David PALACIOS, Petitioner-Appellant, v. John W. BURGE, Superintendent, Auburn Correctional Facility, and Andrew Cuomo, New York State Attorney General,* Respondents-Appellees.**
Docket No. 07-0470-pr.
United States Court of Appeals, Second Circuit.
Argued: March 11, 2009. Decided: Dec. 21, 2009.
594 F.3d 556
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), current Attorney General Andrew Cuomo is automatically substituted for former Attorney General Eliot L. Spitzer as a respondent. ** We direct the Clerk of the Court to amend the official caption as noted.
Jill A. Gross-Marks (John M. Castellano, on the brief), Assistant District Attorneys, for Richard A. Brown, District Attorney, Queens County, Kew Gardens, NY, for Respondents-Appellees.
Before: WALKER and SACK, Circuit Judges, and KOELTL, District Judge.***
JOHN M. WALKER, JR., Circuit Judge:
Petitioner-Appellant David Palacios appeals from the judgment of the United States District Court for the Eastern District of New York (Frederic Block, Judge) denying his petition for habeas corpus pursuant to
BACKGROUND
David Palacios was convicted following a jury trial in New York Supreme Court, Queens County, of single counts of assault and murder, and sentenced respectively to consecutive, indeterminate sentences of eleven to twenty-two years and twenty-five years to life.
I. Underlying Events
The trial evidence showed that on the evening of April 27, 1997, undercover New York City police officers Richard Crespo, James O‘Boyle, and Daniel Corey conducted surveillance at the 30-30 Club in Queens, New York, which was holding a “Mexican party.” (Trial Tr. 101 Feb. 10-11, 1998.) The police had information that “there might be problems there” between “rival Mexican gangs.” (Trial Tr. 14, 101.)
The club opened at 9:00 p.m. After ten to fifteen minutes, Officer Crespo saw several men whom he thought to be Hispanic “run in front of ... people ... waiting” in line outside of the club. (Trial Tr. 14-15.) Moments later, a BMW pulled up across the street from the club, and a man, Edin Kolenovic, emerged from the car shouting and waving his arms frantically. When the officers approached Kolenovic, they saw that his shirt was bloody, and that his passenger and brother-in-law, Sanin Djukanovic, had been beaten and stabbed, and was bleeding profusely. Djukanovic was unable to speak and died later that night. Kolenovic told the officers that a group of Hispanic men tried to steal the BMW, stabbed him and Djukanovic, and ran towards the 30-30 Club. The police placed Kolenovic in an ambulance stationed in front of the club to be treated for his stab wounds.
In “secur[ing] the area” around the club, (Trial Tr. 18,) the officers arranged with the club‘s security personnel to let into the club the forty or fifty individuals in line outside. When one person, William Mero, stepped out of the line and tried to leave, the police stopped him and walked him in front of the parked ambulance to “conduct [] a show-up.” (Trial Tr. 103). Kolenovic identified Mero as “on of the guys,” (Trial Tr. 110), and Officer Corey handcuffed Mero and put him in an unmarked patrol car with a view of the club. Mero denied any involvement in the stabbing, but told the police that he had seen the fight and could identify the individuals involved.
Inside the club, at the officers’ request, the club owner stopped the music and announced that the police planned to escort all the male patrons outside for a show-up to identify anyone connected to the stabbing that had occurred. The offi
The following day, after Detective Laurie Senzel read Palacios his Miranda rights in both English and Spanish, Palacios orally confessed to stabbing Djukanovic. Detective Senzel manually transcribed this confession, which Palacios signed.
II. Trial Court Proceedings
On June 17, 1997, Palacios‘s then-counsel Paul Testaverde filed a motion challenging the constitutionality of both the identification procedure used by the police outside of the 30-30 Club, and the confession, which Palacios claimed that he had given only under physical duress. On June 30, 1997, counsel Robert R. Race, who replaced Testaverde, filed a separate motion that challenged the reliability of Kolenovic‘s pre-trial identification and the voluntariness of Palacios‘s statements, but did not challenge the legality of the police seizure of Palacios.
On September 22, 1997, after holding a combined pre-trial hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and
At Palacios‘s jury trial, Kolenovic was unable to identify Palacios as a participant in the crime. Palacios testified that he had not committed the crimes charged and that he had confessed under physical duress.
