Bennett v. Fischer
Opinion of the Court
SUMMARY ORDER
Delville Bennett appeals from a judgment denying habeas corpus relief under 28 U.S.C. § 2254 entered by the United States District Court for the Eastern District of New York (Weinstein, J.) on April 21, 2006. We assume the parties’ familiarity with the underlying facts, the prolonged and complex procedural history, and the issues on appeal.
Bennett was convicted of second degree murder after a jury trial in New York State Supreme Court. During opening statements at trial, Bennett’s counsel, James L. Koenig (“Counsel”), promised the jury an alibi defense. The first of what Counsel intended would be three alibi witnesses testified that he recalled being at the crime scene when the murder took place because he was preparing for the upcoming Memorial Day celebration; however, as both parties later stipulated, Memorial Day fell three days before the murder. After conferring with another alibi witness, Counsel decided that the alibi defense was flawed and abandoned it as a trial strategy. One of the two other alibi witnesses was Carmen Salas, whose account of a random encounter with Bennett on the street did not square with Bennett’s, as both accounts evolved over time.
The jury convicted Bennett of second degree murder.
Bennett unsuccessfully appealed his conviction through the state court system. The Appellate Division ruled that his ineffective assistance claim was “without merit.”
Bennett filed a habeas petition in federal district court alleging ineffective assistance of counsel. Shortly thereafter, the district court stayed his federal habeas proceedings so that Bennett could first exhaust his state remedies.
The state remedies exhausted, the district court then reopened the instant habeas petition. Bennett attached statements—this time sworn affidavits—from Bennett and Salas. The district court held that, to the extent that Bennett relied on affidavits not presented to the Supreme Court, he had not exhausted his state remedies. Failure to exhaust notwithstanding, in 2003, the district court went on to deny the writ on the merits.
When Bennett applied to this Court for a certificate of appealability, we vacated the district court’s 2003 decision and remanded to the Supreme Court so that Bennett could exhaust his state remedies. In Supreme Court, Bennett again moved to vacate his conviction, making the same arguments he made the first time around, this time supported by sworn affidavits. The Supreme Court ruled that the motion was procedurally barred under two independent provisions of N.Y.Crim. Proc. Law § 440.10, including a provision allowing the Supreme Court to deny a motion to vacate when the ground or issue raised in the motion was previously determined on the merits upon a prior motion in the state courts. Bennett was denied leave to appeal to the Appellate Division.
The district court reopened the habeas proceedings and ordered an evidentiary hearing to reconsider the ineffective assistance of counsel claim. Judge Weinstein refused to consider the state’s argument that a procedural bar prevented federal consideration of Bennett’s claim, citing this Court’s mandate, issued in 2004, to “reconsider the claim [that Bennett was denied effective assistance due to Counsel’s failure to call additional alibi witnesses at trial] once it is fully exhausted.”
Bennett, Salas, and Counsel testified before Judge Weinstein at the hearing. The judge assessed credibility as well as Counsel’s trial strategy, and concluded that Bennett had failed to establish a claim for ineffective assistance of counsel under Strickland, but granted a certificate of appealability on the issue of whether Bennett was denied effective assistance of counsel because of Counsel’s failure to present the alibi witnesses.
Procedural Bar
When a “state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). However, a state procedural default will generally bar federal habeas review of a claim only when “the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (internal quotation and citation omitted).
Bennett does not claim “cause” for his failure to attach affidavits to his motion to
The state contends that the second denial of vacatur bars habeas review. If this Court were going to hold review barred on independent and adequate state procedural grounds, then it would certainly examine the underlying affidavit requirement (which was the basis of the first denial) as well. But because we affirm the district court on the merits, we need not reach the question of whether a New York State procedural bar prevents our review of Bennett’s ineffective assistance of counsel claim on the merits.
AEDPA Deference
Under 28 U.S.C. § 2254(d), a federal court may not grant habeas on the basis of any claim adjudicated on the merits in state court unless that adjudication “resulted in a decision contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or “resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
The State argues that no deference is owed because the state court’s ruling (1) was not on the merits, and (2) misapplied Strickland.
We see no merit in Bennett’s claim that the Supreme Court applied the incorrect standard, as the record clearly reflects that the Supreme Court engaged in the appropriate two-part analysis. Even assuming that we were to review the merits of Bennett’s Strickland claim de novo, we would still affirm the district court; so, we need not reach the question of whether the Supreme Court’s denial of vacatur was on the merits.
The Merits
The heart of Bennett’s ineffective assistance of counsel claim is that Counsel’s failure adequately to interview and prepare every alibi witness prior to trial caused him to misjudge the strength of the defense, and consequently to abandon it.
Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a party who contends that he was afforded ineffective assistance must show that his counsel’s performance was deficient, and “that the deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. 2052. Under the second Strickland requirement, the party must show that, in the context of the particular case, there was a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.
We affirm the district court’s application of the Strickland test.
Further, we agree with the district court that, had Counsel prepared for trial in such a way that would lead him to present the full alibi defense, then the result of Bennett’s trial would have been no different. Our holding is based both on the district court’s credibility findings and on our own independent analysis of the record in this case.
Accordingly, we affirm the district court on the merits for substantially the same reasons laid out in Judge Weinstein’s comprehensive opinion of April 21, 2006.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Reference
- Full Case Name
- Delville BENNETT v. Brian S. FISCHER, Superintendent
- Cited By
- 4 cases
- Status
- Published