Opinion
06 Civ. 96 (RJH) (KNF).
October 10, 2007
REPORT AND RECOMMENDATION
I. INTRODUCTION
Kevin Redd ("Redd") brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner alleges his confinement by the state of New York is unlawful because his trial counsel rendered ineffective assistance to him when she failed to seek an order suppressing testimony, at his trial, of an out-of-court corporeal lineup identification proceeding, conducted without his counsel being present. The respondent opposes the petition.
II. BACKGROUND
Redd and Janine Barksdale ("Barksdale") were long-time friends. On April 30, 1992, Redd, Nicole Esters ("Esters") and several other individuals, visited Barksdale's Bronx home intending to search for and to steal guns, drugs and money. When Barksdale told Redd, and those with him, she did not know those items were in her apartment, her hands were tied behind her back and Esters took her and Barksdale's baby to a bedroom. Some time later, Errol Medina ("Medina"), the father of Barksdale's baby, entered the apartment and engaged in a struggle with Redd and his accomplices. Medina was subdued, tied up, had his head covered by a hood and was placed on the floor in a separate bedroom. Subsequently, Barksdale was brought into the room where Medina was located. Redd placed a pillow over Barksdale's head and shot her twice. Immediately thereafter, Medina was also shot twice in the head.
On July 17, 1992, Redd's girlfriend informed him that the police officers investigating Barksdale's death asked her about his whereabouts. On July 20, 1992, Redd contacted his parole officer, to whom he was reporting in connection with an unrelated conviction, and informed him that the police were investigating him in connection with Barksdale's death. The parole officer asked Redd if Redd would like to come to his office to speak to him. Redd responded that he would see the parole officer on his scheduled visit date, July 23, 1992.
On July 23, 1992, Redd hired an attorney. On that date, while Redd was in his attorney's office, the attorney made a telephone call to one of the detectives investigating Barksdale's homicide case. Redd's attorney advised that detective that: (a) he was representing Redd; (b) Redd was in his office; (c) Redd would be visiting his parole officer later that day; and (d) Redd should not be questioned by the detective outside his attorney's presence.
On July 29, 1992, Medina identified Redd, as a perpetrator of the crimes, after police officers displayed a photographic array to him, in connection with their investigation of Barksdale's death. The following day, Redd reported to his parole officer and was arrested on charges related to Barksdale's death. Later that day, Medina identified Redd again, as a perpetrator of the crimes, during a police-conducted corporeal lineup identification proceeding. Redd had advised police personnel that he wanted his attorney to be present for the lineup. However, the lineup proceeded without Redd's attorney in attendance. A photograph of the lineup was taken and attached to a "Bronx Homicide Lineup Sheet," which was signed by Medina.
Redd was indicted by a grand jury for acting in concert with Esters to commit: (i) second-degree murder; (ii) attempted second-degree murder, (iii) first-degree assault; (iv) second-degree criminal possession of a weapon (three counts); (v) first-degree robbery (two counts); (vi) first-degree burglary (two counts); and (vii) fourth-degree criminal possession of a weapon. On March 20, 1995, Redd was convicted, after a jury trial, for: (a) second-degree murder; (b) second-degree attempted murder; and (c) first-degree robbery. He was sentenced, as a persistent violent felony offender, to two consecutive terms of 25 years-to-life imprisonment, for the second-degree murder and the second-degree attempted murder convictions, and to a concurrent term of 15 years-to-life imprisonment, for the robbery conviction.
Two other charges, first-degree criminal use of a firearm and seventh-degree criminal possession of a controlled substance, for which Redd was also indicted, were dismissed, based upon a motion made by the petitioner.