The jury found Palacios guilty of both assault and murder, and the trial judge sentenced Palacios to eleven to twenty-two years for the former and twenty-five years to life for the latter, to be served consecutively.
III. Subsequent Proceedings
In January 2002, Palacios, on appeal to the Appellate Division, Second Department, argued that he had been deprived of effective assistance of counsel under Strickland, 466 U.S. at 688, 104 S.Ct. 2052, because his counsel unreasonably failed to challenge the lawfulness of his show-up and detention, and failed to move to suppress his confession as the fruit of the unlawful detention under the Fourth Amendment. Palacios alleged that a Fourth Amendment challenge to the show-up would have been successful, because the show-up was not based upon any “individualized suspicion” of a particular individual at the 30-30 Club. See Palacios, 470 F.Supp.2d at 219. The Appellate Division affirmed Palacios‘s conviction, concluding that he had received “meaningful representation” at trial. People v. Palacios, 295 A.D.2d 452, 743 N.Y.S.2d 302, 302 (2002). Palacios‘s application for leave to appeal to the New York Court of Appeals was denied. People v. Palacios, 98 N.Y.2d 731, 749 N.Y.S.2d 482, 779 N.E.2d 193 (2002) (table decision).
Palacios then filed the instant petition for federal habeas relief, again raising the claim that trial counsel had rendered ineffective assistance. In January 2007, the district court denied the petition on the basis that Palacios had failed to show that the trial court unreasonably applied Supreme Court precedent in determining that the claim lacked merit. Palacios v. Burge, 470 F.Supp.2d 215, 221 (E.D.N.Y. 2007). Although noting that a show-up could run afoul of the United States Supreme Court‘s “individualized suspicion” requirement, the district court determined that, “[i]n light of the generality with which the requirement has been enunciated” by the Supreme Court, it would not be “unreasonable” to conclude that the individualized suspicion requirement was “satisfied in this case.” Id. at 223. The district court concluded that under the “limited standard of [habeas] review,” Palacios‘s petition had to be denied. Id. at 224. The district court, however, issued a certificate of appealability on Palacios‘s ineffective assistance claim on the basis that there was “room for reasonable debate ... addressing this ineffective-assistance/Fourth Amendment scenario.” Id. This appeal followed.
DISCUSSION
We review de novo the district court‘s decision to deny Palacios habeas
Although Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), bars us from considering Fourth Amendment challenges raised in a petitioner‘s petition for habeas relief, this appeal does not squarely present a Fourth Amendment challenge. Instead, Palacios‘s habeas petition brings a “Sixth Amendment ineffective assistance of counsel claim[] which [is] founded primarily on incompetent representation with respect to a Fourth Amendment issue.” Kimmelman v. Morrison, 477 U.S. 365, 380, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Specifically, Palacios argues that the state court unreasonably applied the Supreme Court‘s decision in Strickland, 466 U.S. at 688, 104 S.Ct. 2052, by rejecting his claim that his counsel rendered constitutionally deficient performance by failing to raise a Fourth Amendment challenge seeking to suppress the identification evidence and the “fruits of [Palacios‘s] illegal detention.” Pet‘r Br. at 31. We may grant a habeas claim for such a hybrid Sixth and Fourth Amendment claim, Kimmelman, 477 U.S. at 380-83, 106 S.Ct. 2574; however, its “elements of proof” differ[] significantly from [those] applicable to a straightforward Fourth Amendment claim. Although a meritorious Fourth Amendment issue is necessary to the success of a Sixth Amendment claim like [Palacios]‘s, a good Fourth Amendment claim alone will not earn a prisoner habeas relief. Only those habeas petitions who can prove under Strickland that they have been denied a fair trial by the gross incompetence of their attorneys will be granted the writ and will be entitled to retrial without the challenged evidence, id. at 382, 106 S.Ct. 2574.
“[I]n light of Strickland ..., a Sixth Amendment ineffective assistance of counsel claim necessarily invokes federal law that has been ‘clearly established’ by the Supreme Court within the meaning of AEDPA.” Mosby v. Senkowski, 470 F.3d 515, 518-19 (2d Cir.2006) (internal quotation marks omitted); see also Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (recognizing the test set forth in Strickland as “clearly established” law for AEDPA purposes).
