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Trevor Burns v. R. Ercole

September 8, 2011


The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge:*fn1


On November 14, 2008, pro se petitioner Trevor Burns ("Petitioner") filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges two grounds for relief. First, Petitioner claims the state court erred in denying his claim that the trial court violated his constitutional right to present a defense by refusing to admit evidence under New York's hearsay exception allowing admission of statements against penal interest. Second, Petitioner claims the state court erred in denying his claim for ineffective assistance of appellate counsel when his appellate counsel failed to argue that Petitioner's trial counsel had previously been ineffective. For the following reasons, this petition is denied.


Petitioner's case originates out of the shooting death of Corey Henderson that took place on the night of June 13, 1995. Petitioner previously had a dispute with Henderson's cousin, John Mitchum, and had threatened him. Tr. 1022-36. Witnesses reported seeing Petitioner and his co-defendants handling firearms near the scene of the shooting and that they had shot at Mitchum and Henderson. Tr. 289-90, 1042-43. Police pursued one of the men into a nearby building, Tr. 515-17, and found Petitioner lying in the fourth floor hallway with a gunshot wound to the foot. They also saw a modified, but inoperable, starter pistol lying nearby, which showed signs that someone had attempted to fire it. Tr. 121-126, 242-49, 520-21, 547-48, 550-52, 840-49.

When questioned by police, Petitioner repeatedly claimed that a group of Hispanic men in hoods shot at the victims and at Petitioner in retaliation for an argument that took place on the previous day. Tr. 778-83, 879-84. However, after receiving evidence of crossfire at the shooting and taking contradictory statements by Mitchum and Petitioner's co-defendants, the police arrested Petitioner as a suspect in connection with the shooting of Corey Henderson when he returned for questioning on April 9, 1996. Tr. 128-29, 1521-22, 1557-59, 1626-30, 1807-08, 1107-08. According to NYPD Officer Zarakas, Petitioner explained that he and his co-defendants shot at the victims, Mitchum returned fire, and Petitioner fled-but Petitioner refused to sign a written statement confirming this story. Tr. 1636-46, 1759-61.

The state charged Petitioner with three counts of second-degree murder and two counts of weapons possession. During the trial, Petitioner maintained that a group of Hispanic men were the shooters, although Petitioner did not testify. To support Petitioner's case, Petitioner's friend, Keith Spruill, testified that he spoke to Petitioner outside of a nearby store before the shooting, heard gunshots soon after, and saw three Hispanic men fleeing. Tr. 2137-44. Petitioner also sought to admit a statement by Raul Marin,*fn2 an unavailable witness, through a transcription that NYPD Officer Lozada made on June 14, 1995. According to the statement, Marin had seen five armed men, whose names he knew, one block away from the scene of the shooting. One of the men handed Marin three bags of heroin and told him that he should leave, so that the men could discuss "something" they had to do that night. Marin left and soon heard gunshots. The next day, one of the men told Marin that "last night we took care of business." Tr. 1683.

The trial court ruled that Marin's statement was inadmissible hearsay and did not qualify for the "against the penal interest" exception to the hearsay rule because the only portion of the statement that was arguably against the declarant's penal interest was the portion referring to the bags of heroin, and that portion was not relevant to the trial. On June 17, 1997, a jury found Petitioner guilty of murder in the second degree. Petitioner maintains that Marin's statement would have corroborated Spruill's. Tr. 1419-20.

Petitioner filed a direct appeal, claiming that Marin's statement should have been admitted as a hearsay exception and its exclusion denied Petitioner his constitutional right to present a defense. See People v. Burns, 795 N.Y.S.2d 574 (App. Div. 2005). Petitioner's claim was denied and he appealed. The New York Court of Appeals affirmed, holding that Petitioner's right was not violated because the hearsay statement "lacked any indicia of reliability" and because the trial court offered Petitioner a "so ordered" subpoena to compel Marin's testimony, which the Petitioner never served. People v. Burns, 6 N.Y.3d 793, 795 (2006).

On March 3, 2006, Petitioner filed a motion to vacate the judgment pursuant to N.Y. C.P.L.R. § 440.10, claiming, among other things, that he received constitutionally ineffective assistance from his trial counsel; that motion was subsequently denied. People v. Burns, No. M-2192, Ind. No. 3038/96 (N.Y. Sup. Ct. Feb. 28, 2007) (Answer Ex. J), appeal denied, 2007 N.Y. App. Div. LEXIS 8927 (N.Y. App. Div. Aug. 9, 2007). On August 4, 2008, Petitioner applied for writ of error coram nobis in the New York Supreme Court, Appellate Division, alleging ineffective assistance of appellate counsel. On November 14, 2008, Petitioner filed the present petition for writ of habeas corpus, which was held in abeyance until he had exhausted his state remedies. People v. Burns, No. M-3786, Ind. No. 3038/96, (N.Y. App. Div. Dec. 9, 2008), appeal denied, Ind. No. 3038/96 (N.Y. Feb. 18, 2009) (Answer Ex. O).


A petitioner under § 2254 is only entitled to relief on claims adjudicated in state court that: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). Section 2254 provides a highly deferential standard, giving state decisions "the benefit of the doubt." Renico v. Lett, 130 S. Ct. 1855, 1862 (2010).

An adjudication is "contrary to federal law," if it "arrives at a conclusion opposite to that reached by [the U.S. Supreme Court] on a question of law or if the state court decides a case differently than [the U.S. Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 13 (2000). An "unreasonable application of federal law" occurs when "the state court identifies the correct governing legal principle from [the U.S. Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. The decision must have also been "objectively unreasonable," id. at 364, meaning "somewhere between merely erroneous and unreasonable to all reasonable jurists," Henry v. Poole, 409 F.3d 48, 68 (2d Cir. 2005) (internal quotation omitted).


A.Right to Present a ...

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