06-4860-pr
Torres v. Donnelly
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                         _____________________

                                            August Term, 2007
  (Argued: March 26, 2008                                                Decided: January 30, 2009)

                                          Docket No. 06-4860-pr
                                         _____________________

                                               Jesus Torres,
                                                                 Petitioner-Appellant,

                                                    -v.-

                     Edward R. Donnelly, Superintendent at Wende Correctional Facility,
                                                               Respondent-Appellee.
                                       _______________________

BEFORE:
                      FEINBERG, HALL, Circuit Judges, and SAND, District Judge.*
                                   ______________________

         Petitioner-Appellant Jesus Torres appeals from a judgment entered in the United States
District Court for the Western District of New York (Bianchini, Mag. J.) denying a petition for a writ
of habeas corpus brought pursuant to 28 U.S.C. § 2254 arising from petitioner’s state court robbery
conviction. We affirm the district court’s finding that petitioner did not receive ineffective
assistance where defense counsel agreed to stipulate at trial that an identification witness had
previously identified the petitioner when defense counsel showed her a photo array prior to trial.
Defense counsel’s duty to follow ethical guidelines and correct a witness’s in-court statements that
he knew to be false did not create a conflict of interest with his client such that petitioner was
relieved of having to demonstrate that counsel's actions had a probable effect on the outcome of the
trial, and petitioner is unable to show prejudice from defense counsel’s conduct.

        Judgment AFFIRMED.
                         ________________________


           *
            The Honorable Leonard B. Sand, United States District Judge for the Southern
   District of New York, sitting by designation.

                                                     1
FOR PETITIONER:                                        Marjorie M. Smith, Piermont, NY.

FOR RESPONDENT:                                  Donna A. Milling and Steven Meyer (on brief),
                                                 for Frank J. Clark, Erie County District
                                                 Attorney, Buffalo, NY.
                               ________________________

HALL, Circuit Judge:

       Petitioner-Appellant Jesus Torres appeals from a judgment of the United States District Court

for the Western District of New York (Bianchini, Mag. J.) denying his petition for a writ of habeas

corpus brought pursuant to 28 U.S.C. §2254. Torres v. Donnelly, 454 F. Supp. 2d 75 (W.D.N.Y.

2006). Following a 2001 jury trial in the Supreme Court of New York, Erie County, Torres was

convicted of two counts of robbery in the first degree in violation of N.Y. Penal Law § 160.15(4).

On direct appeal, Torres raised, inter alia, an ineffective assistance of counsel claim. The Appellate

Division, Fourth Department, dismissed all of his claims and unanimously affirmed his conviction.

People v. Torres, 735 N.Y.S.2d 316 (4th Dept. 2001). Here, Torres argues only that he was denied

effective assistance of counsel.

       The basis of Torres’s habeas claim stems from his defense counsel’s line of questioning

during cross-examination of an identification witness, Anna Rodriguez, which inadvertently elicited

testimony counsel personally knew to be inaccurate. Subsequently, to avoid becoming a witness

himself and to comply with his ethical obligations to the court to correct false testimony, counsel

agreed to stipulate that, contrary to Anna’s testimony during cross-examination, Anna had identified

Torres when counsel had shown her a photographic array prior to trial. Relying on Cuyler v.

Sullivan, 446 U.S. 335, 350 (1980), Torres asserts that defense counsel Thomas Keefe’s actions gave

rise to an actual conflict of interest that so adversely affected his performance that it was unnecessary



                                                   2
to demonstrate resulting prejudice. Torres also asserts that there is a reasonable possibility that, but

for the errors of defense counsel, the outcome of his trial would have been different.

                                           BACKGROUND

        Torres was tried for the November 6, 1997 robberies of two grocery stores in Buffalo, New

York. Torres does not contest his conviction for the first robbery of a store on Vermont Street. His

habeas claim extends only to his conviction on the second robbery, which occurred on Hampshire

Avenue. The robbery on Hampshire Avenue was witnessed by Olga Rodriguez, who was behind the

counter, Olga’s sister, Anna, and her niece, Lisalotte Rodriguez. Lisalotte was not called to testify as

a trial witness.

        At trial, Olga identified Torres as the robber and testified that she saw him clearly during the

robbery. Olga also testified that her sister Anna had been unable to identify the defendant when

shown a photo array by detectives. Defense counsel asked Olga, “In your presence, while you were

in the store, did a detective with the Buffalo Police Department show a photo to your sister . . . at any

time?” Olga responded “She did not identify. She was not paying too much attention that night [of

the robbery].”

