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QUINONES v. MILLER

June 3, 2003

EDGAR QUINONES, PETITIONER,
v.
DAVID L. MILLER, SUPERINTENDENT, EASTERN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Andrew J. Peck, Magistrate Judge.

REPORT AND RECOMMENDATION

To the Honorable William H. Pauley III, United States District Judge.

Edgar Quinones, pro se, petitions for a writ of habeas corpus from his July 10, 1995 conviction in Supreme Court, New York County, of second degree murder and second and third degree criminal possession of a weapon, for which he was sentenced as a repeat offender to concurrent terms the longest of which was twenty years to life imprisonment. See People v. Quinones, 272 A.D.2d 228, 228, 708 N.Y.S.2d 616, 616 (1st Dep't 2000). Quinones' amended petition claims ineffective assistance of trial counsel on multiple grounds, including a conflict of interest. (Dkt. No. 1: Petition at 3; Dkt. No. 10: Amended Pet. ¶ 1.)

Quinones' conflict claim asserts that since his attorney, Alvin Morris, also represented Quinones' brother Dennis when Dennis was arrested for possession of a .380 caliber handgun, Dennis must be the real killer. Brother Dennis and attorney Morris are dead, so there is no way to test whether these assertions have any basis in reality. The Court's first reaction on reading Quinones' conflict claim was that, in light of attorney Morris' and Dennis' deaths, the claim was frivolous. On further review, however, while the Court is denying the claim, it has required a great deal of analysis.

Conversely, on reading Quinones' general claims of ineffective assistance, the Court initially was troubled by some of Morris' alleged deficiencies. In deciding the petition, the Court has carefully read the entire trial transcript, and concludes that while Morris' conduct of the trial was not stellar, it did not constitute ineffective assistance.

For the reasons discussed below, Quinones' petition should be DENIED.

FACTS

Quinones' Pretrial Request for Change of Counsel

On April 24, 1995, Quinones requested the trial court to replace his retained counsel, Alvin Morris, because, according to Quinones, Morris had neither interviewed witnesses nor filed motions. (Dkt. No. 20: State Am. Appendix: Quinones C.P.L. § 440 Motion Ex. P: 4/24/95 Transcript at 3.) The court noted that the latter was not true because "extensive motions were filed." (Id.)*fn1 Further, Morris had negotiated a plea offer with the prosecution for a five- to ten-year sentence, which Quinones rejected, despite a warning from the judge that the deal "is ridiculously low" and if he turns it down and is convicted, "he faces twenty-five to life." (Id. at 2.) The court pointed out that Morris was retained counsel, and warned that any new retained lawyer would have to be prepared for trial in thirty days. (Id. at 4-5.) Ultimately, Quinones did not replace Morris.

Pretrial Suppression Hearing

Lamont Carter was murdered on December 31, 1992, at approximately 7:20 p.m. on the corner of 132nd Street and Fifth Avenue in Manhattan. (6/1/95 Wade Hearing Transcript ["H"] 5-6, 29-30.) Quinones was arrested for the crime on August 20, 1993 (Milian: H.16), after two eyewitnesses — Carol Deans and Marion Scarlett — placed him at the scene (Milian: H. 9-11, 14, 16, 28, 30).

On June 1 and June 2, 1995, the court conducted a pretrial Wade hearing to determine the propriety of three separate photo array identifications by Deans and Scarlett and a lineup identification by Deans. (H. 46.) The court heard testimony from Detectives George Milian and Ronald Balzan, who obtained the identifications. (Milian: H. 7-9, 14, 16-17; Balzan: H. 41.)

Detective Milian testified that Carol Deans witnessed the shooting. (Milian: H. 7, 28.) On January 3, 1993, just three days after the shooting, Deans identified Quinones in a photo array by stating: "`This looks a lot like the guy that did the shooting. If I had him in person, I could be absolutely sure.'" (Milian: H. 9-11; see also Milian: H. 29-30, 34.)

Detective Milian testified that he included Quinones' brother in the photo array shown to Deans on January 3, 1993. (Milian: H.14, 23-24.) Defense counsel did not follow up on this line of inquiry. (See Milian: H. 24-34.) The judge later remarked that the pictures of the two brothers "look very much alike." (H. 54.)

Detective Milian testified that the brother's name was Jorge Vasquez. (Milian: H. 23-24.) Until recently, the parties assumed that the brother in the photo array was Dennis Quinones. (E.g., Dkt. No. 20: State Am. Answer ¶ 29.) However, in his most recent submission to this Court, Quinones asserted that the brother in the photo array was "David Quinones," apparently another "one of Petitioner's brothers." (Dkt. No. 22: Quinones Traverse Br. at 12.) The State agrees that the lineup photo was not of Dennis. (Dkt. No. 25: A.D.A. Axelrod Aff. ¶¶ 3-4.)

On March 1, 1993, the police interviewed the victim's "wife," Marion Scarlett. (Milian: H. 11-12.) According to Detective Milian, Scarlett immediately identified Quinones in a photo array as "the guy that was involved in the [oral] fight with" her husband on the day he was killed. (Milian: H.13-14, 27, 34-35.) Quinones' "brother" was not included in the photo array shown to Scarlett. (Milian: H. 13-14, 23.)

Late on the night of August 20, 1993, Deans again identified Quinones from a photo array.*fn2 Deans again identified Quinones' picture. (Balzan: H. 42.) At 4:30 a.m. on August 21, 1993, nearly eight months after the shooting, Quinones was placed in a lineup for viewing by Deans. (Milian: H. 16-17; H. 47.) When Deans viewed the lineup, she "started to shake" and identified Quinones by exclaiming, in a "trembl[ing] voice: "`O[h], my God. He's there. He's there.'" (Milian: H.19-20, 30.)

