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Brown v. LaValley

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


June 24, 2010

KENNETH BROWN, PETITIONER,
v.
THOMAS LAVALLEY, SUPERINTENDENT, GREAT MEADOW CORRECTIONAL FACILITY, AND ANDREW CUOMO, ATTORNEY GENERAL OF NEW YORK STATE, RESPONDENTS.

PETITIONER'S MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR A WRIT OF HABEAS CORPUS

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................................................................. iii

PRELIMINARY STATEMENT ........................................................................................1

QUESTION PRESENTED..................................................................................................2

INTRODUCTION ...............................................................................................................2

STATEMENT OF FACTS ..................................................................................................4

Pre-Trial Proceedings...............................................................................................4

The Trial...................................................................................................................4

The People's Case........................................................................................4

The Defense Case ........................................................................................8

Summations..................................................................................................9

Jury Instructions and Verdict .....................................................................10

State Appellate Proceedings ......................................................................11

ARGUMENT

THE STATE COURT UNREASONABLY APPLIED STRICKLAND V. WASHINGTON, 466 U.S. 668 (1984), IN CONCLUDING THAT PETITIONER WAS NOT DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL, WHERE COUNSEL REPEATEDLY CONCEDED IN SUMMATION THAT A BURGLARY HAD TAKEN PLACE AND FAILED TO OBJECT TO THE COURT'S INSTRUCTION MISTAKENLY DEFINING UNLAWFUL ENTRY WHERE PETITIONER HAD BEEN INVITED ONTO THE PREMISES AND NO UNLAWFUL ENTRY HAD OCCURRED. U.S. CONST., AMENDS. VI, XIV. .................................13

A. The Strickland two-prong test..............................................................16

1. The Strickland performance prong ................................................17

(i) Conceding burglary violated the performance prong of Strickland ................................................................................21

(ii) Failure to object to the erroneous unlawful entry instruction was equally unreasonable ....................................22

2. The Strickland Prejudice prong ...........................................................23

B. The State court's rejection of the ineffective assistance of counsel claim was an unreasonable application of Strickland...........24

CONCLUSION..................................................................................................................26

TABLE OF AUTHORITIES

FEDERAL CASES

Allen v. U.S., 164 U.S. 492 (1896)....................................................................................11

Bell v. Cone, 535 U.S. 685 (2002).....................................................................................15

Bell v. Miller, 500 F. 3d 149 (2d Cir. 2007)......................................................................17

Cox v. Donnelly, 387 F. 3d 193 (2d Cir. 2004)..................................................... 17, 23-24

Eze v. Senkowski, 321 F.3d 110 (2d Cir. 2003) .......................................................... 15-17

Francis S. v. Stone, 221 F.3d at 110 ..................................................................................24

Hemstreet v. Greiner, 491 F. 3d 84 (2d Cir. 2007)...................................................... 24-25

Henry v. Poole, 409 F. 3d 48 (2d Cir. 2005) ...............................................................15, 24

Kimmelman v. Morrison, 477 U.S. 365 (1986).................................................................16

Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001) ........................................................16, 23

Lockyer v. Andrade, 583 U.S. 63 (2003)...........................................................................14

Palacios v. Burge, 589 F. 3d 556 (2d Cir. 2009) ...............................................................15

Sandstrom v. Montana, 442 U.S. 510 (1979) ..............................................................17, 23

Sellan v. Kuhlman, 261 F.3d 303 (2d Cir. 2001)...............................................................14

Strickland v. Washington, 466 U.S. 668 (1984) ........................................................

Passim Williams v. Taylor, 529 U.S. 362 (2000) ....................................................................15, 24

STATE CASES

People v. Brown, 12 N.Y. 3d 814, 881 N.Y.S. 2d 22 (2009) ........................................2, 12

People v. Brown, 300 A.D. 2d 314 (2d Dept. 2002)..........................................................17

People v. Brown, 59 A.D. 3d 561, 872 N.Y.S. 2d 285 (2d Dept. 2009).......................2, 15

People v. Browser, 287 A.D. 2d 647 (2d Dept. 2001).......................................................20

People v. Droz, 39 N.Y. 2d 457 (1976) .............................................................................16

People v. Graves, 76 N.Y. 2d 16 (1990)................................................................18, 20, 22

People v. Melo, 98 A.D. 2d 754 (2d Dept. 1983) ..............................................................19

People v. Rivas, 182 A.D. 2d 722 (2d Dept. 1992) ...........................................................18

People v. Toro, 198 A.D. 2d 532 (2d Dept. 1993).............................................................18

People v. Turner, 5 N.Y. 2d 476 (2005) ............................................................................17

CONSTITUTIONAL PROVISIONS

U.S. Const., Amend. VI ...........................................................................................2, 13, 14

U.S. Const., Amend. XIV ........................................................................................2, 13, 14

STATUTES

28 U.S.C. §2254.................................................................................................1, 14, 15, 24

C.J.I. P.L. §140.00(5).........................................................................................................18

C.P.L. §730 ..........................................................................................................................4

P.L. §125.25(3) ....................................................................................................................1

P.L. §140.00(5) ..................................................................................................................18

P.L. §140.20.......................................................................................................................18

P.L. §140.30.........................................................................................................................1

PRELIMINARY STATEMENT

Kenneth Brown, an inmate incarcerated at Great Meadow Correctional Facility in Comstock, New York, petitions for a writ of habeas corpus pursuant to 28 U.S.C. §2254. He submits this memorandum of law in support of the petition.

