United States District Court, S.D. New York
August 10, 2004.
ERIC SMALLS, Petitioner,
MICHAEL McGINNIS, Respondent.
The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
OPINION AND ORDER
Pro se petitioner Eric Smalls seeks a writ of habeas corpus
from his October 2, 1998 conviction of three counts of first
degree burglary, three counts of first degree robbery, one count
of first degree attempted burglary, eight counts of first degree
sexual abuse, and sentence to an aggregate term of thirty-two
years imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-4.) See People v.
Smalls, 287 A.D.2d 277, 277, 731 N.Y.S.2d 16, 16-17 (1st
Dep't), appeal denied, 97 N.Y.2d 685, 738 N.Y.S.2d 309 (2001).
Smalls' ninety-three page habeas petition raises "two" grounds:
ineffective assistance of trial counsel (Pet. at 49-88) and
ineffective assistance of appellate counsel (Pet. at 13-48).
(See also Smalls 6/21/04 Traverse.) Each of those claims,
however, has numerous subparts hence a ninety-three page
petition. This is yet "another case where petitioner's lengthy
laundry-list of claims `suggests the poverty of his position.'"
Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *1
(S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); accord Gumbs v.
Kelly, 97 Civ. 8755, 2000 WL 1172350 at *1 (S.D.N.Y. Aug. 18,
2000) (Peck, M.J.); Adeniji v. Administration for Children
Servs., 43 F. Supp.2d 407, 438 (S.D.N.Y.) (Wood, D.J. & Peck, M.J.)
(quoting Cooper v. New York State Dep't of Human Rights,
986 F. Supp. 825, 829 (S.D.N.Y. 1997)), aff'd, No. 99-7561,
201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 1999).
The parties have consented to decision of the petition by me as
a Magistrate Judge pursuant to 27 U.S.C. § 636(c). (Dkt. No. 16:
For the reasons set forth below, Smalls' habeas petition is
Petitioner Eric Smalls was arrested on October 14, 1996 while
trying to escape from an attempted burglary, when undercover
officers noticed his suspicious behavior and recognized him as
fitting the description of the suspect wanted in three prior
burglaries with sexual abuse of the victims. (Dkt. No. 13: State
Br. at 2.) Between late July and October 1996, Smalls broke into
the apartments of three single women living in upper Manhattan,
stole property, threatened each victim with a knife, and sexually
abused them. (State Br. at 2.) After Smalls' arrest, he initially
was released after two victims could not identify him from a
line-up, but later rearrested when DNA analysis of his sneakers
connected him to one of the victims. (State Br. at 2.)
The Evidence at Smalls' Trial
The July 24, 1996 Attack on S.S.*fn1
In July 1996, S.S. lived at 270 Seamon Avenue in Inwood in a
third floor apartment in a building with a recessed entrance from
the street and no doorman. (S.S.: Trial Transcript ["Tr."] 54-56.) She filled her prescriptions at the local Rite Aid
drugstore on Broadway and shopped at the local Dynasty
Supermarket two doors down from the pharmacy. (S.S.: Tr. 55, 79.)
On the night of July 23, 1996, S.S. went to bed between 10:30 and
11 p.m. with no lights on in her apartment and two windows open
in the living room. (S.S.: Tr. 57-58.) She awoke somewhere
between 4:20 and 4:30 a.m. due to "the sensation some one was
standing in the door of [her] bedroom," and opened her eyes to
see "some one standing in the door of [her] bedroom" with nothing
obstructing her view of the individual. (S.S.: Tr. 58, 72.)
Through the darkness, she saw that he was "wearing dark sneakers,
blue jeans, a dark colored shirt and [a] very light Members Only
type jacket," and was "about six feet tall," weighed "about 170
pounds," and "was athletically built but not heavily muscled."
(S.S.: Tr. 73.) His skin tone was a "little rough," and "dark
with a warm brown undertone," he had "short" hair, was "not
heavily bearded," and "smelled very strongly of alcohol." (S.S.:
Tr. 74-75.) S.S. screamed, and the person moved to the right side
of the bed and told her "shh" and "put one hand over [her] mouth
and another hand over [her] throat." (S.S.: Tr. 58-59.) He asked
her where her money was, and she "told him the money was in the
kitchen." (S.S.: Tr. 60.) As she walked down the hallway leading
to the kitchen, the man kept his arm around her neck "like a
chokehold," and "took out a knife and he poked the side of [her]
neck with it." (S.S.: Tr. 60-61.) S.S. described the knife as
having a four or five inch blade "where you pull the blade out,
[and it has] a place for your finger to attach to pull the blade
out." (S.S.: Tr. 62-63.)
After seeing the knife, S.S. stopped screaming and the man
walked her into the kitchen where she gave him her wallet. (S.S.:
Tr. 63-64.) Her attacker fondled her right breast and slipped his
left hand in the "pant hole" of her underwear, "felt around" the
"outside of [her] vagina" and made "little gurgling noises." (S.S.: Tr. 67-68.) Up to this
point, the attacker's "tone" had not been "hostile or violent,"
but when S.S. told him "no" and to stop, his tone changed and he
"sounded angry" and said "don't say no to me." (S.S.: Tr. 68-69.)
S.S. "stopped saying no to him" and tried to reason with him,
telling him that "he had what he came for" and "if he left now
[she] wouldn't say anything to anyone." (S.S.: Tr. 69.) He told
S.S. to take him to the front door. (S.S.: Tr. 69-70.) He
followed her to the door with his knife at her neck and his other
arm around her throat, made S.S. open the door for him and left.
(S.S.: Tr. 70-71.) After he left, S.S. called the police. (S.S.:
Tr. 71-72.) She determined that her attacker had climbed into her
apartment through the living room window. (S.S.: Tr. 81-82.)
S.S. viewed a photo array in April 1997, and identified Smalls
and another individual as looking familiar. (S.S.: Tr. 87-88,
92.) In a line-up on May 15, 1997 she picked out Smalls, and when
asked how she recognized him, she said that she remembered him
entering her apartment, not from seeing his picture in a New
York Times article about his arrest months before. (S.S.:
Tr.75-77, 90-91, 100.) Additionally, at trial S.S. pointed to and
identified the Smalls as her attacker. (S.S.: Tr. 83-84.)
On cross-examination, defense counsel pointed out that her
attacker was only in her apartment for a short period and that it
was dark. (S.S.: Tr. 86-87.) He also asked other questions to
cast doubt on her identification of Smalls. (S.S.: Tr. 88-92, 95,
97-98.) The September 25, 1996 Attack on K.W.
In September 1996, K.W. was living at 62 Park Terrace West, in
Inwood, the same neighborhood as S.S. (K.W.: Tr.106.) She lived
in a first-floor apartment in a building with a recessed entrance
from the street and no doorman. (K.W.: Tr. 107-09.) She also
shopped at the same local Rite Aid drugstore and Food Dynasty
Supermarket. (K.W.: Tr. 108, 153-54.)
K.W. went to sleep on a futon in her living room at around
11:00 p.m. on the night of Tuesday, September 24, 1996, with her
kitchen window part-way open, which she believes is how the
intruder entered. (K.W.: Tr. 110-11, 132.) She awoke at around
3:15 a.m. and "saw a man, a stranger standing there, looking at"
her, and with the only light coming from the kitchen behind him,
she could only see his silhouette, not his face. (K.W.: Tr.
112-13, 130) K.W. immediately told the man to leave and stood up,
but he came towards her and "quickly made [her] turn around," so
that he was behind her, and he put "his arm around [her] throat."
(K.W.: Tr. 112-14.) He pulled out a "sharp" object and held it
against her neck. (K.W.: Tr. 114-15.) K.W. told her attacker,
"I'm going to cooperate completely." (K.W.: Tr. 115.) He asked
her "where is your money?" (K.W.: Tr. 115.) K.W. indicated that
it was on the desk in the same room, and her attacker walked her
over to the desk, still holding one arm around her throat and
with the other holding a knife to it. (K.W.: Tr. 115.)
K.W. gave him her wallet containing $35 and spare cash she kept
in an envelope. (K.W.: Tr. 116.) He asked "where is the man of
the house?," and K.W. told him that she lived alone. (K.W.: Tr.
117.) He next asked if she had anything else, and she took him to
the bedroom, as he continued to walk behind her, and showed him
her jewelry. (K.W.: Tr. 118.) He took only one necklace, and K.W. started naming other things, including a
camera and tape player, but he "didn't respond at all." (K.W.:
Tr. 118-19.) As they walked back to her living room, he "pulled
out the electrical connection" of the answering machine,
mistaking it for the phone cord. (K.W.: Tr. 126.) When they
walked back to her futon, he put his hand "in the front of [her]
genital area." (K.W.: Tr. 120-21.) K.W. begged, "please don't do
that, you have everything you want," and he told her, "I don't
have everything I want." (K.W.: Tr. 121.) He told her to lie down
and "pushed [her] down too." (K.W.: Tr. 121.) He reassured her
that he would not hurt her, and he lay down "behind" her on the
futon. (K.W.: Tr. 122.) With his right hand he touched her
breasts, and he inserted the other into her vagina and rectum.
(K.W.: Tr. 122.) At this point, she could see that his skin was
"medium brown." (K.W.: Tr. 122.)
When he was finished, he stood her up and walked her into the
bedroom and told her not to call the police because he lived in
the neighborhood. (K.W.: Tr. 124-25.) He left her in the bedroom
and walked out the front door. (K.W.: Tr. 125.) As soon as he
left, K.W. called the police. (K.W.: Tr.130.) K.W. was able to
estimate that her attacker was taller than 5'8", "kind of average
height for a man," not "heavy," had an "urban African-American
accent," "spoke quietly," "smelled of alcohol," and did not
appear angry during their encounter. (K.W.: Tr. 127-29.) On
October 14, 1996, she viewed a line-up but was not able to
identify anyone because she had not seen her attacker's face.
(K.W.: Tr. 147-50.) The October 5, 1996 Attack on I.M.
In October 1996, I.M. lived at 251 Seaman Avenue in Inwood.
(I.M.: Tr. 186.) She lived alone in a second floor one-bedroom
apartment in a building with a recessed entrance from the street
and no doorman. (I.M.: Tr. 188-89.) Like S.S. and K.W., she
shopped at the local Rite Aid pharmacy and Food Dynasty grocery
store. (I.M.: Tr. 187.)
On Friday, October 4, 1996, I.M. went to sleep at about 11:00
p.m., leaving the living room window halfway open. (I.M.: Tr.
189-91.) In the middle of the night, at around 3:00 a.m., she
suddenly awoke because she "felt somebody up on me and covering
[her] mouth." (I.M.: Tr. 191, 210-11.) She started screaming and
the attacker "put a pillow over [her] head and suffocated" her
while using his other hand to put a knife to her throat. (I.M.:
Tr. 191-92, 194.) She saw that the knife was about four or five
inches, and thicker at one end. (I.M.: Tr. 195-96.) As she fought
back, the knife cut the palm of her hand, and she began bleeding.
(I.M.: Tr. 192.) Her hand continued dripping blood because her
blood is thin due to heart medication. (I.M.: Tr. 196-97, 230.)
Her attacker "demanded jewelry and money," and she gave him her
engagement ring, wedding ring and watch. (I.M.: Tr. 197.) She
discovered that he already had her purse in "a knapsack," and he
gave it to her to go through, but she noticed and told him that
he had already removed her wallet; he answered, "yeah, blame it
on me." (I.M.: Tr. 198-99.) As her hand continued dripping blood,
I.M. told the attacker she needed water, and he "took" her to the
bathroom, but would not let her turn on the light in order to
keep his face hidden. (I.M.: Tr. 199-201.) He repeatedly told her
during this time, "Don't look at my face," and she could not see
it because the room was dark. (I.M.: Tr. 199.) After she washed
her hand, he "pushed" her back to the bedroom and "pulled [her] pants down and threw [her] face down on the bed." (I.M.: Tr.
202.) She started telling him, "please don't hurt me, don't do
this to me." (I.M.: Tr. 203.) He "started fondling [her] breast"
and inserted his finger into her vagina and rectum. (I.M.: Tr.
203-05.) When she told him not to do this to her since she had
children, he asked their ages. (I.M.: Tr. 204.) She told him they
were "[a]bout 29 and 31," and "he said they are about [his] age."
(I.M.: Tr. 204.) As he touched her, he asked when her husband was
coming home, and I.M. told him "we're separated." (I.M.: Tr.
