Folkes v. Lee

THEODORE A. FOLKES, Petitioner,

v.WILLIAM A. LEE, Respondent.

10 Civ. 5416 (BMC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: June 30, 2011

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

Petitioner was convicted by a jury of second degree, depraved indifference murder under New York Penal Law § 125.25[2] after he fatally stabbed his girlfriend. The jury rejected his defense that the stabbing was an accident. He then pled guilty to cocaine possession, and was sentenced concurrently on both charges to twenty-five years to life. He raises four points of error with regard to his murder conviction in this petition for a writ of habeas corpus under 28 U.S.C. § 2254:

(1) the evidence against him was legally insufficient;

(2) the prosecutor improperly used petitioner's invocation of his Fifth Amendment right to remain silent as evidence of his guilt;

(3) his trial counsel was ineffective for not preserving points (1) and (2) and, with regard to point the second point, for not explaining to the jury that petitioner had the right under Miranda to remain silent; and

(4) his appellate counsel was ineffective for (a) not raising his trial counsel's ineffectiveness as noted above; and (b) not asserting that his girlfriend's inculpatory statements as she lay dying and other hearsay statements, received in evidence in violation of his right to confrontation, should not have been admitted.

As discussed below, these four points distill into three as a result of procedurally barred and unexhausted claims. Familiarity with the facts is assumed, but some additional facts will be set forth as relevant as to each of the points of error that petitioner has raised. None of the points have merit and the petition is therefore denied.

I. Insufficiency of the Evidence

Petitioner is one of many New York defendants who were both convicted under the interpretation of N.Y. Pen. Law §125.25(2) (depraved indifference murder) set forth in People v. Register, 60 N.Y.2d 270, 274, 469 N.Y.S.2d 599 (1983), and had their appeal pending when the New York Court of Appeals decided People v. Feingold, 7 N.Y.3d 288, 294, 819 N.Y.S.2d 691 (2006), which overruled Register. In essence, Feingold held, contrary to Register, that in a one-on-one attack with a deadly weapon intentionally directed at a particular person who then dies as a result of the attack, depraved indifference murder will not lie; the proper charge is either intentional murder (N.Y. Penal Law §125.25(1)) or intentional manslaughter (manslaughter in the first degree, N.Y. Penal Law § 125.20(1)).

Too many decisions have discussed this evolutionary change in New York law and its impact on pending direct appeals and collateral challenges to depraved indifference murder convictions to require reiteration of that discussion here. See, e.g., Sanchez v. Lee, No. 10 Civ. 7719, 2011 WL 924859 (S.D.N. Y. Mar. 16, 2011). But to summarize, the state of the law as currently settled distills into the following principle: Although the New York Court of Appeals has held that Feingold should be applied to reverse convictions under Register if the direct appeal (not collateral attack, see Policano v. Herbert, 7 N.Y.3d 588, 603, 859 N.E.2d 484 (2006)) was pending at the time of the Feingold decision, it has elected to do so only if trial counsel preserved the objection to the Register standard at the time of trial, effectively anticipating thechange announced in Feingold. See People v. Jean-Baptiste, 11 N.Y.3d 539, 544, 872 N.Y.S.2d 701 (2008). There is no constitutional infirmity with this limited retroactive application of Feingold because retroactivity, even on direct appeal, is not constitutionally required, see Wainwright v. Stone, 414 U.S. 21, 23-24, 94 S. Ct. 190 (1973), unless the prior interpretation of the law was itself unconstitutional, see Fiore v. White, 531 U.S. 225, 228, 121 S. Ct. 712 (2001), which is not the case with the prior Register standard. See Mannix v. Phillips, 619 F.3d 187, 199-200 (2d Cir. 2010); Lampon v. LaValley, No. 10 Civ. 2591, 2011 U.S. Dist. LEXIS 15531, at *34 (E.D.N.Y. Feb. 15, 2011). And on collateral review, the Second Circuit has held that the federal constitution does not require the state court to automatically apply the new interpretation retroactively. Henry v. Ricks, 578 F.3d 134, 139-40 (2d Cir. 2009).

