Bell v. Miller, No. 05-5235 (2d Cir. 2007)
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05-5235-pr Bell v. Miller 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued: August 29, 2007 Decided: August 31, 2007) Docket No. 05-5235-pr - - - - - - - - - - - - - - - - - - - -x DERRICK BELL, Petitioner-Appellant, - v.DAVID L. MILLER, Superintendent of Eastern Correctional Facility, ANDREW CUOMO, Attorney General of New York, and RAYMOND CUNNINGHAM, Superintendent of Woodbourne Correctional Facility,* Respondents-Appellees. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, KATZMANN, and HALL, Circuit Judges. Appeal from a judgment of the United States District * We direct the Clerk of Court to amend the official caption as noted above. 1 Court for the Eastern District of New York, Allyne R. Ross, 2 Judge, denying Petitioner-appellant Derrick Bell s 3 application for a writ of habeas corpus pursuant to 28 4 U.S.C. § 2254. 5 decision of the District Court and remand for the entry of 6 judgment conditionally granting the writ and ordering 7 Derrick Bell s release unless the State provides him a new 8 trial within 60 days. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 For the following reasons, we reverse the Anne S. Raish (Mark Pomerantz, of counsel, Stephen H. Yuhan, on the brief) Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York, NY, for PetitionerAppellant. Lara M. Shalov, Stillman, Friedman, & Shechtman, P.C., New York, NY for PetitionerAppellant. Steven Banks, Lawrence T. Hausman, The Legal Aid Society, New York, NY for PetitionerAppellant. Howard B. Goodman, Assistant District Attorney (Ann Bordley and Leonard Joblove, of counsel, Charles J. Hynes, District Attorney, Kings County, on the brief), Office of the Kings County District Attorney, Brooklyn, NY. 2 1 2 DENNIS JACOBS, Chief Judge: Petitioner-appellant Derrick Bell, who was convicted of 3 robbery and assault in New York State Supreme Court, Kings 4 County, is seeking a writ of habeas corpus on the ground 5 that his lawyer was constitutionally deficient for having 6 failed to consult a medical expert regarding the reliability 7 of the complaining witness s identification- the only 8 evidence tying Bell to the crime. 9 the thigh, lost half his blood, was heavily medicated, The witness was shot in 10 lapsed into a coma for eleven days, and identified Bell by 11 name after recovering consciousness- notwithstanding that at 12 the scene of the attack he had described his attacker 13 generically, as though the attacker was unknown to him. 14 District Court denied the petition on the ground that the 15 state court s rejection of Bell s claims was not based on an 16 unreasonable application of federal law, see 28 U.S.C. § 17 2254(d). The We reverse. 18 BACKGROUND 19 Brentonol Moriah was held up at gunpoint as he was 20 walking in Brooklyn at 2:30 a.m. on July 16, 1996. 21 assailant, armed with a full-length shotgun, demanded money. 3 His 1 Soon after Moriah surrendered the contents of his pockets, 2 headlights flashed from a nearby intersection and the 3 assailant fired into Moriah s thigh and fled, weapon in 4 hand. 5 When the police came to the scene, Moriah was lying on 6 the street, having lost copious amounts of blood. Moriah 7 told the officers that someone tried to rob him and then 8 shot him in the thigh. 9 Moriah described the perpetrator (in Moriah s words) as a A police officer testified that 10 male black, wearing a lemon-colored shirt. 11 nothing to the officers that would evince any familiarity 12 with the shooter; accordingly, the police reports from the 13 crime scene list the perpetrator s identity as unknown and 14 unidentified. 15 Moriah said For the following eleven days, Moriah was hospitalized 16 in a heavily sedated state, comatose if not actually in a 17 coma. 18 Moriah told the detective that his assailant was one Derrick 19 Bell, who had been his neighbor in a rooming house. 20 21 When he regained consciousness on July 28, 1996, Bell was arrested on August 14, 1996, and charged with first-degree assault, second-degree assault, fourth-degree 4 1 grand larceny, and two counts of first-degree robbery. 2 had no prior criminal record. 3 Bell On August 19, 1996, Moriah again named Bell in 4 videotaped grand jury testimony given from his hospital bed. 5 Moriah stated that he continued to take painkillers every 6 four hours and to suffer from memory lapses and dizziness. 