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United States District Court, E.D. New York

ANTHONY ZON, Superintendent, Wende Correctional Facility, Respondent.

The opinion of the court was delivered by: JOHN GLEESON, District Judge


Malik Muhammad petitions for a writ of habeas corpus, challenging his convictions in state court on murder and robbery charges. On July 30, 2004, I held oral argument, in which Muhammad participated by telephone. The petition is denied for the reasons set forth below. BACKGROUND

  On New Year's Eve in 1992, Muhammad robbed David King outside a small clothing store from which King sold drugs (the "store"). When King's associate, Anselm Robinson, exited the store, Muhammad held his gun to Robinson's chest, grabbing his chain necklace. When Robinson pushed the gun away, Muhammad opened fire. Robinson was mortally wounded. King was only grazed by a bullet.

  Muhammad eluded arrest for almost four years. In the summer of 1996, however, Eric and Hasheen Andrews, who were in prison, told Detective William Walsh of Muhammad's involvement in the 1992 incident. Both Andrews brothers were apparently participants in Muhammad's crimes: Eric served as a lookout while Hasheen accompanied Muhammad outside of the store. Armed with this knowledge, Detective Walsh confronted Muhammad, who was also incarcerated for an unrelated offense at the time, about the crime. While Muhammad initially denied involvement, he confessed after learning that the Andrews brothers had told Detective Walsh of his involvement in the crimes. Muhammad signed a written statement on July 1, 1996, admitting the robbery and the shooting. Two days later, he made a similar statement, this time on videotape.

  Muhammad was charged with three counts of murder in the second degree, two counts of robbery in the first degree, one count of criminal possession of a weapon in the second degree, one count of criminal possession of a weapon in the third degree and one count of assault in the second degree. A. The Trial

  At trial, King testified about the robbery and shooting. Detective Walsh testified as well. He told the jury that when he first interviewed Muhammad, he told Muhammad that the police knew of his involvement in the crimes. Detective Walsh testified that Muhammad initially denied his participation, but "[o]nce [Walsh] mentioned the names Eric Andrews and Hasheen Andrews, that [Muhammad] had spoken with these individuals in different correctional facilities, and that [Walsh] got basically the same information from them, then [Muhammad] started speaking more of this case of his involvement in it." (Tr. at 436-37.) Defense counsel did not object to this testimony.

  Detective Walsh explained that Muhammad's written statement was the result of an approximately hour-long interview in which Muhammad presented "several different versions" of the events. (Tr. at 440.) As Detective Walsh testified, "I finally got to what I believe was the truth of this investigation." (Tr. at 437.) The substance of this statement was that Muhammad had seen Robinson near the store earlier on the day of the shooting. Robinson asked him if he knew Hasheen. When Muhammad replied that he did not, Robinson starting shooting at him for no apparent reason, and Muhammad fled. Later that night, Muhammad, the Andrews brothers, and another individual returned to the store. King was standing outside, and Muhammad robbed him. Then Robinson exited the store and reached toward his waist. Muhammad thought — based on the earlier encounter — that Robinson was going to shoot him. Thus, Muhammad shot him first.

  In the videotaped statement, taken by the assistant district attorney two days after the written confession, Muhammad repeated most of what was contained in his written statement. However, in the videotaped statement, Muhammad said that he observed Robinson reaching toward his waist band while Robinson was still in the store, and Muhammad shot him through the store's glass door.*fn1

  A police officer testified at trial that the store's entrance door bore two bullet holes in the metal frame. The medical examiner testified that Robinson had gunpowder residue between his fingers, indicating that he was shot at close range. The medical examiner also confirmed that the bullet entered Robinson's pelvis area.

  In her summation, defense counsel argued to the jury that Muhammad was justified in shooting Robinson based on self-defense. Defense counsel contended that when Robinson reached toward his waist band, Muhammad understandably thought that Robinson was going to grab his gun and shoot him. Defense counsel reminded the jury that earlier on the day of the shooting, Robinson had tried to shoot Muhammad. She also reminded the jury that Robinson was a known drug dealer, and as such, he was likely to have the tools of his trade, including a gun, on his person.

