General WAITERS, Petitioner-Appellee, v. William LEE, Superintendent of Greene Haven Correctional Facility, Respondent-Appellant.
No. 15-3487-pr
United States Court of Appeals, Second Circuit.
May 22, 2017
857 F.3d 466
DEBRA ANN LIVINGSTON, Circuit Judge
August Term 2016. Argued: September 13, 2016.
Moreover, preventing plaintiffs from bringing suit for malicious prosecution once a nolle is entered would be inconsistent with the purpose of Section 1983. See Manuel, 137 S.Ct. at 921 (“In applying, selecting among, or adjusting common-law approaches [for determining when a claim under Section 1983 accrues], courts must closely attend to the values and purposes of the constitutional right at issue.“). When the state institutes criminal charges maliciously and without probable cause and requires a defendant to appear before a court and answer those charges, it violates the Fourth Amendment‘s guarantee against unlawful seizure. See Murphy, 118 F.3d at 944. The accused is entitled to seek recovery for such a wrongful seizure as soon as the charges are vacated. His day in court should not be delayed merely because the state remains free to bring a similar prosecution in the future.
Lastly, Spak‘s contention that his claim accrued not upon entry of the nolle, but thirteen months later when records of the charges against him were automatically erased pursuant to Connecticut state law, see
CONCLUSION
We have considered Spak‘s remaining arguments, and we find them unavailing. We therefore AFFIRM the judgment of the district court.
FOR PETITIONER-APPELLEE: MEGAN WOLFE BENETT (Gary Farrell, on the brief), New York, NY
Before: JACOBS, PARKER, LIVINGSTON, Circuit Judges.
DEBRA ANN LIVINGSTON, Circuit Judge:
Petitioner-Appellee General Waiters (“Waiters“) got into an argument at the home of his then girlfriend, Jacqueline Warren (“Warren“), one Sunday morning in May 2006 which began, as Warren testified, when she told Waiters that he‘d had “too much to drink.” Trial Tr. at 399. It ended when Waiters pulled out a revolver and fired repeatedly at Lorenzo, Warren‘s adult son who had intervened on his mother‘s behalf, injuring both Lorenzo and Warren‘s 14-year old daughter, and killing Warren‘s aunt and her aunt‘s three-year-old grandchild. Following a jury trial, Waiters was convicted of murder, attempted murder, and assault.
Waiters does not deny engaging in the conduct underlying these crimes. Rather, he contends that his trial counsel was ineffective for failing to call a medical expert both to interpret—and thereby render admissible—the portion of his medical records documenting his blood alcohol level (“BAC“), and to expound upon the effects of that level of intoxication. With that evidence, Waiters contends, it is reasonably likely that the jury would not have concluded that he harbored the requisite intent to commit his crimes. The state trial court judge who presided over Waiters‘s four-day trial rejected this claim, concluding, inter alia, that Waiters had presented nothing “establishing that medical testimony regarding the defendant‘s level of intox
We vacate the district court‘s judgment and remand for further proceedings consistent with this opinion. To establish a Strickland claim, the likelihood of a different result in the absence of the alleged deficiencies in representation “must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); see also Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (“It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.“). Here, we cannot say with any assurance how the jury might have weighed the proffered expert evidence of the effects of intoxication on the average person‘s ability to form intent against Waiters‘s own specific behavior and statements, including his admission to Warren, about a year after the incident, that he was “aiming after” Lorenzo (and thus intending to shoot) because he felt that Lorenzo “was trying to come between” them. Trial Tr. at 466 (emphasis added). We are therefore guided by the Supreme Court‘s instruction that in cases like this one, governed by
BACKGROUND
I. Factual Background1
A. The Offense Conduct
On the afternoon of Saturday, May 6, 2006, Warren threw Waiters a party at her apartment, in which Waiters also resided, to celebrate his 36th birthday.2 The party was attended by members of Warren‘s family, including her teenage children Derrick and Shatashia, who lived with Warren; her sister and sister‘s husband; and her aunt Mary Lee Clark (“Clark“) and Clark‘s five grandchildren, who ranged in age from only a couple of months old to about ten.
Waiters had begun drinking earlier in the day, and had additional Bacardi Light and soda with Warren and Clark during the party. According to Warren, she and Waiters drank every day; sometimes a fifth of rum managed to last them two days. Waiters regularly became verbally abusive when he drank, though he did not so behave that afternoon. The party lasted until about 11:00 p.m., when Warren‘s sister and brother-in-law left. Clark and her grandchildren stayed the night. Warren‘s 23-year-old son, Lorenzo, a letter carrier with the Postal Service who lived at the
The next day, Waiters was up before 9:30 and went out to purchase cereal and milk for the crowd. Then, before 11:00 a.m., he resumed drinking with Warren and Clark for about half an hour. Shortly thereafter, Warren took the bottle from Waiters, telling him he‘d had “too much to drink.” Suppl. App‘x at 43. Waiters resisted, exclaiming loudly, “Fuck you, bitch,” after which an argument ensued. Id. at 44. According to Warren, the pair feuded for a period, until Waiters abruptly left the apartment, only to return about 10 minutes later.3
Upon his return, Waiters proceeded directly to the couple‘s bedroom. He remained there for 15 to 20 minutes before reappearing in the living room, now wearing a jacket. By this point, he was “screaming[,] ... yelling[] and ... calling [Warren] names.” Id. at 46. Clark implored him to calm down. Waiters and Warren exchanged curses before Warren demanded that he leave.
Lorenzo Warren testified that he heard the arguing and came out from his bedroom to the living room to intervene, telling Waiters to “step away from [his] mother” and to not “get in [her] face.”4 Id. at 19. Waiters told Lorenzo that the argument did not “concern” him. Id. at 20. Lorenzo then moved closer to Waiters, at which point Warren and Clark pushed the two men to opposite ends of the room.
