Hill v. Bradt

ERIC D. HILL, Petitioner, v. MARK L. BRADT, Respondent.

No. 1:13-CV-00267 (MAT)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

September 28, 2015

DECISION AND ORDER

I. Introduction

Proceeding pro se, Eric D. Hill ("petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is being detained in respondent's custody in violation of his federal constitutional rights. Petitioner is incarcerated pursuant to a judgment entered on July 19, 2007, in Monroe County Court (Keenan, J.), following a jury verdict convicting him of two counts of murder in the second degree (N.Y. Penal Law § 125.25(1)).

II. Factual Background and Procedural History

In 2006, petitioner was charged by indictment with two counts of murder in the second degree (N.Y. Penal Law § 125.25(1)), in connection with the October 12, 2005 double homicide of Marvin Joseph and Marvin Crawford. Petitioner was tried on these charges at a jury trial which commenced June 19, 2007, before Monroe County Judge Richard A. Keenan. At trial, eyewitness Valeria Huff testified that on the evening of October 11, 2005, she saw petitioner at a Rochester bar, the Garage Door, with his friend "D.B." and two women. Huff testified that she knew petitioner, alsoknown as "Southboy," from "the streets" and that he had gold teeth, which she observed on the evening in question. T. 328-29.¹

At the bar, Huff observed Joseph (known to Huff as "Fleet") and Crawford get into an argument with petitioner and D.B., apparently stemming from Crawford's attempt to flirt with the two women accompanying petitioner and D.B. After the argument ended, Huff witnessed petitioner enter a van and block Joseph's car from leaving the parking lot. Petitioner then ran toward Joseph's car holding a large silver gun. Huff heard five or six shots fired and saw petitioner run back to his van and drive away. Huff identified Joseph and Crawford from morgue photographs. Police processed the scene and recovered six spent .40 caliber gun casings and a piece of chewing gum in the area of Joseph's car. The gum later tested positive for the DNA of petitioner's wife. Subsequent investigation revealed petitioner as a suspect, but petitioner had fled the area. Petitioner was eventually apprehended in Enterprise, Alabama, on November 30, 2006.

The jury convicted petitioner on both charges. On July 19, 2007, petitioner was sentenced to two consecutive prison terms of 25 years to life. Petitioner filed a direct appeal, in which he argued in a counseled brief that he was denied a fair trial due to prosecutorial misconduct, that the verdict was against the weightof the evidence, and that his trial counsel was ineffective. Petitioner also filed a pro se supplemental brief and appendix, in which he claimed that he was denied his right to be present at all stages of trial and that his trial was unfair because the prosecutor introduced morgue photographs of both victims. He also argued that his trial counsel was ineffective for failing to object to the admission of one of the photographs of the victims.

In a March 25, 2011 opinion, the New York State Supreme Court, Appellate Division, Fourth Department affirmed the judgment of conviction. See People v. Hill, 82 A.D.3d 1715 (4th Dep't 2011), lv denied 17 N.Y.3d 806. The court addressed all of defendant's claims on the merits, rejecting each in turn. The New York State Court of Appeals denied leave to appeal. See id.

On March 1, 2012, petitioner filed a pro se motion pursuant to New York Criminal Procedure Law § 440.10, arguing ineffective assistance of counsel and prosecutorial misconduct. The District Attorney opposed the motion, and the motion was denied by the Monroe County Court "for the reasons set forth in the People's response." Doc. 8-1 at 316. The Appellate Division denied leave to appeal. Doc. 8-1 at 348-49.

D. The Federal Habeas Proceeding

This timely habeas petition followed, in which petitioner claims that (1) trial counsel was ineffective for failing to: (a) effectively cross-examine identification witness Valeria Huff; (b) interview and call certain witnesses; (c) request a jury chargeto the effect that petitioner's flight to Alabama following the shooting was of slight probative value; (d) object to the prosecutor's allegedly improper summation remarks; and (e) challenge the admissibility of DNA evidence; (2) the prosecutor committed misconduct (a) by making certain comments on summation and (b) by presenting perjured testimony; (3) petitioner's right to be present at all stages of trial was violated due to a certain ex parte communication between the prosecutor and the trial judge; and (4) petitioner's right to a fair trial was violated by the admission of two morgue photographs of the victims. Respondent concedes that all of petitioner's claims are exhausted, but argues that each fails for the reasons set out in its brief.

