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finding no prejudice where purported alibi witnesses could not shed light on actions of petitioner at critical juncture, and state court's conclusions that testimony was not compelling was not unreasonable
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99 Civ. 12103 (RMB)(FM)
April 29, 2004
REPORT AND RECOMMENDATION TO THE HONORABLE RICHARD M. BERMAN
I. Introduction
Petitioner Joey Yiu ("Yiu") brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, challenging his conviction, following a jury trial in Supreme Court, New York County, on two counts of Robbery in the First Degree and one count of Attempted Robbery in the First Degree, in violation of Sections 110, 160.14(4), and 160.15(4) of the New York Penal Law. (Pet. ¶¶ 1, 4, 6). On April 19, 1995, Justice Harold Rothwax, before whom the case was tried, sentenced Yiu to concurrent terms of ten to twenty years on the robbery counts and five to ten years on the attempted robbery count. (Pet. ¶¶ 2-3; S. 11-12).
"H." refers to the transcript of the evidentiary hearing held on November 18, 2003. "S." refers to the transcript of the sentencing hearing. "Tr." refers to the trial transcript.
In his petition, Yiu contends that he was denied effective assistance of counsel based on his trial lawyer's (1) failure to present exculpatory evidence; (2) failure to debrief him; (3) failure to interview witnesses; and (4) questioning that opened the door to prejudicial information. (Pet. ¶ 12(A); Pet'r's Mem. of L. at 20-26). On August 29, 2003, I directed that an evidentiary hearing be held to develop the facts relating to Yiu's ineffective assistance claim. (Docket No. 10). That hearing subsequently was held on November 18, 2003.
Yiu was represented at the hearing by Scott B. Tulman, Esq., an attorney whom he initially retained to prosecute his direct appeal. (See Affirm. of Scott B. Tulman, Esq., dated Aug. 1, 2000 ("Tulman Affirm."), ¶ 1). Mr. Tulman represented Yiu on a pro bono basis in connection with a collateral state court proceeding and continues to represent him without compensation before this Court. (See id.). The Court commends Mr. Tulman for his zealous efforts on behalf of his client.
II. Background
A. Relevant Facts
1. People's Case
The People's proof at trial established that on November 25, 1993 (Thanksgiving Day), approximately twenty people were gathered to play mah jong, a Chinese game, at a "fish ball" restaurant located at 77 Madison Street in Chinatown. (Tr. 186-87). The restaurant consisted of a kitchen area and two rooms — one in the front and one in the back — where the patrons would play mah jong. (Id. at 189).
At approximately 4:40 pm, "three or four [men] entered" the restaurant, two of whom went into the front room. (Id. at 195, 197). In the front room, co-defendant David Li ("David") pointed a gun at the patrons while another man told them to take out their money. (Id. at 197-200). The robbers then collected the money and put it in their pockets. (Id. at 203).
David was convicted following a joint trial with Yiu, and received an aggregate indeterminate sentence of four to twelve years. (See Aff. of Assistant Attorney General Edward Rodriguez, sworn to on May 26, 2000 ("Rodriguez Aff."), Ex. A (Pet'r's Br. on Appeal) at 1-2 n. 1).
After about ten minutes, two of the intruders who had gone into the back room reentered the front room. (Id. at 203, 206). There, one of the two, who was wearing a vertically striped shirt, said, "let's leave" and "hurry up, hurry up." (Id. at 203-07). Thereafter, all four men left. (Id. at 203, 205-06). Throughout the time the men were in the restaurant, they spoke only the "Foo" dialect of Chinese (i.e., Fukinese). (See id. at 207).
While the robbery was underway, Police Officers James Shaughnessy and Robert Scott responded to a radio report of a "dispute" at the restaurant's location. (Id. at 248-49, 369). When they arrived, Officer Shaughnessy saw "three Asian males" coming out of 77 Madison Street, but Officer Scott observed four men. (Id. at 255-56, 371). Sighting the policemen in their patrol car, the men parted company and ran down the street. (Id. at 257-58). After the officers left their vehicle, Officer Shaughnessy subdued David and recovered a gun from his waistband (Id. at 258, 260-62). At the same time, Officer Scott called out to Yiu, who began running. (Id. at 375-76). After Officer Scott apprehended Yiu on the corner of Madison and Catherine Streets, he patted him down, finding neither a weapon nor money. (See id. at 376).