Derrick, then 17, and his younger sister Shatashia, 14, by this time drawn to the living room by the commotion, heard, respectively, Waiters tell Lorenzo, “I got something for you,” Trial Tr. at 483, and “you don‘t want me to pull what I got out of my jacket,” id. at 309. Lorenzo nonetheless openly doubted that Waiters had anything in his jacket. Waiters then pulled out a revolver and pointed it at Lorenzo, who, according to his trial testimony, continued to taunt Waiters, saying, “That gun isn‘t loaded. You don‘t have any bullets in that gun.” Suppl. App‘x at 32.
Waiters thereafter rapidly fired multiple shots. Derrick observed Waiters aim “[s]traight” at his brother, Trial. Tr. at 504, from a distance of about seven or eight feet. Warren saw Waiters shoot at Lorenzo as “he started going toward where Lorenzo was standing.” Id. at 414. Waiters‘s first shot hit Lorenzo in the thigh, and the remainder hit Shatashia in the thigh; Clark in the head, abdomen, and leg; and three-year-old Tajmere Clark, who had run out to her grandmother during the tumult, in the head and chest. Clark was rendered comatose and succumbed to her injuries after trial; Tajmere died at the scene.
Waiters thereafter attempted to leave. According to Derrick, who stood between Waiters and the front door, Waiters pointed the gun, a .357 revolver, point-blank at Derrick‘s face. Waiters then “pulled the trigger.” Id. at 508. When the gun “clicked,” id. at 508, indicating to Derrick that it was out of ammunition, Waiters moved toward the exit but Derrick tackled him to the ground and began punching. Lorenzo, though injured, then got on top of Waiters and instructed his brother to leave, all while Waiters continued squeezing the trigger of his gun and “pointing it wildly.” Id. at 248. Lorenzo began punch
Police and paramedics responded to the scene and transported both Waiters and his victims to the hospital. Medical records introduced at trial noted that Waiters was intoxicated when he arrived at Kings County Hospital Center, and that his “CNS” could not be “assess[ed] due to [his] intoxicated state.”5 Suppl. App‘x at 94. Records not before the trial jury but part of the record on appeal indicate that as of 12:33 p.m., approximately an hour after the events in question, Waiters registered an ethyl alcohol level of 386.24, the equivalent of a 0.39 BAC, which the hospital marked as “critical.” Appellant‘s App‘x at 76. Waiters was alert on admission, but confused and unaware of the time or where he was. He experienced continued disorientation and reported hallucinations in the days thereafter; hospital staff documented his delirium and history of “alcohol abuse and dependence.” Suppl. App‘x at 103.
B. The Trial
Beginning on May 5, 2008, General Waiters stood trial in New York Supreme Court, Kings County.6 In its opening statement, the prosecution explained that it would prove that Waiters, in an alcohol-fueled rage, attempted to shoot and kill Lorenzo Warren, and that he was therefore responsible for all of the resulting injuries—and, at that time, the single fatality7—under a theory of transferred intent. Waiters‘s attorney, Calvin Simons (“Simons“), did not articulate a particular defense in his opening, but he stressed to the jury that Waiters was not charged with intending to kill or injure anyone but Lorenzo: “The issue which you will focus on, as the People have stated, will be Lorenzo Warren.” Id. at 9.
During the prosecution‘s case in chief, Lorenzo testified that Waiters appeared drunk during their altercation because his “speech ... was a little bit slurred.” Id. at 30. Lorenzo indicated, however, that he had previously seen Waiters intoxicated “around maybe ten” times, id. at 27, and that he had been “way worse” on those occasions, id. at 30. Derrick testified that Waiters drank during the party the previous evening, as did the other adults, while Shatashia testified that she did not notice whether the adults were drinking, as she “was in a room with the kids.” Id. at 37.
For her part, Warren testified that Waiters drank on a daily basis, and that it caused him to become verbally abusive. She did not recall, however, how much Waiters had to drink on the day of his party or the next morning, although she testified that she drank with him and with Clark for about half an hour that morning before taking the bottle of Bacardi away.
Warren further testified that about a year after the shootings, in Spring 2007, Waiters telephoned her. During the conversation, Warren asked Waiters why he
At the conclusion of the prosecution‘s case, Simons indicated that the defense would decide over the weekend whether to call Dr. Sanford Drob as part of the defense case. Dr. Drob was a forensic psychologist engaged by the defense to explore a possible affirmative defense of extreme emotional disturbance. During the pretrial period, Waiters was evaluated by both Dr. Drob and Dr. Alexander Sasha Bardey—a prosecution expert—in connection with this defense, for which Simons had served notice. The prosecution responded by noting that Dr. Drob‘s testimony might open the door to the admission of a statement made by Waiters to police in the aftermath of the shootings.8 The trial court advised Simons to “make Doctor Drob aware of the fact that certainly if he opens the door, and maybe opening a door to a can of worms, that would not be helpful to your client.” Id. at 524. It then recessed for the weekend.