Following a jury trial held before New York State Supreme Court Justice Alan Marrus, in Kings County, petitioner was convicted, under Indictment 5626-05 of felony murder (New York Penal Law §125.25(3)) and first-degree burglary (New York Penal Law §140.30). On December 7, 2007, he was sentenced to an indeterminate term of imprisonment of 25 years to life on the top count concurrent to a determinate term of 25 years followed by five years of post-release supervision on the lesser count.

Petitioner filed a timely notice of appeal. On February 10, 2009, the Appellate Division, Second Department, affirmed his conviction. People v. Brown, 59 A.D. 3d 561, 872 N.Y.S. 2d 285 (2d Dept. 2009). On April 30, 2009, the New York Court of Appeals denied petitioner leave to appeal. People v. Brown, 12 N.Y. 3d 814, 881 N.Y.S. 2d 22 (2009). In the state appellate proceedings, petitioner was represented by Steven Banks of The Legal Aid Society.

QUESTION PRESENTED

Whether the state court unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984), in concluding that petitioner was not deprived of the effective assistance of counsel, where counsel repeatedly conceded in summation that a burglary had taken place and failed to object to the court's instruction mistakenly defining unlawful entry where petitioner had been invited onto the premises and no unlawful entry had occurred. U.S. Const., Amends. VI, XIV.

INTRODUCTION

This case arises out of an incident on July 25, 2005, in the apartment of the deceased William Hayes. Hayes owned sophisticated recording equipment and his girlfriend, Yolanda Roker, who was planning to move out of his apartment, wanted her new boyfriend, William King, to have that equipment. As described by the prosecution in his opening statement, Roker's plan was the following: "She was suppose to be home [Hayes' apartment] and, at the time [Hayes] went to bed, she was going to call King and say, Okay, it's time for you to come over." (emphasis added). She will "have left the door open, King and Brown were supposed to come in" take the equipment and leave, "beating her up so that it did not look like she had been involved." King testified to the plan at trial and explained that, when he and petitioner entered, Hayes woke up and there was a fight. Petitioner testified that he had gone to Roker's house to help King pick up DJ equipment. Roker had let them in. King and Hayes had fought while petitioner was in the other room. Before summation, the court informed the parties that it would submit two counts to the jury: one count of felony murder based on the burglary and one count of burglary.

Despite the uncontradicted evidence that Roker lived in the apartment and invited King and petitioner in -- negating any possible finding of unlawful entry and burglary --counsel, in summation, repeatedly conceded the burglary. Not only did he concede the burglary charge, he never objected when the court mistakenly instructed the jury that only the owner of the apartment could give permission to others to enter. Since it was clear that the "owner," here the victim, never gave petitioner permission to enter, the court's instruction directed a verdict against petitioner by eliminating the meritorious defense of lawful entry.

Petitioner now seeks a writ of habeas corpus on the grounds that counsel was constitutionally ineffective, under Strickland v. Washington, 466 U.S. 668 (1984), for conceding the burglary charge and failing to object to the court's verdict-directing instruction on unlawful entry.

STATEMENT OF FACTS

Pre-Trial Proceedings

Petitioner was charged along with Yolanda Roker and William King with two counts of felony murder, one based on robbery (Count 1), one based on burglary (Count 2) and with one count of first-degree robbery and one count of first-degree burglary (Counts 3 and 4).*fn1 Petitioner was sentenced after trial to 25 years to life on the top count of felony murder.*fn2

The Trial

The People's Case

William King was the People's main witness at trial. At the time of the incident, he was dating Roker who was also dating the victim, William Hayes (King 251-52; Shiran Hicks, 175, 177). In his opening, the prosecutor described Roker's plan to get Hayes' recording equipment. The plan "was simple." She had been dating Hayes since 2001 or 2002 but she had told King that she was "moving out of " of his apartment (147). The night of the incident, in the words of the prosecutor, Roker "was supposed to be home, and at the time [the victim] went to bed, [she] was going to call King and say, okay, it's time for you to come over" (147). "She was supposed to leave the door open, King and Brown were suppose to come in," and beat her up so that it did not look like she had been involved and they would take the equipment (147).