Quinones was in the same number-three position in the photo arrays and the lineup. (Milian: H. 11, 14, 20.) Quinones' counsel suggested at the hearing that Quinones had been moved to that specific position in the lineup. (H. 26.)

On cross-examination, defense counsel attempted to elicit from Detective Milian that Quinones' appearance differed from the others in the lineup, in that Quinones' shirt had blood on it, his shirt was on backwards, and his shoes did not have laces. (Milian: H. 24-26.) Based on the photograph of the lineup, Detective Milian conceded that Quinones' shirt did have blood on it on the night of the lineup, but could not tell whether Quinones' shirt was on backwards or whether his shoes had laces. (Milian: H. 24-26.)

Quinones' counsel Morris moved to suppress the identifications, but he presented no witnesses and presented no argument at the conclusion of the hearing other than asserting that the detectives' testimony was "entirely self-serving." (See H. 43-46.)

At the conclusion of the hearing, the court found Detective Milian's and Detective Balzan's testimony "to be credible" (H. 47) and held that none of the four pretrial identifications was suggestive (H. 54, 58-59). Although the ages and hairstyles of the men in the photos differed, the court termed this a "distinction without significance." (H. 52-53.) All the men pictured "appear to be Hispanic," all had the same skin tone, and all but one had similarly shaped eyes and pencil-thin mustaches. (H. 52-53.) The court concluded that there was nothing in either photo array that would automatically draw the eye to one photograph as opposed to the others. (H. 54.) While the court was somewhat troubled that Deans was shown the same array on January 3, 1993 and again on August 20, 1993 just before she identified Quinones in the lineup, the court's concerns were alleviated by the intervening time period between the two photo arrays and Deans' pronounced reaction to the lineup. (H. 55-56, 58-59.)

As to the lineup, the court noted that all of the participants were seated so height was not a variable, and while one (not Quinones) wore a white shirt which could have stood out, the lineup participants' skin tones and hair length did not vary markedly. (H. 56-57.) While the defense had raised a question as to whether Quinones' shirt was blood-stained and whether his shoelaces were missing, the court saw no blood on Quinones' shirt in the lineup photograph, and was unable to tell if his shoes were laced up or not. (H. 57-58.) The court concluded: "I cannot say that the line-up by its composition was suggestive. Nor is there any evidence that the conduct of the lineup, itself, was suggestive." (H. 58.)

The Defense's Opening Statement at Trial

Defense counsel Alvin Morris told the jury in his opening that "the wrong man is being accused of this murder." (Trial Transcript ["Tr."] 395.) He also said that the victim was a drug dealer who was killed by other drug dealers who wanted his drug spot, and that the drug dealers chose to put the blame on Quinones. (Defense Opening: Tr. 395-96.) He asked the jury to use their "common sense" as they listened to the prosecution's evidence, and concluded by stressing the prosecution's burden of proving guilt beyond a reasonable doubt. (Defense Opening: Tr. 396-97.)

The Prosecution Case at Trial

Carol Deans and Detective Milian

Carol Deans, a "friend" of Carter's for over twenty-five years, testified that on December 31, 1992, at approximately 7:15 p.m., she was walking east on 132nd Street near Fifth Avenue when she saw Carter "talking" with "somebody" — a "young man" "standing next to him." (Deans: Tr. 421-23, 427-28, 433-35, 449.) From inside his jacket, "the young man took out a gun and started firing" ten shots at Carter. (Deans: Tr. 422, 427-29, 441.) The shooter was "young," "very fair-skinned," and "tall" — "5'6", 5'7"." (Deans: Tr. 427, 435-36.) Deans described the shooter's hairstyle as "cut bald" or "shaved off" like that of an "average Black man." (Deans: Tr. 451-52.) He was wearing a black jacket and "could have been" wearing a black baseball cap. (Deans: Tr. 436-37.) Deans described the gun as a "9 millimeter" based on its "square shape." (Deans: Tr. 428.)

It was turning nightfall but not really dark, and there was good lighting, so Deans had no "problems" seeing the shooting. (Deans: Tr. 424-26.) She told the police that she saw the shooting from fifty feet away, although she was not "good" with distances. (Deans: Tr. 425, 437.) After the shots were fired, the shooter "stopped and he was uncertain which direction to turn." (Deans: Tr. 430.) When the shooter "turned," Deans "saw him" and then he "ran" "into the projects." (Deans: Tr. 429-30.) "Just as [Deans] walked up and got to the corner, it was over and done with, within seconds." (Deans: Tr. 453.) Deans was "[j]ust in shock" immediately after the shooting — it "[t]ook [her] time to get [herself] together in order to move." (Deans: Tr. 455, 461-62.) She spoke to the police later on the night of the shooting and again on January 3, 1993. (Deans: Tr. 430-31, 453-55; Milian: Tr. 525.)

At trial, Deans was unable to identify Quinones as the shooter:

Q. The person that you saw talking to Lamont Carter eventually firing the weapon, do you see him in court today?
A. I don't know.

Q. You don't know?

A. No. I just had sort of a profile.

Q. Are you saying you are unable to identify him today in court?
A. Yeah.

(Deans: Tr. 429.)

Q. . . . When you came into this court today you indicated you couldn't say that this is the person that you saw on the 31st of December, 1992, correct?
A. That is true.

(Deans Tr. 433.)*fn3 Prior to the shooting, Deans had never seen Quinones before. (Deans: Tr. 450-51.)

Deans testified, without objection, that at 4:30 a.m. on August 21, 1993, nearly eight months after the shooting, she viewed a police lineup of several "sitting" individuals and selected number three as the shooter. (Deans: Tr. 431; Milian: Tr. 528, 531-32.) In court, Deans viewed a photograph of the lineup and circled individual number three as the shooter, whom counsel stipulated was Quinones. (Deans: Tr. 431-32; Milian: Tr. 532-33.)