The following Monday, Simons informed the trial court that Waiters did not want Dr. Drob to testify. Waiters confirmed that proposition, and further indicated that he did not wish to testify on his own behalf. Simons thereafter sought to introduce certified medical records of Waiters‘s hospital visit in support of the argument that Waiters was intoxicated and unable to form intent. The prosecution objected, arguing primarily that the evidence already indicated that Waiters was drinking, intoxicated, and suffered a head injury; that the hospital records would invite speculation absent an explanation of the terms contained therein; and that introducing them might open the door to evidence that General Waiters, “in talking to both Doctor Drob[] and Doctor Bardey, said that he hadn‘t been drinking that morning, was not intoxicated, and was able to give a coherent version, his coherent version about what had happened.” Suppl. App‘x at 66. The trial court ultimately admitted two redacted pages of the medical records which together indicated, as previously stated, that Waiters arrived at the hospital in an intoxicated state and that hospital staff could not evaluate his “CNS” as a
In his summation, Simons argued that Waiters was so intoxicated that he did not intend to kill Lorenzo, but rather was merely reckless. He attempted to cast doubt on the testimony of Warren and her family suggesting the contrary by emphasizing discrepancies and omissions in the various witness accounts. He noted, among other things, that Waiters started drinking again that morning; that the medical records indicated that he was intoxicated; that multiple witnesses testified that Waiters changed when he drank; and that Waiters continued to pull the trigger on his revolver even after he had discharged all of its bullets. Simons also attacked the credibility of Warren‘s testimony about Waiters‘s phone call in Spring 2007, noting that she did not immediately mention the call to the prosecutor, even though she had “already talked to the District Attorney in the case.” Trial Tr. at 607-08.
In response, the prosecution also focused on Waiters‘s intent, noting that Waiters was able to perform the physical acts necessary to commit his crimes, and that his use of the gun—and specifically the fact that he targeted and successfully shot Lorenzo, “track[ing] over to” follow him as Lorenzo moved across the apartment—suggested that he was able to intend, and did intend, to kill. Id. at 629.
The prosecution likewise argued that, while Waiters “drank seriously every day,” id. at 633, and was voluntarily intoxicated that morning, the witness testimony suggested he was not so severely intoxicated that he was unable to form intent. Indeed, the prosecution explained that Waiters bought cereal and milk that morning; argued with Warren about his drinking; obtained a revolver and hid it in his jacket; argued with and ultimately shot Lorenzo; and attempted to escape the apartment after exhausting his ammunition. Moreover, Waiters‘s phone call to Warren, the prosecution contended, clearly demonstrated that he formed the requisite intent to commit his crimes: “[I]f he‘s so blown out, if he is so, so soused that he can‘t form intent ... when Jackie asked him ‘Why did you do it?’ he would have said, ‘Honey, I don‘t know.’ But he doesn‘t.” Id. at 642. Instead, the prosecution maintained, General Waiters admitted that he intended to shoot Lorenzo “to eliminate him for com
Thereafter, at Simons‘s request, the state trial court: (a) instructed the jury on the relevance of intoxication evidence, describing how it can serve to negate the intent element of the crimes with which Waiters was charged, and (b) instructed the jury on manslaughter in the first degree, as a lesser-included charge of second degree murder. Thereafter, on May 13, 2008—the same day on which deliberations began—the jury found Waiters guilty of one count of murder in the second degree, in violation of
II. Post-Trial Proceedings
Waiters filed both a pro se motion to vacate his conviction under
Waiters thereafter filed a pro se supplemental brief in his direct appeal, dated February 4, 2011, alleging ineffective assistance of counsel for the same reasons as those identified in his 440.10 motion. On May 8, 2012, the Appellate Division modified Waiters‘s sentence by directing that portions of it run concurrently, but otherwise rejected Waiters‘s appeal. See People v. Waiters, 95 A.D.3d 1043, 1044-45, 943 N.Y.S.2d 589 (2d Dep‘t 2012). The Appellate Division determined that Waiters‘s ineffective assistance of counsel claim could not be resolved “without reference to matter outside the record,” such that it was, in fact, appropriately raised in a 440.10 motion. Id. at 1044-45, 943 N.Y.S.2d 589. The New York Court of Appeals denied leave to appeal. People v. Waiters, 19 N.Y.3d 1002, 951 N.Y.S.2d 478, 975 N.E.2d 924 (2012).
A year later, on June 26, 2013, Waiters filed a pro se habeas petition in the United States District Court for the Eastern District of New York under
Dr. Stripp testified that Waiters‘s BAC of 0.39 was “significantly elevated,” Appellant‘s App‘x at 75, and that it meant that Waiters had consumed sixteen alcoholic drinks that morning, or even more if his drinking was spread over a longer period of time.14 Dr. Stripp further opined that an average person with such a high BAC would suffer “motor impairment” and “significant cognitive impairment,” id. at 81, including compromised judgment and emotional instability, blackouts, and amnesia.
Dr. Stripp also recognized, however, that there is “very significant individual[] variation” in how individuals are affected by alcohol, such that tolerance is “one of the most important considerations when interpreting a blood alcohol concentration.” Id. at 68. Accordingly, he explained that a “very tolerant drinker [can] have some level of functioning” when intoxicated, id. at 82, such that the effects of intoxication—be they physical or mental, which Dr. Stripp explained do not always manifest in tandem—may be reduced by as much as half. In fact, Dr. Stripp indicated that he had seen individuals with very high BACs who were, despite exhibiting poor judgment, still able to form intent.