King testified that a few weeks before the incident, Roker told him that she wanted him to have Hayes' DJ equipment; she believed King "deserved" it (King 255). He testified that she had a plan. She would be in the apartment with Hayes; King and petitioner would be waiting in the car; when Hayes fell asleep, she would call King on his cell phone and they would come up to the apartment (King 263). Roker would leave the door open and they could take the equipment (King 263). According to King, if Hayes woke up, "they would beat him up" (King 263, 266). On the morning of the incident, Hayes went to work around 8:00 or 9:00 a.m. (Shiran Hicks, Hayes' paying roommate, 180). Before leaving, he told one of his roommates, Shiran Hicks, a 39 year-old cashier at Taco Bell, that Roker would be coming over because she had to get papers for the welfare office to show that she lived there; Hicks was to let her in (Hicks 180). Hicks knew Roker who slept with Hayes at the apartment often (Hicks 179).

Roker came to the apartment around 10:00 a.m., left and returned around 4:00 p.m. with a friend (Hicks 181). Hicks went to work, leaving Roker in the apartment (Hicks 180). Around 11:30 that morning, Roker called King and mentioned that the DJ equipment should be retrieved that day (King 259-60). King called petitioner, a longtime friend, and asked if he would drive him to Brooklyn that day to pick up the equipment (King 249, 260-61). Petitioner agreed and King later told him the plan (King 263). In the evening, they drove to Hayes' apartment (King 267). There, they waited in the car for about 30 minutes, talking to Roker several times on the phone (King 268). Around 11:15 p.m., Roker called from the apartment, saying that it would be a good time to come up (King 269). King and petitioner went upstairs, the door to the apartment was open, and they went in (King 270). The apartment was dark (King 270). Once they were inside, Hayes woke up and a fight broke out; King testified that petitioner joined in the fighting. According to King, petitioner got a pan and hit Hayes on the head (King 272-73). They tied him up with an electrical cord, put a sock in his mouth, and taped him (King 278-79). King testified that petitioner put his arm around Hayes' neck until Hayes stopped struggling (King 281). They took the equipment to the car and left (King 284).*fn3

Hayes' roommate, Shiran Hicks, returned to the apartment around 2:00 a.m.; all the lights were on except in the bedroom; she went in and "felt the body" (Hicks 182, 185). She testified: "I thought it was her [i.e., Roker] on the floor, I thought he had killed her" (Hicks 186, 203). She ran to the police station around the corner, found Police Officer Thomas Mikalinis and told him that there was "the deceased body of a man in her apartment" (Mikalinis 335; Hicks 183).

Detective Mikalinis followed her to the apartment where he found a man laying "hog tied, face down on his stomach," bound with stereo cable around his hands, wrists, ankles and knees, and a substantial amount of blood around his face (Mikalinis 336-39; see Detective Sean McTighe 349). Further investigation showed that a tube sock had been placed in the victim's mouth and covered with duct tape (Detective George Boston 219). There was blood in the bathroom and hallway leading to the bathroom (Boston 220). Fingerprints lifted from the duct tape belonged to petitioner (Detective Cynthia Ramirez 406).

Petitioner was arrested on August 1, 2005 (A.D.A. Thomas Ridges 437, 442; Detective Niurca Quinones 420, 422). In his written statement, he explained that the plan had been that Roker would leave the apartment door open, he and King would go in and get the equipment (Statement). However, Hayes woke up, they fought, King struck Hayes over the head with a pot, put a sock in his mouth, and tied something over it (Statement). Petitioner left King and Hayes in the room and went to the next room to stack the DJ equipment (Statement). In his videotaped statement, petitioner, looking upset and confused, added that he had told King that his car was too small for the equipment and that he would call his friend "Steve" to help. Steve followed them and helped with the equipment but did not go into the apartment (Videotaped statement). On the videotape, he mentioned going to that apartment on other occasions to pick up Roker who was staying there with a man (Pet. 549).

The Defense Case

At the time of the incident, appellant was 49 years old and worked as a mover for American Interior (Pet. 513). He knew King and his girlfriend, Roker (Pet. 513). On July 25, 2005, King called and asked petitioner to drive him to Brooklyn to pick up some DJ equipment (Pet. 513). There was no mention of a robbery or a burglary (Pet. 513). Around 10:00 p.m., petitioner went to King's house and told him that his car was not big enough so King called "his friend Steve" (Pet. 515). They drove to "Yolanda's building in Brooklyn," at 306 Williams Street, and waited outside (Pet. 516). He was still under the impression that they were going to "sneak in, get the stuff," and come right out (Pet. 516).