Strickland requires that a “criminal defendant asserting that counsel is constitutionally deficient” meet both a “performance” test, showing that counsel‘s representation “fell below an objective standard of reasonableness,” and a “prejudice” test, demonstrating that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Bell v. Miller, 500 F.3d 149, 155 (2d Cir.2007) (quoting Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052). Under Strickland, there is a “strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” 466 U.S. at 689, 104 S.Ct. 2052. Furthermore, on habeas appeal it is not enough for Palacios to show a constitutional violation. He must also show that the state court‘s “application of Strickland was not merely incorrect, but objectively un
For the reasons that follow, we find that Palacios failed to satisfy the “performance” prong of the Strickland test, see 470 F.Supp.2d at 221-23, and thus, that Palacios failed to meet Strickland‘s “rigorous” standard, Bell, 500 F.3d at 155 (internal quotation marks omitted). There is therefore no cause for us to reach the “prejudice” prong.
Because Palacios has not shown that his trial counsel was ineffective for failing to raise a Fourth Amendment challenge to his show-up, he has similarly failed to show that his counsel was ineffective for failing to challenge his subsequent jailhouse confession as the fruit of the poisonous tree. See, e.g., United States v. Guarno, 819 F.2d 28, 32 (2d Cir.1987) (finding that “derivative evidence” need not be suppressed where the predicate evidence was “properly obtained“).
I. Strickland‘s “Performance” Prong: Palacios‘s Fourth Amendment Unreasonable Seizure Claim
A. Exigent Circumstances in the Absence of Individualized Suspicion
The Fourth Amendment protects individuals “against unreasonable searches and seizures.”
[t]he touchstone of the Fourth Amendment is reasonableness, not individual suspicion. Thus, while th[e] Court‘s jurisprudence has often recognized that “to accommodate public and private interests, some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure,” ... the “Fourth Amendment imposes no irreducible requirement of such suspicion.”
Samson v. California, 547 U.S. 843, 855 n. 4, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 560-61, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976)) (emphasis added); accord Nat‘l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) (reaffirming the “longstanding principle” that no “measure of individualized suspicion ... is an indispensable component of reasonableness in every circumstance“); Skinner v. Ry. Labor Executives’ Ass‘n, 489 U.S. 602, 624, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (“[A] showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable.“).
Accordingly, the Supreme Court has recognized “limited circumstances in which the usual rule [requiring individualized suspicion] does not apply.” Edmond, 531 U.S. at 37, 121 S.Ct. 447. Individualized suspicion is not needed, for example, in cases involving “an exigency that justifies immediate action on the police‘s part.” Georgia v. Randolph, 547 U.S. 103, 117 n. 6, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006); see also id. (collecting and summarizing exigent circumstances that may justify warrantless searches); Edmond, 531 U.S. at 44, 121 S.Ct. 447 (recognizing circumstances involving “exigencies” that permit
A different result is not mandated by Ybarra v. Illinois, 444 U.S. 85, 91-92, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), which found unreasonable body frisks of a tavern‘s patrons based on an informant‘s tip that one of the tavern‘s bartenders possessed heroin. The Ybarra Court found that the “rash and unreasonable interferences with privacy” at issue were based solely on “a person‘s mere propinquity to others independently suspected of criminal activity.” Id. at 91, 95-96, 100 S.Ct. 338 (internal quotation marks omitted). And, most importantly, the seizure in Ybarra was not justified by any exigent or emergency circumstances. Here, the police knew to a virtual certainty that the perpetrators whom they hoped to identify were among the patrons and likely to escape, and briefly detaining these patrons and instructing them to walk outside, unlike the body frisks in Ybarra, was minimally intrusive. See Martinez-Fuerte, 428 U.S. at 561, 96 S.Ct. 3074 (explaining that body searches are “ordinarily afforded the most stringent Fourth Amendment protection“). Therefore, there was a strong showing in this case that the show-up was justified by emergency and exigent circumstances that did not require a showing of individualized suspicion, and “no particularized reason need exist to justify it,” id. at 563, 96 S.Ct. 3074. Our decision in this case in no way affects the need for individualized suspicion in cases primarily “relat[ing] to ordinary crime control,” Edmond, 531 U.S. at 44, 121 S.Ct. 447, and not involving exigencies similar to those presented here. Finding exigent circumstances, however, does not alone answer the question of whether the show-up comports with the Fourth Amendment. We must still examine whether it was reasonable, which remains the “touchstone of the Fourth Amendment,” Samson, 547 U.S. at 855 n. 4, 126 S.Ct. 2193. We now turn to that question.