Based on the medical records, Dr. Stripp noted that while hospitalized in the aftermath of the shootings, Waiters suffered from delirium and hallucinations caused by alcohol withdrawal which, together with abnormal liver function, suggested that Waiters had a long-term alcohol problem and consumed large quantities on a daily basis. Therefore, and given the aforementioned “significant variation” in individuals’ alcohol tolerance, id. at 89, Dr. Stripp concluded that while Waiters‘s “[d]efinite[]” drunkenness affected his “functioning and judgment,” id. at 95, 102, Dr. Stripp could not opine on how tolerant Waiters was, or on what effect his intoxication may have had on his ability to form intent.15
Simons, in his testimony, explained that he sought and obtained a subpoena for Waiters‘s hospital records within two weeks of his first appearance in the case.16 Simons and his client initially planned on pursuing an extreme emotional disturbance defense and calling both Dr. Drob and Waiters to support it, but Simons became concerned about the defense‘s viability before trial, and it was ultimately not pursued.17 Simons further represented that Waiters, on the day of his scheduled testi
Sometime after the close of the prosecution‘s case, the defense settled on an intoxication-based theory and, to that end, Simons sought to introduce Waiters‘s full hospital records. Simons indicated that he discussed the significance of Waiters‘s blood alcohol level with his client “a lot,” but that the “problem” was that when he asked Waiters about his 0.39 BAC, Waiters told him—consistent with his statements to Dr. Drob and Dr. Bardey—that he was not drunk, and that while he “drank the night before,” on the morning of the shootings he “did not feel drunk at all.” Id. at 132. Further, according to Simons, Waiters consistently represented that he fired at Lorenzo to “scare him or ... hit him in the leg,” id. at 182, the same explanation he had provided to the experts. Simons ultimately did not offer a strategic reason for not calling a medical expert, claiming he could no longer remember what he was thinking, although he affirmed he was pursuing a strategy in Waiters‘s best interest.
Following the hearing, on October 14, 2014, the state trial court denied Waiters‘s renewed 440.10 motion, finding that Simons‘s failure to call a medical expert to explain Waiters‘s medical records and BAC amounted to a permissible “mere tactical decision” under Strickland. Id. at 55. The trial court explained that “[t]he defendant‘s intoxicated state was explored before the jury,” and that, more generally, “the defendant‘s expert, Dr. Stripp ... could not establish that the defendant‘s blood alcohol level was such that his intent to commit the crime was negated.” Id. at 55. The trial court accordingly determined that while Simons could have called an expert to explain the medical records, “[p]articularly in light of the defendant‘s claims that he was not intoxicated at the time of this incident,” the failure to do so “under the particular facts and circumstances of [the] case” did not constitute ineffective assistance. Id. at 55. Simons, the trial court also noted, was placed “in the untenable position of setting forth a theory which was not consistent with the defendant‘s own position,” namely that he was not intoxicated. Id. at 55. Thus, for each ineffectiveness contention “there [were] equally plausible explanations why trial counsel proceeded in the manner which he did at the time of the trial.” Id. at 55.
As to prejudice, the state trial court first observed that Waiters‘s intoxicated state and its impact on the defendant‘s capacity to form intent had been considered and rejected by the jury, and that expert evidence would not likely have influenced this result given that “Dr. Stripp established [that while] the defendant had a particularly high blood alcohol level ... the effects of [that level] could vary greatly depending on the defendant‘s tolerance.” Id. at 55. There was otherwise “no testimony presented which established that medical testimony regarding the defendant‘s level of intoxication would have changed the jury‘s finding.” Id. at 55. Accordingly, the trial court concluded that while Simons could have called an expert, “his failure to do so [did] not rise to the level of a course of conduct which was inexplicably prejudicial.”18 Id. at 55. The Appellate Division again denied leave to appeal.
Waiters thereafter returned to district court. The district court lifted the stay, ordered additional briefing, and held oral argument on Waiters‘s habeas petition on
DISCUSSION
I
The Supreme Court in Strickland set forth a two-part test for evaluating claims of ineffective assistance of counsel. To warrant relief, a defendant must demonstrate both “that counsel‘s performance was deficient” and “that the deficient performance prejudiced the defense.”19 Strickland, 466 U.S. at 687, 104 S.Ct. 2052; accord Fischer v. Smith, 780 F.3d 556, 559 (2d Cir. 2015). “Without proof of both deficient performance and prejudice to the defense,” the Supreme Court has said, it cannot be shown that the conviction “resulted from a breakdown in the adversary process that rendered the result of the proceeding unreliable,” and the conviction “should [therefore] stand.” Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). We review the district court‘s grant of a petition for habeas corpus de novo, and its underlying findings of fact for clear error. Ramchair v. Conway, 601 F.3d 66, 72 (2d Cir. 2010).
Under AEDPA, when a state court adjudicates a petitioner‘s habeas claim on the merits, a district court may only grant relief where the state court‘s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law,” or was “based on an unreasonable determination of the facts in light of the evidence presented.”
The operative question in reviewing a state court‘s Strickland ruling is thus “not whether a federal court believes the state court‘s determination was incorrect[,] but [rather] whether that determination was [objectively] unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007); accord Yarborough, 541 U.S. at 665, 124 S.Ct. 2140; see also Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000) (explaining that, for application of a clearly established federal law to be unreasonable, the state court must not merely have erred, but rather its actions must be “somewhere between ‘merely erroneous and unreasonable to all reasonable jurists‘” (quoting Francis S. v. Stone, 221 F.3d 100, 109 (2d Cir. 2000))). Accordingly, to justify relief, Waiters was required to establish “that the state court‘s ruling was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103, 131 S.Ct. 770; accord Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012).