At some point, Roker called on the phone and they went upstairs; she "opened the door," they went in, and turned on the lights (Pet. 517-18). According to petitioner, King and Hayes started to fight in the hallway; King had Hayes in a headlock and dragged him into the bathroom. They tumbled onto the floor and into the bedroom (Pet. 518-19). At some point, King called out to Roker to bring something to tie up Hayes (Pet. 518).

Petitioner admitted that he went into the apartment knowing he was going to "steal" the equipment: that he would take it without the owner's permission (Pet. 528). On cross-examination, the prosecutor asked whether it was in the elevator that "the notion that this [was] going to be a robbery, a burglary; correct?" Petitioner answered "correct, a burglary" (Pet. 560). Petitioner was asked whether by the time he got to the apartment he "knew this was going to be a burglary; correct?" (Pet. 562). Petitioner said yes, adding that Roker had opened the door for him (Pet. 561).

Petitioner denied any involvement in the fight (Pet. 518-19). He testified that he did not see Hayes being tied up or having a sock put into his throat (Pet. 519). He was in the other room. Eventually, King rejoined him, they took the DJ equipment into the elevator, out of the building, and into Steve's car (Pet. 520). Roker came out of the building with "three duffle bags of clothes" (Pet. 520). She put the duffle bags in the back seat of "my car. And the two [King and Roker] got in my car and [they] left" (Pet. 520).

Summations

Before summations, the court informed the parties that it would be submitting only two counts to the jury: burglary in the first degree under count two and felony murder based on the burglary under count four (583). Counsel began his summation by telling the jury that the following facts were "not in dispute": (1) the incident took place in apartment 5C at 360 Williams; (2) Hayes' apartment "was burglarized" that night; and (3) Hayes died (592). Later, he asked the jury rhetorically: "what else do we know about this case?" (601). He answered "well, [petitioner] admitted he committed the burglary. He admitted it" (601). Counsel then argued to the jury that the affirmative defense to felony murder had been established in that petitioner did not commit the homicide and had had no idea that something like that would happen (601-02). Petitioner was the dupe who "went along with the burglary" but did not expect anyone to get hurt (604). Referring to Roker and King, counsel argued "the hooker and the pimp, work (sic) out a scheme" (595). Petitioner is "not very smart," "a simple person." (596). He "is slow on the take," "he had trouble with things" (604). King was "the brains of the outfit," petitioner, "the dupe" (604).

The prosecution agreed with counsel that petitioner was guilty of burglary because he entered with intent to commit a crime in the apartment (606). In addition, he argued that counsel had failed to prove the affirmative defense because they had failed to prove that petitioner had not been involved in the homicidal act (608). The People told the jury that petitioner was not only guilty of burglary, he was guilty of murder (608).

Jury Instructions and Verdict

In accordance with the pre-charge conference, the court submitted two counts to the jury, first-degree burglary and felony murder using the burglary as the predicate felony (654-58). In defining unlawful entry, the court stated: "[a] person enters unlawfully when that person doesn't have permission from the owner to enter that dwelling" (655)(emphasis added). There was no objection. The court added "a person knowingly enters unlawfully a dwelling when he is aware that he is entering without the permission of the owner" (655)(emphasis added). Again, there was no objection. Later, in instructing the jury on the felony-murder count, the court stated that the jury had to find that petitioner had committed the crime of burglary and in the course of, or in furtherance of, the commission of that crime . . . "he or another person causes the death of a non-participant in the burglary" (657). The court went on to instruct the jury on the four elements of the affirmative defense to felony murder (661-63).

The first note from the jury requested the elements of the murder charge and the affirmative defense in writing (666). The court reread its charge, reminding the jury that it first had to find that petitioner had "committed the crime of burglary in the first degree" (667). The court denied the request for a written instruction (666-67). The jury later asked for exhibits, a read-back of the affirmative defense, and a read-back of the testimony of both William King and petitioner "from the time they entered until the time they left" (670, 674).

The next day, the testimony was read back (678). The jury then sent a note asking for petitioner's written statement. The subsequent note informed the court that the jury simply could not resolve whether the defense had established the first and fourth elements of the affirmative defense, i.e. whether petitioner committed the homicidal act and/or whether he had reasonable ground to believe that others intended to engage in conduct likely to result in death or serious physical injury (679). The court gave the jury a charge, pursuant to Allen v. U.S., 164 U.S. 492 (1896), encouraging the jury to reach a verdict. The next note announced that the jury had reached a verdict (680, 682). Petitioner was convicted on both counts (682).