In the instant case, the Appellate Division held that petitioner had failed to preserve this claim, having raised only a general objection to the sufficiency of the evidence at trial. See People v. Folkes, 43 A.D.3d 956, 841 N.Y.S.2d 365 (2d Dep't 2007), leave to app. den., 9 N.Y.3d 1004, 850 N.Y.S.2d 392 (2010). It is well settled under New York law that a general objection to the sufficiency of the evidence does not preserve particular theories of inadequacy for appeal. See, People v. Carncross, 14 N.Y.3d 319, 324-25, 901 N.Y.S.2d 112, 114 (2010) ("[W]here a motion to dismiss for insufficient evidence [is] made, the preservation requirement compels that the argument be specifically directed at the alleged error") (quotations omitted); People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 399 (2008) (to properly preserve a challenge to the legal sufficiency of a conviction, "a defendant must move for a trial order of dismissal, and the argument must be 'specifically directed' at the error being urged" and "general motions simply do not create questions of law or fact for this Court's review."). It has also been decided by district courts in this Circuit that with regard to Feingold's overruling ofRegister, this rule of New York procedure constitutes an "adequate and independent" state law bar to federal habeas corpus review under Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038 (1989), and its progeny. See, e.g., Sanchez, 2011 WL 924859, at * 18 & fn. 30 (collecting cases).

Here, petitioner concedes that the Appellate Division appropriately invoked the procedural bar because his trial counsel made only a general motion to dismiss the depraved indifference count. He nevertheless contends that under the Harris line of cases, there is "cause" to overcome the valid state procedural bar because his trial counsel was ineffective for not objecting to the Register standard and anticipating Feingold.

This argument cannot succeed. One of the requirements to prevail on an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984), is that counsel's performance must have been objectively unreasonable, that is, that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." The performance required under the Sixth Amendment requires trial counsel to be familiar with the law as it exists at the time he is trying the case, not to have a crystal ball and predict changes in the law well into the future.

Petitioner's trial was in March of 2000. Feingold did not overrule Register until 2006. A trial lawyer might well have displayed unusual foresight in anticipating Feingold years before it was decided - and, indeed, as Jean-Baptiste, 11 N.Y.3d 539 at 544, shows, at least one did - but unusual foresight is not the floor for constitutionally effective counsel, as that would be inconsistent with objective reasonableness. See, e.g., Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (In assessing the attorney's performance, a reviewing court must judge his conduct on the basis of the facts of the particular case, '"viewed as of the time of counsel's conduct.'" Id. (quoting Strickland)); Haynes v. Ercole, No. 08-CV-3643, 2011 U.S. Dist. LEXIS 61293, at *13(E.D.N. Y. June 8, 2011) (counsel not ineffective for not predicting Feingold); Lisojo v. Rock, 09 Civ. 7928, 2010 WL 1223086 at *32 (S.D.N.Y. Mar. 31, 2010) (On habeas review, defense counsel's performance is evaluated by the state of New York's depraved indifference murder case law at the time of trial.), report & rec. adopted, 2010 WL 1783553 (S.D.N.Y. Apr. 29, 2010); Fore v. Ercole, 594 F.Supp.2d 281, 305 (E.D.N.Y. 2009) ("[T]rial counsel cannot be held to be ineffective when he reasonably relied on the interpretation of New York law regarding depraved indifference murder as it was at the time of petitioner's trial."); Soto v. Conway, 565 F.Supp.2d 429,436 (E.D.N.Y. 2008) ("[I]n reviewing counsel's performance for cause, this Court considers not what the law of New York was or is, but rather whether, in light of the case law known to him at the time, counsel's conduct fell below an objective standard of reasonableness."). Under the law as it existed at the time of petitioner's trial, his trial counsel had no reason to believe that any standard other than Register would apply, and there is no question that the prosecutor's theory and the Court's instructions were proper under Register.

There is therefore no "cause" that would relieve petitioner from the adequate and independent state law ground for the Appellate Division's invocation of a procedural bar, and no basis for federal habeas corpus review.

II. Fifth Amendment Invocation Issue

The detective testified that when he entered the interrogation room, petitioner "told me that he had nothing to say to me, that he had given me his statement previously, that he had a paid attorney, and that I had no case." Petitioner had not been given his Miranda rights when he made this statement, but on cross-examination, the detective made it clear that petitioner had made this statement before the detective had a chance to give him his Miranda rights: "I wasprepared to [give petitioner his Miranda rights], he didn't want me to. He stated off the top what we were going to do which was nothing. That was it."

Petitioner's statement to the detective had been the subject of a motion to suppress made just before the start of trial. In making that motion, his trial counsel did not argue that admission of the statement would violate petitioner's right...