         08-3539-pr
         Bell v. Ercole


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
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 1            At a stated term of the United States Court of                                      Appeals
 2       for the Second Circuit, held at the Daniel Patrick                                      Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                                      City of
 4       New York, on the 4 th day of March, two thousand and                                    ten.
 5
 6       PRESENT: PIERRE N. LEVAL,
 7                CHESTER J. STRAUB,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13       GEORGE BELL,
14
15                                       Petitioner-Appellant,
16
17                       -v.-                                                   08-3539-pr
18
19       ROBERT E. ERCOLE, Superintendent, Green
20       Haven Correctional Facility,
21
22                                       Respondent-Appellee.
23
24
25
 1   FOR APPELLANT:       KATHERYNE M. MARTONE, The Legal Aid
 2                        Society, Criminal Appeals Bureau, New
 3                        York, NY.
 4
 5   FOR APPELLEE:        LINDA CANTONI (John M. Castellano, on the
 6                        brief), for Richard A. Brown, District
 7                        Attorney, Queens County, Kew Gardens, NY.
 8
 9        Appeal from the United States District Court for the
10   Eastern District of New York (Korman, J.).
11
12       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

13   AND DECREED that the June 20, 2008 order of the United

14   States District Court for the Eastern District of New York

15   is VACATED and REMANDED.

16       Petitioner-Appellant George Bell appeals from an order

17   of the United States District Court for the Eastern District

18   of New York (Korman, J.), which denied his petition for a

19   writ of habeas corpus pursuant to 28 U.S.C. § 2254.     See

20   Bell v. Ercole, No. 05 Civ. 4532, 2008 WL 2484585 (E.D.N.Y.

21   June 20, 2008).     We presume the parties’ familiarity with

22   the underlying facts, the procedural history, and the issues

23   presented for review.

24       Petitioner was convicted by a jury of, inter alia,

25   first-degree murder relating to a double homicide and

26   attempted robbery that occurred in Queens, New York on

27   December 21, 1996.     The evidence at trial included, among

28   other things:     (1) signed and videotaped confessions by

                                     2
1    petitioner; (2) testimony from Gary Turnbull, a witness

2    situated near the crime scene at the time of the homicides

3    who later identified petitioner in a lineup; and (3)

4    testimony from a “jailhouse informant” named Reginald

5    Gousse, who cooperated with the prosecution and testified

6    that petitioner confessed to the homicides while he was

7    incarcerated awaiting trial.    The matter was tried as a

8    capital case, but the jury declined to impose the death

9    penalty.    Petitioner was ultimately sentenced to life in

10   prison without the possibility of parole.

11       Petitioner raised four principal contentions in his

12   federal habeas petition.    First, he argued that unauthorized

13   crime-scene visits by two jurors during the trial injected

14   extra-record evidence into the deliberations that violated

15   the Sixth Amendment.    Second, petitioner asserted that

16   erroneous evidentiary rulings at trial abridged his Sixth

17   Amendment right to present a complete defense.    Third,

18   petitioner argued that the prosecution violated Brady v.

19   Maryland, 373 U.S. 83 (1963) and its progeny by failing to

20   disclose:    (1) the full extent of its cooperation agreement

21   with Gousse; and (2) that an individual named Jason Ligon

22   had recanted his confession to participating in the


                                    3
1    homicides.   Finally, petitioner contended that the

2    prosecutor committed misconduct during his trial summation,

3    which violated his due process rights. 1

4        The district court rejected each of these arguments,

5    and denied petitioner’s request for an evidentiary hearing

6    pursuant to 28 U.S.C. § 2254(e)(2).       With respect to the

7    jurors’ crime-scene visits, the district court held that

8    “[t]he jury’s exposure to extra-record information . . . was

9    harmless under any standard.”       Bell, 2008 WL 2484585, at *8.

10   As to the trial court’s evidentiary decisions, the district

11   court found that the effect of the rulings did not warrant

12   habeas relief, whether considered individually or

13   collectively.   See id. at *25.      The district court was also

14   unpersuaded by petitioner’s Brady arguments.       See id. at



         1
           In addition, petitioner argued that: (1) the trial
     court’s reasonable doubt instruction to the jury
     unconstitutionally diluted the prosecution’s burden of
     proof; and (2) the trial judge violated petitioner’s due
     process rights by refusing to afford his counsel an
     opportunity to be heard before the judge responded to a jury
     request for a read-back of the trial transcript. The
     district court rejected both of these arguments and did not
     grant a certificate of appealability as to either argument.
     Bell, 2008 WL 2484585, at *35. Petitioner’s motion to
     expand the certificate of appealability to include these two
     arguments was denied on October 10, 2008 by a previous
     three-judge panel of this court. See Dkt. No. 08-3539-pr,
     Order of Oct. 10, 2008.