State Appellate Proceedings

On appeal, petitioner argued inter alia that he had been denied the right to the effective assistance of counsel because counsel had conceded burglary when none had occurred and counsel had failed to object to a verdict-directing unlawful entry charge to the jury (Petitioner's Opening Brief to the Appellate Division at 20-29). The State argued that counsel had not been ineffective (Respondent's Brief to the Appellate Division at 20). The State took the position that petitioner's entry had been unlawful because Roker did not have the key to the apartment and therefore, did not have the authority to let him in (Respondent's Brief at 28-30, 33-35). In addition, the State argued that petitioner had admitted the burglary by admitting that the plan was to sneak in and sneak out (Respondent's Brief at 32). The State also argued that the court's instruction was correct because "under the facts and circumstances of this case, there was no one other than the owner -- Haynes -- who could have granted consent to enter the apartment" (Respondent's brief at 39).

The Appellate Division, Second Department, affirmed the conviction holding that: "contrary to the defendant's contention, he received the effective assistance of counsel," citing, inter alia, Strickland v. Washington. The Court of Appeals denied petitioner's application for leave to appeal. People v. Brown, 12 N.Y. 3d 814, 881 N.Y. S. 2d 22 (2009).

ARGUMENT

THE STATE COURT UNREASONABLY APPLIED STRICKLAND V. WASHINGTON, 466 U.S. 668 (1984), IN CONCLUDING THAT PETITIONER WAS NOT DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL, WHERE COUNSEL REPEATEDLY CONCEDED IN SUMMATION THAT A BURGLARY HAD TAKEN PLACE AND FAILED TO OBJECT TO THE COURT'S INSTRUCTION MISTAKENLY DEFINING UNLAWFUL ENTRY WHERE PETITIONER HAD BEEN INVITED ONTO THE PREMISES AND NO UNLAWFUL ENTRY HAD OCCURRED. U.S. CONST., AMENDS. VI, XIV.

In this case, the state court adjudicated petitioner's ineffective assistance of counsel claim on the merits expressly citing Strickland. Therefore, to succeed on this writ application, petitioner must (1) satisfy Strickland by showing (a) that counsel's performance fell below standards of reasonableness and (b) that there was a reasonable probability that the outcome would have been different and (2) establish that under the Anti-terrorism and Effective Death Penalty Act (AEDPA), the state court's rejection of the claim was an unreasonable application of Strickland. As detailed below, petitioner satisfies these standards. Indeed, petitioner's convictions for burglary and felony murder, based on burglary, required evidence beyond a reasonable doubt of petitioner's unlawful entry into the victim's apartment. A person enters unlawfully when he has no license of privilege to enter. In New York, such license or privilege to enter may be given by "the owner or another person whose relationship to the premises gives him/her authority to issue consent." Here, Roker, the girlfriend of the owner, who often stays in the apartment, keeps her belongings in the apartment, lists the apartment as her residence for purposes of welfare benefits, answers the phone in the apartment and has guests in the apartment, clearly had the authority to give petitioner license and privilege to enter. The uncontradicted evidence shows that she invited petitioner into the apartment. Therefore, there was no unlawful entry.

Counsel clearly did not conduct the most basic research about the charges and did not know either that unlawful entry was an element of the crimes charged and/or that the owner was not the only person who could grant a license to enter. As a result, he made two devastating mistakes: he repeatedly conceded the burglary in summations and failed to object to the court's erroneous charge limiting the person who could grant license to enter to the owner. These mistakes violated Strickland and the state court's failure to hold that a violation had occurred was a totally unreasonable application of Strickland, mandating issuance of the writ. U.S. Const., Amends. VI and XIV.

When a Sixth Amendment violation claim is brought in a habeas corpus petition, pursuant to 28 U.S.C §2254, the claim must satisfy the Antiterrorism and Effective Death Penalty Act (AEDPA), enacted in 1996. AEDPA circumscribes "a federal habeas court's review" power, Lockyer v. Andrade, 583 U.S. 63, 70 (2003), by mandating, in appropriate circumstances, "deference to state court decisions," Sellan v. Kuhlman, 261 F.3d 303, 308 (2d Cir. 2001). Under AEDPA, where the state court has rejected the petitioner's claim on the merits, a federal court "must defer to the state court's rejection of the claim, and must deny the writ unless the state court adjudication (1) was "contrary to" or (2) "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); Henry v. Poole, 409 F. 3d 48 (2d Cir. 2005). The "clearly established" Supreme Court precedent applicable to claims of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984). Eze v. Senkowski, 321 F.3d 110, 122 (2d Cir. 2003), citing Williams v. Taylor, 529 U.S. 362, 390-91 (2000).

To establish a violation of the Sixth Amendment right to the effective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), a defendant must show (1) that his attorney's representation fell below an objective standard of reasonableness measured by prevailing professional norms (the "performance" prong); and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the outcome of the proceeding would likely have been different (the "prejudice" prong). Id. at 688-90, 694; Palacios v. Burge, 589 F. 3d 556 (2d Cir. 2009). When a defendant satisfies both prongs of Strickland, there is "sufficient indication that counsel's assistance was defective enough to undermine confidence in the proceeding's result," and, thus, the defendant has proved that his Sixth Amendment right to the effective assistance of counsel has been violated. Bell v. Cone, 535 U.S. 685, 695 (2002).