208.) Finally, he let her go. (I.M.: Tr. 206.) The attacker asked
"where is the phone" and, after I.M. pointed to it, he "cut the
cable of the phone and told [her] don't call the police . . . I'm
observing you. I live nearby." (I.M.: Tr. 207, 209.) He "grabbed
[her] again and with the knife in [her] throat and said take me
to the door now." (I.M.: Tr. 210.) After he left, she called her
family, and her daughter took her to the hospital to treat her
sliced hand (I.M.: Tr. 211.) The police interviewed her at the
hospital. (I.M.: Tr. 226-27.) The only thing she could identify
about her attacker was that he had "dark skin," wore "a cap
backward," "smelled of alcohol," wore "a knapsack," and his shoes
made no noise when he walked across her wooden floors. (I.M.: Tr.
On October 14, 1996, I.M. viewed a line-up, but she was unable
to recognize anyone. (I.M.: Tr. 227-28.) On October 30, 1996,
I.M. went to the Medical Examiner's office and gave blood for DNA
analysis. (I.M.: Tr. 229.)
On cross-examination, defense counsel brought out that the
police dusted her apartment but did not find Smalls' prints.
(I.M.: Tr. 235-36.) Counsel also pursued, as he had with the
other witnesses, that she had given her address to the Rite Aid
pharmacist. (I.M.: Tr. 240-41; Johnson: Tr. 406-07.) The October 14, 1996 Attack on Ella Johnson*fn2
On October 14, 1996, Ella Johnson lived in an apartment on the
first floor of 67 Park Terrace East, a non-doorman building in an
"isolated," "residential area" in Inwood. (Johnson: Tr. 380-82,
385-86.) Like the other three victims, she shopped at the local
Rite Aid and Food Dynasty stores. (Johnson: Tr. 380-81, 389.)
During the evening of October 14, 1996, Ella Johnson was asleep
in her bed when she was suddenly awakened by a "thud or shaking
of [her] window." (Johnson: Tr. 388-91.) She looked at the clock
in her VCR and saw that it was about 4:00 a.m. (Johnson: Tr.
392.) When she looked at the bedroom window that she had left
ajar, she saw the silhouette of a person. (Johnson: Tr. 391-92,
404.) She jumped up, turned on the light, ran towards the image,
but changed her mind and headed back to her bed. (Johnson: Tr.
392.) Looking out the window, she saw "the person running south"
and noticed he was wearing a "shirt or a sweater" and no hat.
(Johnson: Tr. 393-95, 400-01, 404.) Johnson did not phone the
police to tell them what happened until later that morning.
(Johnson: Tr. 401.) She viewed a line-up later that day, October
14, 1996, and selected individual number "[t]hree" because she
"recognized that the build was similar" to her attacker's build,
but she was not certain. (Johnson: Tr. 401-03.) Smalls' Arrest and Identification,*fn3 and the DNA
From midnight to 8:00 a.m. on October 14, 1996, Sergeant James
West was in charge of an undercover team of officers looking for
a serial burglar who had sexually attacked and robbed three
single women living alone in apartments in an elevated
residential area of the 34th precinct. (West: Suppression Hearing
["H."] 6-7, 10; West: Tr. 422-24, 426, 452-54; Maric: Tr. 471,
489-90; Pinzone: Tr. 503.) The prior attacks had all occurred
within one block of each other between 1:00 a.m. and 5:00 a.m.
(West: H. 7-8; West: Tr. 424-25, 456.) Sgt. West had been given a
description of the attacker as a black male, early twenties, thin
to muscular build, from 5'10'< to 6' tall, soft spoken with
alcohol on his breath, carrying some type of bag, and armed with
a folding knife. (West: H. 8-9; West: Tr. 424-25, 454-56.)
On October 14, 1996 at approximately 4:00 a.m., Sgt. West and
Officer Maric, both dressed in plain clothes, received a radio
transmission from Officer Pinzone to be aware of an individual
heading their way who fit the suspect's description. (West: H.
12; Maric: H. 66; West: Tr. 428-30, 456; Maric: Tr. 474; Pinzone:
Tr. 503-04.) As a man approached them from the steps leading up
to the elevated residential area, Sgt. West and Officer Maric
followed him as he walked North on Park Terrace East, Ella
Johnson's street. (West: H. 12-13; West: Tr. 430; Maric: Tr.
474-76.) Sgt. West and Officer Maric noticed that he was a black
male in his early twenties of a thin build, wearing a backpack.
(West: H. 12-13; West: Tr. 433.) The officers followed him for
several blocks, but lost sight of him when he turned the corner on 216th
or 217th Street, and the officers could not find him when they
searched the alleys. (Maric: H. 67; West: Tr. 431, 433-35, 457;
Maric: Tr. 476-77.) During the period he was out of sight, Ella
Johnson was asleep in her bed and was awakened by someone trying
to break into her apartment. (Johnson: Tr. 392.)
The officers returned to their car and began circling the area
when, at approximately 4:30 a.m., they spotted the individual
walking southbound on Park Terrace East back towards the steps.
(Maric: H. 68; West: H. 13-14; West: Tr. 431-32, 435, 457; Maric:
Tr. 478.) Sgt. West and Officer Maric got out of their car and
followed him on foot. (Maric: H. 69; West: H. 14-15; Maric: Tr.
479.) Eventually, Sgt. West called out "Police, can I talk to you
for a second?" (Maric: H. 69; West: H. 15; West: Tr. 435, 437,
459-60, 464; Maric: Tr. 479.) In response, the individual started
"walking very quickly," then "took off running down the steps"
while "trying to take off the backpack that he's carrying."
(West: H. 15; Maric: H. 69-70; West: Tr. 436-37, 441, 460, 474;
Maric: Tr. 479; Pinzone: Tr. 506-07.) While radioing for backup,
Sgt. West and Officer Maric chased the individual down the steps,
then east on 215th Street, south to 214th Street, and next back
towards Broadway. (Maric: H. 71; West: Tr. 437-39; Maric: Tr.
479-80; Pinzone: Tr. 505-06.) Meanwhile, Police Officers Colon
and Weinberg responded to the backup call, intercepted the
individual in their car, and pursued him on foot. (Pinzone: H.
129-30; Maric: Tr. 480; Colon: Tr. 423-24.) Finally, the
exhausted individual just stopped and sat down on a park bench
and the officers approached him. (Maric: H. 72; Pinzone: H. 130;
West: Tr. 440, 466; Maric: Tr. 480.)
Officer Pinzone picked up the individual's backpack and gave it
to Sgt. West. (Pinzone: H. 148-49; West: H. 19-20; West: Tr. 441;
Pinzone: Tr. 510.) Sgt. West, knowing that the serial robber carried a knife, felt the backpack to see if it
contained any weapons. (West: H. 20; West: Tr. 441-42, 464.) Upon
feeling something that felt like a folding knife, he opened the
backpack and found a folding knife with a four- to five-inch
blade knife, and also found a tube of penis-desensitizing cream.
(West: H. 20-21; West: Tr. 442; Maric: Tr. 480-81.)
Before being read his rights, the individual was asked a series
of questions to ascertain whether he was the man they sought.
(Maric: H. 82.) Responding to why he had run, the individual said
"I've had dealings with the police before. I'm on parole." (West:
H. 17; see West: Tr. 467.)*fn4 The officers also asked him
to identify himself and explain what he was doing in the area.
(West: H. 17; West: Tr. 447.) He responded that his name was Eric
Smalls, and said that he was drunk and had gotten off at the
wrong subway stop. (West: H. 17; West: Tr. 448-47.) Sgt. West
noticed Smalls was "[s]oft spoken," "well spoken" with "a
military manner of speaking" and had "alcohol on his breath."
(West: H. 19; West Tr. 451-52; Bonilla: Tr. 535.) Sgt. West was
familiar with the neighborhood, and he knew that Smalls' subway
story was suspicious because it meant Smalls had apparently
walked seven blocks north of the 207th Street stop, where he
claimed he mistakenly exited the train, instead of walking south
to the Dyckman Projects where he lived. (West: H. 18-19; West:
Tr. 447-51.) "[K]nowing that certain parolees have restrictions,"
such as "prohibitions against drinking and carrying weapons and
certain hours of the evening they are not suppose to be out," Sgt. West decided to bring Smalls back to the
station house, where they arrived at about 5:00 a.m. (West: H.
Detective Bonilla of the Special Victims Squad, who was
investigating the series of prior attacks, read Smalls his
Miranda warnings, and Smalls refused to answer any questions
other than pedigree information. (Bonilla: H. 88-89; Bonilla: Tr.
530-31.) Smalls said he was twenty-six years old, five feet
eleven inches tall, and weighted about 170 pounds. (Bonilla: H.
89-90; Bonilla: Tr. 535.) Around noon later that day, October 14,
1996, Detective Bonilla conducted separate lineups viewed by
I.M., K.W., and Ella Johnson. (Bonilla: Tr. 537-38.) S.S. did not
view the line-up on that day because she was out of the country.
(Bonilla: Tr. 538.) Smalls chose to stand in position number
three at the line-up. (Bonilla: Tr. 537, 540-41.) I.M. and K.W.
were unable to make an identification; however, K.W. recognized
Smalls' voice, and she asked numbers three and six to reread a
statement because they sounded like her attacker. (Bonilla: H.
91-92; Bonilla: Tr. 541-42.) The fourth victim, Ella Johnson,
said that "it possibly could be number three [i.e., Smalls] but
she wasn't sure." (Bonilla: H. 91-92.)
A search warrant was issued for Smalls' home on October 14,
1996, the day of his arrest. (Bonilla: Tr. 542-43.) None of the
items stolen from the victims' apartments were found in Smalls'
apartment. (Bonilla: Tr. 571.) The police recovered four pairs of
sneakers, one of which had a spot of blood on the eyelet.
(Bonilla: Tr. 543-44, 459-50.) On October 30, 1996, the sneaker
with blood was sent to Cellmark Laboratory for testing, along
with the knife from Smalls' knapsack and a sample of I.M.'s blood
obtained from her on October 30, 1996. (Bonilla: Tr. 552-53, 556;
Flaherty: Tr. 644-47.) Dr. Charlotte Word, Deputy Laboratory
Director at Cellmark who oversees the work done by the scientists, testified that her lab conducted DNA
analysis on all of the items received. (Word: Tr. 653, 661, 669,
673-74.) An insufficient amount of DNA was recovered from the
knife for analysis, but the blood on the sneaker was analyzed.
(Word: Tr. 675.) The DNA results from the blood on the sneaker
and I.M.'s blood were consistent with each other. (Word: Tr.
682.) The results showed that the chance of another individual
besides I.M. having the same DNA as that found on Smalls' shoe
would be one in fourteen billion Caucasian individuals, one in
sixty-one billion African Americans, one in forty-one billion
Hispanics. (Word: Tr. 686-87.)
Six months later, on April 15, 1997, S.S., the third victim,
viewed a photo array, where she said her attacker was "possibly
number six or five and that she would have to see the person in
person to be able to make sure." (Bonilla: H. 94-95; Bonilla: Tr.
557.) Smalls was number five in the photo array. (Bonilla: H.
95.) On May 15, 1997, a line-up was conducted, and Smalls chose
to stand in number three again after consulting with his former
attorney. (Bonilla: H. 96-97; Bonilla: Tr. 557-58.) The line-up
included five fillers who were all black males of a slim or
medium build, who matched Smalls as "best as possible at the
time." (Bonilla: H. 97; Bonilla: Tr. 557, 566-67.) Pictures were
taken of the line-up at the time, with one given to Smalls'
attorney, and the other was xeroxed and filed, but it was later
"misplaced" before the suppression hearing. (Bonilla: H. 98-99;
Bonilla: Tr. 558-603.) The xerox copy was admitted, but it only
showed "silhouettes." (H. 99-102.) At the line-up, S.S. said she
recognized "number three" Smalls as the "person who came into
[her] apartment." (S.S.: Tr. 76-77; Bonilla: H. 100.)
After the pretrial suppression hearing, on May 15, 1998 Justice
Leibovitz issued a sixteen-page decision, denying Smalls' motion
to suppress the evidence recovered from him due to an alleged unlawful search and seizure, his statements to the
police, and S.S.'s line-up identification. (Dkt. No. 14: Martland
Aff. Ex. A: Justice Leibovitz 9/15/98 suppression hearing
decision.)*fn5 Justice Leibovitz found that the police had
"lawfully stopped" Smalls and were "permitted to clarify the
situation through brief pre-Miranda questioning." (Ex. A:
Justice Leibovitz decision at 7.) Justice Leibovitz found that
Sergeant West "reasonably feared that the knapsack contained the
weapon" and was permitted to feel the bag, and once he felt the
knife he was permitted to open the bag and remove the knife.
