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WASHINGTON v. LEFEVRE

UNITED STATES DISTRICT COURT, EASTERN DISTRICT NEW YORK.


July 8, 1986.

Richard WASHINGTON, Petitioner,
v.
Eugene S. LeFEVRE, Superintendent, Clinton Correctional Facility; Elizabeth Holtzman, District Attorney, Kings County; and Robert Abrams, Attorney General of the State of New York, Respondents.

The opinion of the court was delivered by: BRAMWELL

DECISION AND ORDER

BRAMWELL, District Judge.

 Petitioner Richard Washington requests habeas corpus relief pursuant to Title 28, United States Code, section 2254. Before the Court is petitioner's claim that he was denied due process when the state trial court allegedly refused to permit petitioner to introduce evidence of another individual's confession to the robbery for which petitioner was convicted. *fn1" For the reasons that follow, the Court is of the opinion that petitioner's claim is procedurally barred by Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), and that the petition must therefore be dismissed.

 I. FACTUAL AND PROCEDURAL BACKGROUND

 On October 15, 1981, petitioner was convicted, after a jury trial in New York Supreme Court, Kings County, of four counts of robbery in the first degree (N.Y. Penal Law § 160.15), two counts of robbery in the second degree (N.Y. Penal Law § 160.10), one count of criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03), and one count of grand larceny in the third degree (N.Y. Penal Law § 155.30). Because petitioner had a prior felony conviction, he was sentenced as a predicate violent felony offender to concurrent terms of imprisonment of nine to eighteen years on the first-degree robbery counts, six to twelve years on the second-degree robbery counts, four to eight years on the weapons-possession count, and two to four years on the grand larceny count. The conviction was affirmed by the Appellate Division, Second Department, on February 28, 1984, People v. Washington, 99 A.D.2d 848, 488 N.Y.S.2d 615 (2d Dep't 1984), and by New York's Court of Appeals on March 21, 1985, People v. Washington, 64 N.Y.2d 961, 477 N.E.2d 1098, 488 N.Y.S.2d 644 (1985) (mem.). The present petition was filed on May 24, 1985. *fn2"

 II. DISCUSSION

 Petitioner argues that the state trial court violated his due process rights by refusing to allow him to introduce into evidence the confession of another individual, David Grier, who allegedly had admitted to committing the robbery for which petitioner was on trial. At trial, witnesses testified that the robbery was committed by two black men, one with dark complexion and the other with light complexion. Petitioner was identified as the robber with the darker complexion. However, the second robber apparently was never apprehended.

 Immediately before trial, petitioner's counsel learned of Grier's alleged confession. During the trial, counsel indicated to the court petitioner's intention to offer the confession into evidence as a declaration against penal interest, and to display the dark-complexioned Grier to the jury to create the inference that petitioner had been wrongly identified as the robber with the dark complexion. After the trial court stated its initial inclination to exclude the evidence, the court granted petitioner's counsel a recess to view and speak with Grier. After the recess, counsel made no further applications concerning Grier, nor did counsel at any time thereafter offer Grier's confession into evidence.

 Petitioner now argues, as he did in his state court appeals, that he was denied due process by the trial court's refusal to permit the evidence concerning Grier's alleged confession. However, New York's Court of Appeals expressly held that, as a matter of state procedural law, petitioner had waived his objection by failing to comply with New York's contemporaneous objection rule, N.Y.Crim.Proc.Law § 470.05(2). See 64 N.Y.2d at 962, 477 N.E.2d at 1098, 488 N.Y.S.2d at 644. *fn3" Thus, the present case falls squarely within the mandate of Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), in which the Supreme Court held that failure to comply with a state's contemporaneous objection rule bars subsequent federal habeas corpus review unless the petitioner demonstrates both cause for the procedural default and actual prejudice attributable thereto. Id. at 87-91, 97 S. Ct. at 2506-09; accord Engle v. Isaac, 456 U.S. 107, 129, 102 S. Ct. 1558, 1572-73, 71 L. Ed. 2d 783 (1982). Here, petitioner cannot satisfy either of these strict standards imposed by Wainwright.

 In order to demonstrate cause for his procedural fault, petitioner would have to show "that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." See Murray v. Carrier, 477 U.S. 478, , 106 S. Ct. 2639, 2646, 91 L. Ed. 2d 397 (1986). In Carrier, the Supreme Court reemphasized the principle that "the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." Id. In a companion case, the Court similarly observed that "a deliberate, tactical decision not to pursue a particular claim is the very antithesis of the kind of circumstance that would warrant excusing a defendant's failure to adhere to a state's legitimate rules for the fair and orderly disposition of its criminal cases." Smith v. Murray, 477 U.S. 527, , 106 S. Ct. 2661, 2666, 91 L. Ed. 2d 434 (1986).

 Under the facts and circumstances of the present case, the conclusion is inescapable that petitioner's counsel made a tactical decision not to offer the confession of Grier because, after viewing and speaking with Grier, counsel was convinced that the evidence would not help petitioner's case. Even stretching the imagination to its limits, the most that could be said is that counsel ignorantly or inadvertently "failed to [offer the evidence] despite recognizing it," see Carrier, supra, U.S. at , 106 S. Ct. at 2645. In either case, cause for the procedural default would not exist. See Smith, supra, U.S. at , 106 S. Ct. at ; Carrier, supra, U.S. at , 106 S. Ct. at . "So long as a defendant is represented by counsel whose performance is not constitutionally ineffective . . ., we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default." Carrier, supra, U.S. at , 106 S. Ct. at 2645-46; accord Jackson v. Scully, 781 F.2d 291, 297 (2d Cir.1986) (mere failure to object generally not sufficient for asserting "cause" under Wainwright); Tsirizotakis v. LeFevre, 736 F.2d 57, 62 (2d Cir.) (mere allegation of error by counsel insufficient to excuse a procedural default) (quoting Indiviglio v. United States, 612 F.2d 624, 631 (2d Cir.1979), cert. denied, 445 U.S. 933, 100 S. Ct. 1326, 63 L. Ed. 2d 768, (1980)), cert. denied, U.S. , 105 S. Ct. 216, 83 L. Ed. 2d 146 (1984). *fn4" Moreover, because the conclusion is inescapable that counsel's failure to offer Grier's testimony was based on a tactical determination that the evidence would not have been helpful to petitioner, it is impossible to see how petitioner could have been prejudiced by the procedural default. For the same reason, it is impossible to find that the appearance or testimony of Grier would have established that petitioner was "actually innocent." See Smith, supra U.S. at , 106 S. Ct. at 2668; Carrier, supra, U.S. at , 106 S. Ct. at 2650. *fn5"

 III. CONCLUSION

 For the foregoing reasons, petitioner's claim is barred from federal habeas review under Wainwright v. Sykes, supra, and subsequent cases. Accordingly, his petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 is DISMISSED.

 IT IS SO ORDERED.


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