In this case, the Appellate Court adjudicated the claim on its merits, holding that petitioner "received the effective assistance of counsel (see Strickland v. Washington, 466 U.S. 668 (1984). ." People v. Brown, 59 A.D. 3d 561 (2d Dept. 2009). To succeed petitioner must therefore, satisfy the two-prong test set forth in Strickland and show that, under AEDPA, the state court's rejection of his ineffectiveness claim constituted an "unreasonable application" of Strickland. As discussed below, he has.

A. The Strickland Two-Prong Test

Petitioner challenges two specific aspects of counsel's performance: (1) his concession of the burglary charge in the absence of any evidence of unlawful entry and (2) his failure to object to the court's erroneous charge regarding the element of unlawful entry. Both errors, separately and combined, violate Strickland. In determining whether counsel's performance is constitutionally deficient, reviewing courts apply a "highly deferential" standard that recognizes the "wide range" of professional competence and endeavors to make "every effort . . . to eliminate the distorting effects of hindsight." Lindstadt v. Keane, 239 F.3d 191, 198-99 (2d Cir. 2001), citing Strickland, 466 U.S. at 688-90. A defendant, however, need not show that "defense counsel failed at all points to provide adequate representation" to prevail on an ineffectiveness claim. Eze v. Senkowski, 321 F.3d 110, 136 (2d Cir. 2003)(citations omitted). If certain omissions cannot be explained convincingly as resulting from a sound trial strategy, "but instead arose from oversight, carelessness, ineptitude or laziness," the quality of representation is sufficiently deficient to grant the writ. Id. at 112.

Under both the Federal and New York State constitutions, ignorance of the law is considered objectively deficient performance. See Kimmelman v. Morrison, 477 U.S. 365 (1986); see also People v. Droz, 39 N.Y. 2d 457, 462 (1976). Indeed, counsel has a "heightened responsibility" to prepare and educate him or herself about the defense in a case. Eze v. Senkowski, 321 F. 3d at 130. In a child abuse sex case, counsel's unfamiliarity with the law on the admissibility of prompt outcry hearsay, resulting in the useless cross-examination of the 10-year old complainant, amounted to ineffective assistance of counsel. Id.; see also People v. Brown, 300 A.D. 2d 314 (2d Dept. 2002). Where the sole-identification witness had been shot, had bled profusely, and had given only a generic description of the perpetrator before sinking into an 11-day coma, counsel had to consult with a medical expert to learn about the effects of the coma and the different medications on the reliability of the post-coma identification. Bell v. Miller, 500 F. 3d 149 (2d Cir. 2007). Strickland also requires that counsel know the statute-of-limitations defense to the charges and their lesser-included offenses. People v. Turner, 5 N.Y. 2d 476 (2005).

Counsel has a "heightened responsibility" to prepare and educate him or herself about the crucial elements of the charges. See Cox v. Donnelly, 387 F. 3d 193 (2d Cir. 2004). In Cox, counsel was ineffective for not knowing the definition of intent in a murder case and allowing the court -- without objection -- to instruct the jury that it could presume that the petitioner had intended the consequences of his acts. Of course, that is not the definition of intent and counsel's failure to object to the erroneous charge, under Sandstrom v. Montana, 442 U.S. 510 (1979), amounted to ineffective assistance of counsel. Id.

1. The Strickland Performance Prong

In this case, as in Cox, counsel did not take the time to educate himself about the essential elements of the charges against petitioner. The two charges submitted to the jury were based on the alleged burglary of Hayes's apartment: first-degree burglary and felony murder for causing death during the course that burglary. Section 140 of the New York Penal Law defines burglary. A person is guilty of burglary when he "knowingly enters or remains unlawfully in a building with intent to commit a crime therein." P.L. §140.20. A person enters unlawfully when he is not licensed or privileged to do so. P.L. §140.00(5). A person is licensed or privileged to enter private premises when he/she has obtained the consent of the "owner or another whose relationship to the premises gives him authority to issue such consent." People v. Graves, 76 N.Y. 2d 16, 21 (1990); see People v. Toro, 198 A.D. 2d 532 (2d Dept. 1993)(tenant's girlfriend who lived in the apartment was a third-party with the authority to consent to the entry ); see also People v. Rivas, 182 A.D. 2d 722, 723 (2d Dept. 1992). New York's Criminal Jury Instructions suggest that the court charge the jury that "to have no license or privilege to enter means to have no right, permission or authority to do so." C.J.I. Penal Law §140.00(5).