7 8 9 A. Bell s State Trial At Bell s trial, Moriah was the only prosecution 10 witness who identified Bell as the assailant. Moriah 11 testified on direct that he and Bell shared a bathroom and 12 kitchen at a rooming house for more than a year, that they 13 spoke occasionally and never argued or fought, and that on 14 the night of the crime he stood face-to-face with Bell for 15 five minutes. 16 Bell eleven days after the crime took place; and that he did 17 not recall speaking with police officers on the night of the 18 crime. 19 medications he was administered while in the hospital 20 (including at the time he first identified Bell as his 21 assailant), nor did he ask about Moriah s memory loss, On cross, Moriah admitted that he first named Bell s counsel asked Moriah no questions about the 5 1 which, according to Moriah s grand jury testimony, persisted 2 for at least a month after the crime. 3 Dr. Robert Brewer, the emergency room surgeon who 4 treated Moriah on the night of the crime, testified for the 5 prosecution that Moriah lost 50 percent of his blood as a 6 result of the shooting. 7 counsel inquired about the effect of that blood loss on 8 Moriah s consciousness when he arrived at the hospital. 9 Counsel did not ask about the impact of blood loss on On cross-examination, Bell s trial 10 memory, nor did he ask about the medications that were given 11 to Moriah at the hospital . 12 The prosecution called four other witnesses. 13 The policeman who had interviewed Moriah at the crime scene 14 testified as to Moriah s description of his assailant: a 15 male black wearing a lemon-colored shirt. 16 assigned to the case testified that Moriah first identified 17 Bell as the perpetrator eleven days after the crime took 18 place, and that he was unable to interview Moriah before 19 then because Moriah had been unconscious. 20 lived near the crime scene, testified that on the night of 21 the crime, he heard a person scream no several times, 6 The detective Martin Payne, who 1 followed by a gunshot; however, Payne did not see the 2 shooting. 3 house where Moriah and Bell once lived, testified about his 4 tumultuous landlord-tenant relationship with Bell. 5 Richard Edmonds, the landlord of the rooming Bell testified that he left work around midnight to 6 join friends, and they all played cards until five o clock 7 the following morning. 8 confirmed that they played cards with Bell on the night in 9 question. 10 Bell s three alibi witnesses The jury convicted Bell of first-degree robbery and 11 second-degree assault. The trial court sentenced Bell to 12 concurrent sentences of 12½-to-25 years on the robbery count 13 and seven years on the assault count, the maximum term for 14 both crimes. 15 16 17 B. State Appeal Bell filed a timely notice of appeal in New York State 18 Supreme Court. His direct appeal asserted various claims of 19 ineffective assistance of trial counsel but did not 20 challenge counsel s failure to consult a medical expert. 21 The Second Department affirmed, People v. Bell, 298 A.D.2d 7 1 398 (2d Dep t 2002), and the New York Court of Appeals 2 denied leave to appeal. 3 (2002). 4 People v. Bell, 99 N.Y.2d 555 On February 13, 2004, Bell filed a motion to vacate his 5 conviction pursuant to N.Y. Crim. Proc. Law § 440.10. 6 There, for the first time, Bell argued that his trial 7 counsel was ineffective for having failed to consult a 8 medical expert regarding the effects of trauma, blood loss 9 and painkillers on Moriah s memory.1 In support of his § 10 440 motion, Bell submitted the affidavit of Dr. Elkhonon 11 Goldberg, a neuropsychologist affiliated with New York 12 University and Columbia University, who reviewed the police 13 reports from the case, Moriah s grand jury and trial 14 testimony, and the trial testimony and affidavit of Dr. 15 Brewer. 16 contains unequivocal evidence that he suffered from 17 retrograde amnesia for the events predating the loss of 1 2 3 4 5 6 7 Dr. Goldberg opined that: Mr. Moriah s testimony 1 Other grounds for asserting ineffective assistance were presented in Bell s § 440 motion and in the habeas petition, but those grounds are not before us here, as the Certificate of Appealability is limited to the medical expert issue. For the sake of simplicity, we refer to this sole remaining claim as Bell s ineffective assistance claim. 8 1 consciousness ; the retrograde amnesia was exacerbated by 2 such anxiolytic and amnestic medications as Dr. Brewer 3 attested were likely administered to Moriah in the emergency 4 room;2 false memories can be persistent and dominant, 5 overriding true memories; and Moriah s was unlikely to have 6 regained full consciousness when he first named Bell. 7 Accordingly, Dr. Goldberg concluded that Moriah s 8 identification of Bell was unreliable. 