        On cross-examination of Anna, defense counsel sought to build on Olga’s testimony and

elicit from Anna that she had been unable to identify the defendant in at least one photo array shown

to her by police. In response to questioning from defense counsel and the trial court, Anna testified

that she had identified the robber in the first photo array she was shown, but that she “couldn’t

identify [the robber the second time around].” Defense counsel then sought to determine the dates

that the police had shown Anna the two photo arrays. Although Anna initially stated that the second

photo array had been shown to her in January 1998, upon further questioning she indicated that it had


                                                    3
occurred in June 1998, a fact which was clarified and confirmed by the trial court. According to

Anna, she did not identify the robber when presented with this second array because she was “so

nervous.” When the date of the second photo array was confirmed by the court’s questioning,

however, Attorney Keefe realized that the photo array to which Anna was referring was the one that

he had shown her in June or July 1998 as part of his preparation for trial and not one shown to her by

police. He interjected and clarified to the court that he in fact had been in the store in June or July

1998 and presented a photo array to Anna. On redirect examination, Anna repeated that she did not

identify Torres when Attorney Keefe showed her an array because she was nervous. Contrary to

Anna’s testimony, however, Attorney Keefe knew that Anna had identified Torres when he had

shown her the photo array.

       Later, in a colloquy outside the presence of the jury, the prosecutor argued that it was

important to clarify to the jurors what Anna had told Attorney Keefe about the photo array. He

asserted that by showing her the photo array, Keefe had essentially made himself a witness in the

case. Upon questioning by the trial court, and because of Attorney Keefe’s ethical obligation not to

“knowingly use . . . false evidence,” Keefe ultimately informed the court that Anna had identified

Torres when Keefe showed her the photo array in June or July 1998. Keefe explained that he had

pursued his line of questioning under the mistaken belief that the police had shown Anna two sets of

photo arrays on separate occasions.

       To avoid the complications of defense counsel being called to the stand and possibly

obtaining different counsel for Torres, the trial court suggested, and Attorney Keefe agreed to, the

following stipulation, which the court then read to the jury:




                                                    4
               Both parties are concerned that there may be confusion over Anna
               Rodriguez’s testimony with regard to photo arrays. To clarify this issue
               over what photo array was shown to her, we, the attorneys, stipulate that
               on or about June or July of 1998, attorney Thomas Keefe . . . showed her
                . . . a photocopy of one of the arrays, and asked her if she could identify
               the robber . . . The witness did identify the robber as number 3 . . ..

After deliberations, the jury convicted Torres on both counts of robbery.

       On direct appeal from the conviction, the Appellate Division for the Fourth Department

affirmed Torres’s conviction. As to counsel’s cross-examination of Anna and resulting stipulation, it

found that:

               [D]efense counsel’s stipulation advising the jury that a witness identified
               defendant in a photo array shown to her by defense counsel was not an
               egregious error that denied defendant effective assistance of counsel.
               Defense counsel reasonably believed that the witness had been shown two
               photo arrays by police; during cross examination the witness testified that
               she identified defendant in the first photo array but not in the second photo
               array. During the course of the witness’s testimony, defense counsel
               realized the “second” photo array to which the witness referred was the
               photo array that he had shown the witness, and therefore the testimony of
               the witness that she did not identify defendant in that photo array was not
               true. Defense counsel could not “knowingly use...false evidence” (Code of
               Professional Responsibility DR 7-102[a][4] [22 NYCRR 1200.33(a)(4)])
               and thus was required to report the incorrect testimony to the court.
               Defense counsel’s alternative to the stipulation was to testify as a witness,
               which would have required new counsel for defendant.

People v. Torres, 735 N.Y.S.2d 316, 318-19 (App. Div. 4th Dep’t 2001). Thereafter, the New York

Court of Appeals denied Torres leave to appeal. People v. Torres, 97 N.Y.2d 762 (2002).

                                            DISCUSSION

       Under the Antiterrorism and Effective Death Penalty Act, where a state court has adjudicated

the claim on the merits, a federal court may only grant a writ of habeas corpus if the state court’s

decision “was contrary to, or involved an unreasonable application of, clearly established Federal



                                                   5
law, as determined by the Supreme Court of the United States,” 28 U.S.C. §2254(d)(1), or “was

based on an unreasonable determination of the facts in light of the evidence presented in the State

court proceedings,” 28 U.S.C. §2254(d)(2).