Because this appeal can be resolved with reference to Strickland‘s prejudice prong alone, we assume, without deciding, that there was no strategic rationale for Simons‘s decision not to call a medical expert. To be clear, however, the fact that Simons no longer remembers his reason for this decision does not preclude a determination that Waiters failed to establish constitutionally defective representation. The state trial judge noted that for each argument raised by Waiters supposedly demonstrating his counsel‘s ineffectiveness, “there [were] equally plausible explanations why trial counsel proceeded in the manner which he did at the time of the trial.” Appellant‘s App‘x at 55. We see no reason to disagree.21 But, as the Supreme Court ex
II
A. Waiters‘s Burden
To establish prejudice under Strickland, a habeas petitioner must demonstrate “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.”23 Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052); see also Strickland, 466 U.S. at 687, 104 S.Ct. 2052 (explaining that the deficient performance must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable“). “A reasonable probability is a probability sufficient to undermine confidence in the outcome,” Strickland, 466 U.S. at 694, 104 S.Ct. 2052, and thus the chance of an alternate result must be “‘substantial,’ not just ‘conceivable,‘” Cullen v. Pinholster, 563 U.S. 170, 189, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) (quoting Richter, 562 U.S. at 112, 131 S.Ct. 770); see also Strickland, 466 U.S. at 693, 104 S.Ct. 2052 (explaining that the required level of prejudice falls between the deficiencies having “some conceivable effect” and “more likely than not alter[ing] the outcome in the case“). Moreover, we have said that where a conviction is “supported by overwhelming evidence of guilt,” habeas relief on the ground of ineffective assistance is generally not warranted. Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir. 2001); see also United States v. Hasan, 586 F.3d 161, 170 (2d Cir. 2009) (denying habeas relief on this basis). This is because a verdict or conclusion with ample record support is less likely to have been affected by the errors of counsel than “a verdict or conclusion only weakly supported by the record.” Strickland, 466 U.S. at 696, 104 S.Ct. 2052.
Waiters‘s theory of prejudice hinges on
All the charges of which Waiters was found guilty required specific intent. See
B. Application
At the close of Waiters‘s trial, based on both witness testimony and the two redacted pages of medical records that the district court admitted, the jury was well aware that Waiters had been drinking both during his birthday party and the following morning, and that he was intoxicated when he emptied his revolver in the direction of Warren‘s family. The jury was also privy to evidence indicating that Waiters‘s intoxication had not rendered him incapable of purposeful action, including testimony documenting his actions and conversations on the morning of the incident, and his subsequent admission to Warren that he had targeted Lorenzo because Lorenzo was “coming between” them. Trial Tr. at 421. On the basis of this evidence, while the jury was instructed on intoxication, it found Waiters guilty of murder, attempted murder, and assault.
We are not persuaded that, had the jury also heard from a medical expert and reviewed the full set of medical records, there is a sufficiently strong probability that it would have found differently such that the state trial court‘s determination to the contrary was unreasonable. While such evidence could have been proffered, it would not likely have made a difference in light of the strong, specific testimonial evidence indicating that Waiters formed the requisite intent to commit his crimes. See Strickland, 466 U.S. at 696, 104 S.Ct. 2052; Lindstadt, 239 F.3d at 204.
Dr. Stripp‘s testimony and the medical records offer support for two propositions. First, they demonstrate that Waiters was intoxicated and had a BAC of 0.39, which the hospital deemed “critical,” Appellant‘s App‘x at 76—and which was potentially life-threatening—approximately an hour after the incident. Second, Dr. Stripp‘s testimony establishes that a 0.39 BAC causes significant physical and mental impairment in the average person, and of a sort associated with the incapacity for purposeful conduct (encompassing, for instance, blackouts and amnesia).
However, the critical deficiency of this evidence—a deficiency which the dissent notably omits to discuss—is that it does not establish how the 0.39 BAC affected Waiters and, more specifically, whether it undermined his ability to form intent. As Dr. Stripp testified, there is “very significant individual[] variation” among individual responses to alcohol because of variances in tolerance, which is “one of the most important considerations when interpreting [BAC].” Id. at 68. For this reason, Dr. Stripp made clear that he had no opinion as to whether Waiters could have
The evidence here suggests that Waiters possessed such tolerance. Warren testified that Waiters drank every day—behavior that Dr. Stripp explained results in alcohol tolerance—and Lorenzo maintained that he had seen Waiters intoxicated “maybe ten” times, Trial Tr. at 208, and that Waiters was much more intoxicated on those days than he was during the incident. The full medical records likewise indicate that Waiters had a history of “alcohol abuse and dependence,” Suppl. App‘x at 103, consistent with Dr. Stripp‘s testimony regarding Waiters‘s delirium, hallucinations, and abnormal liver function.
Further, to the extent that Waiters‘s BAC has remaining significance, even given that Waiters habitually abused alcohol and that Dr. Stripp could not opine on the question whether Waiters‘s intoxication negated his ability for purposeful conduct, it is still overshadowed, in this case, by the specific testimonial evidence of Waiters‘s ability to carry out purposeful acts prior to, and during, the incident. That morning, Waiters (a) purchased cereal and milk for Warren‘s family, an errand which necessarily involved purposeful travel and conducting a transaction; (b) argued with Warren when she took a bottle of alcohol from him; (c) obtained a revolver and had the presence of mind to hide it under a jacket; (d) argued with, and taunted, Lorenzo while making oblique references to his gun; (e) aimed and fired his revolver at Lorenzo, striking him in the thigh; (f) put his gun to Derrick‘s head and pulled the trigger; (g) attempted to flee the scene; (h) continued taunting Lorenzo while he struggled with him on the floor; and (i) asked Warren for help during that struggle. Collectively, these actions tend strongly to demonstrate that Waiters retained the ability to identify a conscious purpose and to act on that purpose, the intent necessary for conviction. Cf. Beaty, 22 N.Y.3d at 921, 977 N.Y.S.2d 172, 999 N.E.2d 535 (finding that an intoxication charge was not warranted because evidence that the defendant “cut a hole in a screen to gain entry [into a house], instructed the victim to be quiet, threw a blanket over her head, and stole her cell phone so she could not call the police” had “established that [the] defendant‘s conduct was purposeful“); People v. Saavedra, 39 A.D.3d 316, 317, 834 N.Y.S.2d 132 (1st Dep‘t 2007) (concluding that the “[d]efendant‘s intent to cause serious physical injury could be readily inferred from his actions, and there was no evidence that he was so intoxicated as to be unable to form the requisite intent” where the defendant “observed his friend fighting with [an] unarmed victim, [and thereafter] went to his car and obtained a knife with which he repeatedly stabbed the victim in the back” (citation omitted)).