9 On October 4, 2004, the state court denied Bell s § 440 10 motion without a hearing. 11 § 440.10(2)(c) to Bell s ineffective assistance claim, 12 citing as unjustifiable Bell s failure to raise the issue on 13 direct appeal.3 14 reached, the result would be the same. 1 2 3 4 5 6 7 8 9 10 11 12 13 It applied N.Y. Crim. Proc. Law The court added: But if the merits were The state court 2 Mr. Moriah s medical records were marked as exhibits, but the District Attorney s Office has been unable to retrieve them. It is unclear whether Bell could have obtained them by other means or whether he will be able to do so now. 3 § 440.10(2)(c) mandates denial of a motion to vacate where, though sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant s . . . unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him. 9 1 observed that Dr. Goldberg s affidavit was fraught with 2 hedge words, and questioned whether, at the time of Bell s 3 trial in 1997, Goldberg s expert testimony regarding a 4 single witness identification issue would have been 5 admissible in a New York State court. 6 7 8 9 C. Federal Habeas Proceedings Bell filed his federal habeas petition in the Eastern District of New York on February 5, 2005. On August 12, 10 2005, the District Court issued an opinion denying the 11 petition and declining to issue a Certificate of 12 Appealability. 13 ineffective assistance claim was not procedurally barred 14 because N.Y. Crim. Proc. Law § 440.10(2)(c) is not an 15 adequate state ground because New York courts do not apply 16 that rule regularly to ineffective assistance claims, as 17 such claims often depend on extrinsic evidence and therefore 18 must be brought through collateral attack. 19 No. 05-cv-0663, 2005 WL 1962413, at *5 (E.D.N.Y. Aug. 12, The District Court concluded that Bell s 10 Bell v. Miller, This ruling is unchallenged on appeal.4 1 2005). 2 District Court also concluded that because the state court 3 decision provided a full analysis of Bell s ineffective 4 assistance claim, it constituted an adjudication on the 5 merits, triggering the more deferential standard of review 6 required by the Antiterrorism and Effective Death Penalty 7 Act of 1996 ( AEDPA ), 28 U.S.C. § 2254(d)(1). 8 This ruling is challenged, and decided below. 9 The Id. at *6. As to the merits, the District Court found that Bell 10 did not show that the failure of trial counsel to consult a 11 medical expert fell below prevailing professional norms in 12 1997 when Bell was tried. 13 distinguished the cases Bell relied on as applying only to 14 expert medical testimony in child sexual abuse cases. 15 at *8. 16 show prejudice, characterizing Dr. Goldberg s conclusions as 1 2 3 4 5 6 7 8 9 10 Id. at *7. The District Court Id. The District Court also found that Bell failed to 4 The State does not contest this aspect of the District Court s opinion on appeal, and so we decline to address it. See Jimenez v. Walker, 458 F.3d 130, 141 n.8 (2d Cir. 2006) ( Because the existence of an adequate and independent procedural bar is not jurisdictional in the habeas context, a federal court is not required to raise it sua sponte; rather, it is a defense that the State is obligated to raise and preserve if it is not to lose the right to assert the defense thereafter. (internal citation omitted)). 11 1 2 attenuated and speculative. Id. On June 12, 2006, this Court issued a Certificate of 3 Appealability on the sole question of whether trial 4 counsel s failure to consult a medical expert constituted 5 ineffective assistance of counsel. 6 7 8 DISCUSSION We review de novo the District Court s denial of Bell s 9 petition for habeas corpus. 10 Thibodeau v. Portuondo, 486 F.3d 61, 64 (2d Cir. 2007). 11 12 13 I. AEDPA Deference Under AEDPA, if a habeas petitioner s claim was 14 adjudicated on the merits in State court proceedings, a 15 federal court can grant habeas only if the state court s 16 decision was contrary to, or involved an unreasonable 17 application of, clearly established Federal law, as 18 determined by the Supreme Court of the United States, or 19 was based on an unreasonable determination of the facts in 20 light of the evidence presented. 21 28 U.S.C. § 2254(d). An adjudication on the merits is one that (1) 12 1 disposes of the claim on the merits, and (2) reduces its 2 disposition to judgment. 3 312 (2d Cir. 2001) (emphasis added and internal quotation 4 marks omitted). 5 motion discussed the merits and was reduced to a judgment; 6 but the wording of the opinion reflects that the disposition 7 was not premised on the court s view of the merits. 