Argued: December 5, 2012
On this appeal from a judgment entered in the United States District Court for the Northern District of New York (McAvoy, J.) denying a writ of habeas corpus sought pursuant to 28 U.S.C. § 2241, petitioner maintains that the State of New York cannot retry him for the murder of a prosecution witness in another case because (1) the evidence at his first trial was insufficient as a matter of law to support the jury's guilty verdict; (2) the Double Jeopardy Clause bars retrial in the face of such insufficiency; and (3) the failure of the New York Appellate Division, Third Department, to address his sufficiency challenge before ordering retrial cannot be excused by its subsequent ruling that the error warranting retrial—a failure properly to swear the venire panel—meant that petitioner had never been placed in jeopardy at the initial trial. We conclude that a certificate of appealability is a jurisdictional prerequisite to a state prisoner's appeal of the denial of a § 2241 petition. Because that has not previously been clear in this circuit, we hereby grant petitioner such a certificate nunc pro tunc. On the merits of petitioner's appeal, we conclude that jeopardy did attach at petitioner's first trial, but that petitioner is not entitled to habeas relief because his sufficiency challenge is meritless, thereby rendering harmless any possible error in the state court's failure to address sufficiency when ordering retrial.
Ray Kelly, Esq., Albany, New York, for Petitioner-Appellant.
Lisa Ellen Fleischmann, Assistant Attorney General, of Counsel (Barbara D. Underwood, Solicitor General, Roseann B. MacKechnie, Deputy Solicitor General for Criminal Matters, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, New York, for Respondents-Appellees.
Before: Cabranes, Raggi, and Carney, Circuit Judges
Reena Raggi, Circuit Judge:
Petitioner Michael Hoffler appeals from a judgment entered on November 17, 2011, in the United States District Court for the Northern District of New York (Thomas J. McAvoy, Judge), denying him a writ of habeas corpus. See Hoffler v. Bezio, 831 F.Supp.2d 570 (N.D.N.Y. 2011). Hoffler sought the writ pursuant to 28 U.S.C. § 2241 to prevent New York State from retrying him on murder charges arising out of the December 30, 2003 killing of Christopher Drabik, a prosecution witness scheduled to testify against Hoffler a few days later at a trial on drug charges.
Although a jury found Hoffler guilty of first-degree witness-elimination murder in violation of N.Y. Penal Law §§ 20.00 and 125.27(1)(a)(v), the New York Appellate Division, Third Department, reversed the conviction on direct appeal and remanded the case for a new trial because of a mistake in swearing the venire panel from which the trial jury was selected. Specifically, the oath administered to the venire panel was that prescribed by New York law for empaneled jurors rather than the oath prescribed for prospective jurors. See People v. Hoffler, 53 A.D.3d 116, 120–21, 860 N.Y.S.2d 266, 269–70 (3d Dep't 2008) (citing N.Y. Crim. Proc. Law § 270.15(1)(a)). Hoffler here asserts that New York cannot retry him for the Drabik murder because (1) the evidence at his first trial was insufficient as a matter of law to support the jury's guilty verdict; (2) the Double Jeopardy Clause bars retrial where the evidence at a first trial was legally insufficient to support conviction, see U.S. Const. amend. V; and (3) the Appellate Division's failure to rule on his sufficiency challenge before ordering retrial cannot be excused by its subsequent determination that the error in swearing the venire panel meant that petitioner had never been placed in jeopardy at his first trial, see Hoffler v. Jacon, 72 A.D.3d 1183, 897 N.Y.S.2d 755 (3d Dep't 2010).
At the outset, we conclude that our jurisdiction to hear an appeal brought by a state prisoner from the denial of a § 2241 petition requires the issuance of a certificate of appealability. Because our case law has not previously made that requirement clear, we excuse Hoffler's failure to seek a certificate within the time prescribed by our Local Rules, entertain his belated application, and grant him a certificate nunc pro tunc.
With our jurisdiction thus established, we conclude that Hoffler was placed in jeopardy at the initial Drabik murder trial because the empaneled jury was properly sworn to return a verdict based on impartial consideration of the evidence and the applicable law. No different conclusion is warranted by the fact that the venire panel was not sworn in accordance with New York law, because that error rendered the judgment of conviction voidable but not void.
Insofar as Hoffler faults the Appellate Division for not ruling on his sufficiency challenge before ordering retrial, we need not here decide whether such a ruling is constitutionally required by the Double Jeopardy Clause because, even if it is, any error in this case would be harmless beyond a reasonable doubt in light of record evidence sufficient to support a guilty verdict against Hoffler for first-degree witness-elimination murder.
Accordingly, we affirm the judgment of the district court denying Hoffler's § 2241 petition for a writ of habeas corpus to prevent New York State from retrying him for murder.
A. The Murder of Christopher Drabik
After his own arrest on drug charges in April 2003, Christopher Drabik agreed to cooperate with Albany police in making controlled drug purchases from identified traffickers, including an individual known to Drabik by the street name, "Murder." Police subsequently identified "Murder" as petitioner Michael Hoffler who, based on a license he produced in the course of a traffic stop, also used the name "Ernest Hoffler." On May 1, 2003, and again on May 6, 2003, Drabik made controlled purchases of cocaine from Hoffler. Police recorded the men's initial telephone conversation leading to these transactions, and they videotaped their face-to-face drug transactions. On May 14, 2003, in the course of a third controlled drug purchase by a different cooperator, police arrested Hoffler.
At Hoffler's July 1, 2003 arraignment—at which he was released on bail—the prosecution revealed the dates, times, and locations of the charged drug sales. Subsequently, the prosecutor provided defense counsel with police reports detailing the transactions, and at a November 2003 pretrial hearing, a police detective testified as to the surrounding circumstances. On none of these occasions did authorities identify Drabik as an informant or explicitly reveal that he would be called as a prosecution witness at the trial scheduled to begin on January 5, 2004. Nor were Hoffler's recorded conversation and videotaped meetings with Drabik provided to defense counsel before Drabik's murder.
