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Wise v. Smith

decided: May 25, 1984.

CLIFFORD WISE, PETITIONER-APPELLANT,
v.
HAROLD J. SMITH, RESPONDENT-APPELLEE



Appeal from judgment of the United States District Court for Western District of New York, Michael A. Telesca, J., denying appellant's petition for writ of habeas corpus, which claims denial of effective assistance of counsel and fair trial in state conviction for second degree robbery. Appellant argues, inter alia, statutory presumption of correctness under 28 U.S.C. § 2254(d) was erroneously applied to state court conclusions on mixed questions of law and fact as to counsel's effectiveness. Affirmed.

Feinberg, Chief Judge, Friendly and Oakes, Circuit Judges.

Author: Feinberg

FEINBERG, Chief Judge:

Clifford Wise appeals from a judgment of the United States District Court for the Western District of New York, 559 F. Supp. 44, Michael A. Telesca, J., denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Wise alleged in his petition that he was denied effective assistance of counsel and a fair trial in his state court conviction of second degree robbery. In this appeal, Wise argues that the district court erred in applying the statutory presumption of correctness of § 2254(d) to conclusions of the state trial and appellate courts on mixed questions of law and fact in assessing counsel's effectiveness and in concluding that Wise was not denied a fair trial when the trial judge failed to declare a mistrial after an outburst by counsel in front of the jury.

For the reasons given below, we affirm the judgment of the district court.

I.

After a jury trial before Justice James H. Boomer, New York State Supreme Court, Monroe County, Wise was convicted in June 1976 of robbery in the second degree, N.Y. Penal Law § 160.10, and grand larceny in the second degree, N.Y. Penal Law § 155.35. He was acquitted of first degree robbery. Wise was sentenced on the robbery charge as a second felony offender to 71/2 to 15 years imprisonment. No sentence was imposed on the grand larceny charge because it merged with the robbery conviction.

Before and during the trial, Wise was represented by retained counsel, apparently his third and possibly his fourth lawyer in the case. At the completion of jury selection, Wise advised the trial judge that this was his counsel's first jury trial, something Wise alleged that he had only recently learned, and that he did not feel counsel was experienced enough to handle the trial. The judge denied Wise's request to obtain new counsel on the grounds that it was too late in the proceedings to do so and that he felt counsel was capable of handling the trial. On the fourth day of trial and in the presence of the jury, counsel refused to continue, accused the judge of prejudging his client's guilt and of unfairly influencing the jury and stalked out of the courtroom. After immediately dismissing the jury and summoning counsel back to the courtroom, the judge engaged in a prolonged and sometimes heated colloquy with counsel in which the judge denied any prejudicial conduct and ordered counsel to continue representing Wise. The trial proceeded without further incident.

Represented by new counsel, Wise appealed his conviction to the Appellate Division essentially on the same grounds presented in the habeas petition now before us. In November 1978, the Appellate Division vacated the grand larceny conviction as an inclusory concurrent count of the robbery conviction, but in all other respects affirmed the judgment. Leave to appeal to the New York Court of Appeals was denied. Meanwhile, during the pendency of his appeal to the Appellate Division, Wise moved in the trial court pursuant to N.Y. Crim. Pro. Law § 440.10 to vacate his conviction on the ground of ineffective assistance of counsel. After argument, the trial judge denied the motion without an evidentiary hearing. Leave to appeal this decision was denied by the Appellate Division in January 1978.

Wise filed a habeas petition pro se in the district court in October 1979. After counsel was appointed and an amended petition filed, Judge Telesca denied the amended petition in March 1983, without an evidentiary hearing. The judge held that Wise's numerous assertions of omissions, mistakes and misconduct by his trial counsel could not stand in the face of the findings of the state trial and appellate courts. Applying this circuit's former "farce and mockery" standard, the judge found that the representation was not a denial of effective assistance of counsel. The judge also held that Wise had not been denied a fair trial when the state judge declined to declare a mistrial based on the prejudicial impact of defense counsel's misconduct. The district court found that the trial judge had taken appropriate steps to mitigate the prejudicial effect and that the denial of a mistrial was within his discretion.

This court granted a certificate of probable cause to appeal on the ineffectiveness of counsel claim, but because the moving papers were ambiguous as to the fair trial claim and it was also fully briefed on appeal, we have considered it as well.

II.

In their briefs and argument to us, the parties raised several difficult questions, including the retroactivity of our recent decision in Trapnell v. United States, 725 F.2d 149 (2d Cir. 1983), the degree of prejudice, if any, that must be shown if counsel is found to have been ineffective in some respects and the full reach of the presumption of correctness accorded state court conclusions on mixed questions of law and fact under Sumner v. Mata (I), 449 U.S. 539, 66 L. Ed. 2d 722, 101 S. Ct. 764 (1981), Sumner v. Mata (II), 455 U.S. 591, 71 L. Ed. 2d 480, 102 S. Ct. 1303 (1982), Marshall v. Lonberger, 459 U.S. 422, 103 S. Ct. 843, 74 L. Ed. 2d 646 (1983), and Rushen v. Spain, 464 U.S. 114, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983). After the appeal was argued, the Supreme Court decided Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, 52 U.S.L.W. 4565 (1984), which specifically approved the "reasonable competence" standard of assessing counsel's effectiveness that we adopted in Trapnell, and held, on the issue of prejudice, that a defendant "must show 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, supra, 52 U.S.L.W. at 4570, 4572. Assuming arguendo that Strickland v. Washington applies to a case on appeal when it was decided, we have conducted an independent review of the state court record under the "reasonable competence" standard and we conclude that Wise was not denied effective assistance of counsel and that he has not "affirmatively prove[d] prejudice," id. 52 U.S.L.W. at 4572.

In denying Wise's habeas petition, the district court considered itself bound under 28 U.S.C. § 2254(d) and Sumner v. Mata I and II, supra, by the following determinations of the trial judge and the Appellate Division: the trial judge's statement that "at first [Wise's trial counsel] was rather slow in selecting the jury, but he impressed me, as matters went on, of being an aggressive defense counsel, and his summation, I thought was impressive under all the circumstances of the case"; and the Appellate Division's statements that "no crucial element of the defense was omitted . . . and counsel appeared to be prepared and to have a grasp of the facts and legal principles involved"; that "there is no evidence that counsel ever lost his composure ...


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