  The prosecution summed up on, among other things, how Detective Walsh got Muhammad to confess to the crimes:

What I . . . see is someone who when confronted with the fact that people who know the defendant was there that night have spoken to the police, when confronted with the names Eric and Hasheen Andrews, I see a man who has made a decision to give up some information to acknowledge his involvement in this case.
* * *
So the defendant, according to Detective Walsh concedes very little. So what changes things? What changes things is the crucial moment in time in this case, ladies and gentlemen, when Detective Walsh says: Malik, you know you were there, you know what happened. I know it because I spoke to your friends, Eric and Hasheen Andrews.
And as soon as the defendant hears those names, he knows a couple of things. First of all he knows that Eric and Hasheen were there that night. They can place him at the scene. What he doesn't know is exactly what Eric and Hasheen have told the detectives in this case. But what that does is give the defendant reason now to say if I put my version out of there, if I put a spin on it, if I minimize my activity, maybe I can get some kind of benefit, the same as Eric and Hasheen.
* * *
What you have is a calculated decision. As soon as the defendant realizes you got me, how am I going to handle the situation.
(Tr. at 511, 529-30.)

  The jury found Muhammad guilty of felony murder and depraved indifference murder. He was also found guilty of robbery in the first degree and criminal possession of a weapon. He was acquitted of the charges of intentional murder and of robbery in the first degree.

  On June 24, 1997, Muhammad was sentenced as a juvenile offender to concurrent terms of imprisonment of eight years to life on each of the murder counts, and to a consecutive sentence of three to nine years for the robbery.*fn2 B. Procedural History

  Muhammad, through counsel, appealed to the Appellate Division, Second Department. He argued that his Sixth Amendment Confrontation Clause rights were violated when Detective Walsh told the jury what the Andrews brothers had related to him about Muhammad's involvement in the crime. While he acknowledged that this issue was not preserved for review, Muhammad's counsel urged the court to revisit it in the interests of justice. Relatedly, appellate counsel contended that trial counsel's failure to object to this prejudicial hearsay constituted ineffective assistance of counsel. As another basis for the claimed ineffectiveness, appellate counsel argued that the justification defense was legally weak and factually incredible, and that trial counsel should have presented a false confession defense instead.

  The Appellate Division rejected these arguments and affirmed. People v. Muhammad, 724 N.Y.S.2d 346 (2d Dep't 2001). It ruled that Muhammad's Sixth Amendment claim was unpreserved and that his ineffective assistance claim was "without merit." Id. The New York Court of Appeals rejected his application to appeal. People v. Muhammad, 96 N.Y.2d 922, 732 (2001).

  Subsequently, Muhammad filed a pro se motion under N.Y. Crim. Proc. Law § 440 to vacate his judgment of conviction based on the ineffective assistance of trial counsel. In addition to the grounds for ineffectiveness urged on direct appeal, Muhammad asserted that his trial counsel should have made use of a statement by Eric Andrews that she received in discovery. In this statement, which was made about ten days after the murder, Eric named his brother, Hasheen, as the shooter. Muhammed asserted that his counsel should have called Eric as a witness or should have questioned Detective Walsh about this statement on cross-examination. He also maintained that his attorney should have hired a private investigator to interview Eric and other potential witnesses.

  The state court denied this motion. It held that trial counsel was not ineffective for not offering Eric's statement because it was hearsay, and in any event there was no support in the record for the conclusion that Muhammad would have achieved a better outcome had the evidence been admitted. As to counsel's failure to call Eric as a witness, the court reasoned that "[i]n view of the fact that Eric Andrews identified Defendant as the shooter in 1996, it is unlikely that he would have provided favorable trial testimony [and] . . . the defendant failed to provide an affidavit from the witness demonstrating what the witness would testify to that would exculpate him." People v. Muhammad, No. 9332/96, Slip Op. at 6 (N.Y. Sup. Ct. Oct. 30, 2003). The court further held that because "the trial attorney faced an uphill battle" due to Muhammad's two confessions, trial counsel properly chose justification "as the most viable defense." Id. at 7. The court also rejected the Confrontation Clause argument that Muhammad had raised on direct appeal. Id. at 6. The Appellate Division denied Muhammad leave to appeal on January 30, 2004. People v. Muhammad, No. 9332/96 (2d Dep't Jan. 30, 2004).