The officers brought Yiu and David back to 77 Madison Street, where a crowd of about ten to twenty restaurant patrons had gathered on the street. (Id. at 263-64). The customers, who were speaking Chinese and broken English, pointed to both Yiu and Li. (Id. at 264-65, 376-77). Later at the station house, Officer Shaughnessy recovered $437 in crumpled bills from David's jacket pocket. (Id. at 270-71).
At trial, the prosecution's only eyewitness, Wing Po Li ("Li"), made an in-court identification of David as the individual in the front room who had carried the gun during the robbery. (Id. at 199). When he was asked if he saw the man who had worn the vertically striped shirt in the courtroom, Li replied that he was "not sure." (Id. at 208). Later, however, he testified that the person wearing the striped shirt was one of the two people whom the police had held in front of the restaurant. (Id. at 209-10).
After Li was shown a photograph of the shirt Yiu was wearing when he was arrested, he at first testified that he had not seen the shirt before. (Tr. 211-12). Thereafter, he testified that the shirt in the photograph looked like the striped shirt that one of the robbers had worn. (Id. at 213).
2. Defense Case
Yiu did not call any witnesses to testify at trial.
3. Sentencing
On April 19, 1995, Justice Rothwax sentenced Yiu as a predicate violent felon to concurrent terms of ten to twenty years on the robbery counts and five to ten years on the attempted robbery count. (S. 11-12). The predicate felony was a 1988 conviction on one count of Robbery in the First Degree, arising out of an armed robbery of a Chinese restaurant in Queens during which Yiu carried a gun. (Id. at 4, 8). Justice Rothwax observed that the earlier crime bore "a tremendous resemblance to this case." (Id. at 8).
B. Subsequent Procedural History
On March 25, 1997, Yiu moved, pursuant to Section 440.10 of the New York Criminal Procedure Law, to have the judgment of conviction against him vacated on the ground that he was denied the effective assistance of trial counsel. (See Rodriguez Aff. Ex. E). The alleged errors that he relied upon were essentially the same as those set forth in his habeas petition. (See id.). On December 18, 1997, Justice Carol Berkman denied Yiu's motion to vacate the judgment, concluding that Yiu had been afforded meaningful representation. (Id. Ex. H).
Subsequently, in his brief on his direct appeal to the Appellate Division, First Department, Yiu contended that: (1) the trial court improperly failed to suppress the show-up identifications; (2) he was denied his right to a fair trial and right of confrontation due to a series of evidentiary errors; (3) the evidence was insufficient to establish his guilt beyond a reasonable doubt; and (4) his counsel's performance prior to and at trial was constitutionally ineffective. (Id. Ex. A).
On October 15, 1998, the Appellate Division affirmed Yiu's conviction. People v. Yiu, 678 N.Y.S.2d 263 (1st Dep't 1998). In its decision, the Appellate Division held that the denial of Yiu's motion to suppress did not entitle him to any relief because "[t]he suppression court properly concluded that the on-the-scene identifications were spontaneous and not the result of any undue suggestiveness." Id. The court also stated that the verdict was not against the weight of the evidence, and that there was no basis for disturbing the credibility findings of the jury. The Appellate Division further found that "[t]he totality of the record indicates that defendant's trial counsel provided meaningful representation" and that "[t]he claimed errors by trial counsel could not have deprived defendant of a fair trial."Id. Finally, the court found that Yiu had failed to preserve his remaining claims, but noted that if it were to review them in the interest of justice, it would reject them. Id.
On December 18, 1998, the New York Court of Appeals issued a summary order denying Yiu's application for leave to appeal.People v. Yiu, 92 N.Y.2d 1041 (1998).
Yiu's habeas corpus petition was timely filed with this Court on December 16, 1999. (See Docket No. 1).
C. Alleged Errors
Yiu's petition alleges that the performance of his trial counsel, James C. Neville, Esq. ("Neville"), failed to pass constitutional muster in three respects. First, Yiu alleges that Neville "failed to obtain basic background information about him, including, but not limited to, the dialect of Chinese that [he] spoke." (Pet'r's Mem. of L. at 20). At trial, Li testified that the four individuals who robbed the restaurant spoke "Foo Chinese" throughout the time they were there. (Tr. 207). Yiu contends that he informed Neville that he did not speak the Foo dialect, but Neville failed to establish this potentially exculpatory fact at trial. (Pet'r's Mem. of L. at 20-21). Yiu argues that this error alone could have been outcome determinative in light of the weak evidence presented by the People. (Id. at 21). As Yiu correctly observes, Justice Berkman did not specifically discuss this issue in her decision regarding his Section 440.10 motion. (See id.).