Detective Milian testified that upon viewing the August 21, 1993 lineup, Deans "immediately began to shake, and she said `Oh, my God. Oh, my God. It's him.'" (Milian: Tr. 528, 531-32.) After some hesitation, Deans said "`It's Number 3. He's the one that shot Lamont'" Carter. (Milian: Tr. 531-33.)*fn4

On cross-examination, Quinones' counsel, Morris, first had Deans repeat that she could not identify Quinones in court as the shooter. (Deans: Tr. 433, quoted at pages 7-8 above.) Morris then asked Deans if she was aware that Carter was a drug dealer, which Deans denied.

(Deans: Tr. 434.) Morris next established that Deans and Ed Smith were "lovers," but Deans denied Morris' assertion that Smith and Carter were partners in the drug trade. (Deans: Tr. 434-35, 450.) According to Deans, she, Carter and Smith "were all friends together." (Deans: Tr. 435, 449.) Deans also denied that Smith was present at the time Carter was shot. (Deans: Tr. 435, 449-50.)

While cross-examining Deans, Quinones' attorney Morris established that Deans' daughter (who was thirteen or fourteen years old at the time of the shooting) was standing with Deans when the shooting occurred. (Deans: Tr. 441-45, 460.) Deans' daughter ran into the beauty parlor to inform Scarlett that Carter had been shot. (Deans: Tr. 445.) Morris asked Deans, but the Court precluded Deans from answering: "Did you in any way stop your daughter from coming here to this court and testifying as a witness in this case." (Deans: Tr. 445, 448.) The judge also quashed, on hearsay grounds, the question: "Are you aware of the fact that your daughter said that this is not the person who was there at the time?" (Deans: Tr. 446-48.) Outside the jury's presence, Morris explained his question by stating "[h]er daughter spoke to me." (Deans: Tr. 447.) Morris thus implied to the court that Deans' daughter had told him that Quinones was not the shooter. (See Tr. 446-47.) Detective Milian testified that although Deans' daughter was present at the shooting, the police did not speak to her, apparently because Deans said that the daughter "`didn't see what happened because she was behind me.'" (Milian: Tr. 540-41, 553.) On cross-examination, the court precluded Detective Milian from answering whether it was "a fact that the reason why you didn't interrogate [Deans'] daughter is because her daughter said a tall Black man did this shooting?" (Milian: Tr. 540.)

Marion Scarlett

The victim's "girlfriend," Marion Scarlett, identified Quinones at trial as the man her husband was speaking to before the shooting. (Scarlett: Tr. 470, 474-75.) Scarlett worked in a beauty salon across the street from where the shooting took place. (Scarlett: Tr. 471, 480.) On the night of the shooting, Scarlett saw Carter leave a pizza parlor and stop to "talk" to a man, whom she identified in court as Quinones. (Scarlett: Tr. 471-75.) She described Quinones' appearance that night as "a young man, light-skinned Spanish. He had on a black-and-white leather jacket, black pants. . . ." (Scarlett: Tr. 474.) Although she described Quinones as "[t]aller than" her five feet, six inches, when Quinones stood up in court she said "[h]e seemed taller to me." (Scarlett: Tr. 490-91.)

As Quinones and Carter were talking, Scarlett approached Carter, "pull[ed] on his sleeve" and told him that she was ready to leave. (Scarlett: Tr. 475-76.) Quinones became "agitated" "[b]ecause [Carter] had turned his attention to [Scarlett] and he was answering back to" Scarlett. (Scarlett: Tr. 476-79.) Quinones "said like `Yo, I'm talking to you, man.'" (Scarlett: Tr. 477.) Scarlett did not pay attention to what Quinones and Carter had been "discussing." (Scarlett: Tr. 477.)

Scarlett returned to her beauty salon, and observed Carter and Quinones crossing the street together. (Scarlett: Tr. 479-82, 502-03.) Scarlett estimated that "five or ten" (or "ten or fifteen") minutes later she heard "lots" of gun shots, and a girl came running into the shop saying, "`Your man is down. Your man is down.'" (Scarlett: Tr. 482-83, 497-99, 503.) Since Scarlett did not actually see the shooting, she could not state whether Quinones was the shooter. (Scarlett: Tr. 481-83, 491, 498.) Scarlett ran across the street to where Carter was lying on the ground. (Scarlett: Tr. 484.) She spoke to the police about what she had seen. (Scarlett: Tr. 486.)

Quinones' counsel Morris brought out that Scarlett had never before seen the person who had the argument with Carter. (Scarlett: Tr. 488.) Scarlett testified on cross-examination that she only saw Carter and Quinones talking together, and did not "see anybody else there." (Scarlett: Tr. 494-95.) After her recollection was refreshed by reading Detective Milian's report, she remembered having told the police that, prior to the shooting, she saw Carter talking with "three other people" in addition to Quinones. (Scarlett: Tr. 495-97.)*fn5

On cross-examination, Scarlet acknowledged that Carter sold drugs and "suppose[d]" that Ed Smith (Deans' boyfriend) was his partner. (Scarlett: Tr. 493.) Scarlett claimed not to know Deans at the time of the shooting (Scarlett: Tr. 491-92), though Deans had testified that she had been friends with Carter for over twenty-five years, Scarlett was friends with Deans' boyfriend, Ed Smith, and Deans' daughter knew to find Scarlett in the salon (Scarlett: Tr. 492-94). Defense counsel Morris elicited from Police Officer Ramos that Carter was found with a beeper and 43 crack vials. (Ramos: Tr. 587-88; see also Milian: Tr. 544-45.) Defense counsel also established on cross-examination of the medical examiner that Carter used cocaine — he had "cocaine breakdown product in the blood and in the brain," indicating that "he had taken cocaine recently" before his death. (Hayes: Tr. 520-21.)