III. Standard of Review

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to Hill's petition, which was filed in 2013. AEDPA "revised the conditions under which federal courts may grant habeas relief to a person in state custody." Kruelski v. Connecticut Superior Court for Judicial Dist. of Danbury, 316 F.3d 103, 106 (2d Cir.2003) (citing 28 U.S.C. § 2254). Under AEDPA, a federal court may grant a writ of habeas corpus under 28 U.S.C. § 2254 only if the state court's adjudication of the petitioner's claim on the merits ruling is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or involved an "unreasonable determination of thefacts" in light of the evidence presented, 28 U.S.C. § 2254(d)(2). The Second Circuit has stated that "it is often appropriate in considering a habeas petition under the AEDPA for the federal court to go through two steps: first, the court determines what the correct interpretation of Supreme Court precedent is; second, if the state court's understanding or application of that precedent is determined to be erroneous, the federal court must still ask whether that error was a reasonable one." Kruelski, 316 F.3d at 106.

IV. Grounds Asserted in the Petition

A. Ineffective Assistance of Counsel (Ground One)

Petitioner claims that trial counsel was ineffective for failing to: (1) effectively cross-examine identification witness Valeria Huff; (2) interview and call certain witnesses; (3) request a jury charge to the effect that petitioner's flight to Alabama following the shooting was of slight probative value; (4) object to the prosecutor's allegedly improper summation remarks; and (5) challenge the admissibility of DNA evidence.

To establish ineffective assistance of counsel, a defendant first must show "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and second, that "there is a reasonable probability that, absent the errors [by counsel], the fact finder would have had a reasonable doubt respecting guilt." Strickland v. Washington, 466 U.S. 668, 687, 695 (1984). As discussed furtherbelow, the Court finds that all of Hill's theories in support of his ineffective assistance of trial counsel claim fail under the "highly deferential" standard laid out in Strickland. Id. at 689.

The Court also notes that, under Strickland, it is required to consider alleged errors by counsel "in the aggregate." Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001). In this case, counsel actively participated in all stages of the trial, presenting a cogent and capable defense by making appropriate motions and objections, performing effective cross-examination of witnesses, and presenting reasonable opening and closing arguments. The record thus establishes that, in the aggregate, trial counsel's representation was effective. See Harrington v. Richter, 562 U.S. 86, 90 (2011) ("[I]t is difficult to establish ineffective assistance when counsel's overall performance indicates active and capable advocacy."); United States v. DiPaolo, 804 F.2d 225, 234-35 (2d Cir. 1986) (holding that defendants were not denied effective assistance of counsel where counsel appeared well-prepared and demonstrated good understanding of the facts and legal principles involved in case).

1. Cross-Examination of Huff

Petitioner argues that counsel's cross-examination of Huff was so deficient that it denied him a fair trial. A reading of the cross-examination (T. 355-62), however, belies this contention. Defense counsel's lines of questioning followed logical strategies, such as attempting to establish that Huff could have confusedpetitioner with his friend, D.B., and attempting (but failing) to elicit testimony that D.B. may have been armed. The fact that defense counsel's questioning may not have elicited the answers that would have been most beneficial to petitioner's case does not mean that counsel's questioning amounted to ineffective assistance, but rather speaks to the strength of the evidence against petitioner in this case. Moreover, "[d]ecisions whether to engage in cross-examination, and if so to what extent and in what manner, are ... strategic in nature." United States v. Nersesian, 824 F.2d 1294, 1322 (2d Cir. 1987). "As such, counsel's conduct of cross-examination generally will not be second-guessed by reviewing courts." Seda v. Conway, 774 F. Supp. 2d 534, 541 (W.D.N.Y. 2011). The Court declines to do so here.

2. Failure to Interview and Call Certain Witnesses

Petitioner contends that counsel was ineffective for failing to interview and call three witnesses who were present at the bar on the night in question. However, as respondent points out, petitioner's defense counsel explained in a letter (which was attached to petitioner's CPL 440.10 motion) that his decision not to call these witnesses was strategic. In that letter, defense counsel informed petitioner that he chose not to call the...