Spencer v. Capra

21-1703
Spencer v. Capra
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 for the Second Circuit, held at the
2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
3 15th day of September, two thousand twenty-two.
4
5 Present:
6 DEBRA ANN LIVINGSTON,
7 Chief Judge,
8 BARRINGTON D. PARKER,
9 EUNICE C. LEE,
10 Circuit Judges.
11 _____________________________________
12
13 ANDREW SPENCER,
14
15 Petitioner-Appellant,
16
17 v. 21-1703
18
19 MICHAEL CAPRA,
20
21 Respondent-Appellee.
22 _____________________________________
23
24 For Petitioner-Appellant: RICHARD W. LEVITT (Levitt & Kaizer), New York, NY.
25
26 For Respondent-Appellee: SHARON BRODT, Assistant District Attorney (District
27 Attorney, Queens County), Kew Gardens, NY.
28
Appeal from a judgment of the United States District Court for the Eastern District of New
York (Cogan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
* * *
Petitioner-Appellant Andrew Spencer (“Spencer”) appeals from the July 1, 2021 judgment
of the United States District Court for the Eastern District of New York (Cogan, J.) denying his
petition for habeas corpus relief under 28 U.S.C. § 2254. See Spencer v. Capra, 17-CV-2179,
2021 WL 2685226, at *1 (E.D.N.Y. June 30, 2021). In his petition, Spencer claims, inter alia,
that he received ineffective assistance of counsel at his 2007 trial in the Supreme Court of the State
of New York, Queens County, where he was convicted by jury of criminal possession of a weapon
in the second degree, criminal possession of a weapon in the third degree, assault in the third
degree, and menacing in the second degree, and was sentenced to 15 years’ imprisonment on the
second degree criminal possession conviction, to run concurrently with lesser sentences for the
other convictions.
At trial, the prosecution contended that Spencer confronted a group of individuals and
threatened them with a firearm, and was only stopped when off-duty police officer Malcolm
Palmer (“Officer Palmer”) drew his own weapon and forced Spencer to surrender. Spencer,
conversely, testified that he was never in possession of a firearm and was framed by Officer Palmer
to protect his friend “Kendel,” who Spencer had originally confronted and who Officer Palmer
knew to be a drug dealer. Spencer argues that his trial counsel was unconstitutionally deficient
because she failed to pursue certain witnesses that would have testified at trial in support of his
theory of the case. The district court denied Spencer’s habeas petition, ruling that Spencer did
not meet the high bar to show ineffective assistance of counsel under the standard outlined by the
Supreme Court in Strickland v. Washington, 466 U.S. 668, 690 (1984).
2
For the reasons stated herein, we affirm the district court’s judgment denying Spencer’s
petition for habeas corpus. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
I. Procedural Bar to Federal Review 1
As a preliminary matter, Respondent-Appellee Michael Capra (“the State”) argues that the
district court was procedurally barred from considering Spencer’s petition because a New York
state court dismissed Spencer’s ineffective assistance claim on an independent state-law ground.
We disagree.
Generally, we do “not review questions of federal law presented in a habeas petition when
the state court’s decision rests upon a state-law ground that is independent of the federal question
and adequate to support the judgment.” Downs v. Lape, 657 F.3d 97, 101 (2d Cir. 2011) (internal
quotation marks omitted) (quoting Cone v. Bell, 556 U.S. 449, 465 (2009)); see also Whitley v.
Ercole, 642 F.3d 278, 285 (2d Cir. 2011) (“[P]rinciples of comity and federalism compel us to
defer to that state law ground and thus to decline to review the federal claim.” (internal quotation
marks and citations omitted)). However, a “state law ground is only adequate to support [a]
judgment and foreclose review of a federal claim if it is ‘firmly established and regularly followed’
in the state.” Garvey v. Duncan, 485 F.3d 709, 713 (2d Cir. 2007) (quoting Lee v. Kemna, 534
U.S. 362, 376 (2002)). Additionally, “in certain limited circumstances, even firmly established
and regularly followed state rules will not foreclose review of a federal claim if the application of
the rule in a particular case is ‘exorbitant.’” Id. at 713–14 (quoting Lee, 534 U.S. at 376). An
1
We review the district court’s denial of a petition for habeas corpus de novo, and its underlying findings
of fact for clear error. Waiters v. Lee, 857 F.3d 466, 477 (2d Cir. 2017).
3
application of a rule may be “exorbitant” where the procedural rule was applied in a manner that
does not comply with state law. See Fulton v. Graham, 802 F.3d 257, 262–63 (2d Cir. 2015).