8 discussion of the merits was preceded by a contrary-to-fact 9 construction: if the merits were reached, the result would 10 be the same. And a contrary-to-fact construction is not 11 the same as an alternative holding. 12 364 F.3d 415, 417 (2d Cir. 2004) (concluding that state 13 court had reviewed the claim on the merits where it found 14 petitioner s claim to be unpreserved, and, in any event, 15 without merit, constituted an adjudication on the merits) 16 (emphasis added). 17 observation as an adjudication on the merits. 18 Accordingly, we review Bell s claim de novo. Sellan v. Kuhlman, 261 F.3d 303, The state court s ruling on Bell s § 440 See Zarvela v. Artuz, We decline to read a contingent 19 20 21 II. Merits A criminal defendant asserting that counsel is 13 The 1 constitutionally deficient must show that the lawyer s 2 performance fell below an objective standard of 3 reasonableness and that there is a reasonable probability 4 that, but for counsel s unprofessional errors, the result of 5 the proceeding would have been different. Strickland v. 6 Washington, 466 U.S. 668, 688, 694 (1984). The standard of 7 Strickland is rigorous, and the great majority of habeas 8 petitions that allege constitutionally ineffective counsel 9 founder on [it]. 10 11 Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001). Bell s claim threads this needle. The only evidence 12 connecting Bell to the crime was Moriah s testimony. Three 13 friends testified that Bell was elsewhere playing cards. 14 Given the trauma Moriah endured and the medical treatments 15 he received, Moriah s memory was highly vulnerable to attack 16 by scientific evidence. 17 he stood face-to-face with the assailant for five minutes, 18 Moriah told police officers that his assailant was a male 19 black wearing a lemon-colored shirt, a description that 20 implicitly but undeniably indicates that the assailant was a 21 stranger: one does not fall back on general features (a Minutes after an encounter in which 14 1 male black ) or the color of a shirt ( lemon yellow) to 2 express the identity of a person known by name or 3 affiliation. 4 assailant, Moriah had (in sequence) lost nearly half his 5 blood, undergone surgery, would (in usual course) have been 6 given anxiolytic and amnestic pharmaceuticals, entered a 7 sedated, coma-like state, remained semi-conscious (at best) 8 for eleven days, and awakened with cognitive abilities that 9 were in doubt. By the time Moriah identified Bell as the On August 19, 1996, over a month after the 10 initial trauma, Moriah reported that he continued to take 11 painkillers and suffer memory loss and dizziness. 12 had forgotten altogether the conversation at the crime scene 13 in which he described his assailant but did not name him. 14 Taking the Strickland requirements in reverse order, And he 15 there is a reasonable probability that had trial counsel 16 consulted with a medical expert, the result of the 17 proceeding would have been different. 18 at 694. 19 was no eyewitness other than Moriah; no witness or other 20 evidence (forensic or otherwise) linked Bell to the crime. 21 See Strickland, 466 U.S. at 696 ( a verdict . . . only Strickland, 466 U.S. The prosecution s case against Bell was thin--there 15 1 weakly supported by the record is more likely to have been 2 affected by errors than one with overwhelming record 3 support ). 4 all for the defense. 5 medical expert, a lawyer could have vastly increased the 6 opportunity to cast doubt on this critical evidence. 7 Impeaching Moriah s memory was therefore all in Armed with the insight and advice of a It is likely that the state trial court would have 8 permitted a medical expert to testify as to the effects of 9 trauma, blood loss, and anxiolytic and amnestic medications 10 on the human brain, as those topics are well beyond the ken 11 of the typical juror. 12 (1990) (internal citation omitted); see, e.g., People v. 13 Cronin, 60 N.Y.2d 430, 433-34 (1983) (reversing trial 14 court s preclusion of expert testimony on the impact of 15 alcohol, marijuana and Valium on defendant s ability to act 16 purposefully); People v. Real, 137 A.D.2d 416, 416 (1st 17 Dep t 1988) ( Since the key issue for the jury s 18 determination was whether defendant could have formed the 19 required intent for the charged crimes, the court erred in 20 precluding defendant from calling an expert to testify as to 21 the effect of angel dust intoxication on his ability to People v. Taylor, 75 N.Y.2d 277, 288 16 1 form such intent. ). 2 expert testimony on the reliability of eyewitnesses was 3 inadmissible in New York. 4 N.Y.2d 157 (2001). 