New York Ex Rel. Moore v. New York

09-0019-pr
Moore v. New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY TH IS CO URT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN WHICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING A SUM M ARY
O RDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRO NIC D ATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A D ATAB ASE, THE CITATION M UST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.
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 21 st day of December, two thousand nine.
PRESENT: RALPH K. WINTER,
REENA RAGGI,
DEBRA ANN LIVINGSTON,
Circuit Judges.
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ROBERT MOORE, The State of New York ex rel.,
Petitioner-Appellant,
v. No. 09-0019-pr
THE STATE OF NEW YORK,
Respondent-Appellee.
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APPEARING FOR APPELLANT: MICHAEL SPORN, New York, New York.
APPEARING FOR APPELLEE: LISA ELLEN FLEISCH M A N N , A ssistan t
Attorney General (Barbara D. Underwood,
Solicitor General, Roseann B. MacKechnie,
Deputy Solicitor General), for Andrew M.
Cuomo, Attorney General of the State of New
York, New York, New York.
Appeal from the United States District Court for the Southern District of New York
(George B. Daniels, Judge; Henry Pitman, Magistrate Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on November 13, 2008, is AFFIRMED.
Petitioner Robert Moore was convicted in New York state court of criminal sale of
a controlled substance in the third degree and criminal sale of a controlled substance near
school grounds in violation of N.Y. Penal Law §§ 220.39 and 220.44, respectively. He now
appeals from the denial of a petition for a writ of habeas corpus. See 28 U.S.C. § 2254. We
granted a certificate of appealability on the issue of whether Moore’s trial counsel was
constitutionally ineffective in failing to interview and call as a trial witness Joyce Dixon,
Moore’s alleged buyer in the drug counts of conviction. See Strickland v. Washington, 466
U.S. 668 (1984). In support of an unsuccessful state collateral challenge to his conviction,
Moore had submitted an affidavit from Dixon asserting that she had purchased the drugs at
issue from someone other than Moore. We assume the parties’ familiarity with the facts and
the record of prior proceedings, which we reference only as necessary to explain our decision
to affirm.
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1. Standard of Review
While we review a district court’s denial of a habeas petition de novo, our review is
subject to several limiting principles. See, e.g., Acosta v. Artuz, 575 F.3d 177, 184 (2d Cir.
2009). For example, the state court’s reliance on an independent and adequate state law
ground to reject a constitutional challenge to conviction would normally preclude our review
of the merits. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). That principle does
not apply in this case, however, because, although the state court determined that Moore had
failed timely to raise his ineffective assistance claim, see N.Y. Crim. Proc. Law
§ 440.10(3)(a), respondent does not argue procedural bar in opposition to federal habeas
relief, see Trest v. Cain, 522 U.S. 87, 89 (1997). Further, the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) generally requires federal habeas courts to defer to state
merits adjudications of constitutional claims absent an unreasonable application of clearly
established federal law as stated by the Supreme Court or an unreasonable determination of
the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C.
§ 2254(d). The district court, however, determined that AEDPA deference did not apply here
because the state court’s ruling on the merits of Moore’s ineffective assistance claim was
only “contingent.” Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007). The state submits that
this case is distinguishable from Bell v. Miller. We need not pursue that issue because, even
if we were to resolve it in Moore’s favor, we would not grant him habeas relief.
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2. Ineffective Assistance of Counsel
A defendant seeking to overturn his conviction based on ineffective assistance of
counsel “bears a heavy burden.” United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004).
He must demonstrate both (a) that his counsel’s performance was objectively unreasonable,
and (b) that, but for his counsel’s unprofessional errors, the result of the proceedings would
have been different. See Strickland v. Washington, 466 U.S. at 687, 694. After an
evidentiary hearing at which both Dixon and Moore’s trial counsel testified, Magistrate Judge
Pitman issued a detailed report finding that Moore had failed to carry his burden on the
prejudice prong of Strickland analysis and recommending that the district court deny the writ.