Waiters‘s own description of the events of that morning corroborates this understanding of his mental state. According to Warren, Waiters admitted in a Spring 2007 phone call that he was “aiming after” Lorenzo because Lorenzo was “coming between” them. Trial Tr. at 421. Waiters appears, moreover, to have reported to Dr. Drob and to Dr. Bardey both that he retrieved his weapon and shot it intending to scare Lorenzo Warren because Waiters felt threatened, and that he did not feel
In reaching a different conclusion, the district court relied heavily (as the dissent does) on the theory that evidence of Waiters‘s BAC and its possible effects would have enabled Simons to “fend off” the prosecution‘s summation argument that there was no evidence indicating that Waiters was so intoxicated that he could not form the requisite intent. Appellant‘s App‘x at 23. While the evidence in question would certainly have supported a response to this prosecution argument, however, it does nothing to reduce the persuasiveness of other central elements in the prosecutor‘s closing, including Warren‘s testimony that Waiters admitted to her that he purposefully shot at Lorenzo. As recounted by the prosecution in summation, Waiters admitted to Warren, in “black and white,” that he “wanted to eliminate [Lorenzo] for coming between [them].” Trial Tr. at 642. Moreover, we also do not presume that the prosecution‘s summation would have been identical had Simons introduced the medical evidence on which Waiters relies. Rather, the prosecution would, in that scenario, have emphasized the remaining evidence in the record—evidence that, in any event, the prosecution did reference in its summation—which offered substantial and unrebutted support for the proposition that Waiters did intend to shoot Lorenzo Warren, regardless of his BAC.
In this vein, the central intoxication case the district court cites, Miller v. Terhune, 510 F.Supp.2d 486 (E.D. Cal. 2007), is unavailing.27 First, the ineffectiveness of the defendant‘s attorney in Terhune was not limited to a failure to investigate—or to call an expert to testify about—the effect of the defendant‘s intoxication, but rather included a failure even to seek an intoxication instruction or pursue an intoxication-based defense in the first place. See id. at 491, 502. Here, the jury was instructed on intoxication and Simons argued the point in his summation, yet the jury still voted to convict. Second, in Miller, the expert that defense counsel could have called clearly opined that the defendant‘s
In short, we cannot say that the state trial court‘s ruling—that Waiters‘s defense was not prejudiced by Simons‘s conduct—was objectively unreasonable. This is not a case where Dr. Stripp‘s testimony and the full medical records would have so clearly “alter[ed] the entire evidentiary picture” that the trial court‘s decision is indefensible. Strickland, 466 U.S. at 696, 104 S.Ct. 2052. Rather, the strong evidence of intent here places the trial court‘s ruling firmly within the bounds of “fairminded disagreement.” Richter, 562 U.S. at 103, 131 S.Ct. 770. Therefore, in light of the deferential standard of review, we conclude that the district court erred in granting Waiters‘s petition.
* * *
With respect to the other grounds for habeas relief that Waiters identifies, namely Simons‘s alleged failure to (a) ask that the jury be charged on second-degree manslaughter, and (b) impeach Warren with prior inconsistent statements, we do not address them here because the district court did not consider them below. Cf. DiSimone v. Phillips, 461 F.3d 181, 198 (2d Cir. 2006) (remanding habeas case for consideration of a question that had “not to date been the focus of attention in the courts that ... reviewed [the defendant‘s] case“); United States v. Tarricone, 21 F.3d 474, 476 (2d Cir. 1993) (refusing to consider ineffective assistance claim because the government introduced additional facts that the Court determined “should be evaluated by the district court in the first instance“). We instead remand so that the district court may consider the remaining aspects of Waiters‘s ineffective assistance allegations in the first instance, consistent with the analysis herein.
CONCLUSION
For the foregoing reasons, we VACATE the district court‘s grant of Waiters‘s petition for a writ of habeas corpus and REMAND the case for further proceedings consistent with this opinion.
DENNIS JACOBS, Circuit Judge, dissenting:
I respectfully dissent.
At a family gathering the morning after his birthday party, defendant General Waiters shot at the son of his girlfriend; but, shooting wildly, he wounded his target, hit three others, and killed two, including a toddler. He did this in a drunken rage. He is not entitled to much indulgence; but he was entitled to a fair trial. He did not get one because his counsel failed to arrange entry into evidence of a hospital record showing his blood alcohol at a potentially lethal level.
The United States District Court for the Eastern District of New York (Gleeson, J.) granted a writ of habeas corpus on the ground that defense counsel was constitutionally ineffective, that prejudice was established, and that the constitutional violation survives such deference as is owed to the rulings of the state court.
The two elements of ineffectiveness under the federal Constitution are deficient performance by counsel below and prejudice. The majority opinion goes on the assumption that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), but reverses anyway on the ground that the showing of prejudice is insufficient to withstand the deference we owe to state courts in habeas cases. Because I vote to affirm, I need to
I
Defense counsel failed to adduce the only effective evidence in support of the only defense that was pressed on summation. Waiters‘s only conceivable defense was lack of intent, and the only conceivable way he could show lack of intent was by alcohol impairment. The jury charge allowed the jury to consider the impact of alcohol on the question of intent; defense counsel on summation argued alcoholic impairment of intent; and the prosecution joined issue on that point at closing.
On the issue of intoxication, defense counsel held a largely bad hand. The impairment defense was undercut at trial by the defendant‘s girlfriend, whose family members were decimated by the gunfire. She testified that, on the morning of the shooting, she was drinking with him for half an hour but she could not say he had imbibed more than a single drink. Her son, whom Waiters shot, testified that Waiters‘s words were “a little bit slurred,” but also testified that he had seen Waiters “way worse” at least ten other times. This was the only testimony bearing on intoxication as the case went to the jury.
