Petitioner-Appellant Jesus Torres appeals from a judgment entered in the United States District Court for the Western District of New York (Bianchini, Mag. J.) denying a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 arising from petitioner's state court robbery conviction. We affirm the district court's finding that petitioner did not receive ineffective assistance where defense counsel agreed to stipulate at trial that an identification witness had previously identified the petitioner when defense counsel showed her a photo array prior to trial. Defense counsel's duty to follow ethical guidelines and correct a witness's in-court statements that he knew to be false did not create a conflict of interest with his client such that petitioner was relieved of having to demonstrate that counsel's actions had a probable effect on the outcome of the trial, and petitioner is unable to show prejudice from defense counsel's conduct.
The opinion of the court was delivered by: Hall, Circuit Judge
BEFORE: FEINBERG, HALL, Circuit Judges, and SAND, District Judge.*fn1
Petitioner-Appellant Jesus Torres appeals from a judgment of the United States District Court for the Western District of New York (Bianchini, Mag. J.) denying his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. §2254. Torres v. Donnelly, 454 F. Supp. 2d 75 (W.D.N.Y. 2006). Following a 2001 jury trial in the Supreme Court of New York, Erie County, Torres was convicted of two counts of robbery in the first degree in violation of N.Y. Penal Law § 160.15(4). On direct appeal, Torres raised, inter alia, an ineffective assistance of counsel claim. The Appellate Division, Fourth Department, dismissed all of his claims and unanimously affirmed his conviction. People v. Torres, 735 N.Y.S.2d 316 (4th Dept. 2001). Here, Torres argues only that he was denied effective assistance of counsel.
The basis of Torres's habeas claim stems from his defense counsel's line of questioning during cross-examination of an identification witness, Anna Rodriguez, which inadvertently elicited testimony counsel personally knew to be inaccurate. Subsequently, to avoid becoming a witness himself and to comply with his ethical obligations to the court to correct false testimony, counsel agreed to stipulate that, contrary to Anna's testimony during cross-examination, Anna had identified Torres when counsel had shown her a photographic array prior to trial. Relying on Cuyler v. Sullivan, 446 U.S. 335, 350 (1980), Torres asserts that defense counsel Thomas Keefe's actions gave rise to an actual conflict of interest that so adversely affected his performance that it was unnecessary to demonstrate resulting prejudice. Torres also asserts that there is a reasonable possibility that, but for the errors of defense counsel, the outcome of his trial would have been different.
Torres was tried for the November 6, 1997 robberies of two grocery stores in Buffalo, New York. Torres does not contest his conviction for the first robbery of a store on Vermont Street. His habeas claim extends only to his conviction on the second robbery, which occurred on Hampshire Avenue. The robbery on Hampshire Avenue was witnessed by Olga Rodriguez, who was behind the counter, Olga's sister, Anna, and her niece, Lisalotte Rodriguez. Lisalotte was not called to testify as a trial witness.
At trial, Olga identified Torres as the robber and testified that she saw him clearly during the robbery. Olga also testified that her sister Anna had been unable to identify the defendant when shown a photo array by detectives. Defense counsel asked Olga, "In your presence, while you were in the store, did a detective with the Buffalo Police Department show a photo to your sister . . . at any time?" Olga responded "She did not identify. She was not paying too much attention that night [of the robbery]."
On cross-examination of Anna, defense counsel sought to build on Olga's testimony and elicit from Anna that she had been unable to identify the defendant in at least one photo array shown to her by police. In response to questioning from defense counsel and the trial court, Anna testified that she had identified the robber in the first photo array she was shown, but that she "couldn't identify [the robber the second time around]." Defense counsel then sought to determine the dates that the police had shown Anna the two photo arrays. Although Anna initially stated that the second photo array had been shown to her in January 1998, upon further questioning she indicated that it had occurred in June 1998, a fact which was clarified and confirmed by the trial court. According to Anna, she did not identify the robber when presented with this second array because she was "so nervous." When the date of the second photo array was confirmed by the court's questioning, however, Attorney Keefe realized that the photo array to which Anna was referring was the one that he had shown her in June or July 1998 as part of his preparation for trial and not one shown to her by police. He interjected and clarified to the court that he in fact had been in the store in June or July 1998 and presented a photo array to Anna. On redirect examination, Anna repeated that she did not identify Torres when Attorney Keefe showed her an array because she was nervous. Contrary to Anna's testimony, however, Attorney Keefe knew that Anna had identified Torres when he had shown her the photo array.
Later, in a colloquy outside the presence of the jury, the prosecutor argued that it was important to clarify to the jurors what Anna had told Attorney Keefe about the photo array. He asserted that by showing her the photo array, Keefe had essentially made himself a witness in the case. Upon questioning by the trial court, and because of Attorney Keefe's ethical obligation not to "knowingly use . . . false evidence," Keefe ultimately informed the court that Anna had identified Torres when Keefe showed her the photo array in June or July 1998. Keefe explained that he had pursued his line of questioning under the mistaken belief that the police had shown Anna two sets of photo arrays on separate occasions.
To avoid the complications of defense counsel being called to the stand and possibly obtaining different counsel for Torres, the trial court suggested, and Attorney Keefe agreed to, the following stipulation, which the court then read to the jury:
Both parties are concerned that there may be confusion over Anna Rodriguez's testimony with regard to photo arrays. To clarify this issue over what photo array was shown to her, we, the attorneys, stipulate that on or about June or July of 1998, attorney Thomas Keefe . . . showed her . . . a photocopy of one of the arrays, and asked her if she could identify the robber . . . The witness did identify ...