In his initial post-trial state-court appeal, Spencer claimed that he was improperly
prohibited from presenting a defense when the trial court precluded him from testifying “as to his
personal observations of [Officer Palmer] drag racing cars with [Kendel], and [Kendel] dealing
drugs in front of [Officer Palmer]’s home.” People v. Spencer, 87 A.D.3d 751, 752 (2d Dep’t
2011), aff’d, 20 N.Y.3d 954 (2012). Spencer did not make an ineffective assistance of counsel
claim. Both the New York Appellate Division and New York Court of Appeals agreed with
Spencer that, “[c]ontrary to the trial court’s conclusion, this proof should not have been excluded
on the basis that it was collateral, as such exclusion goes directly to the defendant’s constitutional
right to present a defense.” Spencer, 87 A.D.3d at 752; see Spencer, 20 N.Y.3d at 956 (same).
However, both state appellate courts nevertheless concluded that Spencer’s claim failed because
the error was “harmless beyond a reasonable doubt” given the “overwhelming independent proof
adduced at trial, including the testimony of several other eyewitnesses who corroborated [Officer
Palmer and the prosecution]’s version of the events and the 911 calls admitted into evidence . . . .”
Spencer, 20 N.Y.3d at 956–57; see Spencer, 87 A.D.3d at 752 (“[T]here is no reasonable
possibility that the error might have contributed to the defendant’s conviction.”).
Later, in 2016, Spencer filed a pro se motion to vacate the trial court’s judgment of
conviction pursuant to New York Criminal Procedure Law § 440.10. Among other things, under
Section 440.10, a New York court “may, upon motion of the defendant, vacate [a] judgment upon
the ground that: . . . (h) The judgment was obtained in violation of a right of the defendant under
the constitution of [New York] or of the United States . . . .” N.Y. Crim. Proc. Law § 440.10(1).
The New York Supreme Court, Queens County (the “Section 440.10 Court”), denied Spencer’s
4
Section 440.10 motion after determining that the Appellate Division and Court of Appeals had
already adjudicated and rejected his ineffective assistance claim on his direct appeal immediately
after his criminal trial. See id. § 440.10(2) (“[T]he court must deny a motion to vacate a judgment
when: (a) The ground or issue raised upon the motion was previously determined on the merits
upon an appeal from the judgment . . . .”).
The parties agree that New York Criminal Procedure Law § 440.10(2)(a) is firmly
established and regularly followed. The parties disagree, though, on whether the Section 440.10
Court exorbitantly applied the law in ruling that the New York appellate courts already adjudicated
and denied Spencer’s ineffective assistance claim and that his motion to vacate was thus
procedurally barred under Section 440.10(2)(a). We agree with the district court that Spencer
never raised an ineffective assistance claim in his post-trial appeals and that the Appellate Division
and Court of Appeals never rejected this claim on the merits. We thus conclude that the Section
440.10 Court applied New York Criminal Procedure Law § 440.10(2)(a) exorbitantly in dismissing
Spencer’s motion.
The State counters that the Appellate Division and Court of Appeals indirectly decided
Spencer’s ineffective assistance claim on the merits when those courts addressed his claim that he
was improperly prohibited from testifying about Kendel’s alleged drug dealing and the supposed
improper relationship between Officer Palmer and Kendel. Spencer’s habeas petition here is
largely premised on the claim that he was prejudiced by his trial counsel’s failure to call certain
witnesses at trial who would have provided testimony challenging the State’s version of events,
including testimony regarding an improper relationship been Officer Palmer and Kendel.
According to the State, because the New York appellate courts determined that the exclusion of
Spencer’s testimony on the supposedly improper relationship between Officer Palmer and Kendel
5
was harmless beyond a reasonable doubt, Spencer cannot show that he was prejudiced by his trial
counsel’s alleged failure to present essentially the “same evidence” from other witnesses.
(Appellee’s Br. at 11, 23.) See Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001) (noting prejudice
is a necessary component of an ineffective assistance of counsel claim). For the following
reasons, we disagree.
As rightly determined by the district court, “the legal issue for each claim was entirely
different—the deprivation of defense claim [on direct appeal] asserted an error by the trial court,
while the § 440 motion asserted an ineffective assistance claim against petitioner’s trial counsel.”
Spencer, 2021 WL 2685226, at *5. True, much of Spencer’s ineffective assistance claim is
premised on the argument that trial counsel was ineffective for not investigating and eliciting
testimony from potential witnesses who would have testified at trial that Officer Palmer had a close
and improper relationship with Kendel. But Spencer’s post-trial appeal was largely based on the
argument that he should have been permitted by the trial court to testify himself on Officer Palmer’s
relationship with Kendel. See Spencer, 20 N.Y.3d at 956. Spencer “did not purport to offer any
evidence beyond his own testimony to support his theory that he was framed by Officer Palmer.”
