, but Waiters indicated that Lorenzo "wasn't strong enough" and "wasn't causing him any harm," id. at 181, asking him, "Is that all you got?," id. at 420. Waiters ultimately sustained a concussion after Lorenzo hit him with a fish tank and Derrick hit him with a vase at Lorenzo's instruction, around which time Waiters yelled to Warren for help.

Police and paramedics responded to the scene and transported both Waiters and his victims to the hospital. Medical records introduced at trial noted that Waiters was intoxicated when he arrived at Kings County Hospital Center, and that his "CNS" could not be "assess[ed] due to...