(Id. at 9-10.) Justice Leibovitz found that "the police had
probable cause to arrest [Smalls] for the prior burglaries"
because of the "match of time, location and the suspect's
description," and also had probable cause to arrest him "on an
independent ground, violation of parole." (Id. at 10-11.)
Concerning the photo array viewed by S.S., the court found that
the photo array was fair because a copy of the array showed that
"the fillers fairly resembled him," and S.S.'s "inability to
choose between defendant and a filler demonstrated that the
procedure was fair." (Id. at 13.) Justice Leibovitz determined
"that the May 15th lineup itself was not suggestive." (Id. at
14.) "While the loss of the original copies of the lineup
photographs may give rise to a presumption of suggestiveness, any
such presumption was overcome by the information on the lineup
expense report and the testimony of Detective Bonilla." (Id.)
The fillers all had "similar builds, wore short hair and were
seated to minimize discrepancies," and overall had a "sufficient
resemblance" so that any discrepancies between goatees and
mustaches and hair length "were minor details." (Id. at 14-15.) Smalls' Defense
At trial, although Smalls' counsel presented no witnesses, he
tried to establish through cross-examination of the prosecution's
witnesses the theory that Smalls was framed by the police.
Counsel suggested through cross-examination that the DNA evidence
did not solve the case because the sneakers were tampered with
and someone placed I.M.'s blood on the shoe. (Bonilla: Tr.
575-77; Flaherty: Tr. 650-51; Word: Tr. 689.) Defense counsel
pointed out that Smalls' fingerprints were not found in any
victim's apartment, and there were discrepancies in the
descriptions of the attacker given by the each victim. (Peruzza:
Tr. 719; Bonilla: Tr. 578, 588-92.) Defense counsel pointed out
that S.S., who was the only victim to positively identify Smalls
in a line-up, had read a story in the New York Times in January
1997 about the suspect which included a photograph of Smalls,
before she made her line-up identification. (S.S.: Tr. 94;
Bonilla: Tr. 583-88.) Defense counsel also suggested an alternate
suspect, with a criminal record, who worked at the neighborhood
drugstore. (E.g., Bonilla: Tr. 593-95.)*fn6
In his summation, defense counsel charged that the jury must
place great scrutiny on the "credibility of those live witnesses
who testified" and said there were "serious contradictions in
testimony that goes to explain whether, in fact, you can believe
these witnesses." (Defense Summation: Tr. 754, 766.) Defense
counsel also suggested that "tampering went on" with the items
presented as evidence in order to solve the case. (Defense
Summation: Tr. 755-56.) In response, the prosecutor's summation highlighted the solid
evidence and attacked the defense conspiracy claim, asking "why
would the police want to frame Eric Smalls?" (State Summation:
Tr. 789-90.) The prosecutor asked, "Why create a scapegoat here?
Why frame an innocent man here?" (State Summation: Tr. 791.)
Verdict and Sentence
Smalls was convicted of all counts: three counts of first
degree burglary, three counts of first degree robbery, one count
of first degree attempted burglary, and eight counts of first
degree sexual abuse. (Verdict: Tr. 930-36.) Smalls was sentenced
on October 2, 1998 as a second felony offender, and given an
aggregate term of thirty-two years imprisonment. (Sentencing
Transcript ["S."] 7-8, 17-19.)
Smalls' Direct Appeal
On appeal, Smalls' new appointed counsel argued that: (1) his
guilt was not proved beyond a reasonable doubt and, in any event,
his conviction was against the weight of the evidence (Ex. B:
Smalls 1st Dep't Br. at 18-22), and (2) the trial court had
improperly ruled that Smalls' trial counsel had opened the door
to Smalls' statement to police that he was on parole (id. at
23-33). Smalls also filed a pro se supplemental brief in which he
argued that: (1) the police were not justified in stopping him or
in searching his backpack (Ex. C.: Smalls Pro Se Supp. 1st Dep't
Br. at 2, 7-15), and (2) the trial judge should have sanctioned
the prosecution for the loss of the photograph of the May 15,
1997 line-up, which constituted a Rosario violation (id. at
On October 9, 2001, the First Department affirmed Smalls'
conviction, holding: The verdict was based on legally sufficient evidence
and was not against the weight of the evidence.
Moreover, we conclude that the evidence was
overwhelming. In addition to reliable identification
testimony and evidence of unique modus operandi, DNA
testing established that a victim's blood was found
on defendant's sneakers.
Defendant's cross examination of a detective
suggesting that defendant had an innocent reason for
fleeing when approached by the police, as well as his
recross-examination of the detective about whether he
had knowledge of defendant's thoughts at the time of
his arrest, opened the door to the admission of
defendant's statement that he ran from the police
because he was on parole.
We have considered and rejected defendant's remaining
claims, including those contained in his pro se
People v. Smalls, 287 A.D.2d 277
, 277, 731 N.Y.S.2d 16
(1st Dep't 2001) (citations omitted).
The New York Court of Appeals denied leave to appeal on
December 20, 2001. People v. Smalls, 97 N.Y.2d 688,
738 N.Y.S.2d 304 (2001).
Smalls' C.P.L. § 440.10 Motion
On or about October 8, 2002, Smalls filed a pro se C.P.L. §
440.10 motion to vacate the judgment of conviction.*fn7
Smalls argued that: (1) the prosecution committed a Rosario
violation by failing to provide S.S.'s statement and Detective
Aponte's notes prior to the suppression hearing; (2) there was
"newly discovered" exculpatory evidence; and (3) Smalls had
received ineffective assistance of trial counsel. (See Ex. I:
State § 440 Opp. Br. at 1; Ex. J: Justice Silverman decision at
1.) Justice Silverman denied Smalls' C.P.L. § 440.10 motion on
December 20, 2002. (Ex. J: Justice Silverman decision denying §
440 motion.) Justice Silverman held that S.S.'s statement and a
detective's notes did not constitute Rosario material with
respect to the suppression hearing because "these individuals did
not testify at the suppression hearing." (Ex. J: Justice
Silverman decision at 1-2.) In addition, "[s]ince the issue was
already raised or could have been raised on [Smalls'] direct
appeal, it must now be denied pursuant to CPL 440.10(2) (a, c)."
(Ex. J: Justice Silverman decision at 2.) Justice Silverman found
that it was not clear what "newly discovered evidence" Smalls was
claiming had been made available since the close of trial. (Ex.
J: Justice Silverman decision at 2.) Finally, Justice Silverman
found there was "no basis to defendant's claim of ineffective
assistance of [trial] counsel" because "[t]he trial record and
Court file reveal that defense counsel made appropriate pretrial
motions, conducted a competent examination of witnesses, and
generally presented a proper defense." (Justice Silverman
decision at 2.) Justice Silverman did not fault counsel's line of
questioning and found that counsel provided "meaningful
representation," as required by New York law, and "counsel's
efforts should not be second-guessed." (Ex. J: Justice Silverman
decision at 3.)
The First Department denied leave to appeal from the denial of
the § 440.10 motion on July 10, 2003. People v. Smalls, No.
M-570, 2003 N.Y. App. Div. LEXIS 8167 (1st Dep't July 10, 2003). Smalls' Coram Nobis Petition to the First Department
Smalls filed a coram nobis petition with the First Department
on October 1, 2002 claiming his appellate counsel was ineffective
for: (1) failing to assert that trial counsel was ineffective
(Ex. M: Smalls Coram Nobis Petition at 3-21, 47); (2) "failing to
raise some valuable evidences to support" the argument that
Smalls' guilt had not been proven beyond a reasonable doubt
(id. at 21-26); (3) "failing to raise the illegal search and
seizure" issue (id. at 26-35); (4) "failing to raise the
Miranda warning" issue (id. at 35-37); (5) "failing to raise
the Wade Hearing and reopening of the Wade Hearing issues"
(id. at 37-42); (6) not arguing that the "trial court had erred
in not allowing trial counsel to call complainants to testify
during Wade Hearing" (id. at 42); (7) "failing to raise the
judicial misconduct issue" (id. at 42-45); (8) not raising the
Rosario and Brady issues (id. at 45-47); and (9) "failing
to submit a reply brief and to give an oral argument" (id. at
The First Department denied Smalls' coram nobis petition on
June 19, 2003, citing People v. de la Hoz, 131 A.D.2d 154,
158, 520 N.Y.S.2d 386, 388 (1st Dep't 1987). People v.
Smalls, 306 A.D.2d 958, 762 N.Y.S.2d 866 (1st Dep't 2003); see
also Ex. O: 6/19/03 1st Dep't decision. The New York Court of
Appeals denied leave to appeal on October 23, 2003. People v.
Smalls, 100 N.Y.2d 645, 769 N.Y.S.2d 211 (2003); see also Ex.
P: Court of Appeals Certificate denying leave to appeal.
Smalls' C.P.L. § 440.20 Motion to Vacate His Sentence
On June 11, 2003, Smalls moved pursuant to C.P.L. § 440.20 to
set aside his sentence of thirty-two years because it exceeded
"the maximum aggregated term of 30 years" under Penal Law §
70.30. (Ex. Q: Smalls C.P.L. § 440.20 Motion ¶ 6). On October 21,
2003, Justice Fried denied Smalls' motion. (Ex. R: Justice Fried's decision denying § 440.20
motion). The First Department denied leave to appeal on March 4,
2004. People v. Smalls, No. M-5489, 2004 N.Y. App. Div. LEXIS
2431 (1st Dep't Mar. 4, 2004). (See also Ex. S: D.A.'s 2/26/04
letter opposing leave to appeal; Ex. T: 1st Dep't decision
denying leave to appeal.)
Smalls' Federal Habeas Corpus Petition
Smalls submitted a ninety-three page petition for a writ of
habeas corpus, asserting that both his trial and appellate
counsel were ineffective for numerous reasons. (Dkt. No. 2: Pet.;
see also Smalls 6/21 Traverse.) Smalls' petition asserts that
appellate counsel was ineffective for failing to raise: (1) the
Miranda issue about his statements (Ex. U: Pet. at 13-15,
62-71);*fn8 (2) the Wade pretrial identification issue
(id. at 15-20); (3) the judicial misconduct issue (id. at
20-26); (4) failing to submit a reply brief or give oral argument
(id. at 26); and (5) failing to raise claims that trial counsel
was ineffective in numerous ways (id. at 28-61).
Smalls' petition asserted direct claims of ineffective trial
counsel, as follows: (1) failing to cross-examine Detective
Bonilla about various things (id. at 48-51); (2) failing to
cross-examine the complainants about prior inconsistent
statements (id. at 51-53); (3) counsel had a conflict of
interest because he forced Smalls to tell his mother certain
information (id. at 54-56); (4) failing to call character
witnesses (id at 56-58); and (5) failing to investigate (id.
at 58). Smalls also raises claims of (a) newly discovered evidence
(id. at 72-73), (b) Rosario/Brady violations about the
suppression hearing (id. at 77-81), and (c) insufficiency of
the evidence (id. at 82-88).
I. THE AEDPA REVIEW STANDARD*fn9
Before the Court can determine whether Smalls is entitled to
federal habeas relief, the Court must address the proper habeas
corpus review standard under the Antiterrorism and Effective
Death Penalty Act ("AEDPA"). In enacting the AEDPA, Congress significantly "modifie[d] the
role of federal habeas courts in reviewing petitions filed by
state prisoners." Williams v. Taylor, 529 U.S. 362, 403,
120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent
review standard, as follows:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the
merits in State court proceedings unless the
adjudication of the claim
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) . . . was based on an unreasonable determination
of the facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. § 2254(d)(1)-(2).*fn10
The "contrary to" and "unreasonable application" clauses of §
2254(d)(1) have "independent meaning." Williams v. Taylor,
529 U.S. at 404-05, 120 S.Ct. at 1519.*fn11 Both, however,
"restrict the source of clearly established law to [the
Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at
1523.*fn12 "That federal law, as defined by the Supreme
Court, may either be a generalized standard enunciated in the
[Supreme] Court's case law or a bright-line rule designed to
effectuate such a standard in a particular context." Kennaugh
v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas
relief solely by demonstrating that the state court unreasonably
applied Second Circuit precedent." Yung v. Walker, 296 F.3d
at 135; accord, e.g., DelValle v. Armstrong, 306 F.3d at
As to the "contrary to" clause:
A state-court decision will certainly be contrary to
[Supreme Court] clearly established precedent if the
state court applies a rule that contradicts the
governing law set forth in [Supreme Court]
cases. . . . A state-court decision will also be
contrary to [the Supreme] Court's clearly established
precedent if the state court confronts a set of facts
that are materially indistinguishable from a decision
of [the Supreme] Court and nevertheless arrives at a
result different from [Supreme Court] precedent.
Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at
In Williams, the Supreme Court explained that "[u]nder the
`unreasonable application' clause, a federal habeas court may
grant the writ if the state court identifies the correct
governing legal principle from [the Supreme] Court's decisions
but unreasonably applies that principle to the facts of the
prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 So.
Ct. at 1523.*fn14
However, "[t]he term `unreasonable' is
. . . difficult to define." Williams v. Taylor, 529 U.S. at
410, 120 S.Ct. at 1522. The Supreme Court made clear that "an
unreasonable application of federal law is different from an
incorrect application of federal law." Id.*fn15
the issue is "whether the state court's application of clearly
established federal law was objectively unreasonable." Williams
v. Taylor, 529 U.S. at 409, 120 S.Ct. at 1521.*fn16
"Objectively unreasonable" is different from "clear error."
Lockyer v. Andrade, 538 U.S. at 75, 123 S.Ct. at 1175 ("The
gloss of clear error fails to give proper deference to state
courts by conflating error (even clear error) with
unreasonableness."). However, the Second Circuit has explained "that while `[s]ome increment of
incorrectness beyond error is required . . . the increment need
not be great; otherwise, habeas relief would be limited to state
court decisions so far off the mark as to suggest judicial
incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting
Francis S. v. Stone, 221 F.3d 100
, 111 (2d Cir.
"[T]he range of reasonable judgment can depend
in part on the nature of the relevant rule." Yarborough v.
Alvarado, 124 S.Ct. at 2149.*fn18
Moreover, the Second Circuit has held "that a state court
determination is reviewable under AEDPA if the state decision
unreasonably failed to extend a clearly established, Supreme
Court defined, legal principle to situations which that principle
should have, in reason, governed." Kennaugh v. Miller, 289
F.3d at 45.*fn19 Under the AEDPA, in short, the federal courts "must give the
state court's adjudication a high degree of deference." Yung v.
Walker, 296 F.3d at 134.
Even where the state court decision does not specifically refer
to either the federal claim or to relevant federal case law, the
deferential AEDPA review standard applies:
For the purposes of AEDPA deference, a state court
"adjudicate[s]" a state prisoner's federal claim on
the merits when it (1) disposes of the claim "on the
merits," and (2) reduces its disposition to judgment.
When a state court does so, a federal habeas court
must defer in the manner prescribed by
28 U.S.C. § 2254(d)(1) to the state court's decision on the
federal claim even if the state court does not
explicitly refer to either the federal claim or to
relevant federal case law.
Sellan v. Kuhlman, 261 F.3d at 312; accord Early v.
Packer, 537 U.S. 3
, 8, 123 S.Ct. 362
, 365 (2002) (State court
not required to cite Supreme Court cases, or even be aware of
them, to be entitled to AEDPA deference, "so long as neither the
reasoning nor the result of the state-court decision contradicts
them."); Francolino v. Kuhlman, 365 F.3d 137
, 141 (2d Cir.
Apr. 20, 2004) (Where "the Appellate Division concluded its
opinion by stating that it had `considered and rejected
defendants' remaining claims,'" AEDPA deference applies.);
Jenkins v. Artuz, 294 F.3d 284
, 291 (2d Cir. 2002) ("In
Sellan, we found that an even more concise Appellate Division
disposition the word `denied' triggered AEDPA
"By its terms, § 2254(d) requires such
deference only with respect to a state-court `adjudication on the merits,' not to a
disposition `on a procedural, or other, ground.' Where it is
`impossible to discern the Appellate Division's conclusion on
[the relevant] issue,' a federal court should not give AEDPA
deference to the state appellate court's ruling." Miranda v.
Bennett, 322 F.3d 171
, 177-78 (2d Cir. 2003) (citations
Of course, "[i]f there is no [state court] adjudication on the merits, then the
pre-AEDPA, de novo standard of review applies." Cotto v.
Herbert, 331 F.3d at 230.
In addition to the standard of review of legal issues, the
AEDPA provides a deferential review standard for state court
factual determinations: "a determination of a factual issue made
by a State court shall be presumed to be correct."
28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of `rebutting the
presumption of correctness by clear and convincing evidence.'"
Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)).
II. THE STRICKLAND V. WASHINGTON STANDARD ON INEFFECTIVE
ASSISTANCE OF COUNSEL*fn22
A. The Strickland Standard In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052
(1984), the Supreme Court announced a two-part test to determine
if counsel's assistance was ineffective: "First, the defendant
must show that counsel's performance was deficient. This requires
showing that counsel made errors so serious that counsel was not
functioning as the `counsel' guaranteed the defendant by the
Sixth Amendment." Id. at 687, 104 S.Ct. at 2064; accord,
e.g., Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535
(2003). This performance is to be judged by an objective standard
of reasonableness. Strickland v. Washington, 466 U.S. at 688,
104 S.Ct. at 2064.*fn23
Judicial scrutiny of counsel's performance must be
highly deferential. It is all too tempting for a
defendant to second-guess counsel's assistance after
conviction. . . . A fair assessment of attorney
performance requires that every effort be made to
eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's
perspective at the time. . . . [A] court must indulge
a strong presumption that counsel's conduct falls
within the wide range of reasonable professional
assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the
challenged action "might be considered sound trial
Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065
Second, the defendant must show prejudice from counsel's
performance. Strickland v. Washington, 466 U.S. at 687, 104
S.Ct. at 2064. The "question is whether there is a reasonable
probability that, absent the errors, the fact finder would have
had a reasonable doubt respecting guilt." Id. at 695, 104 So.
Ct. at 2068-69. Put another way, the "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."
Id. at 694, 104 S.Ct. at 2068.*fn25
The Supreme Court has counseled that these principles "do not
establish mechanical rules." Strickland v. Washington, 466
U.S. at 696, 104 S.Ct. at 2069. The focus of the inquiry should
be on the fundamental fairness of the trial and whether, despite
the strong presumption of reliability, the result is unreliable
because of a breakdown of the adversarial process. Id.
Any counsel errors must be considered in the "aggregate" rather
than in isolation, as the Supreme Court has directed courts "to
look at the `totality of the evidence before the judge or jury.'"
Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quoting
Strickland v. Washington, 466 U.S. at 695-96, 104 S.Ct. at 2069); accord, e.g.,
Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991).
The Supreme Court also made clear that "there is no reason for
a court deciding an ineffective assistance claim . . . to address
both components of the inquiry if the defendant makes an
insufficient showing on one." Strickland v. Washington, 466
U.S. at 697, 104 S.Ct. at 2069.*fn26
In addition, the Supreme Court has counseled that "strategic
choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation. . . . In any
ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel's
judgments." Strickland v. Washington, 466 U.S. at 690-91, 104
S.Ct. at 2066.*fn27 As the Second Circuit noted: "The Strickland standard is
rigorous, and the great majority of habeas petitions that allege
constitutionally ineffective counsel founder on that standard."
Lindstadt v. Keane, 239 F.3d at 199.
B. Strickland and Appellate Counsel
The Strickland test applies to appellate as well as trial
counsel. See, e.g., Smith v. Robbins, 528 U.S. 259, 285,
120 S.Ct. 746, 764 (2000).*fn28 A petitioner alleging
ineffective assistance of appellate counsel must prove both that
(1) appellate counsel acted objectively unreasonably in failing
to raise a particular issue on appeal, and (2) absent counsel's
deficient performance, there was a reasonable probability that
defendant's appeal would have been successful before the state's
highest court. E.g., Smith v. Robbins, 528 U.S. at 285, 120
S.Ct. at 764; Aparicio v. Artuz, 269 F.3d at 95; Mayo v.
Henderson, 13 F.3d at 533-34; see also Larrea v. Bennett,
01 Civ. 5813, 2002 WL 1173564 at *18 n. 30 (S.D.N.Y. May 31,
2002) (Peck, M.J.) (discussing the issue of whether a federal or
state standard should apply), report & rec. adopted, 2002 WL
1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.), aff'd, No.
02-2540, 368 F.3d 179 (table), 2004 WL 1094269 (2d Cir. May 18,
2004). Appellate counsel "need not (and should not) raise every
nonfrivolous claim, but rather may select from among them in
order to maximize the likelihood of success on appeal." Smith
v. Robbins, 528 U.S. at 288, 120 S.Ct. at 765 (citing Jones
v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 3312-14
(1983)).*fn29 Reviewing courts should not second guess the
reasonable professional judgments of appellate counsel as to the
most promising appeal issues. Lugo v. Kuhlmann, 68 F. Supp.2d 347,
371-72 (S.D.N.Y. 1999) (Patterson, D.J. & Peck,
M.J.).*fn30 Thus, a petitioner may establish
constitutionally inadequate performance only by showing that
appellate counsel "omitted significant and obvious issues while
pursuing issues that were clearly and significantly weaker."
Mayo v. Henderson, 13 F.3d at 533; see also, e.g.,
Jackson v. Leonardo, 162 F.3d at 85.
C. Strickland and the AEDPA Review Standard
For purposes of this Court's AEDPA analysis, "the Strickland
standard . . . is the relevant `clearly established Federal law,
as determined by the Supreme Court of the United States.'"
Aparicio v. Artuz, 269 F.3d 78, 95 & n. 8 (2d Cir. 2001)
(quoting 28 U.S.C. § 2254(d)(1)).*fn31 "For AEDPA purposes,
a petitioner is not required to further demonstrate that his
particular theory of ineffective assistance of counsel is also `clearly established.'"
Aparicio v. Artuz, 269 F.3d at 95 n. 8. "For [petitioner] to
succeed, however, he must do more than show that he would have
satisfied Strickland's test if his claim were being analyzed in
the first instance, because under § 2254(d)(1), it is not enough
to convince a federal habeas court that, in its independent
judgment, the state-court decision applied Strickland
incorrectly. . . . Rather, he must show that the [First
Department] applied Strickland to the facts of his case in an
objectively unreasonable manner." Bell v. Cone, 535 U.S. at
698-99, 122 S.Ct. at 1852; see also Yarborough v. Gentry,
540 U.S. 1, 124 S.Ct. 1, 4 (2003).
III. SMALLS' INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL CLAIM
Smalls alleges a long list of trial counsel errors, many of
which fall into the rubric of trial strategy, and the rest
deficient performance. The Second Circuit has consistently stated
that the court will not "`second-guess matters of trial strategy
simply because the chosen strategy has failed.'" Lake v.
Portuondo, No. 00-2150, 14 Fed. Appx. 126, 128, 2001 WL 830583
at *1 (2d Cir. July 25, 2001), cert. denied, 535 U.S. 999,
122 S.Ct. 1565 (2002); accord, e.g., Smith v. Keane, No.
95-2480, 101 F.3d 1392 (table), 1996 WL 364539 at *3 (2d Cir.
July 2, 1996), cert. denied, 519 U.S. 969, 117 S.Ct. 396
(1996); United States v. DiTommaso, 817 F.2d 201, 215 (2d
Cir. 1987); Quinones v. Miller, 01 Civ. 10752, 2003 WL
21276429 at *40 (S.D.N.Y. June 3, 2003) (Peck, M.J.). Rather,
courts "must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance," and must presume that counsel "made all significant
decisions in the exercise of reasonable professional judgment."
Strickland v. Washington, 466 U.S. 668, 689-90,
104 S.Ct. 2052, 2065-66 (1984); see also, e.g., United States v.
Luciano, 158 F.3d 655, 660 (2d Cir. 1998) ("[A]n appellate
court on a cold record should not second-guess [counsel's trial
conduct] decisions unless there is no strategic or tactical justification
for the course taken."), cert. denied, 526 U.S. 1164, 119 So.
Ct. 2059 (1999).
Smalls' claims concerning the decisions his trial counsel made
regarding questioning, objections, summation, witnesses
presented, and the numerous other alleged failures are all part
of the particular trial strategy adopted by his counsel, and
counsel cannot be faulted for pursuing a trial strategy even if
hindsight shows it was unsuccessful. See, e.g., Quinones v.
Miller, 2003 WL 21276429 at *40-42 (& cases cited therein).
This Court has carefully read the entire trial transcript in
this case and cannot say that trial counsel's strategy and
performance possessed shortcomings of a constitutional magnitude.