The district court adopted the recommendation. We agree. See United States v. Guang, 511
F.3d 110, 120 (2d Cir. 2007) (“Because the defendant[] cannot show prejudice, ‘this court
need not consider the objective reasonableness of counsel’s actions.’” (quoting United States
v. Birkin, 366 F.3d 95, 101 (2d Cir. 2004))).
To demonstrate prejudice on his ineffective assistance claim, Moore was required to
prove a “reasonable probability” that counsel’s investigation of Dixon would have altered
the outcome of his case. Strickland v. Washington, 466 U.S. at 694 (requiring “probability
sufficient to undermine confidence in the outcome”); accord Wilson v. Mazzuca, 570 F.3d
490, 507 (2d Cir. 2009).
In finding such a probability lacking, Magistrate Judge Pitman relied largely on his
direct assessment of Dixon as a potential trial witness. We accord this assessment, based on
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the judge’s “unique ability” to observe the witness, considerable deference. See Ortega v.
Duncan, 333 F.3d 102, 107 (2d Cir. 2003). Judge Pitman observed that Dixon’s demeanor
at the hearing was hardly that of a witness likely to inspire jury confidence. Consistent with
her life-long drug dependency, Dixon “presented as an addict in need of drugs,” who, in only
a half hour on the stand facing non-aggressive questioning, seemed unduly “agitated” and
“extremely uncomfortable” to be testifying. Moore v. New York, No. 04-cv-02965, 2008
WL 4891215, at *10 (S.D.N.Y. Nov. 12, 2008). She was, moreover, generally subject to
impeachment based on an extensive record of convictions for theft and drug offenses. In
connection with at least one arrest, she lied to law enforcement officers about her identity.
Further, as Judge Pitman detailed, Dixon’s hearing testimony was riddled with
inconsistencies as to when she first met Moore, a fact critical to her claim that she had not
bought drugs from him on the date of their arrests. See id. at *8 (comparing affidavit
claiming Dixon met Moore in 2002 with hearing testimony giving three different accounts
of 2008 meeting). On this record, Judge Pitman found that, even though Dixon denied
buying drugs from Moore on the date of their arrest, it was unlikely that any responsible
defense attorney who interviewed her would have called such an “unstable and unreliable”
individual as a defense witness. Id. at *10. Although we review a cold record, we reach the
same conclusion.
Indeed, like Judge Pitman, we further conclude that even if counsel had called Dixon
to testify it would not likely have altered the outcome of his trial. If the inculpatory evidence
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against Moore “cannot be characterized as overwhelming,” it was “not insubstantial.” Id.Undercover officers testified to direct dealings with Moore in which, although he refused to
sell them drugs because he did not know them, he made statements that strongly indicated
his involvement in such illicit sales. Further, officers directly observed a hand-to-hand
exchange between Moore and Dixon moments before Moore was arrested in possession of
a sum of cash and Dixon, spotting the arresting officers, attempted to throw away a bag of
crack cocaine. Trial counsel’s cross-examination of the officers at Moore’s first trial had
raised sufficient doubts as to whether they had witnessed a drug transaction from Moore to
Dixon to result in a hung jury. If Dixon had testified, she would have strengthened the
government’s case to the extent she admitted that she had in fact purchased drugs on the
charged date. To the extent she denied that her seller was Moore, her credibility would have
been seriously undermined by the now-reinforced testimony of the officers who witnessed
her transaction with Moore as well as by the numerous and significant adverse factors noted
at the hearing by the magistrate judge.
Accordingly, even if AEDPA deference is not applicable to this case, we conclude that
Moore was not prejudiced by counsel’s failure either to interview Dixon or to call her as a
trial witness. We have considered Moore’s other arguments on appeal, and we conclude that
they lack merit. We therefore AFFIRM the judgment of the district court denying a writ of
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habeas corpus.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
By: ___________________________________
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