Upon defense counsel's argument at a charging conference, the court agreed to charge the jury that they could consider that Carter was a drug dealer, but only for the purpose of determining Deans' credibility, given that she testified that she did not know he was a drug dealer despite being friends with him for over twenty-five years. (Tr. 642-46; see also Tr. 561-65, 723-24.)

Additional Police Testimony

Detective Mary Dugan of the Crime Scene Unit testified that although the murder weapon was not found at the crime scene at 132nd Street and Fifth Avenue on December 31, 1992 (Dugan: Tr. 399, 401-02, 414, 416), the discharged shell casings came from a .380 caliber semi-automatic handgun (Dugan: Tr. 405-07, 413, 415). There were no fingerprints on the shell casings (Dugan: Tr. 408), although "it's very unusual to find a fingerprint on bullets [i.e, shells] that have been fired" (Dugan: Tr. 417). The parties later stipulated that another ballistics detective would have testified that the six shell casings found at the scene and the six bullets removed from Carter's body came from a .380 caliber semi-automatic pistol. (Tr. 633-35.)

Quinones' counsel Morris did not object to Police Officer John Ramos' testimony that an unidentified woman at the crime scene yelled, "`[t]he Puerto Rican did it.'" (Ramos: Tr. 575-76.) On cross-examination, however, Morris established that this reference to the "Puerto Rican" was not in Officer Ramos' notes, nor did anyone at the scene go over to Officer Ramos and state that she was a witness. (Ramos: Tr. 579-81.)

Before the arresting officers testified, Morris asked the court to instruct them not to say they were members of the "Career Criminal Apprehension Unit." (Tr. 592.) The court agreed, but also expressed surprise that there was no objection when Detective Milian earlier testified in passing (Milian: Tr. 527) about that unit. (Tr. 597-99.)

Detectives Sheridan and Kaplan testified that when plain clothes detectives approached Quinones to arrest him in August 1993, Quinones "pushed" the "small child" he was walking with, ran onto First Avenue, and resisted arrest. (Sheridan: Tr. 601-02, 613-14; Kaplan: Tr. 619-21, 629-30.) Defense counsel elicited that the detectives were all in plain clothes and did not produce badges before approaching and grabbing Quinones (Sheridan: Tr. 604-05), presumably explaining Quinones' flight and resistance. The judge later established that the plain clothes detectives had not identified themselves as such until they were actually subduing Quinones. (Kaplan: Tr. 622, 629.) Detectives Sheridan and Kaplan repeatedly denied that any of the arresting officers had struck Quinones, testifying that they "used necessary force to bring him to the ground." (Sheridan: Tr. 606-07, 610-11; Kaplan: Tr. 623-24, 626.)

Defense Motion to Dismiss

After the State rested, Quinones' counsel Morris moved to dismiss, arguing that no witness had identified Quinones in court as the shooter. (Tr. 636.) Defense counsel noted that "a careful perusal of the testimony of the lady who allegedly participated in the lineup testified that she identified a profile of a person seated in Seat Number 3. She said she did not identify the defendant as he sits in court as being in that particular seat." (Tr. 637.) The court denied the motion. (Tr. 638-39; see also Tr. 640-42.) The defense rested without calling any witnesses. (Tr. 639.)

Colloquy Re Possible Defense Witnesses

The defense called no witnesses at trial. (See Tr. 639.) Just days before trial was to begin, defense counsel had informed the court that he had "witnesses who allegedly were there at the time of the incident." (Tr. 3.) However, counsel hadn't "seen them yet because [he is] a very busy practitioner," but expected to see them before the trial began. (Tr. 3-4.) At the beginning of voir dire, on June 6, 1995, Quinones' counsel Morris notified the court that he had two possible witnesses: Aaron Bishop and Damon White. (Tr. 9, 22-23.) During voir dire, on June 7, 1995, at defense counsel's request, the trial judge issued subpoenas on behalf of the defense to "Damond White" and "Aaron Bishop, Jr." who defense counsel described as two witnesses that he might call, "maybe." (Tr. 267-68; Dkt. No. 1: Pet. Ex. B: Quinones 3/29/00 1st Dep't Reply Br. Supp. Rec. at 6, 7.)

Carol Deans' daughter — who allegedly told Quinones' counsel Morris that Quinones was not the shooter (see pages 9-10 above) — was not called to testify by either party. As the State neared the end of its case, the court questioned the defense about its witness list: "My question to you is whether there is a Defense case . . .," to which defense counsel Morris replied, "Your Honor, I'm going to flip a coin now. I have been looking for a witness or two witnesses for a while now, and unless a miracle happens this evening — my office tells me somebody has called, et cetera, et cetera — I do not have any witnesses." (Tr. 559-60). The next day, the court asked "Mr. Morris, just as a timing mechanism, did any miracles occur last evening?" (Tr. 595.) Morris responded: "No. Unfortunately, I guess I'm a bad guy." (Tr. 595-96.)

Defense Summation

In his summation, defense counsel Morris emphasized that Deans was unable to identify Quinones as the shooter in court (although counsel also mischaracterized the testimony by asserting that Deans said "`That is not the man'"). (Defense Summation: Tr. 653-55.) Morris highlighted Deans' testimony that she had only seen a "profile." (Defense Summation: Tr. 655.) Morris, however, seemed to confuse that testimony, asserting that Deans had testified that she only saw a profile at the lineup rather than at the shooting. (Id.)