B. Totality of the Circumstances
“[T]o determine whether a search is reasonable within the meaning of the Fourth Amendment,” courts “examine the totality of the circumstances.” Samson, 547 U.S. at 848, 126 S.Ct. 2193 (internal quotation marks and alteration omitted). In considering the “totality of the circumstances-the whole picture,” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), we take into account “the facts known to the officers,” Alabama v. White, 496 U.S. 325, 330-31, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), and “balance the privacy-related and law enforcement-related concerns,”
Here, the police knew that two serious stabbings had occurred (one soon-to-be fatal), and they were armed with reliable information that the perpetrators were among the group of individuals inside or lined up outside of the 30-30 Club. The police could have reasonably believed that the delay necessary to procure a warrant would thwart the possibility of ever finding the perpetrators, by increasing the likelihood that one or more of them would be able to get away. See United States v. Gordils, 982 F.2d 64, 69 (2d Cir.1992) (holding that “a likelihood that the suspect will escape” supports a finding of exigency). The police had two eyewitnesses who were able to identify the perpetrators, but who may have been unable or unwilling to do so in the future: One was grievously wounded, and the other was a suspect who had already attempted to flee the scene. The police had reason to believe that the perpetrators posed an immediate danger to others inasmuch as they were armed, in a crowded place, and had just engaged in an act of extreme violence. In light of these circumstances, it was not unreasonable for the police to settle on the show-up procedure that they adopted.
We find instructive the Supreme Court‘s decision in Illinois v. Lidster, 540 U.S. 419, 424, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004), which held that the police did not run afoul of the Fourth Amendment by stopping motorists at a highway checkpoint to ask them about a fatal hit-and-run accident that had taken place a week earlier on that highway, notwithstanding the lack of individualized suspicion. 540 U.S. at 423-27, 124 S.Ct. 885. Lidster, like the case at hand, involved law enforcement‘s need to acquire information about a recent crime that had occurred in the vicinity. There is even more reason to find the show-up procedure in the instant case to be constitutionally permissible than the purely “information-seeking” traffic stop in Lidster, id., because the police had reason to believe that the club patrons included the perpetrators of the stabbings. Moreover, unlike Lidster, in which the traffic stop took place a week after the accident being investigated, the show-up in this case took place immediately after the stabbings and involved exigent circumstances, as detailed above. While the length of the detention in this case was greater than the duration of the stop in Lidster, the urgency for immediate police action was also substantially greater. There was a strong showing in this case that, as in Lidster, the challenged seizure was “reasonable in context,” id. at 426, 124 S.Ct. 885, and “hence constitutional,” id. at 421, 124 S.Ct. 885.
The balance of interests further supports this conclusion. A search, or in this case, an identification procedure, may be reasonable where privacy concerns are minimal, the government interest is furthered by the intrusion, and the intrusion is properly tailored in time and scope to this interest. See, e.g., id. at 424-25, 124 S.Ct. 885 (upholding a brief information-seeking highway stops without any individualized suspicion); McArthur, 531 U.S. at 330-34, 121 S.Ct. 946 (affirming the temporary restraint of an individual in a home believed to contain evidence of a crime and unlawful drugs); Pennsylvania v. Labron, 518 U.S. 938, 940-41, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996) (per curiam) (upholding an automobile search); Skinner, 489 U.S. at 623, 109 S.Ct. 1402 (affirming a warrantless drug-testing of railroad employees); Michigan v. Summers, 452 U.S. 692, 702-05, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (upholding a temporary, warrantless detention of suspect without arrest to prevent flight); Martinez-Fuerte, 428 U.S. at 560-62, 96 S.Ct. 3074 (affirming checkpoint
Here, strong public interest and law enforcement concerns supported the need for the intrusion, because “the government‘s interest in dispensing with the warrant requirement is at its strongest when ... ‘the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.‘” Skinner, 489 U.S. at 623, 109 S.Ct. 1402 (quoting Camara v. Mun. Court, 387 U.S. 523, 533, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)); e.g., Gordils, 982 F.2d at 69. As we have explained, the crime was serious and time was of the essence if identifications were to be made.