                                     4
1    *27.     Finally, the district court rejected petitioner’s

2    challenges to the prosecutor’s summation, relying chiefly on

3    the “invited response” doctrine, United States v. Young, 470

4    U.S. 1, 12-14 (1985), and a curative instruction issued by

5    the trial court during closing arguments.     See Bell, 2008 WL

6    2484585, at *31.

7           The district court granted petitioner a certificate of

8    appealability as to these four holdings, each of which

9    petitioner challenges in this appeal.     See id. at *35.    Our

10   standard of review is well-settled; we review the district

11   court’s decision de novo and its fact findings for clear

12   error.     E.g., Garraway v. Phillips, 591 F.3d 72, 75 (2010).

13   Similarly established are the broad standards governing a

14   district court’s consideration of a habeas petition pursuant

15   to 28 U.S.C. § 2254 where, as here, the petitioner’s claims

16   were adjudicated on the merits in the state courts.     E.g.,

17   Hawkins v. Costello, 460 F.3d 238, 242-44 (2d Cir. 2006).

18   Within the broader framework for review established by the

19   Antiterrorism and Effective Death Penalty Act of 1996

20   (“AEDPA”), however, petitioner’s myriad arguments present a

21   complicated series of analytical questions.     For the reasons

22   set forth below, because we are unsatisfied that the


                                     5
1    district court properly addressed these issues, we vacate

2    the order denying the petition and remand for further

3    proceedings.

4        Our principal concern lies with the manner in which the

5    district court resolved petitioner’s challenges to the trial

6    court’s evidentiary rulings.   In order to determine whether

7    the effect of state-law evidentiary rulings can give rise to

8    an “unreasonable application of [] clearly established

9    Federal law,” 28 U.S.C. § 2254(d)(1), a district court must

10   first “start with ‘the propriety of the trial court’s

11   evidentiary ruling.’”   Hawkins, 460 F.3d at 244 (quoting

12   Wade v. Mantello, 333 F.3d 51, 59 (2d Cir. 2003)).   A trial

13   court does not necessarily violate AEDPA by misapplying its

14   state’s evidentiary law, but “[t]he inquiry . . . ‘into

15   possible state evidentiary law errors at the trial level’

16   assists . . . in ‘ascertain[ing] whether the appellate

17   division acted within the limits of what is objectively

18   reasonable.’”   Id. (alteration in original) (quoting Jones

19   v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000)).

20       In the context of challenged evidentiary rulings, the

21   second analytical step depends on the district court’s

22   decision regarding whether the evidentiary ruling was


                                    6
1    erroneous as a matter of state law.     If it was, then the

2    next question for the district court is “whether ‘the

3    omitted evidence [evaluated in the context of the entire

4    record] creates a reasonable doubt that did not otherwise

5    exist.’”   Justice v. Hoke, 90 F.3d 43, 47 (2d Cir. 1996)

6    (alteration in original) (quoting United States v. Agurs,

7    427 U.S. 97, 112 (1976)).     If, however, the challenged

8    ruling was correct under state law, then the district court

9    must ask whether the evidentiary rule that was applied is

10   “arbitrary or disproportionate to the purposes it is

11   designed to serve.”   Hawkins, 460 F.3d at 245.

12       The district court failed to hew to this framework,

13   which obscures our review of its decision.     The court

14   identified eleven categories of evidentiary rulings

15   challenged by petitioner. 2   Within those categories, it is


         2
           The categories of challenged rulings relate to the
     following evidence: (1) direct testimony and cross-
     examination relating to posters offering a reward for
     information about the homicides, see Bell, 2008 WL 2484585,
     at *10; (2) cross-examination of Assistant District Attorney
     Neil Morse regarding his recollection of petitioner’s
     lineup, id. at *11; (3) testimony from petitioner’s mother
     regarding his whereabouts on the morning of the homicides,
     id. at *12; (4) an audio-taped 911 telephone call by an
     eyewitness who testified at trial, id. at *13; (5) excluded
     expert testimony relating to false confessions coerced by
     non-physical means, id. at *14; (6) testimony relating to
     petitioner’s I.Q. and educational history, id. at *18; (7)

                                     7
1    not clear how many state-law errors the district court

2    found.   For example, with respect to the trial court’s

3    exclusion of testimony from petitioner’s mother relating to

4    his whereabouts on the morning of the homicides, the

5    district court found that there was “arguably some merit to

6    the argument that the trial judge abused his discretion.”