Morris attacked Deans' credibility, noting that Deans had denied that Carter or her boyfriend Smith were drug dealers or that she knew Scarlett, when the evidence was to the contrary. (Defense Summation: Tr. 656-57.) Morris pointed out that Scarlett admitted that Carter and Smith were drug dealers. (Defense Summation: Tr. 656-57.) Morris noted certain other inconsistencies in the eyewitness' description of the shooter (and the shooter's gun), such as Deans' testimony that the shooter was "tall," whereas Quinones was not much taller than Deans' five foot six inches. (Defense Summation: Tr. 657-59, 664.) Morris also pointed out that Scarlett had described the shooter's hair as that of a "Black man," while Quinones was a "light-skinned Hispanic." (Defense Summation: Tr. 659.) Morris asserted that perhaps twenty minutes elapsed between the time Scarlett left Carter and the shooting — more than enough time for Quinones to leave and another person to commit the shooting. (Defense Summation: Tr. 667-68.)

Morris questioned why Deans had not contacted the police sooner, implying that her story was fabricated. (Defense Summation: Tr. 660-62.) Importantly, Morris asserted that Deans' daughter was "the person who really knew who the shooter was," but that the State had failed to call her. (Defense Summation: Tr. 662-64.)

Finally, Morris reminded the jury that Carter was a drug dealer, and died holding 43 vials of crack. (Defense Summation: Tr. 668-69.) "When a partner becomes deceased, generally the other partner takes all the business. . . ." (Defense Summation: Tr. 669.) Morris thus implied that Quinones was framed, as the victim's partner was Ed Smith, and the only alleged eyewitness to the shooting was Smith's "paramour." (Id.)

Prosecution Summation

In its summation, the State ridiculed defense counsel Morris' failure to support his opening statement claim that Quinones was being framed by the drug dealers who actually killed Carter. (State Summation: Tr. 672-74.) The prosecutor theorized that when drug dealers kill their competitors, they just do it, without getting the police involved by trying to frame someone else. (State Summation: Tr. 673.)

The State asserted that if Deans' daughter had exculpatory testimony, the defense would have called her. (State Summation: Tr. 679.) The State further claimed that Deans had not approached the police earlier because of fear, and that Deans failed to mention her daughter to the police in order to protect her daughter. (State Summation: Tr. 676-79.)

Defense counsel's only objection (overruled by the court) was to the prosecutor's statement that Deans had not identified Quinones in the courtroom because "just like at the lineup, she froze." (State Summation: Tr. 682.) The prosecutor elaborated on this theory, asserting that Deans had suppressed her recollection due to "trauma." (State Summation: Tr. 683.) The prosecutor's trauma theory, however, had no basis in the record and seemed to contradict Deans' own testimony that she did not recognize the shooter in court because she "just had sort of a profile" (Deans: Tr. 429). (State Summation: Tr. 682-85.)

The prosecutor asserted that the jury should disregard Scarlet's time estimate that she saw Quinones and Carter talking five to fifteen minutes before the shooting, since her perception of time was probably distorted: "When things are not going so great, or something traumatic or terrible happens, it seems like time goes on forever. Two minutes can seem like fifteen minutes." (State Summation: Tr. 680, 690.)

Although the police did not identify themselves when they approached Quinones to arrest him, the prosecutor speculated that Quinones must have known they were the police: "I submit to you when this defendant saw those people approaching, he made them for police officers. You know, it's not too difficult to make plain clothes cops for who they are." (State Summation: Tr. 692.) He then asserted "[i]f [Quinones] wasn't the killer, if some other person out there did it, what's he running for?" (Tr. 693.)

Jury Charge

The court's jury charge echoed both counsels' mischaracterization of Scarlett's testimony by saying that Carter and Quinones were having a dispute: "within minutes of his being shot, the defendant was having some kind of a dispute or agitated discussion with the deceased, Lamont Carter." (Charge: Tr. 742; see Defense Summation: Tr. 658, 666-67, & State Summation: Tr. 686-87, 689, referring to a verbal "argument" between Carter and the shooter.) In discussing Deans' failure to identify Quinones in the courtroom, the court commented that Deans' memory was perhaps "fresher" at the lineup than at trial, since it was "shortly after" the crime. (Charge: Tr. 744-45.)*fn6

Defense counsel raised only one exception to the jury charge — asking the judge to clarify that Deans had not made an in-court identification (Charge: Tr. 751-52), which the court did (Charge: Tr. 752-53).

Jury Deliberations

The jury began deliberations at about 12:30 p.m. on June 14, 1995. (Tr. 754.) The jury asked for and received a read-back of Deans' testimony and a further explanation of "reasonable doubt." (Tr. 759-67.) At 5:40 p.m. that day, the jury sent out a note stating that they were "at an impasse." (Tr. 771.) The court responded with an Allen charge and sent the jury to dinner. (Tr. 771-72, 774-76.) The jury resumed deliberations at 7:30 p.m., and at 8:10 p.m. sent out a note reading: "`We, the jury, are hung and we feel strongly that further deliberations will not change the convictions of the divided jury.'" (Tr. 777-78.) The Court responded with a second "somewhat stronger" Allen charge, without objection. (Tr. 779-86.) The jury resumed deliberations on June 15, 1995 at approximately 10 a.m. (Tr. 813), and reached a verdict at 11:45 a.m. (Tr. 814-15).

Verdict and Sentence

On June 15, 1995, the jury found Quinones guilty of second degree murder and criminal possession of a weapon in the second and third degrees. (Verdict: Tr. 816-20.)

On July 10, 1995, the court sentenced Quinones, as a predicate felon, to concurrent terms of twenty years to life, 7-1/2 to 15 years, and 3-1/2 to 7 years, respectively. (Sentence: Tr. 5-8.)