Second, Yiu alleges that he advised Neville that he went to Chinatown with several friends to purchase a doll, stepped into the restaurant to use the telephone, and thereafter was mistakenly identified as one of the robbers. (See Tulman Affirm. Ex. C (Aff. of Joey Yiu, sworn to on Sept. 28, 1996) ¶¶ 4-5, 10-14). He contends that Neville nevertheless failed to investigate the facts. (Pet'r's Mem. of L. at 22-23).
In his third related claim, Yiu contends that Neville failed to interview several witnesses who were available to testify to his exculpatory account of the events, stating that they were not "good witnesses." (Id. at 24). Yiu contends that had Neville investigated his story and called these witnesses to testify, he would have been able to present "a plausible alternative innocent explanation for [his] presence at the scene." (Id. at 25). For his part, Neville denies Yiu's assertions, stating that, during their numerous discussions prior to trial, Yiu "never ever told [him] about having been shopping for a doll in Chinatown prior to the incident," or "that he knew of witnesses who might have been able to testify on his behalf." (Rodriguez Aff. Ex. F. (Affirm. of James Neville, Esq., dated July 1, 1997) at 2).
In her decision, Justice Berkman acknowledged that Neville and his former client disagreed about the reasons Yiu's "alleged witnesses" were never called. (Rodriguez Aff. Ex. H at 6). She noted, however, that these witneses were "far from crucial" to Yiu's defense because they were not present at the time of the robbery. (Id.). On that basis, the Justice concluded that the alleged failure to call the witnesses did not render Neville's assistance ineffective because Yiu failed to show "that the outcome of the trial would have been different if these witnesses had testified." (Id.).
Finally, Yiu's petition alleges that, while cross-examining Officer Shaughnessy, Neville opened the door to otherwise inadmissible and highly prejudicial testimony that the police were responding to a "911" call of "gang activity" at the restaurant. (Pet'r's Mem. of L. at 25). Justice Berkman noted that this testimony was not prejudicial to Yiu's defense because he denied being a participant in the robbery. (Rodriguez Aff. Ex. H at 7). Additionally, even if the questioning erroneously opened the door to the testimony regarding "gang activity," Justice Berkman held that it did not entitle Yiu to have his conviction vacated because "a defendant is not entitled to infallible counsel." (Id. at 7-8 (citing People v. Murdaugh, 212 N.Y.S.2d 120 (2d Dep't 1961)).
After preliminarily reviewing the record relating to Yiu's petition, I noted that neither the affidavit that Neville prepared in connection with Yiu's Section 440.10 motion, nor Justice Berkman's decision, specifically addressed Yiu's contention that Neville had improperly failed to establish at trial that Yiu did not speak the Foo dialect. Accordingly, I directed that an evidentiary hearing be held to develop the record regarding this claim. (See Docket No. 10 (Memorandum Decision dated Aug. 29, 2003)).
D. Evidentiary Hearing
The hearing was held on November 18, 2003. At the hearing three witnesses were called: Lilly Lau ("Lau"), a court interpreter qualified in the Foo, Mandarin, and Cantonese dialects of Chinese; Neville; and Yiu.
Lau testified that the Foo and Mandarin dialects of Chinese are very different languages. (H. 25). For example, in Foo, "hurry up, let's go" is "Ka li gan, gan"; in Mandarin it is "Kuai dian, zou ba." At the hearing, the Respondent sought to suggest that someone, such as Yiu, who was born in Taiwan, might be familiar with the Foo dialect. (See id. at 28, 32-36). Thereafter, however, the Respondent conceded that someone from Taiwan who spoke only Mandarin would not be able to understand Foo. (Decl. of Michael P. King, Esq., dated Dec. 11, 2003, ¶ 4).
Lau provided this transliteration to the Court reporter. As the text suggests, the two versions of the statement sounded very different when Lau said them in open court. (See H. 26).