In this case, counsel did not even known the simple definition of unlawful entry, one of the essential elements of the charges. Indeed, the uncontradicted record shows that Yolanda Roker lived Hayes' apartment. Even the prosecutor told the jury during his opening remarks that she lived there. He told the jury Roker "would be home." She "would leave the door open." According to the prosecutor, she was "moving out of there." Until then, however, she lived there and all the evidence supports a finding that she lived there. Roker listed that address as her residence for purposes of welfare benefits. She was Hayes' girlfriend, she often slept in his bed, and Hayes' other roommates knew it. She could invite friends to the apartment and on July 25, she did just that. She came over in the morning, left, then came back mid-afternoon with a friend. Roker kept clothes and possession in the apartment. When she moved, she had three duffle bags. Until she moved that night and therefore, when she invited petitioner in, she still lived there and had the authority to invite a friend into the apartment. That night she invited King and petitioner to come into the apartment negating any possible finding of unlawful entry.

Nevertheless, the State argued in the Appellate Division, that Roker did not have the authority to invite petitioner into the apartment. According to the State, she did not have the authority for two reasons: she did not have the key to the apartment and petitioner admitted committing a "burglary" (Respondent' Brief at 27). Both reasons must be rejected. First, it is unclear whether or not she had the keys. No one testified that she did not. Hayes' roommate, Hicks, speculated that since she herself (a paying roommate) did not have the key, Roker probably did not either. While it appears that that morning Roker did not have the key and Hicks had to let her in, there is nothing to establish that Hayes had never given her the keys or affirmatively refused to give her the keys. Even if he had, such evidence would not have been enough. Indeed, while possession of keys is one factor in determining whether a person has authority to invite others in, see People v. Melo, 98 A.D. 2d 754 (2d Dept. 1983), it is not a dispositive factor. In this case, the rent-paying roommate, Hicks, did not have keys. Clearly, the roommate had the authority to let others in. Roker certainly did as well; she had a guest in the apartment that very afternoon. She lived there. She answered the phone even when Hayes was there. Even if she did not have the key, it is obvious that once she was inside she could have guests and she did.

Even if Yolanda Roker did not have actual authority to allow others into the apartment, petitioner reasonably believed she had and therefore, could not be guilty of trespass or burglary. See People v. Browser, 287 A.D. 2d 647 (2d Dept. 2001). The record shows that petitioner believed she lived there. He referred to the apartment as "her house." Roker invited him upstairs and opened the door to let him in. He had every reason to believe that he had a license to enter and therefore, there was no unlawful entry. Petitioner's statement that he believed he was to "sneak in and sneak out" did not amount to an admission of unlawful entry. His ill motives upon entering did not transform his lawful entry into an unlawful entry. As the court stated in Graves, "the notion of a secret intent to commit a crime at the time of entry always rendering a consented-to entry unlawful eliminates the trespassory element." Id. at 21. If intent alone were enough, it would convert every act of theft by a social guest or family member from a larceny -- or robbery -- into a burglary simply upon a showing that the person had the intent to commit a crime therein when he entered. Id. While petitioner may have intended to commit a crime in the apartment when he entered, his ill intent did not transform his lawful entry into an unlawful entry.

Finally, petitioner's statements at trial in response to a leading question that he had committed a burglary were not an admission that a burglary had been committed. Indeed, the term burglary is often misused because people without a legal background do not understand that a burglary requires unlawful entry and an intent formed before the entry. Petitioner who has a low level of intelligence was not conceding unlawful entry he answered "correct burglary" to the prosecutor's question about when "the notion" of a " robbery, a burglary," occurred, "correct?" Petitioner did not concede unlawful entry when he agreed to the prosecutor's statement that by the time he got to the apartment he "knew this was going to be a burglary." Petitioner was simply using the term burglary as it is commonly understood. Under the circumstances, counsel's decision to concede the burglary charge and failure to object to the unlawful entry charge fell below any objective standard of reasonableness.

(i) Conceding Burglary Violated the Performance Prong of Strickland

To convict petitioner of burglary and felony murder, the jury had to find that petitioner entered Hayes' apartment without license of privilege. The evidence showed that, in fact, he had a license to enter and that Roker had granted him that license. Nevertheless, counsel began his summation by telling the jury that the following fact was "not in dispute." Hayes' apartment "was burglarized." Petitioner "admitted he committed the burglary. He admitted it" (601). No sound trial strategy can explain counsel's decision to concede the element of unlawful entry where there was no unlawful entry.

On appeal in state court, the prosecution claimed that counsel was justified in doing so because his defense was that petitioner had not been involved in the homicide. The prosecutor correctly identified counsel's stated defense, i.e. lack of involvement in the homicidal act. However, raising the absence of unlawful entry defense did not affect the stated affirmative defense. It did not contradict it or even undermine it. Here, counsel did not present the lawful-entry defense because he did not have the most rudimentary understanding of the elements of the charged burglary and felony murder. Counsel's decision to concede burglary was not a strategic decision; it was not even a decision. It arose out of "oversight, carelessness, ineptitude or laziness," rendering his representation ineffective. Disregarding a meritorious defense amounts to ineffective assistance of counsel.