  On February 4, 2004, Muhammad filed a pro se petition for a writ of habeas corpus in this Court, alleging that his trial counsel was ineffective. In support of that claim, he points to his counsel's failure to argue that he was not the shooter, and to make use of Eric's exculpatory statement in 1993. On April 28, 2004, Muhammad filed an amended petition which essentially raises all of the claims of ineffectiveness that he presented on direct and collateral review in the state courts.*fn3


  A. The Standard of Review

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).

  A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).

  However, there is "force" to the argument "that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision"; "[§] 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law." Yarborough v. Alvarado, 540 U.S. 1, 124 S. Ct. 2140, 2150-51 (2004). The Supreme Court has concluded, however, that while "the difference between applying a rule and extending it is not always clear," "[c]ertain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt." Id. at 2151.

  Under the "unreasonable application" standard set forth in Williams, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 539 U.S. at 520-21 (same). Interpreting Williams, the Second Circuit has added that although "[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." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

  The Supreme Court recently explained that the specificity with which the rule of law at issue is defined may affect whether the state court's determination was "unreasonable":

[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations.
Alvarado, 124 S. Ct. at 2149.

  This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:

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.
261 F.3d 303, 312 (2d Cir. 2001).

  In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).


However, "[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence."
Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). Mixed questions of law and fact, however, such as the ineffective assistance of counsel inquiry, are reviewed in accordance with Section 2254(d). Thompson v. Keohane, 516 U.S. 99, 111-12 (1995); Rodriguez v. Schriver, No. 99 Civ. 8660 (FM), 2003 WL 22671461, at *8 (S.D.N.Y. Nov. 12, 2003).

  B. Muhammad's Claims of Ineffective Assistance of Trial Counsel

  The Supreme Court has established the following standard for ineffective assistance claims:

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. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, to make out this type of claim, Muhammad must demonstrate both (1) that his attorney's performance "fell below an objective standard of reasonableness," id. at 688, and (2) 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. In assessing the reasonableness of counsel's performance, judicial scrutiny "must be highly deferential," and the 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." Strickland, 466 U.S. at 689 (quotation marks omitted); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998); see also Gentry, 124 S. Ct. at 4 ("[C]ounsel has wide latitude in deciding how best to represent a client. . . .").

  In assessing counsel's performance, I "must conduct an objective review . . . measured for `reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen `from counsel's perspective at the time.'" Wiggins, 539 U.S. at 523 (citations omitted) (quoting Strickland, 466 U.S. at 688-89)). The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct" and has instead emphasized that "`the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Id. at 521 (quoting Strickland, 466 U.S. at 688).

  To establish the requisite effect of counsel's performance on the outcome of the proceeding, it is not sufficient if the petitioner shows merely that counsel's errors had "some conceivable effect" on the outcome. Strickland, 466 U.S. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. This determination, unlike the determination whether counsel's performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).

  Here, Muhammad alleges that his trial counsel was ineffective because she: (1) failed to object to Detective Walsh's testimony concerning the Andrews brothers, in violation of Muhammad's Sixth Amendment Confrontation Clause rights; (2) failed to use a 1993 hearsay statement by Eric that exculpated Muhammad; and (3) presented a misguided justification defense instead of a "false confession" defense. I will address each one in turn.

  1. The Confrontation Clause Claim

  As described above, Detective Walsh testified that he told Muhammad that he had spoken to the Andrews brothers about the crimes under investigation, and that Muhammad confessed after Walsh implied that the Andrews brothers had implicated him. In summation, the prosecutor did not use this testimony substantively; that is, she did not argue that the jury should find Muhammad guilty because the Andrews brothers had told Walsh he was the perpetrator. Rather, the prosecutor used the evidence to argue that the confession was not coerced, but instead was a strategic decision by Muhammad to minimize his responsibility once he learned that the Andrews brothers had already spoken to Detective Walsh.

