United States District Court, E.D. New York
MALIK MUHAMMAD, Petitioner,
ANTHONY ZON, Superintendent, Wende Correctional Facility, Respondent.
The opinion of the court was delivered by: JOHN GLEESON, District Judge
MEMORANDUM AND ORDER
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
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
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
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
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
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
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
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
(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
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
(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,
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
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