Contrary to Smalls' assertion, the Court finds that trial counsel
pursued a competent (albeit ultimately unsuccessful) trial
strategy of highlighting the inconsistencies in the witnesses'
testimony as he challenged the credibility of the evidence and
suggested that his client was framed. Furthermore, even if Smalls
could show deficient performance, his claim would fail under the
second prong of the Strickland review test. In light of the
overwhelming evidence, including DNA evidence, against Smalls,
Smalls cannot show prejudice as a result of his trial counsel's
performance. His counsel's trial strategy, implying that Smalls
was framed, seemed to be the only one that had any chance of
success in light of the DNA evidence. The Court will discuss some
(but not all) of Smalls' specific ineffectiveness claims in
greater detail. A. Trial Counsel's Performance During Cross-Examination and
Investigation of the Case
Smalls alleges that his counsel's inept cross-examination of
Sergeant West improperly opened the door to damaging testimony
that his client was on parole (Ex. U: Pet. at 41), and his
failure to cross-examine Detective Bonilla about the ownership of
the confiscated sneakers was also an error (Pet. at 49).
Smalls' trial counsel attempted to show that the police had no
basis to detain and arrest Smalls by questioning Sgt. West as to
why Smalls was running from the police on the night of his
arrest. (E.g., Tr. 466-67.) One can hardly blame trial counsel
for attempting to further his theory that his client was framed
by showing that the police had no basis to stop him, even if that
attempt backfired. See, e.g., Bilzerian v. United States,
No. 96-2920, 125 F.3d 843 (table), 1997 WL 603470 at *2 (2d Cir.
Sept. 30, 1997) ("Defense counsel's decisions were part of a
reasonable trial strategy, that simply did not work. [On
cross-examination, c]ounsel understandably tried to rebut
damaging testimony, only to find their decision led to more
harmful evidence. This decision does not fall below a level of
reasonableness."), cert. denied, 527 U.S. 1021, 119 S.Ct. 2365
(1999); Avila v. Butler, No. 02-0739, 2003 WL 22939237 at *6
(N.D. Cal. 2003) (Any error in counsel's performance was "not so
serious as to rise to the level of a constitutional violation"
when counsel asked an open-ended question that elicited testimony
that the defendant was on parole. Moreover, no prejudice resulted
because the jury was instructed not to consider the information
on "`parole as relating to the guilt or innocence of the
defendant.'"); see also, e.g., Dunham v. Travis,
313 F.3d 724, 732 (2d Cir. 2002) ("Decisions about `whether to engage in
cross-examination, and if so to what extent and in what manner, are . . . strategic in nature' and
generally will not support an ineffective assistance claim.");
United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998)
("[T]he conduct of examination and cross-examination is entrusted
to the judgment of the lawyer, and an appellate court on a cold
record should not second-guess such decisions unless there is no
strategic or tactical justification for the course taken."),
cert. denied, 526 U.S. 1164, 119 S.Ct. 2059 (1999); United
States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987)
("Decisions whether to engage in cross-examination, and if so to
what extent and in what manner, are similarly strategic in
nature."), cert. denied, 484 U.S. 1061, 108 S.Ct. 1018 (1988);
Charles v. Foltz, 741 F.2d 834, 840 (6th Cir. 1984) (Counsel
was not ineffective for eliciting "bad background" information
that the defendant had been denied parole and escaped from
prison.); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429
at *42 (S.D.N.Y. June 3, 2003) (Peck, M.J.) ("One can hardly
blame [trial counsel] for attempting to shake the detective's
story, even if that attempt backfired.").
Smalls claims that his trial counsel also erred in failing to
further investigate and cross-examine Detective Bonilla as to
whether the sneakers confiscated by Detective Bonilla belonged to
another occupant of Smalls' home. (Pet. at 49.) Smalls asserts
that the lack of such investigation "denied petitioner the
opportunity to create reasonable doubt and build on the theory
about the officers planting blood on the sneaker." (Pet. at 49.)
He claims that his family, who lives with him, would have
testified that he and his father shared shoes. (Pet. at 49.)
Pointing the finger at Smalls' own father who clearly could not
have been the attacker since he was too old was hardly a
strategy likely to recommend or endear Small to the jury. B. Trial Counsel's Alleged Failure to Call Witnesses
Smalls believes his trial counsel erred in not calling several
witnesses. He asserts that his counsel should have called prior
defense counsel Bridgette Richmond, the attorney present when
Smalls was picked at the May 15, 1997 line-up. (Pet. at 36).
Smalls points out that Richmond was present when S.S. viewed the
line-up and identified Smalls as her attacker, and that Richmond
"would have testified to the differences between the fillers and
petitioner" and would have contradicted the testimony from
Detective Bonilla regarding their similarities. (Pet. at 36.)
However, in Richmond's memo describing the events of the line-up,
Richmond stated that her objections to the fillers were "mostly
that they had more facial hair and goatees and about the hair."
(Pet. Ex. 11: Richmond 5/15/97 memo.) Richmond additionally noted
that two fillers looked older than Smalls, and one looked
younger. (Id.) Smalls believes he suffered prejudice because
this testimony would have created a "reasonable doubt with
respect to Detective Bonilla's testimony about the fairness of
the line-up and to the remainder of his testimony." (Pet. at
Such testimony would not have shown unfairness in the line-up
viewed by S.S. Indeed, Richmond testified at the suppression
hearing, but the trial judge found the lineup to have been fair.
The result was not likely to be different before the jury a
trial. Moreover, as a matter of law, the Second Circuit has held
that "there is no requirement that . . . in line-ups the accused
must be surrounded by persons nearly identical in appearance."
United States v. Reid, 517 F.2d 953, 965 n. 15 (2d Cir.
1975); accord, e.g., Ennis v. Walker, 00 Civ. 2875, 2001
WL 409530 at *19 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.); Roberson
v. McGinnis, 99 Civ. 9751, 2000 WL 378029 at *7 (S.D.N.Y. Apr.
11, 2000) (Peck, M.J.); Roldan v. Artuz, 78 F. Supp.2d 260,
271 (S.D.N.Y. 2000) (Peck, M.J.).*fn32 "`Police stations are not theatrical casting
offices; a reasonable effort to harmonize the lineup is normally
all that is required.'" Gossett v. Henderson, 87 Civ. 5878,
1991 WL 135601 at *2 (S.D.N.Y. July 18, 1991), aff'd,
978 F.2d 705 (2d Cir. 1992), cert. denied, 510 U.S. 997, 114 S.Ct. 564
(1993). The cases in which lineups have been held to be
suggestive are those where the witness has identified a certain
feature of the perpetrator, and the lineup fillers do not have
that feature (e.g., if the victim said the perpetrator had a
beard or mustache, and the fillers are clean shaven and defendant
is not). See, e.g., Ennis v. Walker, 2001 WL 409530 at
*21; Roberson v. McGinnis, 2000 WL 378029 at *8 (citing
cases). Here, the victims had not described any specific feature
of the perpetrator. Moreover, Smalls' trial counsel pursued a
different strategy of attacking the credibility of the line-up
identification by demonstrating a potentially more serious flaw,
namely that S.S. had viewed a picture of the attacker in the
newspaper before she made her line-up identification.
Next, Smalls claims his counsel should have called character
witnesses to show Smalls' good character. (Pet. at 56.) Smalls
contends that trial counsel should have called "petitioner's
women friends to testify that he never engaged in any sexual
deviant behavior nor was he ever violent towards them" and to
discuss his education and participation in the military. (Pet. at
57.) Smalls speculates that this testimony would create a
reasonable doubt in the jury's minds that he would commit the
crimes. (Pet. at 56.) This is a baseless assertion. "A trial counsel's `decision whether to call any witnesses on
behalf of the defendant, and if so which witnesses to call, is a
tactical decision of the sort engaged in by defense attorneys in
almost every trial.' Because of this inherently tactical nature,
the decision not to call a particular witness generally should
not be disturbed." United States v. DeJesus, No. 01-1479, 57
Fed. Appx. 474, 478, 2003 WL 193736 at *3 (2d Cir. Jan. 28, 2003)
(Counsel's decision not to call a character witness was grounded
in strategy and not deficient, "even though [defendant] requested
that she do so and provided her with contact information for
potential witnesses."), cert. denied, 538 U.S. 1047,
123 S.Ct. 2110 (2003); see also, e.g., United States v. Nersesian,
824 F.2d 1294, 1321 (2d Cir.), cert. denied, 484 U.S. 958,
108 S.Ct. 357 (1987).*fn33 The decision not to call a character
witness in order to deny the prosecution the opportunity to
contradict that impression is part of trial strategy, not an
error in it. See, e.g., Montalvo v. Annetts, 02 Civ.
1056, 2003 WL 22962504 at *26-27 (S.D.N.Y. Dec. 17, 2003) (Peck,
M.J.) (counsel not ineffective for not calling a witness whose
testimony was cumulative and may have exposed weaknesses in the
defense's case.). As this Court has previously held, "`[t]he decision of whether to call or
bypass a particular witness is a question of trial strategy which
courts will practically never second-guess. . . . In the instant
case, the testimony of any of these witnesses may have as likely
exposed inconsistencies and weaknesses in defendant's case as
have lent support to Petitioner's defense. Additionally, a
defendant's conclusory allegations about the testimony of
uncalled witnesses are insufficient to demonstrate prejudice.'"
Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *24
(S.D.N.Y. May 8, 2002) (Peck, M.J.) (quoting Ozuru v. United
States, No. 95 CV 2241, 1997 WL 124212 at *4 (E.D.N.Y. Mar. 11,
1997), aff'd, 152 F.3d 920 (2d Cir. 1998), cert. denied,
525 U.S. 1083, 119 S.Ct. 828 (1999)); accord, e.g., Montalvo v.
Annetts, 2003 WL 22962504 at *27; Skinner v. Duncan, 2003
WL 21386032 at *40. Here, if counsel presented a character
witness, the prosecution would have been able to present detailed
evidence that Smalls was on parole for committing a similar crime
while he was in the military. It was not unreasonable for Smalls'
trial counsel to refrain from calling a character witness whose
testimony would open the door to harmful attacks by the
prosecution. See, e.g., United States v. DeJesus, 2003 WL
193736 at *3 (counsel properly made strategic decision not to
call a character witness in order to prevent the prosecution from
attacking defendant's character.); Krutikov v. United States,
00 CV 6103, 2004 WL 1555269 at *1 (E.D.N.Y. July 12, 2004)
(counsel not ineffective for failing to call a character witness
where petitioner fails to identify "how [the] testimony would
have altered the outcome of the trial."); see also, e.g.,
Montalvo v. Annetts, 2003 WL 22962504 at *26-27; Skinner v.
Duncan, 2003 WL 21386032 at *40.
"Generally, the decision whether to pursue a particular defense
is a tactical choice which does not rise to the level of a
constitutional violation. . . . [T]he habeas court `will not
secondguess trial strategy simply because the chosen strategy has failed
. . .,' especially where the petitioner has failed to identify
any specific evidence or testimony that would have helped his
case if presented at trial." Jones v. Hollins, 884 F. Supp. 758,
765-66 (W.D.N.Y. 1995) (citations omitted), aff'd, No.
95-2279, 89 F.3d 826 (table), 1995 WL 722215 (2d Cir. Nov. 30,
In light of the extremely strong evidence against Smalls,
including DNA evidence connecting him to one of three identical
attacks, any deficiency by counsel still would not satisfy the
second Strickland prong, of showing that Smalls was prejudiced.
Smalls' habeas claim that trial counsel was ineffective for his
choice of witnesses is denied.
C. Trial Counsel's Alleged Failure to Object to Improper
Statements by the Prosecutor
Smalls asserts that his trial counsel failed to object to the
prosecutor's distortions of the record and improper statements
that were "deliberate misrepresentations of the facts." (Ex. U:
Pet. at 37.)
"Prosecutorial misconduct violates a defendant's due process
rights only when it is of `sufficient significance to result in
the denial of the defendant's right to a fair trial.'" Cromwell
v. Keane, 98 Civ. 0013, 2002 WL 929536 at *25 (S.D.N.Y. May 8,
2002) (Peck, M.J.) (quoting Greer v. Miller, 483 U.S. 756,
765, 107 S.Ct. 3102, 3109 (1987)); accord, e.g., United
States v. McCarthy, 54 F.3d 51, 55 (2d Cir.), cert. denied,
516 U.S. 880, 116 S.Ct. 214 (1995); Blissett v. LeFevre, 924 F.2d 434, 440 (2d Cir.), cert. denied, 502 U.S. 852,
112 S.Ct. 158 (1991).*fn35 Stated another way, "the law is settled
that `federal habeas relief is not available on the basis of
improper prosecutorial statements at trial unless the errors, in
context of the summation as a whole, were so fundamentally unfair
as to deny petitioner a fair trial.'" Tejada v. Senkowski, 92
Civ. 3012, 1993 WL 213036 at *3 (S.D.N.Y. June 16, 1993), aff'd
mem., 23 F.3d 397 (2d Cir.), cert. denied, 513 U.S. 887,
115 S.Ct. 230 (1994).*fn36
To properly evaluate the prosecution's actions, the alleged
misdeeds must be placed in context, and "[t]he severity of the
misconduct, curative measures, and the certainty of conviction absent the misconduct are all relevant to the inquiry."