The only hope of the defense (and a potent one) was a hospital record showing that Waiters‘s blood alcohol content (“BAC“) was .39—five times the legal limit for driving; indicative (for a person of defendant‘s 130 pounds) of sixteen drinks the morning of the shooting; and typically enough to cause “significant cognitive impairment” including “impairment on judgment,” “blackouts,” “amnestic effects” and “potentially even unconsciousness.” App‘x at 81. And death. This was no mere incremental detail; it was powerful evidence of an otherwise forlorn defense.
But defense counsel inexplicably never played that trump card. He did attempt to enter into evidence the defendant‘s post-shooting hospital records, but the state trial court allowed in just two lines of them, and excluded the BAC number on the (valid) ground that expert testimony was needed to explain what it meant. The court was more than happy to give defense counsel time to find an expert to introduce and explain the BAC record, and everyone in the courtroom (except defense counsel) seemed to appreciate the import of that evidence: the state trial judge repeatedly urged defense counsel to call an expert to introduce it, and the prosecution was willing to adjourn to allow the defense to find an expert. See infra at 489-90. Defense counsel dug in. When the court informed him that it would not allow the BAC information in unless he called an expert, defense counsel told the court he would not call any more witnesses.
Thus the state trial court allowed into evidence just two lines of the medical records, both of which blandly observed that Waiters was “intoxicated.” Neither line included the BAC level, and neither line could answer the crucial question of whether Waiters‘s intoxication was sufficient to impair intent. Defense counsel seemed not to understand how much more significant the .39 BAC was than the reference to his client as “intoxicated“: in the evidentiary colloquy with the state trial judge, he failed to zero in on that number; and at the post-conviction hearing, he would not agree that it signified that Waiters had been “very drunk.” App‘x at 129.
Unsurprisingly, the prosecutor‘s closing statement on the intoxication defense focused on problems that would have been resolved by the BAC record. See infra at 487-88.
The refusal by defense counsel to introduce his only powerful piece of evidence is
Without deciding the adequacy of counsel‘s representation, the majority nevertheless posits several reasons why a lawyer might do what defense counsel did here. None of it washes. It is true that cross-examination of the expert would elicit the concession that Waiters probably built up resistance by long-term alcohol abuse. But every piece of evidence is subject to cross-examination and attack. As Judge Gleeson observed:
No reasonable defense attorney would opt to keep the jury ignorant of Waiters‘s astronomically high BAC on the off chance that it might not be astronomical enough ... Trial counsel‘s decision simply was not a tactical choice; it was incompetence.
App‘x at 20, 22.
The majority also speculates that defense counsel may have been afraid to ask for an adjournment because that would have given the prosecution time to seek additional evidence of Waiters‘s intent. But the majority does not extend that speculation to come up with any particular piece of evidence the prosecution might have sought out. I can‘t come up with one either.1
The majority opinion further posits that the expert testimony might open the door to statements Waiters made to psychological evaluators, in which he denied that he had been drunk at the time of the shooting (and the state trial judge made a similar point). But the effect of the admissions is easy to discount. Many drunks profess perfect sobriety, and no rational juror would credit an individual‘s statement that he was sober over scientific evidence that he had sixteen drinks in the prior hour.
II
The majority opinion relies solely on its conclusion that the showing of prejudice was insufficient even to establish a “reasonable probability” that the outcome would have been different—i.e., that the jury might have acquitted, or hung, or convicted on a lesser charge, Strickland, 466 U.S. at 695, 104 S.Ct. 2052—and that in any event we owe deference to the state trial court‘s ruling after the post-trial hearing.
Consider how the prosecution would fare in this case if it had withheld from the defense a document showing that, one hour after the shooting, the defendant had enough alcohol in his blood to kill a normal person. The prejudice would be seen as obvious and the effect palpable.
As a matter of law, the result here can be no different. The standard for gauging prejudice in a case of ineffectiveness is derived from Brady, 373 U.S. 83, 83 S.Ct. 1194 (1963); and the Supreme Court has told us that the standard for assessing
Applying the Strickland standard (as derived from Brady), prejudice is clear because the evidence that Waiters had absorbed a potentially lethal intake of sixteen drinks was the vital corrective to Warren‘s testimony that she had seen him have only one drink that morning in about half an hour. It is easy to conclude here, as we would in a Brady case, that the evidence the jury never got to see would have “alfer[ed] the entire evidentiary picture,” such that acquittal was at least reasonably probable. Strickland, 466 U.S. at 696, 104 S.Ct. 2052.4
How are you able to tell intoxication from the effects of getting hit over the head with a fish aquarium? Who knows?
Supp. App‘x at 86-87. “Who knows?” The prosecutor knows. He knew that the excluded BAC information would establish not only that the impairment was due to alcohol, but that Waiters was so intoxicated he could have fallen over dead.
The majority opinion advances two arguments to discount the possibility of an acquittal even if the BAC record had been allowed into evidence with an expert explanation. First, the majority opinion claims that the jury was “well aware ... that [Waiters] was intoxicated when he emptied his revolver in the direction of Warren‘s family.” Maj. Op. at 481. A review of the record shows that there was actually very little evidence of Waiters‘s intoxication before the jury when it went to deliberate. His girlfriend testified that her fight with Waiters began when she told him he had too much to drink, but (as set forth above) she also testified that she did not know whether he had more than one drink that morning, and her son testified that, though Waiters‘s words were “a little bit slurred,” he had seen Waiters “way worse” at least ten other times. The only other evidence of intoxication was the two lines in the medical records saying that Waiters was “intoxicated.” But the prosecutor effectively attacked that medical evidence as unreliable and imprecise in his closing statement. See supra at 487-88.