Redd appealed to the New York State Supreme Court, Appellate Division, First Department, from the judgment of conviction, arguing that: (1) his right to counsel was violated when the police conducted a lineup without his attorney's presence; (2) his right to counsel was violated when the trial court questioned a juror outside of his trial counsel's presence; (3) his right to a fair trial was violated by the trial court's pretrial ruling that the prosecution could inquire into the facts respecting a prior conviction Redd suffered, for an offense whose underlying facts were similar to the facts pertaining to the charged crimes; and (4) his right to a fair trial was violated when the prosecutor questioned him about his exercise of his Sixth Amendment right to counsel and his decision, announced through counsel, to decline to answer questions posed by police officials. On May 16, 2000, the Appellate Division affirmed the conviction unanimously. It determined that: (a) Redd failed to present a factual record sufficient to permit appellate review of his claim that his right to counsel had attached at the investigatory lineup and, therefore, the determination to conduct the lineup without Redd's attorney present, notwithstanding Redd's demand that his attorney be present before the lineup was held, could not be reviewed; (b) the trial court's in camera inquiry and sua sponte excusal, for cause, of a venireperson were appropriate, given the venireperson's expression of great emotional distress and his revelation to the court that his police-officer father was killed in the line of duty, when he came upon a robbery in progress; (c) the trial court exercised its discretion properly when it balanced the appropriate factors before permitting the prosecution to pursue an inquiry into the facts underlying Redd's prior conviction; and (d) Redd failed to preserve, for appellate review, his remaining claims. However, the court noted that, were it to review those claims, they would be rejected. See People v. Redd, 272 A.D.2d 168, 169, 709 N.Y.S.2d 159, 160 (App.Div. 1st Dep't 2000). Thereafter, Redd sought leave to appeal to the New York Court of Appeals. On December 20, 2000, the New York Court of Appeals denied Redd's request for leave to appeal to that court. See People v. Redd, 95 N.Y.2d 968, 722 N.Y.S.2d 485 (2000).
On March 7, 2002, Redd filed a motion, in the trial court, to vacate the judgment of conviction, pursuant to New York Criminal Procedure Law ("CPL") § 440.10, on the ground of ineffective assistance of trial counsel. Specifically, Redd maintained that his trial counsel's failure to seek an order suppressing testimony about his pretrial corporeal lineup violated his right to have effective assistance from criminal defense counsel. On July 15, 2005, the trial court denied Redd's motion because: (i) the affidavit of the attorney who represented Redd at the time of the lineup indicated the attorney could not recall whether the police gave him notice that Redd was to be placed in a lineup, and this statement, by Redd's counsel, was insufficient to establish, by clear and convincing evidence, that Redd was entitled to relief; and (ii) trial counsel's failure to advance the argument that Redd was denied his right to counsel at the corporeal lineup identification proceeding was either a legitimate strategic choice or a harmless oversight. On December 15, 2005, the Appellate Division denied Redd leave to appeal to that court from the determination on his CPL § 440.10 motion. This petition followed.
III. DISCUSSION
An application for a writ of habeas corpus made by a prisoner in custody pursuant to a judgment entered in a state court may be granted only upon a finding that the prisoner is in custody in violation of the Constitution, laws or treaties of the United States. See 28 U.S.C. § 2254(a). The Sixth Amendment guarantees a criminal defendant the "right to effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984). However, a criminal defendant's Sixth Amendment right to counsel does not attach at the time of an investigatory lineup. See Kirby v. Illinois, 406 U.S. 682, 689-90, 92 S. Ct. 1877, 1882 (1972). The Sixth Amendment right to counsel "does not attach until a prosecution is commenced, that is, 'at or after the initiation of adversary judicial criminal proceedings-whether by way of formal charge, preliminary hearing, indictment, information or arraignment.'" McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S. Ct. 2204, 2207 (1991) (citation omitted).
To determine whether counsel's assistance was effective, the Supreme Court devised a two-part test. See Strickland, 466 U.S. at 687-96, 104 S. Ct. at 2064-69. First, a criminal defendant must show that his counsel's performance was deficient, that is, that it fell below an "objective standard of reasonableness," measured according to "prevailing professional norms." Id. at 687-88, 104 S. Ct. at 2064-65. Second, the criminal defendant must affirmatively demonstrate prejudice. Id. at 694,104 S. Ct. at 2068. Prejudice is rarely presumed, and so the defendant generally must prove that "there is a reasonable probability that but for counsel's [error], the result of the proceeding would have been different." Id.; see also United States v. Javino, 960 F.2d 1137, 1145 (2d Cir. 1992). A reasonable probability has been defined as "a probability sufficient to undermine confidence in the outcome." See Strickland, 466 U.S. at 694,104 S. Ct. at 2068. Considerable deference is accorded counsel's performance, as counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690,104 S. Ct. at 2066.
Redd contends his trial counsel rendered ineffective assistance to him by failing to seek an order suppressing evidence pertaining to his corporeal lineup proceeding because it was conducted in violation of his state-law right to counsel. Redd contends further, that his right to counsel, under New York law, attached once his attorney conveyed to the police that he represented Redd in this matter and told them he did not want Redd questioned outside his presence.