7    Bell, 2008 WL 2484585, at *12 (emphasis added).    Similarly,

8    as to the exclusion of testimony relating to petitioner’s

9    educational history, the district court reasoned that “[i]t

10   is not clear from the record why this evidence was excluded

11   at trial.”   Id. at *18.   However, with respect to each of

12   the challenged rulings, it was incumbent upon the district

13   court to address the proprietary of the trial court’s

14   decision and then to analyze the effect of that decision

15   under the framework described above.    In these respects, we

16   find the district court’s analysis lacking.    Therefore, one


     cross-examination of Detective Louis Pia relating to his
     experience in law enforcement, id. at *20; (8) testimony
     from Mendez Collier regarding his observations of petitioner
     while he was at the police precinct after they were
     arrested, id. at *21; (9) testimony relating to the
     investigation and arrest of Jason Ligon, id. at *22; (10)
     testimony and cross-examination relating to the sentencing
     exposure of Reginald Gousse, id. at *23; and (11) testimony
     and cross-examination relating to Gousse’s access, while in
     prison, to petitioner’s court documents and case-related
     press clippings, id. at *24.

                                    8
1    of the purposes of our remand is to permit the court to

2    properly analyze individually the challenged rulings.

3        We are also unsatisfied with the district court’s

4    analysis of the collective effect on petitioner’s trial of

5    the challenged evidentiary rulings.     Although the district

6    court noted that petitioner’s argument “relies on the[]

7    cumulative effect” of these rulings, id. at *9, the court

8    devoted the vast majority of its discussion to a somewhat-

9    ambiguous analysis of the individual impact of each

10   decision.     After performing that analysis, the court held

11   that it could not “conclude on this record that the whole is

12   greater than the sum of its parts” because:

13       Some of the erroneous rulings were not significant
14       in terms of their impact on the trial. Others
15       were harmless because other evidence was admitted
16       that made up for the evidence that was excluded,
17       and others were ultimately overcome by the
18       corroboration provided by the cumulative effect of
19       other evidence in the case. Moreover, not all of
20       the rulings were erroneous, even though I rejected
21       petitioner’s arguments on the alternative ground
22       that the errors were harmless.
23
24   Id. at *25.

25       Here again, we find ourselves unable to analyze the

26   district court’s conclusion because of the vagueness in its

27   reasoning.     The first shortcoming of this analysis results

28   from the court’s failure to specify which of the following

                                     9
1    self-identified classes each ruling fell into:        (1)

2    “erroneous rulings” that did not have a “significant . . .

3    impact on the trial”; (2) errors rendered harmless “because

4    other evidence was admitted that made up for the evidence

5    that was excluded”; (3) errors that were “ultimately

6    overcome” by the “cumulative effect of other evidence in the

7    case”; or (4) rulings that were assumed to be erroneous in

8    order to proceed to harmless error analysis.        Id.     The

9    district court also failed to consider whether the

10   prosecutor’s summation “sharpened the prejudice” that

11   resulted from the challenged rulings.        Jenkins v. Artuz, 294

12   F.3d 284, 294 (2d Cir. 2002).        Therefore, the second purpose

13   of our remand is to allow the district court to clarify its

14   analysis of the aggregate impact of the challenged

15   evidentiary rulings on petitioner’s trial.

16       One final aspect of the district court’s ruling

17   requires further analysis upon remand.        Several times in the

18   decision, when performing harmless error analysis, the

19   district court suggested that the jury was privy to the

20   “confession of an accomplice.”        See, e.g., Bell, 2008 WL

21   2484585, at *11 (“[I]t was unlikely that the jury would

22   discredit Turnbull’s identification as a lie in order to


                                     10
1    obtain a reward, when [petitioner] had previously confessed

2    and had been implicated in a confession of an accomplice.”