Blissett v. LeFevre, 924 F.2d at 440; accord, e.g.,
Greer v. Miller, 483 U.S. at 766, 107 S.Ct. at 3109 ("it is
important `as an initial matter to place th[e] remar[k] in
context'"); United States v. McCarthy, 54 F.3d 51, 55 (2d
Cir. 1995); United States v. Friedman, 909 F.2d 705, 709 (2d
Cir. 1990); United States v. Biasucci, 786 F.2d 504, 514 (2d
Cir.), cert. denied, 479 U.S. 827, 107 S.Ct. 104
Here, however, Smalls is the one who has misinterpreted the
trial record. The examples he claims are improper
misrepresentations in fact accord with the evidence that was
presented. The most questionable prosecutorial action the Court
can find among those Smalls alleges is the prosecutor's reference
to the defendant as a "hunter" in his opening statement. (Tr. 21,
22; Pet. at 37.) Other examples of alleged prosecutorial
misconduct include the prosecutor's asking an officer what he
"concluded" when the defendant appeared to be trying to remove
his backpack as he looked around the street. (Tr. 507; Pet. at
37.) Smalls believes the prosecutor delivered an improper
summation by misrepresenting the reasons why Johnson and K.W. did
not provide a positive identification of the suspect from the
line-up. (Pet. at 50; Tr. 827.) Also, Smalls states that the
prosecutor's summation improperly stated that I.M. saw her
attacker with a backpack when she never stated that at trial.
(Pet. at 37.) Yet, contrary to Smalls' belief, I.M. did testify
at trial that her attacker wore a "knapsack." (I.M.: Tr.
213-216.) Smalls asserts his counsel should have objected to all
of these statements, and his failure to object was error. (Pet.
at 37.) None of the comments cited by Smalls were improper, and all
were "within `the four corners of the evidence'" presented at
trial. Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at
*57-58 (S.D.N.Y. June 3, 2003) (Peck, M.J.).
Furthermore, this Court finds that even if there was error in
the People's summation, Smalls' trial counsel was not ineffective
because any error was harmless in view of the brief and isolated
nature of the comments, and the overwhelming evidence of Smalls'
guilt including DNA evidence. See, e.g., Rao v. Artuz,
No. 97-2703, 199 F.3d 1323 (table), 1999 WL 980947 at *2-3 (2d
Cir. Oct. 22, 1999) ("strength of the evidence against the
petitioner" was enough to "bar the conclusion that he suffered
actual prejudice as a result of the prosecutor's remarks");
Tankleff v. Senkowski, 135 F.3d 235, 253 (2d Cir. 1998)
("[S]everity of the prosecutor's misconduct . . . was mitigated
by the brevity and fleeting nature of the improper comments" and
"the evidence was [not] so closely balanced that the prosecutor's
comments were likely to have had a substantial effect on the
jury"); Herrera v. Lacy, No. 95-2800, 112 F.3d 504 (table),
1996 WL 560760 at *2 (2d Cir. Oct. 3, 1996) ("While some improper
statements were made . . ., the misconduct was not so severe that
it was not rendered harmless by the court's curative instruction
and the substantial evidence of [petitioner's] guilt.");
Bentley v. Scully, 41 F.3d 818, 824-25 (2d Cir. 1994)
(denying prosecutorial misconduct claim where prosecution
presented "compelling evidence" against petitioner and alleged
misconduct was both brief and isolated), cert. denied,
516 U.S. 1152, 116 S.Ct. 1024 (1996).*fn38 Additionally, needless objections to the "hunter" description
and the prosecutor's questioning of the police officer would only
serve to highlight the statements for the jurors. Counsel may
have reasonably chosen not to object in order to avoid
highlighting the testimony, which the jury likely failed to
notice (as it consisted of only a single, fleeting
reference).*fn39 In any event, considering the strength of the evidence against Smalls, he
cannot show prejudice from any of the trial counsel errors he
D. Trial Counsel's Alleged Failure to Give a Competent
Smalls faults his counsel for delivering an "incompetent and
incomplete" summation, and points out that his counsel even
stated, "I may forget to raise certain issues that are of
importance in this case . . ." (Defense Summation: Tr. 751; Pet.
at 38.) Smalls has taken this statement out of context, as his
trial counsel was actually instructing the jurors to scrutinize
the credibility of all the evidence presented and discussed in
the People's Summation. (Dkt. No. 13: State Br. at 51.) Smalls
alleges that nearly every possible argument attacking the
evidence should have been made in his counsel's summation. (Pet.
at 38-40.) But a defense attorney is not required to rehash every
fact or argument in his summation, and is presumed to make
"strategic choices." Strickland v. Washington, 466 U.S. at
690-91, 104 S.Ct. at 2066. In fact, his trial counsel
appropriately argued that Smalls' guilt had not been proven
beyond a reasonable doubt, stressed that the jurors must consider
the inconsistencies of the identification statements made by the
victims, and argued that the police may have tampered with the
DNA evidence. (Defense Summation: Tr. 753, 755-77; see pages
16, 36 above.)
The Court has read the entire trial transcript. Defense counsel
conducted thorough cross examinations and presented a competent
closing argument despite the overwhelming DNA evidence against
his client. Trial counsel was not ineffective. See, e.g.,
Billy-Eko v. United States, 8 F.3d 111, 117 (2d Cir. 1993)
("A reading of the record clearly shows that [petitioner's] trial
counsel's performance was not objectively unreasonable, nor did
it result in prejudice."), abrogated on other grounds by
Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690
(2003); Jeremiah v. Artuz, 181 F. Supp.2d 194, 203 (E.D.N.Y.
2002) (examining "counsel's overall performance" and finding no
ineffective assistance where "[t]rial counsel ably presented
petitioner's justification defense throughout the trial and
attempted in cross-examination to develop grounds for questioning
the testimony of prosecution witnesses that was harmful to
petitioner's defense. Counsel also helped elicit petitioner's
trial testimony in an intelligible fashion. His summation was an
organized and coherent presentation of the defense position which
focused on the justification defense. Notwithstanding the
apparent strength of the prosecution's case, counsel forcefully
urged the jury to find a reasonable doubt based on an evaluation
of the evidence and gaps in the evidence. . . . [E]ven assuming
that counsel committed an oversight or error in judgment . . .
petitioner was not deprived of his right to the effective
assistance of counsel. . . .").*fn40 This Court finds that the defense delivered a competent
summation that did not fall below the objective level of
reasonableness used to measure counsel's performance. In light of
the overwhelming evidence against Smalls, and Smalls' vague and
conclusory assertions as to trial counsel's alleged deficiencies,
Smalls' claim of ineffective assistance is meritless and is
E. Smalls' Remaining Ineffective Trial Counsel Claims Fail
Because They Are All Conclusory and Vague
Smalls' remaining allegations of errors include that his
counsel did not request time to review the New York Times
article, failed to object to missing lineup photos, and performed
no voir dire of the jury regarding the specific newspaper
article. (Ex. U: Pet. at 42-45.) These claims are vague and
conclusory, and, in any event, Smalls has not shown that he
suffered prejudice as a result.
It is well established that conclusory allegations, such as
these, are insufficient to meet the rigorous standard under
Strickland v. Washington. See, e.g., United States v.
Vargas, 920 F.2d 167, 170 (2d Cir. 1990) (petitioner's
affidavit making allegations in a "conclusory fashion" failed to demonstrate that counsel's decision not to call a
witness was unreasonable), cert. denied, 502 U.S. 826, 112 So.
Ct. 93 (1991); Angel v. Garvin, 98 Civ. 5384, 2001 WL 327150
at *8 (S.D.N.Y. Apr. 3, 2001) (citing cases) ("A habeas petition
may be denied `where the allegations are . . . vague, [or]
conclusory . . ."); Slevin v. United States, 98 Civ. 0904,
1999 WL 549010 at *5 (S.D.N.Y. July 28, 1999) (§ 2255 case;
"Petitioner's conclusory allegations that counsel evinced `a
general lack of preparation' do not demonstrate that absent the
alleged errors, the outcome of the trial would have been
different. Petitioner has not elaborated on how counsel's alleged
general lack of preparation prejudiced the outcome of his trial.
Accordingly, such purported lack of preparation cannot be deemed
ineffective assistance of counsel."), aff'd, 234 F.3d 1263 (2d
Cir. 2000); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536
at *19 (S.D.N.Y. May 8, 2002) (Peck, M.J.).*fn41 Here, Smalls alleges that if his attorney had read the Times
article in advance, he would have seen police officer quotes that
contradicted evidence presented at trial. (Pet. at 42.)
Specifically, he points to a quote from Lieutenant Carney,
Commanding Officer of the Manhattan Special Victims Squad,
stating that the victims "never got to look at him." (Pet. at 42;
Pet. Ex. 15: N.Y. Times article.) Smalls claims that this
statement should have been brought to the jurors' attention to
undermine the eyewitness identification given by S.S., because if
it had, there is a reasonable probability the result of the trial
would be different. (Pet. at 42.) The Court disagrees.
Similar testimony was given by Detective Aponte, who stated
that he recorded in his notes that S.S. did not see her
attacker's face. (Aponte: Tr. 694.) This very evidence thus was
before the jury, and they chose to believe S.S. "The failure to
call cumulative or repetitive witnesses is neither ineffective
nor prejudicial." Skinner v. Duncan, 2003 WL 21386032 at *38
(citing cases); see, e.g., United States v. Luciano, 158
F.3d at 660 ("The decision not to call a particular witness is
typically a question of trial strategy that appellate courts are
ill-suited to second guess." Where the witness defendant asserts
counsel should have called "would have testified in a manner
corroborative of another witness[,] counsel might well have
regarded the testimony as unnecessarily cumulative."), cert.
denied, 526 U.S. 1164, 119 S.Ct. 2059 (1999); Montalvo v.
Annetts, 02 Civ. 1056, 2003 WL 22962504 at *26 (S.D.N.Y. Dec.
17, 2003) (Peck, M.J.) (rejecting claim that counsel was
ineffective for failing to call alibi witness whose testimony
would have been cumulative of photographs in evidence and was
consistent with the prosecution's theory.).*fn42 Smalls further alleges that his trial counsel erred in his
failing to object that the missing photographs of the May 15,
1997 line-up were Rosario and Brady material. (Pet. at 44,
77.) Under Brady v. Maryland and its progeny, prosecutors
must turn over exculpatory and impeachment evidence, whether or
not requested by the defense, where the evidence is material
either to guilt or to punishment. See, e.g., Strickler v.
Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 1948 (1999);
United States v. Bagley, 473 U.S. 667, 676, 682,
105 S.Ct. 3375, 3380, 3383-84 (1985); United States v. Agurs,
427 U.S. 97, 107, 96 S.Ct. 2392, 2399 (1976); Brady v. Maryland,
373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97 (1963).*fn43
"There are three components of a true Brady violation: (1)
The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; (2) that
evidence must have been suppressed by the State, either willfully
or inadvertently; and (3) prejudice must have ensued." Strickler v. Greene, 527
U.S. at 281-82, 119 S.Ct. at 1948.*fn44 Here, the Court
need not decide whether the first two prongs were satisfied,
since Smalls cannot show prejudice. Even if the defense were able
to cast some doubt on S.S.'s identification of Smalls, the DNA
evidence (combined with all victims' general description of their
attacker, which matched Smalls, and the common modus operandi),
was proof positive of Smalls' guilt.
Smalls' assertion that trial counsel was ineffective for not
voir during the jury about the Times article and that the
jurors might have learned from reading the article that he was on
parole for a prior crime is speculative. Regardless of whether
the jurors learned about his parole from the article, the same
information concerning his parole status was presented at trial,
as Smalls knows (because he faults his counsel for opening the
door to it), and the jury was instructed to consider that
evidence "sole[ly]" on the "issue of the defendant's actions,"
i.e., running from the police, and not as evidence of his
propensity to commit the present crimes. (E.g., Tr. 468-69.)
Thus, Smalls can show no prejudice since (1) the same information
was in evidence at trial, (2) the evidence against him was
strong, and (3) the trial judge gave a limiting instruction about
his parole status, and a jury is presumed to follow the court's
instructions. See, e.g., Greer v. Miller, 483 U.S. 756,
767 n. 8, 107 S.Ct. 3102, 3109 n. 8 (1987) ("We normally presume
that a jury will follow an instruction to disregard inadmissible
evidence . . ., unless there is an `overwhelming probability'
that the jury will be unable to follow the court's instructions."); Richardson v.
Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 1709 (1987) ("juries
are presumed to follow their instructions").*fn45
F. Trial Counsel's Aggregate Performance Does Not Amount to
Deficient Performance Prejudicing Smalls
As noted above (see page 31 above), any counsel errors must
be considered in the "aggregate" rather than in isolation, as the
Supreme Court has directed courts "to look at the `totality of
the evidence before the judge or jury.'" Lindstadt v. Keane,
239 F.3d 191, 199 (2d Cir. 2001) (quoting Strickland v.
Washington, 466 U.S. 668, 695-96, 104 S.Ct. 2052, 2069 (1984);
see page 31 above.
Strickland, of course, teaches that "[j]udicial scrutiny of
counsel's performance must be highly deferential." Strickland
v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065. "[A] court
must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under the
circumstances, the challenged action `might be considered sound
trial strategy.'" Id. Even if Smalls' trial counsel's actions resulted from error
rather than strategy, trial counsel's performance must still be
accorded a certain degree of deference, as the Sixth Amendment
does not guarantee "error-free, perfect representation," Morris
v. Garvin, No. 98-CV-4661, 2000 WL 1692845 at *3 (E.D.N.Y. Oct.
10, 2000), but merely a "wide range of professionally competent
assistance," Strickland v. Washington, 466 U.S. at 689, 104
S.Ct. at 2065. Smalls must show that trial counsel "made errors
so serious that counsel was not functioning as the `counsel'
guaranteed the defendant by the Sixth Amendment." Strickland v.
Washington, 466 U.S. at 687, 104 S.Ct. at 2064; see, e.g.,
Smith v. Robbins, 528 U.S. 259, 284, 120 S.Ct. 746, 763
(2000) ("`We address not what is prudent or appropriate, but only
what is constitutionally compelled.'") (quoting United States
v. Cronic, 466 U.S. 648, 665, n. 38, 104 S.Ct. 2039, 2050 n.
38 (1984)); Burger v. Kemp, 483 U.S. 776, 794,
107 S.Ct. 3114, 3126 (1987) (same); United States v. Di Tommaso,
817 F.2d 201, 216 (2d Cir. 1987) (although, "[t]o put it charitably,"
trial counsel's performance did not "furnish a full model for
aspiring advocates," it did not fall outside the "wide range of
reasonable professional assistance"); Wise v. Smith,
735 F.2d 735, 739 (2d Cir. 1984) (defendant "was not entitled to a perfect
defense, and the cumulative effect of the errors and omissions
that we might find do not amount to a denial of effective
assistance of counsel").*fn46 The Court, as noted above, has read the entire trial
transcript. Clearly, trial counsel was no Clarence Darrow or
Arthur Liman. But judged in context and without the benefit of
hindsight, trial counsel's performance as a whole did not
constitute ineffective assistance in violation of Smalls' Sixth
Amendment rights. Moreover, applying the deferential AEDPA
standard, this Court cannot say that the § 440 court and First
Department's rejection of Smalls' ineffective counsel claims
constituted an objectively unreasonable application of Supreme
Court precedent. See, e.g., Jones v. Stinson,
229 F.3d 112, 121 (2d Cir. 2000) (although Second Circuit might have found
error had question been presented on direct review, under
deferential AEDPA standard the appellate division's ruling was
held not objectively unreasonable).
Even assuming arguendo that each of Smalls' complaints about
trial counsel had merit (which they do not), he cannot establish
prejudice. Smalls' counsel faced a nearly impossible task of
trying to overcome overwhelming evidence that his client had
committed a string of crimes. Smalls was identified in a line-up
and in court by one victim (S.S.), and irrefutable DNA evidence
proved that another victim's blood was on his sneaker. He was
apprehended in the vicinity where all the attacks occurred on the
night of an attempted fourth attack. Additionally, his unique
modus operandi was sufficient to connect him to all the attacks.
Smalls' claim of ineffective assistance of trial counsel is
denied in its entirety. IV. SMALLS' INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
CLAIM IS DENIED
Adding to his long list of claimed deficiencies of trial
counsel, Smalls also alleges a long list of reasons why he was
denied effective assistance of appellate counsel. Smalls claims
that his appellate counsel was ineffective for failing to raise:
(1) a Miranda warning/Huntley claim (Ex. U: Pet. at 13-15);
(2) a Wade Hearing/identification claim (Pet. at 15-20); (3)
a judicial misconduct claim (Pet. at 20-26); (4) failing to
submit a reply brief and give an oral argument (Pet. at 26); (5)
ineffective trial counsel claims (Pet. at 28-61); and (6) a claim
that his guilt was not proven beyond a reasonable doubt (Pet. at
A. Failing to Raise a Miranda Warning/Huntley Hearing
According to Smalls, the police who apprehended him should have
given him Miranda warnings before asking him why he had been
running, and his response about his parole status should have
been excluded from evidence. (Ex. U: Pet. at 13.) Smalls alleges
that his appellate counsel erred in failing to raise this claim
on appeal. (Pet. at 13-15.)
Miranda warnings are not required for threshold-type
questioning done in the line of routine police investigation of
crimes or suspicious conduct occurring in the streets. E.g.,
Fiorienza v. Sullivan, 85 Civ. 0592, 1985 WL 6089 at *7
(S.D.N.Y. Sept. 3, 1985). In applying Miranda, the New York
Court of Appeals has recognized that there is a distinction
between "coercive interrogation" and "permissible street
inquiry." People v. Huffman, 41 N.Y.2d 29, 32-34,
390 N.Y.S.2d 843, 845-47 (1976) (When at 4:30 a.m. a man ran away
from officers and hid in bushes, it was acceptable for officer to
ask, "What are you doing back here?" to clarify the nature of the situation rather than coerce a statement.). Here, when Smalls ran
away from the officers and appeared to match the description of a
suspect, it was permissible for the officers to clarify the
situation through brief questions without the need for Miranda
warnings. Additionally, the questioning of Smalls was not part of
an interrogation designed to elicit incriminating responses, but
merely vague questions designed to assess the danger of a
Even assuming arguendo that the pre-Miranda statements were
a violation of Smalls' Miranda rights, and therefore
inadmissible, any error in admitting the pre-Miranda statements
was harmless error. E.g., Parsad v. Greiner, 337 F.3d 175,
185-86 (2d Cir. 2003); Maldonado v. Greiner, 01 Civ. 0799,
2003 WL 22435713 at *22-23 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.);
Cruz v. Miller, 98 Civ. 4311, 1999 WL 1144280 at *5-6
(S.D.N.Y. Dec. 2, 1999) (Jones, D.J. & Peck, M.J.), aff'd,
255 F.3d 77 (2d Cir. 2001).
Miranda violations are subject to harmless error analysis.
See, e.g., Parsad v. Greiner, 337 F.3d at 185 (error in
admitting pre-Miranda statement "was harmless, as petitioner's
post-Miranda statements, which we have held were properly
admitted, were cumulative of his pre-Miranda statements.");
Tankleff v. Senkowski, 135 F.3d 235, 245-46 (2d Cir. 1998)
(applying harmless error doctrine to Miranda violation);
Rollins v. Leonardo, 938 F.2d 380, 382 (2d Cir. 1991) (per
curiam) (applying harmless error doctrine to Miranda
violation), cert. denied, 502 U.S. 1062, 112 S.Ct. 944 (1992);
Cruz v. Miller, 1999 WL 1144280 at *5.
In Brecht v. Abrahamson, the Supreme Court held that the
appropriate harmless error standard to apply on habeas corpus
review of trial errors, such as the admission of evidence, is
whether the error "`had substantial and injurious effect or
influence in determining the jury's verdict.'" 507 U.S. 619, 638, 113 S.Ct. 1710, 1722 (1993) (quoting
Kotteakos v. United States, 328 U.S. 750, 776,
66 S.Ct. 1239, 1253 (1946)); see also Parsad v. Greiner, 337 F.3d at
185 n. 5 (finding Miranda error harmless whether Brecht or
Chapman v. California, 386 U.S. 18, 87 S.Ct. 824 (1967),
harmless error "standard of review applies to post-AEDPA cases,"
which is an open issue in the Second Circuit).
This Court cannot conclude that Smalls' pre-Miranda
statements that he was on parole and was going home had a
"substantial and injurious effect or influence in determining the
jury's verdict." Brecht v. Abrahamson, 507 U.S. at 638, 113
S.Ct. at 1722. Appealing the admission of Smalls' pre-Miranda
statement would have been fruitless because the prosecution did
not bring out the statement in their direct case. It was only
brought out by the prosecutor after defense counsel had opened
the door to the statement through cross-examination of Sergeant
West. Moreover, even if the door had not been opened and
admission was error, in light of the DNA evidence, the statements
were not likely to influence the jury's verdict. This Court
cannot say that appellate counsel erred in failing to raise the
claim, nor that if he had the appeal would have been successful
and, most importantly, cannot say that the First Department's
decision was an unreasonable application of the Strickland
B. Failing to Raise a Fourth Amendment Claim
Smalls asserts that he was arrested without probable cause and
that the property seized and line-up identifications obtained
should have been suppressed as fruits of the unlawful arrest.
(Dkt. No. 1: Pet. ¶ 12(B).) However, on direct appeal in his
supplemental pro se brief, Smalls raised the search and seizure
claim. (Ex. C: Smalls Pro Se Supp. 1st Dep't Br. at 2.) The First Department denied Smalls' search and seizure claim as "without
merit." (See pages 17-18 above.) Accordingly, the Court finds
that Smalls was in no way prejudiced by appellate counsel's
decision to forego a fourth amendment claim. See, e.g.,
Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *29
(S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Bingham v. Duncan, 01
Civ. 1371, 2003 WL 21360084 at *5 (S.D.N.Y. June 12, 2003) ("As
to appellate counsel's failure to raise certain claims on direct
appeal, petitioner cannot demonstrate the requisite prejudice.
Petitioner's pro se supplemental brief presented all of the
issues he wished to raise . . ."); Hayes v. Coombe, 96 Civ.
865, 1996 WL 650728 at *6 (S.D.N.Y. Nov. 7, 1996) ("[P]etitioner
has not shown that he was prejudiced by appellate counsel's
omission. Petitioner raised [the omitted] claim in his own pro se
brief to the Appellate Division, and the Appellate Division
considered and rejected it."), aff'd, 142 F.3d 517 (2d Cir.
1998), cert. denied, 525 U.S. 1108, 119 S.Ct. 879 (1999).
C. Failing to Raise a Wade Hearing/Identification Claim
Smalls argues that his appellate counsel erred in failing to
raise a Wade hearing/identification issue. (Ex. U: Pet. at
15.) He asserts that the line-up in which S.S. identified him was
unduly suggestive. As discussed above (see pages 39-40), "there
is no requirement that . . . in lineups the accused must be
surrounded by persons nearly identical in appearance." United
States v. Reid, 517 F.2d 953, 965 n. 15 (2d Cir. 1975); see
cases cited at page 39 & n. 32 above. As Justice Lebovitz found
at the suppression hearing, the fact that Smalls had a mustache
and the fillers had goatees, and Smalls' hair was a different
length and texture, "were minor details." (Ex. A: Justice
Lebovitz 5/15/1998 suppression hearing decision at 15.)
Additionally, Justice Lebovitz found that the line-up expense report, the testimony of Detective Bonilla
and the xerox copy of the lineup photo showing similar builds of
all the men showed that the lineup was not unduly suggestive.
(Id. at 14.)
Smalls' appellate counsel correctly decided not to argue that
the line-up was suggestive because he likely recognized, as this
Court does, that the claim was meritless.
D. Failing to Object to Judicial Misconduct
Smalls alleges that his appellate counsel should have raised a
judicial misconduct claim. (Ex. U: Pet. at 20.) Smalls refers to
the objection his trial counsel made to the court's performance
on a "number of occasions" that the court had "lost [its]
impartiality" as the basis of his current claim. (Pet. at 20; Tr.
The Second Circuit has repeatedly held that a trial court's
hostility towards defense counsel will lead to reversal only if
"`the judge's behavior was so prejudicial that it denied [the
defendant] a fair, as opposed to a perfect, trial.'" United
States v. Amiel, 95 F.3d 135, 146 (2d Cir. 1996) (quoting
United States v. Robinson, 635 F.2d 981, 984 (2d Cir.
1980)).*fn47 The Second Circuit has instructed that:
The court's role is not to determine "whether the
trial judge's conduct left something to be desired,
or even whether some comments would have been better
left unsaid." The test is whether the jury was so
impressed with the judge's partiality to the
prosecution that it became a factor in determining
the defendant's guilt, or whether "it appear[ed]
clear to the jury that the court believe[d] the
accused is guilty." United States v. Amiel, 95 F.3d at 146 (citations
omitted); accord, e.g., United States v.