Direct Appeal

Represented by different, assigned counsel, Quinones appealed to the First Department*fn7 on the grounds, inter alia, that his trial counsel rendered ineffective assistance by:

(1) failing to offer a coherent theory of the case (Dkt. No. 1: Pet. Ex. A: Quinones 1st Dep't Br. at 39-45); (2) failing to object to the admission of multiple items of evidence — especially hearsay and Deans' pretrial identification (id. at 45-46); (3) asserting various ineffective arguments (id. at 46-47); (4) making no attempt to obtain possibly favorable evidence from Deans' daughter (id. at 48); (5) failing to object to several improper statements and arguments in the prosecutor's summation (id. at 48-51); and (6) failing to object to improper jury instructions, particularly where testimony was mischaracterized (id. at 51-52). Further, Quinones alleged that trial counsel's aggregated errors constituted ineffective assistance in violation of the Sixth Amendment even if the individual errors did not. (Id. at 53-58.)

On May 23, 2000, the First Department affirmed Quinones' conviction, denying his ineffective counsel claims:

On the existing record, we conclude that defendant received meaningful representation. Counsel's alleged deficiencies did not deprive defendant of a fair trial. People v. Quinones, 272 A.D.2d 228, 229, 708 N.Y.S.2d 616, 616 (1st Dep't 2000) (citations omitted).*fn8 The New York Court of Appeals denied leave to appeal on August 14, 2000, People v. Quinones, 95 N.Y.2d 870, 715 N.Y.S.2d 224 (2000), and denied Quinones' pro se motion for reconsideration on December 26, 2000, People v. Quinones, 95 N.Y.2d 968, 722 N.Y.S.2d 485 (2000).

Quinones' Habeas Petition and Amendment

Quinones' timely pro se habeas corpus petition, dated October 15, 2001 and received by the Court's pro se office on October 26, 2001, asserted the same ineffective assistance of counsel claims that Quinones had raised before the First Department. (Dkt. No. 1: Pet. at 3, referencing Pet. Ex. A: Quinones 1st Dep't Br.)

Quinones wrote to this Court on May 10, 2002, stating that he had retained counsel, Anthony Ricco, Esq., to file a C.P.L. § 440.10 motion in state court (on unstated grounds), and that if such motion did not "prevail," he would move to amend his habeas petition. (Dkt. No. 8: Quinones 5/10/02 Letter.) The Court directed Quinones to amend his habeas petition and promptly file the C.P.L. § 440 motion. (Dkt. No. 8:5/14/02 Memo Endorsed Order.) By letter to the Court dated May 23, 2002, Quinones' new counsel, Ricco, asserted that Quinones' trial counsel, Alvin Morris, had a conflict of interest because he simultaneously represented Quinones' deceased brother, Dennis Quinones, who was the actual murderer. (Dkt. No. 9: Ricco 5/23/02 Letter.) This was the first notice given by Quinones or his counsel to any court, state or federal, of such an alleged conflict. (See id. at 2: "Although the issue of ineffective assistance of counsel was raised below in the state court proceedings the specific claim of `conflicted counsel' was never previously litigated.") Ricco noted that Quinones had retained a retired New York City detective as an investigator, and that the investigation would be completed "expeditiously so that an application for relief . . . can be made on the basis of reliable investigatory work and not simply toothless allegations." (Id.)

On May 29, 2002, Quinones moved, pro se, to amend his petition (Dkt. Nos. 10-11: Quinones Motion to Amend), and by order dated June 7, 2002 (Dkt. No. 11:6/7/02 Memo Endorsed Order), this Court granted Quinones' motion, thereby adding two additional ineffective counsel claims:

(1) Whether petitioner was deprived of his Constitutional right to "conflict free" representation where attorney, Alvin C. Morris, Esq., simultaneously represented petitioner and his brother, Dennis Quinones, on unrelated charges, knowing full well that the .380 caliber handgun Dennis Quinones was indicted for in Bronx County may have been the same weapon used to murder Lamont Carter.
(2) Whether petitioner was deprived of his Constitutional right to "conflict free" representation where attorney, Alvin C. Morris, Esq., failed to call an eyewitness who would have exculpated petitioner, but would have identified Dennis Quinones, petitioner's brother, as the actual shooter.
(Dkt. No. 11: Quinones 5/29/02 Aff. ¶ 1.) This Court also ordered Quinones to exhaust these claims in state court by way of a C.P.L. § 440 motion. (Dkt. No. 11:6/7/02 Memo Endorsed Order.)

Quinones' C.P.L. § 440 Motion

On June 26, 2002, Quinones filed a pro se C.P.L. § 440.10 petition in state court, asserting that because of a conflict of interest, his trial counsel rendered ineffective assistance. (Dkt. No. 20: State Am. Appendix: Quinones 6/26/02 C.P.L. § 440 Aff. & Quinones C.P.L. § 440 Br.) Quinones alleged that because his trial counsel, Alvin Morris, formerly represented his brother, Dennis Quinones, Morris refrained from asserting at trial that Dennis committed the Carter shooting, even though certain evidence suggested that Dennis — rather than Edgar Quinones — may have been the shooter.*fn9 (Quinones 6/26/02 C.P.L. § 440 Aff. ¶¶ 18, 22-23; Quinones C.P.L. § 440 Br. at 5-10.) Quinones' C.P.L. § 440 motion requested the state court to order a ballistics comparison of the .380 caliber gun found in Dennis' possession and the .380 shell casings from Carter's murder. (Quinones 6/26/02 § 440 Br. at 6, 16-17.)

The parties agreed on the key facts. On February 14, 1993, six weeks after Carter's murder, "Jose Medina — AKA Dennis Quinones" was arrested in the Bronx for criminal possession of a .380 caliber handgun. (State Am. Appendix: Quinones C.P.L. § 440 Motion Ex. I: 2/14/93 Criminal Complaint; see also Quinones C.P.L. § 440 Exs. K & L.)*fn10 On February 19, 1993, Morris filed a notice of appearance as Dennis' attorney of record on that arrest. (Quinones C.P.L. § 440 Ex. K: 2/19/93 Notice of Appearance; Dkt. No. 13: A.D.A. Rosen 9/2/02 C.P.L. § 440 Opp. Aff. ¶ 17.) On March 16, 1993, when Dennis failed to appear in court on the gun possession charge, a bench warrant was issued for his arrest. (A.D.A. Rosen 9/2/02 C.P.L. § 440 Opp. Aff. ¶ 16.)

