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HENRY v. SCULLY

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


July 14, 1995

HUGH HENRY, Petitioner, against CHARLES J. SCULLY, Superintendent, Green Haven Corr. Facility, and ROBERT ABRAMS, Attorney General, State of New York, Respondents.

The opinion of the court was delivered by: KIMBA M. WOOD

OPINION & ORDER

 WOOD, D.J.

 Hugh Henry petitioned this court for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254 on November 12, 1991, and on November 29, 1991, the petition was referred to Magistrate Judge Gershon for a Report and Recommendation ("Report"). On April 25, 1995, the Magistrate Judge issued the attached Report, recommending that I grant the petition. Counsel for respondent timely filed objections to the Report, and petitioner filed a brief response to respondents' objections. Having undertaken a de novo review of the Report and of respondents' objections, I adopt Magistrate Judge Gershon's thorough and well-reasoned Report.

 I. Discussion

 Although petitioner raised several claims of constitutional error, the Magistrate Judge accepted only one: that the performance of petitioner's attorney at trial violated petitioner's Sixth Amendment right to effective assistance of counsel. In particular, the Magistrate Judge found deficient the attorney's failure to object to the admission into evidence against petitioner of his co-defendant's confession, and his subsequent failure either to object to the prosecutor's reliance on this statement in his summation, or to request a limiting instruction as to the jury's use of the co-defendant's statement against petitioner. (Report at 37-38). *fn1"

 While there is no per se rule that this particular type of trial error -- that is, the failure to contend adequately with incriminating statements made by a co-defendant -- automatically constitutes an error of constitutional magnitude, a review of the record in this case shows that counsel's failure both fell below an objective standard of reasonableness, and prejudiced the petitioner's defense such that there is a reasonable probability the outcome would have differed in the absence of the unprofessional error. See Kimmelman v. Morrison, 477 U.S. 365, 375, 91 L. Ed. 2d 305, 106 S. Ct. 2574 (1986) (citing Strickland v. Washington, 466 U.S. 668, 688, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)).

  With respect to the "objective incompetence" prong, I note that although the Supreme Court has cautioned that "judicial scrutiny of counsel's performance must be highly deferential," Strickland, 466 U.S. at 688, Magistrate Judge Gershon properly found it impossible to conclude that petitioner's counsel's omissions in this case were merely tactical decisions, given that the co-defendant's hearsay statement implicating petitioner, if believed by the jury, was devastating to petitioner's claim of innocence. The oversights were particularly prejudicial when compounded with other egregious errors made by counsel, including his failure to object to hearsay testimony offered by Detective Palmieri (Tr. at 192), and his failure to request a missing witness charge regarding the absence of the confidential informant at trial. (Report at 43.)

 With respect to the prejudice prong, I agree with the Magistrate Judge that the admission of the co-defendant's statement was disastrous to petitioner's defense: it provided highly prejudicial evidence, that, contrary to petitioner's claim, he and his co-defendant were acquainted, and that petitioner was in the vicinity of the "buy and bust" operation not for innocent reasons, but rather, because he was actively involved in the sale of narcotics. (Tr. at 487-88). See generally Bruton v. United States, 391 U.S. 123, 136, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968) (describing in detail prejudice suffered by defendant when codefendant's testimony is admitted against defendant at joint trial).

 II. Conclusion

 Because I agree with Magistrate Judge Gershon that petitioner has shown both that counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, see Strickland, 466 U.S. at 694, I find that petitioner has established a constitutional claim for ineffective assistance of counsel. Accordingly, I adopt the Magistrate Judge's Report in full, and order petitioner's writ of habeas corpus granted. Respondent is directed either to release petitioner from custody, or to retry him within ninety days of this order.

 SO ORDERED.

 DATED: New York, New York

 July 14, 1995

 Kimba M. Wood

 United States District Judge


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