Neville testified that he was "pretty certain" that Yiu had never raised the dialect issue with him in their pretrial discussions, but conceded that Yiu might have raised the point with him during the heat of the trial, after Li testified that the individuals who robbed the restaurant spoke Foo. (H. 7, 15). As Neville explained further,
[I]f it did happen it was either that he tapped my arm to get my attention to tell me [that he did not speak Foo] and I wouldn't listen because I was listening to other things, something which happens scores of times at trials and arraignments and hearings, or . . . he . . . reminded me or told me again that he did not speak [Foo]. But I just don't remember that happening.
(Id. at 24).
Finally, Yiu testified that when he heard Li testify at trial that the person wearing the vertically-striped shirt during the robbery of the restaurant was speaking Foo, he told Neville: "I don't speak the Foo dialect. Do something. Tell the judge that it's not me. They didn't identify me. I didn't do the crime." (Id. at 31). Yiu stated that Neville responded: "Calm down, be quiet, don't make so many faces and slow down. Don't get so emotional. I'm the professional, I'll take care of this." (Id.). Yiu testified further that he sought to raise the dialect issue with Neville, "probably" three or four times. (Id.).
Yiu acknowledged that while he was dissatisfied with Neville's representation before and during the trial, he did not fire him. (Id. at 40-41). Yiu further conceded that he did not bring up the dialect issue at his sentencing hearing. (Id. at 41).
III. Discussion
A. Standard of Review
A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 401 (1993). Instead, a state prisoner seeking habeas relief under Section 2254 must show by a preponderance of the evidence that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides, in part, that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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.28 U.S.C. § 2254(d)(1) (emphasis added).
The Supreme Court has "construed the amended statute so as to give independent meaning to the terms 'contrary [to]' and 'unreasonable.'" Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000). "Under the 'contrary to' clause, a federal habeas court may grant the writ 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] Court has on a set of materially indistinguishable facts."Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under the "unreasonable application" clause, a federal habeas court should "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. This standard does not require that all reasonable jurists agree that the state court was wrong. Id. at 409-10. Rather, the standard "falls somewhere between 'merely erroneous and unreasonable to all reasonable jurists.'" Stinson, 229 F.3d. at 119 (quotingFrancis S. v. Stone, 221 F.3d 100, 109 (2d Cir. 2000)) (emphasis added). Section 2254(d)(1) only applies, however, "with respect to claims adjudicated on the merits in state court."Williams, 529 U.S. at 412.
Section 2254(d)(2) further authorizes the federal courts to grant a habeas writ when a claim considered on the merits in state court "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)(2). Moreover, to the extent that a habeas petition challenges factual findings, Section 2254(e)(1) provides that "a determination of a factual issue by a State court shall be presumed to be correct" and that "[t]he [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
Prior to the enactment of the AEDPA, "pure questions of law and mixed questions of law and fact were reviewed de novo."Washington v. Schriver, 255 F.3d 45, 55 (2d Cir. 2001) (citingWilliams, 529 U.S. at 400). Thus, "a federal habeas court owed no deference to a state court's resolution of such questions."Williams, 529 U.S. at 400. While the factual findings of state courts were "'presumed . . . correct' absent special circumstances listed in the statute," Schriver, 255 F.3d at 55 (citing 28 U.S.C. § 2254(d) (1994)), the presumption could be set aside if the federal habeas court "'on a consideration of such part of the record as a whole conclude[d] that such [a] factual determination [was] not fairly supported by the record.'" Id. (quoting 28 U.S.C. § 2254(d)(8) (1994)). Indeed, even if a state court determination was "fairly supported by the record, and thus presumed correct, [the] petitioner in a federal evidentiary hearing," could nonetheless prevail by establishing "by convincing evidence that the factual determination by the [s]tate court was erroneous." Id. at 55-56 (citations and internal quotation marks omitted).
The applicable law is now drastically different. Under the AEDPA, federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 341 F.3d 104, 109 (2d Cir. 2003). However, the "necessary predicate" to the deferential review mandated by the AEDPA is that "the petitioner's federal claim has been 'adjudicated on the merits' by the state court." Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001). If a petitioner's federal claim has not been adjudicated on the merits by the state court, this Court "must apply the pre-AEDPA standards, and reviewde novo the state court's disposition of the petitioner's federal claims." Id. (citing Schriver, 255 F.3d at 55).