None of that evidence would persuade a jury that Waiters was extremely intoxicated, as required for an intoxication defense. None of it has anything like the force of the BAC record, which (with an expert explanation) would prove that the 130-pound defendant must have had sixteen alcoholic drinks that morning before the shooting started.
The majority opinion also considers that there was scant hope for an intent defense because Waiters did a number of voluntary acts that show self-possession: he bought milk and cereal; he got the gun; he concealed it on his person; he taunted his target with having it. But when he then shot, he barely wounded the target with whom he stood face to face, and he accidentally shot three others, two of them fatally. In other words, the evidence that Waiters was sober enough to act with intent was vulnerable.
The evidence of intoxication that the jury saw did not approach the level deemed necessary in the jury charge (as set out in the margin).5 A jury that had the most powerful evidence in Waiters‘s favor—a jury that knew he had a .39 BAC and that was told what that meant—could easily conclude that he was profoundly un
III
The majority opinion is understandably reluctant to hold on the merits that it was not at least “reasonably probable” that evidence of the defendant‘s prodigious intake might have changed the guilty verdict. Instead, the majority opinion leans on the concept of deference.
First, it is of course true that ineffectiveness claims generally involve deference. But the deference due under Strickland is deference to the tactical choices made by defense counsel—the “strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. That goes to the “ineffectiveness” prong of Strickland, not to prejudice. Since the majority opinion punts on ineffectiveness and relies solely on prejudice, Strickland deference thus does no work for it. See Hardy v. Chappell, 849 F.3d 803, 825 n.10 (9th Cir. 2016); Evans v. Sec‘y, Dep‘t of Corr., 703 F.3d 1316, 1334 (11th Cir. 2013) (Jordan, J., concurring) (“[it] makes no sense to say that initial judicial review as to whether prejudice resulted from counsel‘s deficient performance—on its own, before adding AEDPA deference—involves any deference“).7
Nor can the majority rely on deference to the state trial judge under AEDPA. The views of the trial judge are best manifested by her several efforts to focus defense counsel on the need to get an expert to give the testimony that would make admissible medical records containing the crucial .39 BAC. The judge went as far as she could go without committing advocacy:
THE COURT: I would agree with [the prosecutor] that the best way would have been to get someone from the hospital to certainly interpret the records as to those limited issues. Quite frankly, I don‘t know why, you know, someone wasn‘t called or at the very least to get an assessment by the doctor who appeared, even if it was by the people, something that would assist.
THE PROSECUTOR: Well, I‘m not in a position of assisting [the defendant] your Honor.
THE COURT: I understand that. Nor should you be. But I‘m saying that [expert testimony] is possibly one way that it could have been rectified.
THE PROSECUTOR: My position is it‘s the only way, your Honor.
What is [defense counsel] going to get up there and say? That this level means something? That this person‘s observation is any better than any other person‘s observation? That one person‘s intox, what does it mean in a medical standpoint? Does it mean that he can‘t form intent? I mean, this is all going to be speculation. What‘s he going to do, testify? Then it becomes impossible for me to rebut. Nor should I have to.
Again, you say it might be the better course. We‘re still not under a time crunch here, Judge. It can be done.
[]
THE COURT: So, if you‘re seeking to have blood levels, the amount of ethanol alcohol in Mr. Waiters‘s blood stream, then clearly there should be someone to explain it for the edification of the jury as to what, in fact, that would mean. Otherwise, there‘s no point to seek to introduce those levels of ethanol alcohol in his blood stream.
DEFENSE COUNSEL: Your Honor, the defense at this point is not introducing any additional witnesses at this point.
We would request that the Court permit all the information in, and we‘re prepared for the Court to make its ruling based on the defense not presenting any additional witnesses at this time.
THE COURT: May I see counsel at sidebar. (Off-the-record discussion held at the bench.)
It‘s the Court‘s understanding that the defense is not going to be calling any medical witness in order to certainly enlighten the jury as to what the numbers mean contained in the medical records.
Supp. App‘x 68-69, 71-72.
The majority opinion relies on the post-hearing conclusion of the state trial judge. She expressed her conclusion in a single clause, which does not help the majority at all:
[T]here is a little doubt the claims raised by the defendant would have served to change the jury‘s verdict.
App‘x at 56. That sentence is best read to reflect that the trial judge declined to rule on prejudice; after all, given her holding that defense counsel was effective, she did not need to decide prejudice. The majority opinion, however, urges that this sentence is afflicted by a pair of typographical errors: if the indefinite article “a” is removed and the little word “not” is inserted at a likely spot, the finding would coincide with the view of the majority opinion. (The majority opinion justifies its rewrite on the ground that the state habeas opinion—to which it urges deference—is full of typos.) I think it is possible that the state trial judge did intend to say the opposite of what she wrote. The context is ambiguous. But surely it is odd to rewrite a sentence that is grammatically sound in order to make it say something else for the purpose of giving it deference.
Finally, AEDPA deference does not mean that we use the rubber stamp. When a state court decision is unreasonable, we may grant habeas relief. Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). So even if the state court had held that there was no sufficient prejudice in this case, that decision would have been unreasonable for reasons I need not repeat.
* * *
Defense counsel pursued an intoxication defense, but failed to introduce and explain evidence that his 130-pound client had sixteen alcoholic drinks before committing the crime. He never provided a reason for his omission, and none is conceivable. It is at least reasonably probable that a jury, hearing such potent evidence, would develop reasonable doubt as to the element of intent.
DEBRA ANN LIVINGSTON
UNITED STATES CIRCUIT JUDGE