White v. Racette ( 2015 )

13-3994
White v. Racette
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 6th day of May, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 PETER W. HALL,
8 GERARD E. LYNCH,
9 Circuit Judges.
10
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12 EQUARN WHITE,
13 Petitioner-Appellant,
14
15 -v.- 13-3994
16
17 STEVEN E. RACETTE, Superintendent,
18 Respondent-Appellee.
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20
21 FOR APPELLANT: RANDA D. MAHER, Great Neck, New
22 York.
23
24 FOR APPELLEE: DIANE R. EISNER (with Leonard
25 Joblove, Victor Barall, on the
26 brief), for Kenneth P. Thompson,
27 Kings County District Attorney,
28 Brooklyn, New York.
1
1 Appeal from a judgment of the United States District
2 Court for the Eastern District of New York (Ross, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7
8 Equarn White, currently serving a fourteen-year prison
9 sentence for first-degree assault, appeals from the judgment
10 of the United States District Court for the Eastern District
11 of New York (Ross, J.), denying White’s petition for a writ
12 of habeas corpus pursuant to 28 U.S.C. § 2254. We assume
13 the parties’ familiarity with the underlying facts, the
14 procedural history, and the issues presented for review.
15
16 In 2008, White was convicted of first-degree assault
17 after a jury trial in New York Supreme Court.
18
19 On August 8, 2006, sisters Darlene and Delrese
20 Whitfield stood waiting for a taxi in Brooklyn. Earlier
21 that day, the sisters had filed a complaint against their
22 uncle at the local police precinct, arising out of a
23 physical fight. Their uncle was arrested soon after. As
24 the Whitfield sisters waited for a taxi after their
25 complaint, somebody walked up to them, slashed Darlene
26 Whitfield’s face, and fled. The sisters named White--a
27 close friend of their uncle and an overnight guest in the
28 Whitfield household.
29
30 White’s first two jury trials for assault ended in
31 mistrial. At the third trial, the sisters identified White
32 as the person who attacked Darlene Whitfield. The
33 prosecution’s case-in-chief also included several prior
34 consistent statements by the sisters: on the day of the
35 assault, they had accused White in statements to police, a
36 neighbor, a paramedic, and a doctor. No objection was
37 raised to the admission of these prior consistent
38 statements.
39
40 On direct appeal, White argued that he was deprived of
41 effective assistance of counsel, because his trial counsel
42 had failed to object to the sisters’ prior consistent
43 statements identifying him as the assailant. The state
44 appellate court rejected this argument, concluding “that
2
1 counsel provided meaningful representation insofar as he
2 employed ‘a trial strategy that might well have been pursued
3 by a reasonably competent attorney.’” New York v. White,
4 943 N.Y.S.2d 620, 621 (App. Div. 2d Dep’t 2012) (quoting New
5 York v. Evans, 949 N.E.2d 457, 459 (N.Y. 2011)). The New
6 York Court of Appeals denied leave to appeal. New York v.
7 White, 975 N.E.2d 925 (N.Y. 2012).
8
9 In 2012, White petitioned pro se in the Eastern
10 District of New York for a writ of habeas corpus pursuant to
11 28 U.S.C. § 2254, contending that the state appeals court
12 had based its decision on an unreasonable application of
13 federal law. The district court denied the petition, and we
14 granted a certificate of appealability as to the following
15 issue: “whether trial counsel rendered ineffective
16 assistance by failing to object to the admissibility of
17 prior consistent statements.” (Motion Order, Mar. 31,
18 2014.)
19
20 We review de novo the district court’s denial of a
21 petition under § 2254. Harris v. Kuhlmann, 346 F.3d 330,
22 342 (2d Cir. 2003).
23
24 A federal court may not grant habeas relief under
25 § 2254 “with respect to any claim that was adjudicated on
26 the merits in State court” unless the state court decision
27 either (1) “was contrary to, or involved an unreasonable
28 application of, clearly established Federal law,” or
29 (2) “was based on an unreasonable determination of the
30 facts.” 28 U.S.C. § 2254(d). A federal court may override
31 a state court ruling only if it was “so lacking in
32 justification that there was . . . [no] possibility for
33 fairminded disagreement.” Harrington v. Richter, 562 U.S.
34 86, 103 (2011).
35
36 White’s state claim of ineffective assistance was
37 subject to Strickland v. Washington, 466 U.S. 668 (1984),
38 requiring that he demonstrate both (1) that his attorney’s
39 performance was objectively unreasonable (a standard that
40 affords counsel “wide latitude . . . in making tactical
41 decisions”), and (2) that the deficiency prejudiced his
42 defense. Id. at 687-89. Now that he challenges under
43 § 2254 the state court’s denial of his Strickland claim,
44 “‘[t]he pivotal question’ for the federal habeas court ‘is
3
1 whether the state court’s application of the Strickland
2 standard was unreasonable.’” Standone v. Fischer, 689 F.3d
3 138, 154 (2d Cir. 2012) (quoting Richter, 562 U.S. at 101).
4 Because “[t]he standards created by Strickland and § 2254(d)
5 are both highly deferential,” a federal collateral attack on
6 a state court’s Strickland ruling is subject to a “doubly”
7 deferential standard. Richter, 562 U.S. at 105 (internal
8 quotation marks omitted).
9
10 White’s petition challenges conduct by counsel that
11 fits trial strategy. The defense argued that the Whitfield
12 sisters had a plan to falsely accuse White pursuant to a
13 personal vendetta. According to a defense witness, the
14 Whitfield sisters were “liars” (Tr. 263) who had falsely
15 accused their uncle of assault earlier the same day and who
16 now continued that pattern by falsely accusing their uncle’s
17 friend, White. In his closing argument, defense counsel
18 argued that the Whitfield sisters had a plan to “get rid of
19 Equarn.” (Tr. 287.) White reiterates this theory in this
20 appeal: “the sisters’ motive to fabricate existed from the
21 outset”; “[t]heir motive to lie arose . . . a week before
22 the incident”; “the defense theory was that the sisters’
23 accusations against [White] were fabricated at the time of
24 the incident, and not after they made their statements”; and
25 “the complainant had ample time to reflect and there was no
26 evidence that she was not under the impetus of studied
27 reflection[] when she spoke to the officer.” (Appellant’s
28 Br. at 33-35 (internal quotation marks omitted).)
29
30 A trial attorney arguing that his client was a victim
31 of an accusation fabricated from the start may reasonably
32 prefer the accuser’s prior (and supposedly fabricated)
33 statements to be admitted rather than excluded. The state
34 appeals court, by allowing for that trial strategy,
35 reasonably applied Strickland. Furthermore, we reject
36 White’s argument that counsel’s strategy was irrational and
37 prejudicial because the first two trials, at which the
38 testimony of a police officer about a prior consistent
39 statement was excluded, ended in mistrials, while the
40 testimony was admitted at the third trial, which resulted in
41 conviction. The trials were sufficiently different in
42 several other respects, including an additional witness for
43 the prosecution rebutting White’s alibi defense, and the
4
1 absence of defense witnesses who had testified at the first
2 two trials, to preclude this argument.
3
4 For the foregoing reasons, and finding no merit in
5 White’s other arguments, we hereby AFFIRM the judgment of
6 the district court.
7
8 FOR THE COURT:
9 CATHERINE O’HAGAN WOLFE, CLERK
10
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