In his affidavit in support of his Section 440.10 motion, Yiu contended that his trial counsel was ineffective for essentially the same reasons he now advances in his habeas petition. (See Rodriguez Aff. Ex. E). Although Justice Berkman's decision denying Yiu's motion to vacate did not specifically address Yiu's Foo dialect claim, the Justice noted the "strong presumption" under Strickland v. Washington, 466 U.S. 668, 689 (1984), that "a lawyer's conduct falls within the wide range of reasonable professional assistance and that counsel's decisions are strategically based." (Rodriguez Aff. Ex. H at 8). The Justice further stated that it was Yiu's "burden to overcome such presumption" and that he had "failed to meet this burden." (Id.).
In his direct appeal, Yiu argued again that his conviction was constitutionally defective because his trial counsel's performance both prior to and at trial "was so inadequate as to deprive [him] of meaningful representation." (Id. Ex. A at 36-42). Rejecting that claim, the Appellate Division held that "[t]he totality of the record indicates that [Yiu's] trial counsel provided meaningful representation," and that "[t]he claimed errors by trial counsel could not have deprived defendant of a fair trial." Yiu, 678 N.Y.S.2d at 263. Thereafter, the Court of Appeals denied Yiu's request for leave to appeal in a one-word decision. Yiu, 92 N.Y.2d at 1041 ("Denied").
To have adjudicated a petitioner's claim "on the merits," a state court "need only dispose of the petitioner's federal claim on substantive grounds, and reduce that disposition to judgment."Aparicio, 269 F.3d at 94 (citing Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)). "No further articulation of its rationale or elucidation of its reasoning process is required."Id.; accord Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word "denied" — triggered AEDPA deference."). Consequently, even though neither Justice Berkman nor the Appellate Division specifically addressed Yiu's allegations concerning his inability to speak the Foo dialect, his ineffective assistance claim was fully adjudicated on the merits in the state courts for purposes of the AEDPA.
Moreover, Yiu's ineffective assistance claim is predicated on "clearly established federal law." See 28 U.S.C. § 2254(d)(1). As the Second Circuit has noted, "a Sixth Amendment ineffective assistance of counsel claim necessarily invokes federal law that has been 'clearly established' by the Supreme Court within the meaning of AEDPA." Sellan, 261 F.3d at 309. Moreover, "[f]or AEDPA purposes, a petitioner is not required to demonstrate that his particular theory of ineffective assistance is also 'clearly established.'" Aparicio, 269 F.3d at 95 n. 8 (emphasis added) (citations omitted). Accordingly, because Yiu's claim involves clearly established federal law, and was adjudicated on the merits in the state courts, the state courts' determinations of his claim must be given the high degree of deference prescribed by the AEDPA.
B. Strickland Standard
In order to prevail on an ineffective assistance of counsel claim, Yiu must demonstrate that (1) his counsel's performance "fell below an objective standard of reasonableness" and (2) there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694. As Justice Berkman correctly observed, under Strickland, there is a "strong presumption that a lawyer's conduct falls within the wide range of reasonable professional assistance." (Rodriguez Aff. Ex. H at 8). Therefore, a petitioner "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Additionally, a court considering an ineffectiveness claim "need not . . . address both components of the [Strickland] inquiry if the [petitioner] makes an insufficient showing on one." Id. at 697. As the Second Circuit has noted, "[t]he Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel flounder on that standard."Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).
Under the AEDPA, Yiu "must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under [28 U.S.C.] § 2254(d)(1) it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly." Bell v. Cone, 535 U.S. 685, 698-99 (2002) (citing Williams, 529 U.S. at 411). Rather, Yiu must show that the state courts "appliedStrickland to the facts of his case in an objectively unreasonable manner." Id. at 699. Here, Yiu has not met that burden.
C. Application of Strickland to Facts
1. Dialect Issue
Yiu's first contention is that he was denied effective assistance of counsel because Neville was informed, but failed to establish at trial, that he did not speak the Foo dialect. (Pet'r's Mem. of L. at 21). Yiu argues that rather than making a strategic decision to forgo this proof, Neville "simply failed to appreciate the significance of the information imparted to him" by Yiu. (Letter from Scott B. Tulman, Esq., to the Court, dated Jan. 5, 2004 ("Tulman Letter"), at 4). As his attorney explains:
There is a reasonable probability that but for [Neville's] failure to listen to [Yiu] and use the exculpatory information imparted by him, the result of the proceeding would have been different. Had the jury learned that the petitioner did not speak the Foo dialect, there would have been no evidence against [Yiu], except that of his mere presence at the time of the robbery. . . . trial counsel could have successfully argued that since petitioner unquestionably was not the person who shouted "hurry up" he had to be the fourth unknown person referred to in the testimony about whom there was no evidence of any wrongdoing. Indeed, in light of this evidence, the trial judge may well have been required to grant a trial order of dismissal since the sine qua non of the People's case was the warning allegedly shouted out by [Yiu].
