included offenses on the weapons count, (14) asked the court to charge the jury on self-defense and extreme emotional disturbance, (15) requested an instruction that the jury not make unfavorable inferences from Lebron's, failure to take the stand, (16) provided a clear and concise summation in which he reviewed the evidence and argued that there was a reasonable doubt as to Lebron's guilt, (17) moved to set aside the verdict, and (18) urged the court to exercise leniency at sentencing.
Upon review of these exhaustive lists, it seems that Lebron's examples of trial counsel's ineffectiveness are merely critiques of trial strategy supported by hindsight. The alleged errors presented to the Appellate Division are insufficient to meet the "highly demanding" standards of the two prong Strickland test. In Kimmelman, 477 U.S. 365, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986), an ineffectiveness of counsel claim was upheld only because trial counsel totally neglected to conduct pre-trial discovery and therefore was unaware of physical evidence that the police had seized until the first day of trial, and that he had failed to make a timely motion to suppress. In Mason v. Scully, 16 F.3d 38, 1994 U.S. App. LEXIS 1905 (2d Cir. 1994), an ineffectiveness of counsel claim was upheld only because counsel repeatedly failed to object to the admission of the hearsay statements of nontestifying codefendants where counsel was the one who initially informed the court of the Confrontation Clause problem and where it was clear that these statements decisively influenced the jury's verdict.
Omissions of a smaller magnitude do not pass the Strickland standard. In Mills v. Scully 826 F.2d 1192 (2d Cir. 1987), for example, the court held that failure to elicit a witness' prior conflicting grand jury testimony on cross-examination was sound trial strategy. United States v. Nersesian, 824 F.2d 1294 (2d Cir.), cert. denied, 484 U.S. 957, and cert. denied, 484 U.S. 958, 98 L. Ed. 2d 382, 108 S. Ct. 357 (1987), and cert. denied, 484 U.S. 1061 (1988) a federal prosecution, held on direct appeal that decisions whether to call any witnesses on behalf of the defendant, whom to call as witnesses, whether to engage in cross-examination, and to what extent and in what manner to cross-examine, are all strategic in nature. If these decisions are reasonably made, they cannot constitute a basis for a successful ineffectiveness claim. In Gatto v. Hoke, 809 F. Supp. 1030 (E.D.N.Y. 1992), the court ruled that trial counsel's failure to object to the prosecutor's summation represented a tactical decision not to call attention to the prosecutor's statements and was not an example of ineffectiveness. In Player v. Berry, 785 F. Supp. 339 (E.D.N.Y. 1992), the court ruled that defense counsel's failure to object to jury charges and request expanded charges was not ineffective assistance. Finally, in Ballard v. Walker, 772 F. Supp. 1335 (E.D.N.Y. 1991), the court ruled that defense counsel's failure to make an opening statement, request a Sandoval hearing, present witnesses, object to the prosecutor's closing statement, and object to the court's jury charge did not amount to ineffectiveness of counsel. Similarly, in the present case, Lebron's list of examples of trial counsel's ineffectiveness do not amount in totality to a deprivation of his Sixth Amendment right to counsel since all of the claims relate to trial strategy.
Finally, Lebron argues that counsel's assistance at the suppression hearing was inadequate since he did not aggressively pursue Lebron's suppression motion. He questioned neither Officer Graham nor Detective Rice and only asked to see Rice's notebook. Then, at the conference following the suppression hearing, trial counsel did not request an additional hearing to determine whether Lebron's statement to Officer Nieves could even be used for cross-examination purposes since perhaps it was coerced. These examples of inactivity related to the Fourth Amendment suppression issue, however, seem to fall short of the Strickland test and of the additional requirement set forth in Kimmelman.
The Second Circuit has held in several cases that failure to make a suppression motion for which there is no legal basis is not indicative of ineffective assistance of counsel. See United States v. Torres, 845 F.2d 1165, 1172 (2d Cir. 1988); United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987) ("We are understandably reluctant to require defense counsel routinely to file boilerplate motions merely to vindicate their professional competence without regard for the grounds supporting such motions."); United States v. Caputo, 808 F.2d 963 (2d Cir. 1987). In the present case, there was no legal basis to suppress Lebron's statement to Officer Graham at the scene. There was no evidence that the statement had been coerced, and, because Lebron was not in custody, there was no need to give Miranda warnings. Since the statement to Officer Nieves at the stationhouse was suppressible and could only probably be used for cross-examination, if trial counsel knew that Lebron was not going to testify or decided that there was nothing impeaching in the statement to Nieves, there was no reason to request another suppression hearing
B. The New Ineffective Assistance of Counsel Claim
Lebron now argues that there is an additional aspect of the ineffective assistance of counsel claim - namely, that trial counsel failed to develop a justification defense for Lebron based on N.Y. Penal Law § 35.15(2)(b) (use of deadly physical force in response to the threat of physical force and a robbery). Lebron contends that trial counsel was objectively remiss for failing to develop this defense and that had this defense been presented to the jury Lebron would have been acquitted.