5 from social scientists on the fallibility of eyewitness 6 identifications in general. 7 The State cites cases to show that See, e.g., People v. Lee, 96 But those cases exclude expert testimony True, counsel cross-examined Moriah and Dr. Brewer in 8 an effort to cast doubt on Moriah s identification. 9 But counsel s failure even to investigate the scientific 10 implications of Moriah s trauma, blood loss and sedation 11 handicapped his cross-examination of those key prosecution 12 witnesses. 13 2003) (explaining that by not investigating the scientific 14 accuracy of prosecution witness s conclusions, counsel 15 missed out on the chance to impeach him on contrary medical 16 literature ). 17 Moriah s blood loss--estimated to be 50 percent--might have 18 altered Moriah s memory of the crime, including the 19 potential for retrograde amnesia. 20 ascertain from Dr. Brewer what drugs he administered to 21 Moriah, let alone how those medications might have impacted See Eze v. Senkowski, 321 F.3d 110, 129 (2d Cir. Thus counsel failed to ask Dr. Brewer how 17 And counsel failed to 1 Moriah s memory. 2 testimony from Moriah about those medications, even though 3 Moriah had testified to the grand jury (on videotape) that, 4 over a month after the crime, he continued to take 5 painkillers and suffer memory lapses and dizziness. 6 Likewise, counsel failed to elicit any As to the first requirement under Strickland, we must 7 make every effort . . . to eliminate the distorting effects 8 of hindsight, and indulge a strong presumption that 9 counsel s conduct falls within the wide range of reasonable 10 professional assistance; that is, the defendant must 11 overcome the presumption that, under the circumstances, the 12 challenged action might be considered sound trial strategy. 13 Strickland, 466 U.S. at 689 (internal quotation marks 14 omitted). 15 counsel s performance was deficient. 16 Even affording this deference, we conclude that Counsel s performance cannot fairly be attributed to a 17 strategic decision arrived at by diligent counsel . . . 18 draw[ing] a line [based on] good reason to think further 19 investigation would be a waste. 20 U.S. 374, 383 (2005). 21 consulting a medical expert regarding the reliability of Rompilla v. Beard, 545 Bell s lawyer failed even to consider 18 1 Moriah s memory. 2 529 (limiting scope of investigation into potential 3 mitigation was not entitled to deference because it was made 4 at an unreasonable stage, rendering an informed decision 5 impossible); Williams v. Taylor, 529 U.S. 362, 390 (2000) 6 (failing to uncover and present extensive mitigating 7 evidence could not be justified on decision to focus on 8 other defense because that decision was made prematurely, 9 without the benefit of a thorough investigation) . 10 Cf. Wiggins v. Smith, 539 U.S. 510, 525- Moreover, the record reveals no tactical justification 11 for the course trial counsel chose. 12 Luciano, 158 F.3d 655, 660 (2d Cir. 1998) (per curiam). 13 defense proceeded along two strategic lines: impeaching 14 Moriah and establishing an alibi. 15 have been promoted, without any appreciable downside, by 16 expert medical testimony on the impact that blood loss and 17 painkillers had on Moriah s memory. 18 Hollins, 261 F.3d 210, 219 (2d Cir. 2001) (finding 19 ineffectiveness for failure to call witness whose testimony 20 could have bolstered defense theory). 21 United States v. The The first of these would See, e.g., Pavel v. Our disposition of this appeal does not announce a per 19 1 se rule requiring a defense counsel to consult with a 2 medical expert in order to cast doubt on a key prosecution 3 witness. 4 defendant as the perpetrator is the testimony of a single 5 witness, and where the memory of that witness is obviously 6 impacted by medical trauma and prolonged impairment of 7 consciousness, and where the all-important identification is 8 unaccountably altered after the administration of medical 9 drugs, the failure of defense counsel to consider consulting But where the only evidence identifying a criminal 10 an expert to ascertain the possible effects of trauma and 11 pharmaceuticals on the memory of the witness is 12 constitutionally ineffective. 13 CONCLUSION 14 15 For the foregoing reasons, we reverse the decision of 16 the district court and remand for the entry of judgment 17 conditionally granting the writ and ordering Derrick Bell s 18 release unless the State provides him a new trial within 60 19 days. The mandate will issue forthwith. 20
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