Valenti, 60 F.3d at 946. District Courts apply
these same standards on federal habeas review to
claims of hostility lodged against state judges.
E.g., Salahuddin v. Strack, No. 97-CV-5789,
1998 WL 812648 at *8 (E.D.N.Y. Aug. 12, 1998)
("habeas relief on the ground of judicial misconduct
at the state trial level is warranted only if the
federal court determines that the alleged
improprieties, taken in the context of the total
trial, undermined fundamental fairness to the
defendant"); Jones v. Vacco, 95 Civ. 10755, 1997
WL 278050 at *6 (S.D.N.Y. May 23, 1997) (using
Amiel test in habeas case).
Smalls' claims of judicial misconduct do not rise to the level
of impropriety necessary to undermine fairness in the trial. For
instance, he cites the following colloquy when the prosecutor
examined Detective Colon on direct:
[A.D.A.] BASHFORD: Detective Colon, do you recall
what the witness was wearing that night?
DETECTIVE COLON: No, I don't.
[A.D.A.] BASHFORD: Do you remember if he was carrying
or holding anything?
DETECTIVE COLON: No.
[DEFENSE COUNSEL]: Objection.
THE COURT: His answer is no.
(Colon: Tr. 528-29.) Smalls argues that this interference
demonstrated impartiality favoring the prosecution, even though
the answer to the question, and the judge's repetition of it, was
favorable to the defense. (Pet. at 22.) Like his other examples
of alleged judicial misconduct, this has no validity. In fact, the judge merely repeated an answer that
favored the defense, stressing that the prosecutor's witness
could not remember whether Smalls was carrying a backpack.
Another example of alleged judicial misconduct cited by Smalls
concerns the judge's comment during the discussion about the
validity of DNA testing. When the prosecutor asked the DNA
expert, Dr. Word, what was the likelihood of finding another
person with the same genetic composition as I.M., the expert
explained that it was about one in forty-one billion while the
world's population at the time was only five and a half billion.
(Word: Tr. 686-87.) The judge commented, "You would have some
trouble doing that," and several people in the courtroom laughed.
(Tr. 687.) Smalls believes that the remark clearly showed that
the "trial court had definitely stepped outside his balanced role
and become an advocate for the prosecution." (Pet. at 22.) Since
the math was obvious, the judge's making a joke does not render
the trial fundamentally unfair. See, e.g., Perez v.
Hollins, 02 Civ. 6120, 2004 WL 307271 at *11 (S.D.N.Y. Feb. 5,
2004) (trial court's actions in questioning witnesses,
denigrating the defense, and making faces did not deny petitioner
a fair trial); see also, e.g., Gayle v. Scully,
779 F.2d 802, 807-13 (2d Cir. 1985) (Not constitutional error when judge
continuously made sarcastic remarks, including, for example,
telling the defense counsel, "`Counselor, you must rise to your
feet when you address the court . . . This is not a real-estate
closing.'"), cert. denied, 479 U.S. 838, 107 S.Ct. 139 (1986);
Robinson v. Ricks, 00 CV 4526, 2004 WL 1638171 at *16
(E.D.N.Y. July 22, 2004) (While the trial judge made certain
unfortunate comments they may have shown his belief that the
defendant was guilty, they were "`neither significantly helpful
to the prosecution,' nor `devastating to the defense,'" and thus
his conduct did not rise to the level of a constitutional
violation.) According to Smalls, the judge also should have conducted a
voir dire of the jury to determine whether any jurors had read
the newspaper article discussing Smalls' prior conviction for
"the same crime which he was on trial for." (Pet. at 24; Pet. Ex.
15: N.Y. Times article.) This overstates the article's
contents. In any event, the juror's knowledge of the article is
irrelevant because the jurors all agreed they could be impartial,
and additionally, they were instructed by the court not to
"consider anything that is outside of the evidence." (Charge: Tr.
832.) The jury is presumed to follow the court's instructions.
See, e.g., Del Pilar v. Phillips, 03 Civ. 8636, 2004 WL
1627220 at *12 (S.D.N.Y. July 21, 2004) (Peck, M.J.) (& cases
cited therein); see cases cited at pages 54-55 above. Smalls
was not prejudiced by the lack of a mid-trial voir dire on the
old New York Times article, and any appeal on that point would
have lacked merit.
Smalls further objects that the trial court engaged in judicial
misconduct in "failing to give an expanded identification charge"
(Pet. at 25), yet Smalls' trial counsel specifically stated that
"[a]fter further review and consideration I do not want" an
expanded identification charge. (Tr. 744.) Therefore, the court
complied with the trial counsel's request to not deliver the
charge. Smalls also asserts that the trial court erred in
"charging the jury that they may consider evidence from another
charge, when considering a different charge, solely on the issue
of identification." (Pet. at 25.) However, such a charge was
appropriate in this case where the People argued that the
attacker's unique modus operandi was circumstantial proof of the
attacker's identity as to all of the charged assaults. See,
e.g., Bryant v. Bennett, 00 Civ. 5692, 2001 at *6 (S.D.N.Y.
Mar. 2, 2001) (Peck, M.J.)*fn48 Here, the crimes were sufficiently similar to
warrant the modus operandi identity jury charge, and the trial
court properly instructed the jury that they were to use this
information to establish identity, and not to commingle the
evidence for the purposes of determining guilt. "Modus operandi
evidence is admissible if it `bear[s] a singular strong
resemblance to the pattern of the offense charged.'" United
States v. Kieffer No. 02-4246, 68 Fed. Appx. 726, 729, 2003 WL
21461656 at *3 (7th Cir. June 18, 2003).*fn49 There was no
error in allowing the charges as to the four separate victims to be presented in a single trial where the
perpetrator's modus operandi was the same (and there was no
evidence from any uncharged crime). See, e.g., United
States v. Sanogo, No. 99-1627, 208 F.3d 204 (table), 2000 WL
280320 at *1 (2d Cir. Mar. 14, 2000) (It is proper for a trial
court to admit evidence of prior wrongs "if it helps to prove
identity of the wrongdoer or the existence of a common scheme,"
especially where it helps to prove a "`signature crime.'")
(quoting United States v. Mills, 895 F.2d 897, 907 (2d Cir.
Smalls claims that his counsel should have objected to the
court's misconduct in allowing Dr. Word to testify as an expert
witness even though her name was not on the laboratory report.
(Pet. at 23.) The judge acted well within his role as gatekeeper
in allowing Dr. Word to testify as an expert witness on DNA to
explain its significance to the jury. See, e.g., Daubert v.
Merrill Dow Pharmaceuticals, 509 U.S. 579, 590-91, 113 S. CT.
2786, 2795-96 (1993); see also, e.g., Spencer v. Murray,
5 F.3d 758, 763 (4th Cir. 1993) (No error in admitting testimony
from three DNA experts from the company who performed the tests,
including those who performed the tests, and three "independent
experts not connected with" the company that performed the
tests.), cert. denied, 510 U.S. 1171, 114 S.Ct. 1208 (1994);
United States v. Jakobetz, 955 F.2d 786, 800 (2d Cir.) ("DNA
profiling evidence should be excluded only when the government
cannot show this threshold level of reliability in its data," and
"[r]arely should  a factual determination [of the evidence's
reliability] be excluded from jury consideration."), cert.
denied, 506 U.S. 834, 113 S.Ct. 104 (1992). Smalls' further objection that the court erred in "allowing the
prosecution to argue in summation that the petitioner had the
propensity to commit those crimes because he was on parole" is
inaccurate. (Pet. at 25.) The court instructed the jury that
statement about Smalls' parole status "may not be considered by
[them] as any proof that the defendant has a propensity or
disposition to commit crimes . . . and may be considered . . .
solely as to the actions of the parties at the time the defendant
was stopped by the police on October 14, 1996." (Jury Charge: Tr.
Taken as a whole in the context of the entire trial, the trial
judge's rulings and comments did not deprive Smalls of a fair
trial, any appeal on this issue would have been meritless, and
habeas relief is denied on this claim. See, e.g., Gumbs v.
Kelly, 97 Civ. 8755, 2000 WL 1172350 at *12 (S.D.N.Y. Aug. 18,
2000) (Peck, M.J.) (petitioner was not denied a fair trial even
though his counsel was reprimanded by judge during trial and
"some of the court's comments would have been better left
E. Failing to Submit a Reply Brief and Present an Oral
Smalls alleges that his appellate counsel erred in failing to
submit a rebuttal brief and present an oral argument during
Smalls' direct appeal. (Ex. U: Pet. at 26.) In letters to Smalls,
his appellate counsel clearly explained the appeals process and
his belief that oral argument would not be beneficial in the
case. (Pet. Exs. 12-14: 11/23/01, 8/17/01, 10/23/00 letters.)
I will not argue your case, for several reasons.
First of all, the Court will not permit me to argue
the issues you have raised in your pro se brief.
Second, some arguments are better presented to the
Court in writing and that is true with the issues I
have raised on your appeal.
I am sorry that you feel that I do not care if the
Court affirms your conviction. To the contrary, I am
giving your appeal its best shot at success by not
doing an oral argument. (Pet. Ex. 13: 8/17/01 letter.) This clearly was a
strategic decision that the Court may not second
guess. Concerning a reply brief, appellate counsel
advised Smalls "I did not file a rebuttal brief
because there was no point in doing so." (Pet. Ex.
12: 11/23/01 letter.) Additionally, appellate counsel
had advised Smalls that Smalls could raise any
additional issues he wished by submitting a pro se
supplemental brief, which Smalls did. (Pet. Ex. 14:
Smalls' claim fails because he has not shown failure to submit
a rebuttal brief and present an oral argument is deficient, nor
that he has suffered prejudice as a result of counsel's conduct.
He only makes the vague statement that he was denied "the all
important last written word and maybe the last spoken word."
(Pet. at 26.) Smalls has not demonstrated that a reply brief or
oral argument would have changed the outcome of his appeal.
See, e.g., Vega v. United States, 261 F. Supp.2d 175,
177 (E.D.N.Y. 2003) (Ineffective assistance of appellate counsel
claim denied where counsel submitted an appellate brief but
neglected to request an oral argument, because petitioner failed
to show that oral argument would have changed the results of his
appeal.); Phillips v. United States, 97 Civ. 2571, 2001 WL
274092 at *5 (S.D.N.Y. Mar. 19, 2001) (discretionary decision of
counsel not to present an oral argument is not objectively
unreasonable nor did it prejudice petitioner). Accordingly,
Smalls' claim regarding his lack of oral argument and rebuttal
brief is denied.
F. Failing to Raise Ineffective Assistance of Trial Counsel
Smalls alleges that his appellate counsel was ineffective for
failing to assert ineffective assistance of his trial counsel on
appeal. (Pet. at 28-61.) There are two short answers to this claim. First, this Court
has already found that trial counsel was not ineffective. (See
Point II above.) Second, claims of ineffective trial counsel
usually are brought not on direct appeal but on a collateral
C.P.L. § 440 motion,*fn50 and counsel is appointed for the
direct appeal but need not bring a collateral § 440 motion for a
defendant. "`The proper procedural vehicle under New York law for
raising a claim of ineffective assistance of trial counsel is
generally not a direct appeal but a motion to the trial court to
vacate the judgement under New York Criminal Procedure Law
Section 440.10. This is so because normally the appellate court
has no basis upon which it would be able to consider the
substance of such a claim until a record of the relevant facts
has been made at the trial court level.'" Hernandez v.
Filion, 03 Civ. 6989, 2004 WL 286107 at *17 n36 (S.D.N.Y. Feb.
13, 2004) (Peck, M.J.) (quoting Walker v. Dalsheim,
669 F. Supp. 68, 70 (S.D.N.Y. 1987)), report & rec. adopted, 2004 WL
555722 (S.D.N.Y. Mar. 19, 2004).
G. Failing to Raise the Claim that the Prosecution Failed to
Prove Guilt Beyond a Reasonable Doubt
Smalls asserts that his appellate counsel should have argued on
appeal that his guilt was not proven beyond a reasonable doubt
due to discrepancies in testimony to support his claim. (Pet. at
82.) However, his appellate counsel did raise this claim on
direct appeal, arguing that "the prosecution failed to prove
appellant's guilt beyond a reasonable doubt" and "there was
considerable evidence that appellant was not the perpetrator." (Ex. B:
Smalls 1st Dep't Br. at 18-22.) The First Department denied the
claim. Thus, counsel did raise the claim and was not
For the reasons discussed above, Smalls' habeas petition is
DENIED, and a certificate of appealability is not issued.