Since this specific illustration of trial counsel deficiency was not clearly presented to the Appellate Division, it could be argued that it is a procedurally barred claim and may not be used in support of a federal habeas petition. Lebron, however, presents two reasons to explain why this claim is not procedurally barred: (1) The prosecution stated in its appellate brief, while arguing trial counsel's effectiveness, that trial counsel "requested . . . instructions on the appropriate defenses." (Emphasis added.) This statement in the prosecution's brief, Lebron argues, alerted the Appellate Division to the issue of whether there was an appropriate defense on which trial counsel did not request instructions even though the Appellate Division did not explicitly address the issue, and (2) even if, arguendo, the robbery defense were deemed not presented on direct appeal, this court may still address it since Lebron claims he was "actually innocent" under the robbery defense.
Lebron's first argument as to why this new claim may be heard is not persuasive. A one-line, passing statement concerning jury instructions in the prosecutor's brief is not enough to advise the appellate court about the issue of the robbery justification defense and whether its omission constituted ineffective assistance of counsel. As the Second Circuit stated in Petrucelli v. Coombe, 735 F.2d 684, 689 (2d Cir. 1984), "Federal judges will not presume that state judges are clairvoyant."
In Castillo v. Sullivan, 721 F. Supp. 592 (S.D.N.Y. 1989), a habeas petitioner alleged ineffective assistance of trial counsel for failure to raise an intoxication defense at trial. The petitioner described four factual bases for his claim, but only two of them were presented to the appellate court. The court held that the petitioner had not exhausted his state remedies with regard to those unpresented claims. Similarly, in the present case, Lebron presented several factual bases for his ineffective assistance of counsel claim to the Appellate Division. He did not, however, clearly present his claim based on trial counsel's failure to present the robbery justification defense. Since this additional claim is arguably now procedurally barred, a federal court arguably cannot now entertain it. Were there substantive merit to the claim in the sense that this "failure" on the part of trial counsel might have affected the result, exhaustion could be construed from the facts. No inadequacies of counsel, however, had any effect on conviction.
Lebron's second claim is that this case is one of "actual innocence" and therefore is not procedurally barred. Unfortunately, the record does not indicate that Lebron is actually innocent of "the crime" of which he was found guilty.
The evidence introduced at trial - Arvello's testimony, Lebron's confession to Officer Graham, and Lebron's presence in the apartment at the time of the shooting - clearly established that Lebron shot and killed Lopez. The outcome of the trial would not have been different had trial counsel raised a robbery justification defense.
Lebron correctly notes that New York's robbery justification defense differs from a regular claim of self-defense in that to succeed on a robbery justification defense, the evidence only has to show that Lopez was threatening Lebron with the immediate use of physical force, and not deadly physical force. Lebron argues that if the jury had been presented with a scenario painting this case as one involving a robbery justification defense along with a corresponding charge, it would have found that Lebron's actions were justified on that basis. It would have been possible for Lebron's trial counsel to suggest that Lopez was attempting to rob Lebron and it would not have been necessary for trial counsel to argue that the deceased had actually shown a weapon. The evidence at trial was that Lopez came to Arvello's apartment in order to collect a debt from Lebron, that Lebron resisted paying, and that an argument ensued that arguably resulted in Lopez making threats of force to extort payment -- a robbery. That Lopez was sufficiently emboldened to make such threats was clear from the armament he had concealed on his person.
In this particular case, it is hard to see how the distinction between these two related defenses could have made a difference to a jury. To the extent that the evidence suggested that Lopez was threatening Lebron at all, the threat was of deadly physical force. Defense counsel based the self-defense claim on Lopez' possession of a hunting knife and a sawed-off shotgun and on Arvello's testimony about the argument between Lopez and Lebron in which Lopez allegedly said that "he didn't care to kill or to die", "Remember you have a wife and daughter", and that "he had shot a man with a shotgun before."
In these circumstances, the differences in law did not, effectively change the scenario the jury needed to develop in order to either convict or acquit. Contrary to Lebron's suggestion, there is no reason to believe that a robbery justification defense would have been more successful than the regular self-defense claim that was offered.
Lebron's petition for a writ of habeas corpus must be and is denied. His original ineffective assistance of counsel claim does not pass muster under the Strickland test. In addition, his expanded argument that trial counsel was ineffective for failure to develop the robbery justification defense or that petitioner was in fact innocent are unpersuasive.
The question is a close one warranting appellate review. A certificate of probable cause is granted.
Jack B. Weinstein
Senior United States District Judge
Dated: Brooklyn, New York
March 7, 1994
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