Spencer v. Capra, 788 F. App’x 21, 24 (2d Cir. 2019) (summary order). The ineffective
assistance claim here, in contrast, is based on the argument that there were numerous other
individuals who were willing to testify in support of his theory of the case but did not do so because
of errors on the part of his trial counsel. The trial court (as well as the New York appellate courts)
were wholly unaware of these potential witnesses and their potential testimony, as they were not
on the record at trial. Given that Spencer makes a different claim supported by new evidence,
6
we conclude that the New York appellate courts did not hold on the merits that, even if his trial
counsel was ineffective, Spencer was not prejudiced by said ineffectiveness.
II. The Merits
Turning to the merits of Spencer’s habeas petition, the district court ruled that Spencer
failed to meet his burden of showing ineffective assistance of counsel at his state criminal trial.
We agree with the district court that Spencer has not shown ineffective assistance of counsel and
that his habeas petition thus must be dismissed. 2
The Sixth Amendment “guarantees the right to effective assistance of counsel.” United
States v. Melhuish, 6 F.4th 380, 393 (2d Cir. 2021) (citation omitted). To establish that counsel
was constitutionally ineffective, a “defendant must demonstrate that (1) counsel’s performance fell
below an objective standard of reasonableness; and (2) the deficient representation prejudiced the
defendant.” United States v. Gahagen, 44 F.4th 99, 107 (2d Cir. 2022) (citing Strickland, 466
U.S. at 687–88). The burden is on the petitioner to show that both of the ineffective assistance
prongs are met. See United States v. Cohen, 427 F.3d 164, 167 (2d Cir. 2005). The standard to
establish ineffective assistance is “‘rigorous’ and ‘presents a high bar’ because courts apply
2
The State argues that the district court erred in reviewing the merits of Spencer’s habeas petition
de novo, as opposed to applying the more deferential standard of review under the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, “when a state court
adjudicates a petitioner’s habeas claim on the merits, a district court may only grant relief where
the state court’s decision was ‘contrary to, or involved an unreasonable application of, clearly
established Federal law,’ or was ‘based on an unreasonable determination of the facts in light of
the evidence presented.’” Waiters, 857 F.3d at 477 (quoting 28 U.S.C. § 2254(d)). Because we
agree that the result would be the same regardless of whether the district court employed AEDPA’s
deferential standard of review or the de novo standard, we need not reach the issue of which
particular standard of review applies here. See Monroe v. Kuhlman, 248 F. App’x 223, 224 (2d
Cir. 2007) (summary order) (citing Cotto v. Herbert, 331 F.3d 217, 230–31, 252–53 (2d Cir.
2003)).
7
‘a presumption of effective performance.’” Melhuish, 6 F.4th at 393 (quoting United States v.
Nolan, 956 F.3d 71, 79 (2d Cir. 2020)); see Cohen, 427 F.3d at 167 (“[A] defendant ‘bears a
heavy burden’ of showing” ineffective assistance (quoting United States v. Gaskin, 364 F.3d 438,
468 (2d Cir. 2004))).
Under the performance prong, a “defense counsel’s performance is unreasonable when it
is so deficient that it falls outside the ‘wide range of professionally competent assistance.’”
Kovacs v. United States, 744 F.3d 44, 50 (2d Cir. 2014) (quoting Strickland, 466 U.S. at 690).
But any “[a]ctions or omissions by counsel that ‘might be considered sound trial strategy’ do not
constitute ineffective assistance.” United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000)
(quoting Strickland, 466 U.S. at 689). Generally, the “decision whether to call any witnesses on
behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged
in by defense attorneys in almost every trial.” United States v. Smith, 198 F.3d 377, 386 (2d Cir.
1999) (quoting United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992)). This is because,
typically, Strickland “does not require defense counsel to call any particular witness.” Nolan,
956 F.3d at 82; see Best, 219 F.3d at 201 (“Nor do we see anything unreasonable in counsel’s
decision not to call the potential witnesses.”); United States v. Schmidt, 105 F.3d 82, 90 (2d Cir.
1997) (counsel’s decision as to “whether to call specific witnesses—even ones that might offer
exculpatory evidence—is ordinarily not viewed as a lapse in professional representation”); see
also Gaskin, 364 F.3d at 468 (“[A] reviewing court must ‘indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances, the challenged action
might be considered sound legal strategy.’” (alteration marks omitted) (quoting Strickland, 466
8
U.S. at 689)); Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (there is a “strong presumption” of
reasonable representation).