Several months later, on August 20, 1993, petitioner Edgar Quinones was arrested for Carter's murder. (Milian: H.16.) On January 3, 1994, Morris filed a notice of appearance on Quinones' behalf in the criminal case underlying this habeas petition. (Quinones C.P.L. § 440 Ex. K at 2.) Quinones' trial for the Carter killing began June 1, 1995, and he was sentenced on July 10, 1995. (See pages 3, 18 above.) The police did not finally track down Dennis (who had been missing since March 1993) until September 5, 1996, over one year after Quinones' sentencing. (A.D.A. Rosen 9/2/02 C.P.L. § 440 Opp. Aff. ¶ 16; Quinones C.P.L. § 440 Br. at 6 n. 18; see Quinones C.P.L. § 440 Ex. L: 12/5/96 Superseding Indictment of Dennis.)*fn11

Quinones asserted on "information and belief" that attorney Morris was dead by the time Dennis reappeared in September 1996. (Dkt. No. 13: Quinones C.P.L. § 440 Reply Br. at 3 n. 2; see also Quinones C.P.L. § 440 Br. at 15; Pet. Ex. A: Quinones 1st Dep't Br. at 39 n. 32 ("Present and previously-appointed appellate counsel have been unable to locate the attorney, Alvin Morris, and it appears that he died within about a year of the trial.").)*fn12 It is clear that Morris did not represent Dennis in 1996. (See A.D.A. Rosen 9/2/02 C.P.L. § 440 Opp. Aff. ¶¶ 17-18 & Exs. A & B.) The parties agree that Dennis subsequently died; the record is silent as to the date of his death except that he died at some time before Quinones first raised the conflict claim in May 2002. (Dkt. No. 9: Quinones' Counsel Ricco 5/23/02 Letter at 1; A.D.A. Rosen 9/2/02 C.P.L. § 440 Opp. Aff. ¶¶ 14, 21, 24.)

Quinones argued in his § 440 motion that at the time of trial, Morris must have known that Dennis was the "true killer." (Quinones 6/26/02 C.P.L. § 440 Aff. ¶ 23; Quinones C.P.L. § 440 Br. at 5.) Morris certainly knew — based on the complaint in Dennis' case and the police report in the Carter shooting — that the .380 caliber handgun for which Dennis was arrested in 1993 was the same caliber weapon used in the Carter murder. (Quinones C.P.L. § 440 Br. at 5-6, 9 & Ex. I: 2/14/93 Criminal Complaint & Ex. J: 12/31/92 Police Report.) Morris also knew that the prosecution's case against Quinones relied solely on the eyewitness testimony of individuals who did not know Quinones (see pages 7-8, 10-11 above), and that, in the words of the trial judge, the two brothers "look very much alike" (H. 54). (Quinones C.P.L. § 440 Br. at 10-11.) Further, Morris knew that three months after the Carter shooting Dennis was arrested on the gun charge and then disappeared, and that Dennis previously had been convicted of attempted murder. (Quinones C.P.L. § 440 Reply Br. at 9; Quinones C.P.L. § 440 Ex. M.)

According to Quinones, Morris thus was absolutely conflicted, as Quinones' best defense was to shift the blame onto Morris' former client, Dennis. (Quinones C.P.L. § 440 Br. at 7-10.) According to Quinones, "An attorney not faced with divided loyalties would have pursued a defense demonstrating that [Dennis] Quinones was the actual shooter." (Id. at 10.) According to Quinones, at minimum, an unconflicted attorney would have determined whether a ballistics test had been performed on the gun in Dennis' possession, and if not, would have requested such a test. (Id. at 11.) Further, according to Quinones, an unconflicted attorney would have insisted that Dennis' mug shot be displayed to the eyewitnesses at trial when identifying the shooter. (Id. at 11; Quinones C.P.L. § 440 Reply Br. at 9 n. 6.)

Morris failed to alert Quinones' trial judge that he also was counsel to Dennis. (Quinones C.P.L. § 440 Reply Br. at 7.) Morris' only reference to Quinones' family was: "Your Honor, I am retained on this case but I have known the family of my client for years, and I'm doing this particular matter with hardly any monies at all." (H. 36.)*fn13

Quinones also argued to the § 440 court that because of his divided loyalties, Morris failed to call a number of exculpatory witnesses at trial. (Quinones C.P.L. § 440 Br. at 10-15.) For example, according to Quinones, Malik Abdullah Akili, a friend of Carter's and an eyewitness to the crime, maintained that Quinones was not the shooter. (Quinones C.P.L. § 440 Br. at 12 & Ex. G: Akili 4/27/02 Aff.) Akili's description of the murderer's clothes was similar to that given by Deans and Scarlett (Quinones § 440 Br. at 12), but Akili said the Hispanic male was taller and wider than Quinones (Quinones C.P.L. § 440 Ex. G: Akili Aff. at 1.) Akili signed an affidavit on April 23, 1997 swearing that Quinones was not the shooter and that he was never approached by Quinones' attorney to testify to that effect. (Akili Aff. at 1-2.) Akili's name was written on Quinones' trial counsel Morris' notes of potential witnesses. (Quinones C.P.L. § 440 Ex. H.)*fn14

In addition, Quinones argued that Morris should have called Deans' daughter, as she witnessed the shooting and allegedly told Morris that Quinones was not the shooter. (Quinones C.P.L. § 440 Br. at 13; Tr. 446-47.)