3    (emphasis added)); id. at *18 (“[A]s a practical matter, it

4    is virtually impossible for a defendant to succeed in

5    persuading a jury that his confession, corroborated by an

6    eyewitness identification, the confession of an accomplice,

7    and by other circumstantial evidence, was untrue without

8    taking the stand and explaining why he confessed.” (emphasis

9    added)).    The accomplice confession referenced by the

10   district court was not explicitly presented to the jury, as

11   it would have violated Bruton v. United States, 391 U.S. 123

12   (1968).    See Bell, 2008 WL 2484585, at *2 n.1.      However, the

13   district court took the view that Lieutenant Nevins’

14   testimony conveyed to the jury an “implicit” accusation by

15   Mark Bigweh against petitioner.        On remand the district

16   court should clarify the evidentiary basis for the

17   “confession of an accomplice” that it referenced, and

18   describe the weight that this “confession” received in its

19   harmless error analysis.

20       Moreover, if the district court continues to rely on

21   the accomplice confession in its harmless error analysis, it

22   should address the following.        Had the prosecution attempted


                                     11
1    to adduce evidence that Bigweh confessed and named Bell as

2    an accomplice, this evidence would have been objectionable

3    as hearsay and under Bruton.    Upon reviewing the record,

4    insofar as it was cited by the district court, it is

5    debatable whether there was a basis for such objections.      On

6    the one hand, it could be argued that the prosecution only

7    elicited testimony from Lieutenant Nevins that Bigweh “had

8    information,” Tr. 11690, and helped the police find Bell,

9    Tr. 11659-68.   In its harmless error analysis, however, the

10   district court seems to have reasoned that the jury heard

11   evidence of an accomplice’s confession implicating Bell, to

12   which Bell failed to object.    See, e.g., Bell, 2008 WL

13   2484585, at *2 n.1, *11.    It might be argued that, in doing

14   so, the district court:    (1) considered evidence that the

15   prosecution could not — and, arguably, did not — elicit

16   under Bruton; and (2) faulted petitioner for failing to

17   raise an objection to evidence that was not admitted at

18   trial.   On the other hand, one might argue that the jury did

19   hear an implicit accusation by an accomplice implicating

20   Bell, to which defense counsel failed to object, because the

21   jury heard that:   (1) Bigweh had information about the

22   crime, Tr. 11690, and was involved in the crime, Tr. 11829,


                                    12
1    11964-65; (2) Detective Nevins, as a result of meeting with

2    Bigweh, convened a “tactical meeting” to “apprehend an

3    individual,” Tr. 11659; (3) Detective Nevins then staked out

4    Bell’s home, Tr. 11662, “apprehended” Bell, “[p]laced him

5    against the wall,” “frisked him,” and “handcuffed him,” Tr.

6    11669; and (4) Bell “was arrested as a result of a co-

7    defendant of his by the name of Bigweh” and was thereafter

8    upset “that Bigweh had ratted him out,” Tr. 12092-96.    If

9    the district court adheres to its harmless error analysis

10   based on the accomplice confession, it should address this

11   issue as well.

12                      *         *         *

13       In sum, on remand the district court is directed to:

14       (1) Analyze each of the challenged evidentiary
15       rulings under the analytical framework set forth
16       in Hawkins v. Costello, 460 F.3d 238, 242-44 (2d
17       Cir. 2006);
18
19       (2) Discuss more thoroughly whether the collective
20       impact of the challenged evidentiary rulings —
21       considered together with the prosecutor’s
22       summation — warrants habeas relief; and
23
24       (3) Clarify the evidentiary basis for the
25       “confession of an accomplice” it referenced, e.g.,
26       2008 WL 2484585, at *11, *18, as well as the
27       weight this “confession” received in its harmless
28       error analysis.
29
30   In undertaking this analysis, the district court is of



                                  13
1    course free to develop the record further using its

2    discretion under 28 U.S.C. § 2254.

3        Accordingly, for the foregoing reasons, the judgment of

4    the district court is hereby VACATED and REMANDED for

5    further proceedings consistent with this order.   Within ten

6    days of the district court’s filing of its written response

7    to this order, either party to the proceedings may restore

8    the case to this panel by giving notice to the Clerk of the

9    Court.   See United States v. Jacobson, 15 F.3d 19, 22 (2d

10   Cir. 1994).

11                               FOR THE COURT:
12                               Catherine O’Hagan Wolfe, Clerk
13
14




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