Reily v. Ercole , 491 F. App'x 225 ( 2012 )

11-1279-pr
Reily v. Ercole
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 8th day of August, two thousand twelve.
PRESENT: RALPH K. WINTER,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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TERREL REILY,
Petitioner-Appellant,
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ROBERT ERCOLE,
Respondent-Appellee.
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FOR PETITIONER-APPELLANT: RANDOLPH Z. VOLKELL, Merrick, New
York.
FOR RESPONDENT-APPELLEE: VICTOR BARALL, Assistant District
Attorney (Leonard Joblove, Ann
Bordley, Assistant District
Attorneys, on the brief), for
Charles J. Hynes, Kings County
District Attorney, Brooklyn, New
York.
Appeal from a judgment of the United States District
Court for the Eastern District of New York (Vitaliano, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Petitioner-appellant Terrel Reily appeals from the
district court's judgment of November 30, 2010, entered pursuant
to its memorandum and order of November 30, 2010, denying Reily's
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254,
and issuing a certificate of appealability as to Reily's due
process and ineffective assistance of counsel claims. We assume
the parties' familiarity with the underlying facts, the
procedural history, and the issues presented for review.
On September 8 and September 11, 2000, the Supreme
Court, Kings County (Lott, J.), conducted a pre-trial hearing
pursuant to United States v. Wade, 388 U.S. 218 (1967). Prior to
the start of the Wade hearing, defense counsel made an
application requesting that the trial court assign independent
counsel so that he could testify at the Wade hearing and at trial
about alleged signaling by a police detective to Paulette
Patterson, an eyewitness, during a lineup on September 6, 2000.
The trial court denied the application, stating:
[A]t this point, we are proceeding with
cross-examination. If, in fact, it becomes
necessary you will ultimately be a witness,
then I may get [replacement] counsel. But at
this point, I haven't heard anything that I
[ ] think cannot [be] develop[ed] on
cross.
(RA 47). After the state rested at the hearing, defense counsel
again asserted that he would like to testify; the trial court
denied defense counsel's request. Once trial had commenced,
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however, defense counsel never renewed his request to testify,
and thus, the issue was not revisited by the trial court.
The jury found Reily guilty, and on March 12, 2001, the
trial court entered judgment against Reily, convicting him of
murder in the second degree in violation of N.Y. Penal Law
§ 125.25[1], [2]. Reily was sentenced to a term of imprisonment
of 25 years to life.
Reily appealed the judgment of the trial court to the
Appellate Division, Second Department, contending, inter alia,
that the trial court erred in precluding defense counsel from
testifying. On May 5, 2003, the Appellate Division concluded
that defense counsel should have been permitted to testify at the
Wade hearing and remitted the case to the trial court for further
proceedings. People v. Reily, 759 N.Y.S.2d 178, 179 (2d Dep't
2003). The trial court subsequently held a hearing and issued a
report to the Appellate Division, concluding that the September
6, 2000 lineup was not suggestive. In essence, the trial court
concluded that the error in not permitting counsel to testify at
the hearing was harmless.
On December 20, 2004, the Appellate Division, after
reviewing the trial court's report, affirmed the judgment of
conviction. People v. Reily, 787 N.Y.S.2d 657, 658 (2d Dep't
2004). The Appellate Division noted that Reily's "remaining
contentions," including his claim that the trial court deprived
him of due process by not permitting his attorney to testify at
trial, were "unpreserved for appellate review or without merit."
Id. On March 4, 2005, Judge Albert M. Rosenblatt of the New York
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Court of Appeals denied Reily's application for leave to appeal.
People v. Reily, 4 N.Y.3d 834, 834 (2005). On May 13, 2008, the
Appellate Division denied Reily's application for a writ of error
coram nobis to vacate the conviction for ineffective assistance
of counsel. People v. Reily, 856 N.Y.S.2d 864, 864 (2d Dep't
2008).
In the instant appeal, Reily argues that the district
court erred in dismissing his habeas petition for two primary
reasons. First, Reily contends that he was denied due process
when the trial court precluded defense counsel from testifying at
trial -- an error that Reily argues was not harmless. See Brief
of Petitioner-Appellant (Reily) at 9, Reily v. Ercole, No. 11-
1279-pr (2d Cir. Nov. 7, 2011) ("[D]efense counsel's testimony
could still have been sufficient to raise a reasonable doubt in
the jury's minds."). Second, Reily contends that he was denied
the effective assistance of counsel because his defense counsel
was also a potential witness and the trial court did not appoint
independent counsel. Upon de novo review of the district court's
denial of Reily's habeas petition, we conclude that the district
court did not err in dismissing Reily's petition. See Wood v.
Ercole, 644 F.3d 83, 90 (2d Cir. 2011),
Under the Antiterrorism and Effective Death Penalty Act
("AEDPA"), a federal court may not grant a habeas petition on a
claim that was adjudicated on the merits in state court unless
that adjudication "was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
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the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1);
see Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011); Watson v.
Greene, 640 F.3d 501, 508 & n.7 (2d Cir. 2011) (applying AEDPA
deference where Appellate Division held claim was "either . . .
unpreserved for appellate review, without merit, or [did] not
require reversal" because such holding was on merits (internal
quotation marks and citations omitted)).
Upon de novo review of a district court's denial of a
petition for a writ of habeas corpus, see Parker v. Ercole, 666
F.3d 830, 834 (2d Cir. 2012), we conclude that the Appellate
Division did not unreasonably apply clearly established Supreme
Court precedent in rejecting Reily's claims with respect to
defense counsel taking the stand and the appointment of
independent counsel at trial, see 28 U.S.C. § 2254(d)(1).
First, as to Reily's due process claim, Reily argues
that the trial court's denial of defense counsel's request to
testify at trial was not harmless. At the Wade hearing, however,
the trial court left open the possibility of revisiting defense
counsel's request to testify at trial, but defense counsel never
renewed the request at trial. The purpose of a Wade hearing is
only to determine whether there is sufficient evidence of the
reliability of an identification to allow it to be introduced at
trial. See Brisco v. Ercole, 565 F.3d 80, 85 (2d Cir. 2009).
The dispositive weighing of the testimony and assessment of
credibility is left to the jury. Because the trial court found
that the testimony of Reily's counsel at the Wade hearing would
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not have prevented presentation of the identification at trial,
the trial court denied the request to testify while deferring a
decision on allowing it at trial. Counsel, however, made no
request to testify at trial. Further, any error that may have
existed could have been cured if defense counsel had re-raised
the issue. We cannot fault the trial court for not raising the
issue sua sponte as defense counsel failed to renew the request
to testify.
Second, as to the ineffective assistance of counsel
claim -- that the trial court should have appointed independent
counsel because defense counsel was a possible witness -- the
trial court was never asked to revisit the appointment of
independent counsel after the Wade hearing. This claim thus also
fails. The trial court cannot be faulted for failing to appoint
independent counsel at trial when the request was never renewed.
We have considered Reily's remaining arguments and find
them to be without merit. Accordingly, we hereby AFFIRM the
judgment of the district court.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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