(ii) Failure to Object to the Erroneous Unlawful Entry Instruction was Equally Unreasonable

Failure to object to the erroneous license to enter charge also fell below any reasonable standard of performance. The trial court instructed the jury that: "[a] person enters unlawfully when that person doesn't have permission from the owner to enter that dwelling" (655)(emphasis added). The court added "a person knowingly enters unlawfully a dwelling when he is aware that he is entering without the permission of the owner" (655)(emphasis added). Twenty years ago, the New York Court of Appeals held that a person is licensed or privileged to enter private premises when he has obtained the consent of the "owner or another whose relationship to the premises gives him authority to issue such consent." People v. Graves, 76 N.Y. 2d 16, 21 (1990). Therefore, persons other than the "owner" have the authority to grant license and privilege to enter. Supra, at 23-24. The court's charge was wrong and counsel did not even object.

An analogous situation arose in Cox v. Donnelly, 387 F. 3d 193 (2d Cir. 2004). In that case, petitioner had been accused and convicted of second-degree murder where one essential element of the crime was intent to kill. The court gave an erroneous Sandstrom*fn4 charge telling the jury it could presume that petitioner had intended the consequences of his acts, i.e. intent to kill. As here, counsel did not object. His failure to do so amounted to ineffective assistance of counsel.

The same result should be reached in this case. As in Cox, the instruction essentially directed a verdict against petitioner. There was no evidence to suggest that Hayes expressly or personally invited petitioner into the apartment. Therefore, under the court's instruction, the jury had to find the entry unlawful since only Hayes, the owner, could have granted license to enter and he had been asleep when they entered.

2. The Strickland Prejudice Prong

To prevail under Strickland's "reasonable probability" standard, an accused need not prove that the jury would have reached a different verdict but for counsel's errors.

"The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance to have determined the outcome." Strickland v. Washington, 466 U.S. at 694. Rather, "the level of prejudice that defendant need demonstrate lies between prejudice that has some conceivable effect and prejudice that more likely than not altered the outcome in the case." Lindstadt v. Keane, 239 F.3d at 204. "A 'reasonable probability' is 'a probability sufficient to undermine confidence in the outcome.'" Cox v. Donnelly, 267 F.Supp.2d at 421 (A. 169).

In this case, the prejudice was obvious. Since there was no evidence of unlawful entry, petitioner should have been acquitted. The evidence presented at trial was troubling and the jury struggled. At one point, it was even deadlocked. It asked to hear a read back of the testimony from the time of "entry" until the exit. Had counsel not conceded the unlawful entry element and objected to the erroneous unlawful entry charge, there is more than a reasonable probability that the outcome would have been different.

B. The State Court's Rejection of the Ineffective Assistance of Counsel Claim was An Unreasonable Application of Strickland

In reviewing an ineffective claim in a habeas corpus petition, the federal court must under AEDPA deny the writ unless the state court adjudication "involved an unreasonable application of the clearly established federal law." 28 U.S.C §2254(d)(1); Henry v. Poole, 409 F. 3d 48 (2d Cir. 2005). A habeas petitioner need not show that a state court has applied Supreme Court law "in a manner that reasonable jurists would all agree is unreasonable." Williams v. Taylor, 529 U.S. at 409. A habeas court must only determine whether the state decision under review applied High Court precedent in an "objectively unreasonable" manner. Hemstreet v. Greiner, 491 F. 3d 84, 89 (2d Cir. 2007). To do so, habeas review must focus on whether the "state court decision reveals an increment of wrongness beyond error." Francis S. v. Stone, 221 F.3d at 110. This Court then added:

We caution, however, that 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.

Id. at 111 (citation omitted).

In this case, the "increment of wrongness" was great. By finding that counsel's performance did not violate Strickland, the state court found that counsel need not even know the definition of the essential elements of the charges against his client. To accept such a level of performance by counsel renders the constitutional right to counsel meaningless. Ineffective assistance of counsel in this case allowed petitioner to be convicted of burglary and felony murder based on the burglary where the evidence established lawful entry rather than proof beyond a reasonable doubt of every essential element of the crimes charged.

CONCLUSION

FOR THE REASONS STATED ABOVE, THE PETITION FOR A WRIT OF HABEAS CORPUS SHOULD BE GRANTED AND PETITIONER SHOULD BE RELEASED FROM STATE CUSTODY. IN THE ALTERNATIVE, THIS COURT SHOULD ORDER A HEARING IN THIS MATTER.

Respectfully submitted,

NATALIE REA Attorney for Petitioner


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