No basis exists in New York's Constitution "for requiring counsel at investigatory lineups." See People v. Hawkins, 55 N.Y.2d 474, 487, 450 N.Y.S.2d 159, 165 (1982). Nevertheless, although "the State has no obligation to supply counsel at investigatory lineups . . . if a suspect already has counsel, his attorney may not be excluded from the lineup proceedings." Id. at 487,450 N.Y.S.2d at 166.
In support of his habeas corpus petition, Redd submitted a copy of an affidavit prepared by the attorney he retained at the time of the lineup, in which the attorney stated he did "not recall receiving a call from the police providing notice that Mr. Redd was to be put in a lineup. Had I received such notice and been available, I would have attended the lineup." Redd also submitted a copy of a "Bronx Homicide Lineup Sheet," dated July 30, 1992, which demonstrates that Redd's attorney was notified about the lineup identification proceeding before it was conducted. In opposition to the petition, the respondent submitted a copy of the petitioner's Online Booking Arrest Worksheet. It demonstrates that, at the time of Redd's arrest, and before the lineup was held, the petitioner placed a telephone call to his attorney.
The trial record shows that the July 30, 1992 "Bronx Homicide Lineup Sheet," indicating Redd's attorney was notified about the lineup, was introduced in evidence during the pretrial hearing challenging the investigatory corporeal lineup identification proceeding. No objection was made to its receipt in evidence. At that pretrial hearing, Redd's trial counsel argued, unsuccessfully, that testimony concerning the corporeal lineup should be suppressed, as a product of an unduly suggestive photographic array, because of the differences in the features among the individuals depicted in the array.
Redd contends, in the memorandum of law submitted in support of his petition, that "the defendant's own request for counsel at the lineup, given the police knowledge of counsel's representation, independently triggered Mr. Redd's right to counsel." Attached to his memorandum of law is a copy of Redd's affidavit, executed on February 26, 2002, in which Redd stated that, on July 30, 1992, while he was in custody in connection with the investigation of Barksdale's death, and after he was informed by a detective investigating the case that the police would put him in a lineup, he told that detective he wanted his attorney to be present at the lineup proceeding.
A review of the record generated at the pretrial suppression hearing and at the petitioner's trial did not yield evidence of: (i) a request by the petitioner that his attorney be present at the lineup proceeding; or (ii) an awareness, on the part of the petitioner's trial counsel, that Redd requested his attorney's presence at the lineup. Redd's February 26, 2002 affidavit is irrelevant to his claim, that he received ineffective assistance from his trial counsel, because it does not establish that his trial counsel had evidence or was aware, at or about the time of Redd's trial, that Redd requested of the police that his attorney be present at his lineup. Moreover, Redd's attorney, who was retained before the lineup was conducted, did not indicate, in his affidavit, that he would have attended the lineup had he received notice of it, irrespective of any commitment(s) he might have had. Rather, Redd's attorney stated his attendance at the lineup was contingent not only on receiving notice of the lineup, but also on his availability at the time of the lineup.
In light of the evidence that Redd's attorney: (i) was notified about and, thus not excluded from, the lineup proceeding; and (ii) failed to attend the lineup, it cannot be said that the right New York confers on a suspect who is represented by counsel, to have counsel attend an investigatory lineup, was not afforded to Redd. See People v. Coates, 74 N.Y.2d 244, 249, 544 N.Y.S.2d 992, 994 (1989) ("when the police are aware that a criminal defendant is represented by counsel and the defendant explicitly requests the assistance of his attorney, the police may not proceed with the lineup without at least apprising the defendant's lawyer of the situation and affording him or her an opportunity to appear."). In the case at bar, neither the suppression hearing record nor the trial record contains evidence demonstrating that Redd's trial counsel was alerted to the fact that Redd informed police officials he wanted his attorney to be present at the corporeal lineup proceeding. Consequently, no basis existed for Redd's trial counsel to mount a challenge to the corporeal lineup, based on the absence of Redd's attorney from that proceeding, since the attorney received notice of the lineup and failed to attend.
Based on the record before it, the Court finds that the petitioner has failed to rebut the presumption that his trial counsel rendered adequate assistance to him. Therefore, he is not entitled to habeas corpus relief based on that claim.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that the petition be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard J. Holwell, 500 Pearl Street, Room 1950, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Holwell. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 470 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F. 3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).