Spencer argues that his trial counsel was ineffective because she failed to investigate
potential witnesses that would have testified in support of his theory of the case. He includes
with his petition several affidavits from individuals who purport either to have seen his
confrontation with Officer Palmer or to have personal knowledge of Officer Palmer’s supposedly
improper relationship with Kendel, and who were each willing to testify at Spencer’s trial. Under
Strickland, a petitioner may show constitutionally deficient performance by counsel by evidencing
that counsel’s litigation choices “resulted from an entirely absent investigation.” Greiner v.
Wells, 417 F.3d 305, 325 (2d Cir. 2005) (citing Kimmelman v. Morrison, 477 U.S. 365, 386
(1986)). This is because trial counsel’s “duty to investigate” is “essential to the adversarial
testing process,” as “‘th[e] testing process generally will not function properly unless defense
counsel has done some investigation into the prosecution’s case and into various defense
strategies.’” Id. at 320 (quoting Kimmelman, 477 U.S. at 384); but see id. at 321 (this duty “does
not, however, compel defense counsel to investigate comprehensively every lead or possible
defense, or to scour the globe on the off-chance something will turn up” (internal quotation marks
and citations omitted)).
Here, Spencer has not met his heavy burden of showing that his trial counsel was
objectively unreasonable for not discovering these potential witnesses or calling them to testify at
trial. At the district court’s evidentiary hearing in 2020, Spencer’s trial counsel could not recall
whether she hired an investigator to find potential witnesses or whether she had ever spoken to
most of the potential witnesses identified in the affidavits. But of the five potential witnesses that
did not testify at Spencer’s trial, only one stated in her affidavit that she actually reached out to
9
Spencer’s lawyer with the information she had. That witness did not actually see the altercation
between Spencer and Officer Palmer, but rather stated in her affidavit that she had seen Officer
Palmer and Kendel together on multiple occasions, including at least once instance in which
Kendel sold drugs with Officer Palmer standing nearby. According to their respective affidavits,
the other potential witnesses either do not purport to have related their observations to anyone or
solely reported them to Spencer’s mother, who did not give any indication within her own affidavit
that she relayed the information to Spencer’s trial counsel. And while Spencer submitted an
affidavit attesting to having informed his counsel of two of these potential witnesses, the only
relevant information he purports to have relayed is that these witnesses observed Kendel sell drugs
in the vicinity of Officer Palmer’s home. Accordingly, Spencer has not met his burden of
showing that these potential witnesses were either not discovered or not called to testify at trial
because of some objectively unreasonable performance by his trial counsel, as opposed to various
other reasonable explanations such as counsel’s trial tactics or the inability to find these individuals
before the trial even with a reasonable amount of investigating. 3 See Gaskin, 364 F.3d at 468.
Spencer also argues that it was unreasonable for his trial counsel to fail to question his
mother regarding Officer Palmer’s relationship with Kendel when she testified at his trial. But
once again, Spencer has not met his heavy burden of rebutting the strong presumption that his trial
counsel acted reasonably. Spencer’s mother did not see the altercation between Officer Palmer
3
Spencer’s emphasis on the fact that his trial counsel could not recall whether she hired an investigator or
interviewed the potential witnesses does not rebut the strong presumption of reasonable performance.
Spencer’s trial attorney testified before the district court at an evidentiary hearing for Spencer’s habeas
petition roughly 13 years after his state criminal trial. His attorney cannot be faulted for not remembering
details of the case after such a significant period of elapsed time. While “[t]ime inevitably fogs the
memory of busy attorneys,” that “inevitability does not reverse the Strickland presumption of effective
performance.” Greiner, 417 F.3d at 326; see Waiters, 857 F.3d at 477 (“[T]he fact that [an attorney] no
longer remembers [her] reason for [a] decision does not preclude a determination that [petitioner] failed to
establish constitutionally defective representation.”).
10
and Spencer. And there is no indication that she had firsthand knowledge about Officer Palmer’s
supposed relationship with Kendel. Moreover, the trial court repeatedly excluded evidence about
the purportedly corrupt relationship between Officer Palmer and Kendel. Thus, trial counsel’s
decision to not elicit testimony from Spencer’s mother after being prevented from eliciting related
testimony by the trial court does not evidence objectively unreasonable performance.
We conclude that Spencer has failed to show that his trial counsel was objectively
unreasonable. His ineffective assistance of counsel claim thus fails. 4
* * *
We have considered Petitioner-Appellant Spencer’s remaining arguments and find them to
be without merit. We AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
4
Having concluded that Spencer failed to meet his burden of showing that his trial counsel’s performance
was objectively unreasonable, we need not address whether Spencer suffered prejudice. See Strickland,
466 U.S. at 697.
11