       To establish that counsel’s performance was constitutionally defective, a defendant must

show that “the lawyer’s performance ‘fell below an objective standard of reasonableness’ and that

‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceedings would have been different.’” Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007) (quoting

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). Strickland made clear that even if

counsel’s performance is found professionally unreasonable, “any deficiencies in counsel’s

performance must be prejudicial to the defense in order to constitute ineffective assistance under the

Constitution.” Strickland, 466 U.S. at 692. Therefore, the question becomes “whether there is a

reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt

respecting guilt.” Id. at 695. In certain circumstances, however, prejudice may be presumed, and an

individual inquiry regarding this factor is unnecessary. See id. at 692 (noting that where a defendant

shows “actual or constructive denial of assistance of counsel . . . [or] state interference with

counsel’s assistance . . . prejudice in these circumstances is so likely that case-by-case inquiry into

prejudice is not worth the cost”). Similarly, the Supreme Court has recognized that when a criminal

defendant claims that defense counsel was “burdened by an actual conflict of interest,” this warrants

a “limited presumption of prejudice.” Id. In these instances, the presumption of prejudice attaches

“only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that

‘an actual conflict of interest adversely affected his lawyer’s performance.’” Id. at 692 (quoting

Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)).


                                                    6
        Torres argues that the limited presumption recognized in Sullivan is applicable to his case

such that he is not required to demonstrate he was prejudiced by his counsel’s performance. We

disagree. Although Keefe had parallel duties to zealously represent his client and not to use false

evidence, this did not create an actual conflict of interest under Sullivan. Though the Sullivan

presumption has been “unblinkingly” applied to “all kinds of alleged attorney ethical conflicts,”

Sullivan’s discussion of it does not support this expansive application. Mickens v. Taylor, 535 U.S.

162, 174 (2002). The Supreme Court made clear in Mickens that the presumption

was created to account for the “high probability of prejudice arising from multiple concurrent

representation, and the difficulty of proving that prejudice.” Id. at 175. However, “[n]ot all attorney

conflicts present comparable difficulties.” Id.; see also Smith v. Hofbauer, 312 F.3d 809, 816 (6th

Cir. 2002) (citing Mickens, 535 U.S. at 175-76) (remarking that Sullivan has “never been extended

by the Supreme Court to conflicts other than joint representation”). Here, defense counsel’s ethical

obligation to correct the testimony he knew to be inaccurate does not present the difficulties and high

probability of prejudice engendered by joint representation. At most, in this case defense counsel’s

earnest representation of his client was constrained by ethical guidelines applicable to every attorney

appearing as trial counsel, to wit, that “[i]n the representation of a client, a lawyer shall not:...(4)

knowingly use perjured or false evidence.” See N.Y. Code of Prof’l Responsibility DR 7-102(a)(4),

N.Y. Comp. Codes R. & Regs. tit. 22, § 1200.33(a)(4).

        Accordingly, we hold that the tension between Keefe’s parallel duties of (1) zealous

representation and (2) candor to the court, which gives rise to his obligation to correct the record, did

not create a conflict of interest of the sort identified in Sullivan. This holding “is consistent with the

governance of trial conduct in what we have long called ‘a search for truth.’” Nix v. Whiteside, 475


                                                      7
U.S. 157, 171 (1986) (rejecting the application of the Sullivan presumption to defendant’s asserted

“conflict” between defendant’s desire to use false testimony and counsel’s professional ethical

obligations). Indeed, “an attorney’s ethical duty to advance the interests of his client is limited by an

equally solemn duty to comply with the law and standards of professional conduct; it specifically

ensures that the client may not use false evidence.” Id. at 168.

       We further find no actual conflict of interest inherent in counsel’s decision to enter into the

stipulation to correct the record. It is clear that several methods, such as calling as a witness the

interpreter who was present when Attorney Keefe showed Anna the photo array, were available to

accomplish this necessary task. Each of them, in order to correct the misstatement, would have

yielded the same result.

       Because Torres does not and cannot show a conflict of interest cognizable under Sullivan, he

must demonstrate that he was prejudiced in fact as a result of defense counsel’s conduct. See

Strickland, 466 U.S. at 694. That he did not do. Neither party mentioned the stipulation in their

summations, and there was sufficient independent evidence before the jury on which to rest the

verdict. This included Anna’s initial identification of Torres to the police, the identification of

Torres in a photo array by Olga, and Olga’s unequivocal identification of Torres at trial. Torres

cannot show that a reasonable probability exists that, but for counsel’s conduct, he would not have

been convicted. As Torres fails to demonstrate prejudice under the second prong of the Strickland

test, we need not determine whether defense counsel’s conduct fell below an objective standard of

reasonableness. See id. at 697 (“[T]here is no reason for a court deciding an ineffective assistance

claim to . . . address both components of the inquiry if the defendant makes an insufficient showing

in one.”). For these reasons we find that Torres was not denied effective assistance of counsel.


                                                    8
                                         CONCLUSION

       We have considered all of Torres’s other arguments and find them to be without merit. For

the reasons stated above, the judgment of the district court is AFFIRMED.




                                                 9