(Id.).
It is, of course, troubling that Neville's affidavit in connection with Yiu's Section 440.10 motion is silent with respect to this aspect of Yiu's ineffective assistance claim. At the hearing, when the subject was raised, Neville did his best not to harm his former client's case. Thus he expressed uncertainty as to whether Yiu advised him during the trial that he did not speak Foo, stating that it was possible Yiu might have said it during the heat of the trial. (See H. 24). Nevertheless, he rejected the notion that he had been advised of Yiu's language limitations during their various pretrial meetings. (See id. at 15 (testimony that Neville was "pretty certain" no such conversation took place)).
Yiu's version of the critical events differs markedly from Neville's. Thus, he testified at the hearing that he repeatedly advised Neville during the trial that he could not have been the person in the striped shirt who shouted instructions in the restaurant because he did not speak Foo. (Id. at 31). He further testified that he asked Neville to "[t]ell the Judge that it's not me," but that Neville brushed him off. (Id.).
Having observed both witnesses at the hearing, I find that Neville was the more credible witness regarding the discussions that he and Yiu had during the course of the trial. Although it therefore appears unlikely that Yiu told Neville that he did not speak Foo, even if he did, the significance of that fact would understandably have been attenuated unless Neville also was told that, as a speaker of Mandarin, Yiu could not have said anything to his accomplices in Fukinese. Tellingly, Neville testified without hesitation that he was totally in the dark as to that additional fact both during and after the trial. (Id. at 17). Neville also noted that he might have had difficulty proving a negative without putting Yiu on the stand, which might have enabled the prosecutor to introduce into evidence Yiu's prior robbery conviction. (Id. at 16-17).
In these circumstances, Yiu has not sustained his burden with respect to this branch of his ineffective assistance claim by establishing that Justice Berkman's decision was objectively unreasonable. See Eze v. Senkowski, 321 F.3d 110, 125 (2d Cir. 2003) (quoting Sellan, 261 F.3d at 311-12) ("when a state court fails to articulate the rationale underlying its rejection of a petitioner's claim, and when that rejection is on the merits, the federal court will focus its review on whether the state court's ultimate decision was an 'unreasonable application' of clearly established Supreme Court precedent").
2. Failure to Investigate/Call Witnesses
Yiu next contends that he provided Neville with his version of the events leading to his arrest, but Neville did nothing to investigate Yiu's claims. (Pet'r's Mem. of L. at 22-23). Yiu further asserts that he informed Neville of the availability of certain witnesses who could testify to his version of the facts, but that Neville dismissed them as not being "good witnesses," without ever interviewing them. (Id. at 24-25). Yiu argues that these shortcomings on Neville's part denied him the effective assistance of counsel.
As noted above, Yiu raised substantially the same claims in his Section 440.10 motion. (See Rodriguez Aff. Ex. E). In the course of rejecting these claims, Justice Berkman acknowledged that there was a factual dispute "as to whether [Yiu] in fact told [Neville] about these alleged witnesses." (Id. Ex. H at 6). The Justice concluded, however, that "a review of the actual record reveals that there is no question that these witnesses were far from crucial to [Yiu's] case." (Id.). As the Justice explained, "[a]t best, [Yiu's proffered witnesses] could testify as to [Yiu's] whereaboutsprior to the incident and, perhaps, offer testimony that it was their understanding that [Yiu] had gone off to make a telephone call" at the time of the robbery. (Id.) (emphasis added). The court continued:
Given their lack of actual knowledge of defendant's actions or intentions, these witnesses are hardly compelling. Assuming arguendo that [Yiu] had informed [Neville] of their existence, a decision not to call them would not appear to be prejudicial to the defense. . . . [T]he failure to call particular witnesses does not in itself render defense counsel's assistance ineffective.
(Id.).