The week prior to trial, on December 30, 2003, Drabik was found shot dead in front of 478 Sixth Avenue in Troy, New York. Even without Drabik's testimony, a jury found Hoffler guilty on the pending drug charges, and the trial court sentenced him to an aggregate prison term of 17 to 34 years. See People v. Hoffler, 41 A.D.3d 891, 892, 837 N.Y.S.2d 750, 752 (3d Dep't 2007).
B. Hoffler's Initial Conviction for Drabik's Murder
On March 19, 2004, a grand jury indicted Hoffler on homicide charges stemming from the Drabik murder. On May 19, 2005, the trial jury found Hoffler guilty of the most serious charge, first-degree witness-elimination murder, see N.Y. Penal Law §§ 20.00, 125.27(1)(a)(v), for which crime the court sentenced him to life imprisonment without parole.
The prosecution theory at trial, which it supported largely through circumstantial evidence, was that Hoffler murdered Drabik—with the assistance of Albany confederate Lance Booker and Brooklyn gunman Gregory Heckstall—by luring Drabik to 478 Sixth Avenue in Troy, New York where, early on the morning of December 30, 2003, Heckstall shot Drabik dead. To facilitate our discussion of Hoffler's sufficiency claim, we summarize some of the pertinent evidence.
Several witnesses placed Hoffler and an armed Heckstall together in Albany during the last week of December 2003. One such witness, who stated that Hoffler introduced Heckstall to her as his "cousin, " reported seeing the two men on December 28, 2003, parked near her house in a gray SUV. That same day, an individual who identified himself as "Ernest Hoffler" had rented a gray Ford Escape SUV from Budget in Albany.
Another woman testified that she too had met Heckstall and Hoffler sometime during the last week in December when the two men were sitting with her neighbor, Booker, in a dark-colored SUV parked on her street. Heckstall spent the night with the woman and, when he undressed, she saw that he was carrying a firearm, which he indicated to her was loaded. Early the next morning, Hoffler arrived at the woman's home and spoke quietly with Heckstall, after which Heckstall quickly dressed, collected his gun, and left with Hoffler.
Telephone records showed that at 7:48 p.m. on December 29, 2003, a call was placed to Drabik's cell phone from a cell phone registered to Hoffler's residence and used by him on a regular basis. While it is not clear that this particular call connected, Drabik's parents recalled overhearing their son speaking on his cell phone sometime between 7:45 and 8:00 p.m. on December 29 to someone whom he agreed to meet the following day to discuss a possible construction job.
Telephone records showed that over the next several hours and into the early morning of December 30, there were frequent calls between Hoffler's cell phone and a phone number assigned to the residence of Pamela White, Booker's then girlfriend. In the early morning on December 30, Hoffler arrived at White's residence and waited while Booker dressed, after which the men left in a dark-colored SUV.
At about this same time, Drabik received a 6:09 a.m. call on his cell phone from an unidentified incoming number. His mother overheard Drabik agree to meet the caller in 20 minutes at 478 Sixth Avenue in Troy, New York, an address he wrote down on a piece of paper received into evidence at trial. A subsequent forensic examination of computers seized from Hoffler's home would show that, on the night of December 29, 2003, one computer accessed an online real estate listing for 478 Sixth Avenue in Troy.
At 6:37, 6:45, and 6:54 a.m. on December 30, Drabik called a number assigned to a "Trac Fone"—a prepaid phone with no named subscriber—that had been activated only the day before. Soon thereafter, at approximately 7:00 a.m., Drabik was fatally shot once in the chest in front of 478 Sixth Avenue in Troy, which is near the intersection of 112th Street and Sixth Avenue.
Andrew Bridgers testified that early on the morning of December 30, while delivering newspapers in Troy, he was slowing his car to a stop on Sixth Avenue near 112th Street when he spotted two men and heard a gunshot. Bridgers then saw one of the men fall to the ground while the other walked in the direction of Bridgers' vehicle, affording Bridgers a view of the man's face. Bridgers testified that the man who fell to the ground was Drabik; the one who walked away was Heckstall.
Mary Ann Fath, who lived on the corner of 113th Street and Sixth Avenue, a short distance from the murder scene, testified that, early on the same morning, through the window of her home, she saw an unfamiliar tan or "taupey"-colored SUV parked on 113th Street with its headlights on. Soon after, she saw someone enter the SUV from a passenger side door, whereupon the vehicle pulled away.
Telephone records showed that between 7:19 and 7:45 on the morning of December 30, six telephone calls were placed between Hoffler's cell phone and a landline registered to his residence. Approximately three hours later, at 10:58 a.m., a New York City police officer wrote a ticket for a vehicle illegally parked in Brooklyn: the gray SUV rented from Budget under the name "Ernest Hoffler." Later that same day, the vehicle was back in Albany, where it was returned to Budget at 6:17 p.m., having been driven a total of 640 miles during "Ernest Hoffler's" three-day rental. On December 30, Budget debited $432.11 from Michael Hoffler's bank account to cover the cost of the rental, and subsequent forensic analysis would locate Hoffler's DNA in the rented SUV.
Meanwhile, when Heckstall arrived at his sister-in-law's Brooklyn home between 1:00 and 1:30 p.m. on December 30, he had several hundred dollars in cash.
C. Post-Conviction State Court Proceedings 1. Direct Appeal
In challenging his murder conviction on direct appeal, Hoffler argued that the trial evidence was insufficient to support his conviction and that the venire panel had ...