Moreover, privacy concerns were reduced in this case. The show-up procedure on the street outside the club neither constituted a “search[] nor [affected] the sanctity of private dwellings, ordinarily afforded the most stringent Fourth Amendment protection.” Martinez-Fuerte, 428 U.S. at 561, 96 S.Ct. 3074. And the club itself, which was open to the public, did not yield the same expectations of privacy as a private setting: The show-up procedure, whereby the officers simply directed Palacios to line up inside the club and walk outside when so instructed, was far less invasive than, for example, a body frisk, which constitutes “a serious intrusion upon the sanctity of the person,” “may inflict great indignity,” and “is not to be undertaken lightly.” Terry, 392 U.S. at 17, 88 S.Ct. 1868; see also Ybarra, 444 U.S. at 95-96, 100 S.Ct. 338; Terry, 392 U.S. at 16-17, 17 n. 13, 88 S.Ct. 1868. Thus, this case did not involve heightened privacy interests that outweighed the law enforcement needs that prompted the show-up.
In addition, because the police took “reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy,” McArthur, 531 U.S. at 332, 121 S.Ct. 946, there was appropriate tailoring. The detention was limited in scope: The police separated out the women and briefly held only the possible male suspects followed by the request that the men line up and walk out of the club one-by-one. The seizure was also limited in duration and was “no longer than necessary for the police, acting with diligence,” to identify the perpetrators. Id. at 332, 121 S.Ct. 946; see also id. (finding reasonable a two-hour time restraint of an individual in his home).
Finally, the show-up is not realistically susceptible to an argument that it could have been less restrictive. “[R]easonableness under the Fourth Amendment does not require employing the least intrusive means....” Earls, 536 U.S. at 837, 122 S.Ct. 2559. Indeed, finding to the contrary could “raise insuperable barriers to the exercise of virtually all search-and-seizure powers,” Martinez-Fuerte, 428 U.S. at 556 n. 12, 96 S.Ct. 3074, and “unduly hamper the police‘s ability to make swift, on-the-spot decisions,” United States v. Sokolow, 490 U.S. 1, 11, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). In the situation at hand, the police could not have reduced further the number of potential suspects nor would it have been practicable to bring the witnesses into the crowded club: One was grievously wounded and the other was himself a suspect. We are not inclined to “indulge in [such] unrealistic second-guessing” as to other methods that might have been employed. Id. (internal quotation marks omitted).
Rather than supporting a “good Fourth Amendment claim,” Kimmelman, 477 U.S. at 382, 106 S.Ct. 2574, the “totality of the circumstances,” Cortez, 449 U.S. at 417, 101 S.Ct. 690, and the “balance [of] privacy-related and law enforcement-related
II. Strickland‘s “Prejudice” Prong
Because Palacios‘s claim fails to demonstrate constitutionally deficient “performance,” the first prong of the Strickland test, this court need not reach the second “prejudice” prong.
CONCLUSION
For the reasons we have stated, Palacios has failed to meet his burden regarding his ineffective assistance of counsel claim. Palacios cites to, and we have found, no Supreme Court case that establishes that show-ups of the sort employed here, immediately following the commission of a violent crime in the vicinity, are unlawful seizures under the Fourth Amendment. It necessarily follows that the state court‘s denial of Palacios‘s ineffective assistance claim was not an unreasonable application of clearly established federal law as determined by the Supreme Court. Upon reviewing the state court‘s determination that Palacios did not receive ineffective assistance of counsel, see id. at 90 n. 2, we conclude that Palacios is not entitled to a writ of habeas corpus, and that the district court properly denied his petition.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
JOHN M. WALKER, JR.
UNITED STATES CIRCUIT JUDGE