Yiu contends that Justice Berkman's determination that the potential defense witnesses were not compelling is "not supported by the record and should be rejected as unreasonable because it fails to consider . . . the totality of the evidence, that is, the defense witnesses, coupled with the weak identification evidence adduced at trial and the other exculpatory evidence available to undermine the People's theory." (Pet'r's Mem. of L. at 24-25). In his papers, Yiu cites two cases which, in his view, "control the outcome at bar." (Id. at 17). The first of these cases is DeLuca v. Lord, 77 F.3d 578 (2d Cir. 1996), a pre-AEDPA case, in which a divided panel found that a habeas petitioner's trial counsel provided ineffective assistance by rejecting a defense of extreme emotional disturbance ("EED") "prematurely, for inadequate reasons, and without ever giving it serious consideration." Id. at 587. The petitioner in that case was accused of killing a man she alleged had raped her. Id. at 580-84. The Second Circuit found that her trial counsel's decision at the outset of the case to rely on reasonable doubt and justification rather than EED could not be considered "either a reasonable professional judgment or a reasoned strategic choice." Id. at 588. As the court explained, because there was a high likelihood that at least some of the jurors would have accepted the defendant's claim that the deceased had raped her, and therefore "would have been highly disposed to accept the EED defense and find manslaughter, rather than murder," the Strickland "reasonable probability" test was "easily met." Id. at 590.
In Bryant v. Scott, 28 F.3d 1411, 1419 (5th Cir. 1994), another pre-AEDPA case cited by Yiu, the court held that a trial attorney's performance fell beneath "the standard of a reasonably competent attorney" because he failed to "investigate alibi witnesses and interview eyewitnesses." There, counsel was aware at an early stage that the petitioner wished to pursue an alibi defense, but failed to investigate the potential alibi witnesses or argue for the admission of their testimony. Id. at 1417. Counsel also failed to interview known eyewitnesses to the crime, as well as the petitioner's co-defendant. Id. at 1418-19.
The facts of DeLuca and Bryant differ vastly from those presented here. Rather than potentially negating Yiu's guilt, the witnesses whom he now says should have been called could not have shed any light on Yiu's conduct once he entered the restaurant. Accordingly, even if Yiu had informed counsel about the availability of these witnesses, Justice Berkman's determination that they were neither "highly critical," nor "compelling," which was made after a review of the affidavits they submitted in support of Yiu's Section 440.10 motion, cannot be said to be an unreasonable application of Strickland to the facts of this case. Accordingly, Yiu is not entitled to habeas relief on the ground that Neville unreasonably failed to interview or call witnesses who could have exculpated him.
3. Cross-Examination Error
Yiu's final contention is that, while cross-examining Officer Shaughnessy, Neville opened the door to otherwise inadmissible and highly prejudicial testimony that the "911" call that brought police to the scene of the robbery indicated that "gang activity" was underway. (Pet'r's Mem. of L. at 25). Yiu argues that Neville "affirmatively assisted the prosecutor in resolving the issue of [Yiu's] intent against [Yiu]" through this testimony. (Id.).
At the outset, as Justice Berkman noted, Yiu contended at trial that he was merely an innocent bystander, not a participant in the robbery. (See Rodriguex Aff. Ex. H at 7; see also Tr. 512-14 (Neville summation)). Accordingly, it is by no means clear that the testimony concerning gang activity could have aversely affected the jury's assessment of Yiu. In any event, in her analysis of this ineffective assistance claim, Justice Berkman assumed that Neville had, in fact, made a "mistake." (Id. Ex. H at 7-8). As she explained, Neville apparently "had hoped to elicit testimony about the 911 [call] to prove that the police had no probable cause to stop the defendant." (Id. at 7). Although this line of questioning was unsuccessful, Justice Berkman termed Yiu's complaint with respect to it "overblown." (Id.). She also noted that a simple error of judgment such as this affords no basis for post-conviction relief because a defendant is not entitled to infallible counsel. (Id. at 7-8). In his papers, Yiu has not shown, as he must, that this determination involved an objectively unreasonable application ofStrickland to the facts of this case. Consequently, Yiu is not entitled to habeas relief on this ground.
V. Conclusion
For the foregoing reasons, Yiu's habeas petition should be denied.
VI. Notice of Procedure for Filing Objections to this Report and Recommendation
The parties shall have ten days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a) and (e). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman at the United States Courthouse, 40 Centre Street, New York, New York 10007, the undersigned, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Berman. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Fed.R.Civ.P. 6(a), 6(e), 72(b).
SO ORDERED.