Finally, based on the above evidence, Quinones moved the § 440 court to order a ballistics test to determine whether Dennis' gun was the murder weapon. (Quinones 6/26/02 C.P.L. § 440 Aff. ¶¶ 24-26; Quinones C.P.L. § 440 Br. at 16-17; Quinones C.P.L. § 440 Reply Br. at 8-11.)

The State's Opposition to Quinones' § 440 Motion and His Reply

In its opposition to the § 440 motion, the State raised several arguments. First, the State argued that although Morris represented Dennis when he was first arrested in February 1993, Morris did not represent Dennis when he reappeared in 1996. (A.D.A. Rosen 9/2/02 C.P.L. § 440 Opp. Aff. ¶¶ 17-19.)*fn15 Thus, according to the State, Morris only represented Dennis for a short period in 1993 — months before Quinones was even arrested for the Carter shooting. (Id.) In reply, Quinones pointed out that "[e]ven though a representation has ended, a lawyer has continuing professional obligations to a former client, including the duty to maintain that client's confidences and secrets." (Quinones C.P.L. § 440 Reply Br. at 3.) Thus, according to Quinones, even if Morris no longer represented Dennis at the time of Quinones' trial, Morris had a continuing duty to Dennis that caused a conflict of interest. (Id.)

Second, the State argued that at Quinones' sentencing, when the trial judge asked him if he had anything to say, he replied with a simple "no." (A.D.A. Rosen 9/2/02 C.P.L. § 440 Opp. Aff. ¶ 20.) According to the State, if Quinones knew that his counsel had failed to call exculpatory witnesses such as Akili and Deans' daughter, Quinones would have "shout[ed] from the rafters that his attorney had sold him out." (Id.; see also id. ¶ 24.) Nor were Quinones' conflicted counsel ineffective counsel claims raised on direct appeal. (Id. ¶ 21.) Quinones replied that prior to the trial he had complained to the judge about Morris' failure to investigate, to no avail. (Quinones C.P.L. § 440 Reply Br. at 6 citing Ex. P: 4/24/95 Conf. Transcript.) More importantly, Quinones correctly asserted that ineffective counsel claims involving matters outside the record must be brought by way of a C.P.L. § 440 motion — not at sentencing or on direct appeal. (Quinones C.P.L. § 440 Reply Br. at 6.)

Third, the State asserted that although Quinones had raised a host of generic ineffective counsel claims on direct appeal (see Pet. Ex. A: Quinones 1st Dep't Br. at 39-58), he had intentionally delayed raising his conflict of interest claims until both Morris and Dennis were dead, so that the court would be unable to probe Morris for any "trial strategy" behind, for example, Morris' failure to call the various missing witnesses. (A.D.A. Rosen 9/2/02 C.P.L. § 440 Opp. Aff. ¶¶ 21, 24.) According to the State, Quinones' appellate attorney could have filed a C.P.L. § 440 motion containing these allegations as a "supplement to his appeal." (Id. ¶ 24.)

Quinones replied that his appellate counsel made known as early as 1997 that they intended to file a C.P.L. § 440 motion alleging ineffective assistance of counsel. (Quinones C.P.L. § 440 Reply Br. at 7 & Exs. C, D, & E.) Further, although a prior appointed appellate attorney had petitioned the court in 1997 for funds to hire an investigator to help prepare the appeal (Quinones C.P.L. § 440 Reply Br. Ex. D),*fn16 Quinones claimed that he only learned in 2002 from a private investigator that Morris had represented him and his brother simultaneously, and that Dennis' 1993 arrest involved a .380 handgun (Quinones 6/26/02 C.P.L. § 440 Aff. ¶¶ 17, 19, 22; Quinones C.P.L. § 440 Br. at 6 n. 20; Quinones C.P.L. § 440 Reply Br. at 10; Dkt. No. 16: Quinones § 460 1st Dep't Br. at 14).

Finally, the State asserted that because Quinones fled the scene with the handgun, he could easily have given the gun to his brother Dennis prior to Dennis' arrest six weeks later. (A.D.A. Rosen 9/2/02 C.P.L. § 440 Opp. Aff. ¶ 22.) Thus, even if a ballistics test proved that the handgun Dennis was caught with matched the handgun that shot Carter, such a finding would not be "dispositive" (id.), especially since Quinones' conviction was based on the testimony of two eyewitnesses (id. ¶ 23). In reply, Quinones argued that even if Dennis' possession of the murder weapon did not conclusively prove that Dennis, and not Quinones, committed the murder, an unconflicted attorney would have argued the point to the jury in an effort to raise a reasonable doubt regarding Quinones' guilt. (Quinones C.P.L. § 440 Reply Br. at 10.)

The State Court Decisions Denying Quinones' C.P.L. § 440 Motion

On September 18, 2002, the trial court denied Quinones' C.P.L. § 440 motion, adopting virtually wholesale the State's arguments (as well as the State's misspelling of Morris' name as "Morrison"):

Although defendant had the opportunity to raise the specific issues contained in the motion on direct appeal, he unjustifiably failed to do so. Moreover, with respect to the defendant's ineffective assistance of counsel claim, the evidence submitted by the People shows that after defendant's brother absconded and was returned to court, he was represented by Victor Dailey Rivera Esq. and not Alvin Morrison [sic] Esq., and that during the sentencing hearing when asked by the Court whether he had anything to say, rather than alerting the court to a possible exculpatory witness and to advise the court of trial counsel's failure to call such a witness, defendant replied "No."
Lastly, the possibility that the handgun which the defendant's brother was later arrested for illegally possessing, and which defendant contends is the real murder weapon — and his brother the real murderer — is of no consequence since a witness identified the defendant as the shooter, as the person seen speaking with the decedent moments before the murder, and as the person with whom one ...

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