  As the Appellate Division noted in rejecting the Confrontation Clause argument on appeal, trial counsel for Muhammad did not object to Walsh's testimony that he had spoken to the Andrews brothers. See People v. Muhammad, 724 N.Y.S.2d 346 (2d Dep't 2001). However, even if such an objection had been made, it is not clear that the trial court would have sustained it, as the prosecutor was not presenting the Andrews' statements to Walsh for a hearsay purpose. At most, the trial court would likely have given a limiting instruction, telling the jury that it could consider such testimony for its effect on Muhammad or in evaluating his first confession, but not for the truth of any statement made by either Andrews implicating Muhammad.

  Even without such a limiting instruction, Muhammad's Confrontation Rights were not violated. Walsh's testimony about out-of-court statements made to him by the Andrews brothers were admissible to explain why Walsh interviewed Muhammad and how the confession came about.

  Finally, even assuming that there was a Sixth Amendment violation, I certainly cannot say that the state court's contrary determination was unreasonable. As respondent points out, it is plausible that the defense attorney wanted those out-of-court statements in evidence to support a "false confession" theory. Although defense counsel requested a justification charge, the trial court had not yet ruled on that motion when Detective Walsh was testifying. If defense counsel were later to argue that the confessions were improperly coerced, or due to Muhammad's youth, immaturity and inexperience, Detective Walsh's testimony would aid in that argument. In short, trial counsel's silence could very well have been strategic.

  In any event, there was no prejudice. On separate occasions two days apart, Muhammad gave detailed statements, admitting that he shot Robinson. Having read the written confession and viewed the videotaped one, I have no doubt that trial counsel's failure to object to Walsh's testimony about the Andrews brothers' statements had no conceivable effect on the outcome of the trial.

  2. Exculpatory Statements

  Muhammad's next contention is similarly unavailing. As the state court pointed out, Eric's 1993 statement to police (that his brother was the shooter) was hearsay. Moreover, trial counsel's decision not to try to call Eric as a witness was wise. As a general matter, an unwilling witness is better left uncalled. That maxim is particularly true when that witness has on at least one occasion told the police that the attorney's client was involved in a murder. Trial counsel for Muhammad could reasonably have concluded that Eric had either not made the statement attributed to him in the 1993 police report or had abandoned it. In any event, it is difficult to conceive of any prejudice from this claimed failure by trial counsel, as Muhammad twice confessed to being the shooter of Robinson.

  Finally, in support of his petition, Muhammad belatedly submitted a sworn statement from Eric, with whom Muhammad has been incarcerated. In the July 23, 2004 statement, Eric asserts that he did not observe Muhammad commit the crimes of which he was convicted, and that Eric never stated that he had. Because Muhammad failed to present this statement in state court,*fn4 this claim is unexhausted. See Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982) (in banc). Moreover, because Muhammad did not raise this claim on direct review, it is procedurally barred. In any event, Muhammad's claim is without merit. Since Eric served only as a lookout during the crime, and did not necessarily observe Muhammad commit the robbery and shooting, it is not clear to me that his statement exonerates Muhammad at all. And it certainly does not undermine confidence in the jury's verdicts.

  3. The Justification Defense

  Muhammad's third contention requires little discussion. Because Muhammad confessed twice to the robbery and the shooting, once in a signed writing and once on videotape, the "false confession" theory would have been a tough sell to the jury.

  A review of the videotape reveals that Muhammad received proper Miranda warnings. He was neither coerced nor under duress; to the contrary, he appears calm. The law enforcement officer who questioned him asked him open-ended questions and did not use any pressure tactics.

  Although the self-defense theory was weakened by Muhammad's second confession — where he stated that Robinson was in the store when Muhammad shot him — I agree with the state court's determination that, on the facts of the case, self-defense was the most viable defense. At the very least, that conclusion cannot be characterized as an unreasonable application of Strickland, and thus Muhammad is not entitled to habeas relief.


  For the foregoing reasons, the petition is denied. As Muhammad has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.

  So Ordered.

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