     05-5235-pr
     Bell v. Miller


 1
 2                       UNITED STATES COURT OF APPEALS
 3
 4                          FOR THE SECOND CIRCUIT
 5
 6                             August Term, 2007
 7
 8
 9   (Argued: August 29, 2007                 Decided: August 31, 2007)
10
11                           Docket No. 05-5235-pr
12
13   - - - - - - - - - - - - - - - - - - - -x
14
15   DERRICK BELL,
16
17                    Petitioner-Appellant,
18
19               - v.-
20
21   DAVID L. MILLER, Superintendent
22   of Eastern Correctional Facility,
23   ANDREW CUOMO, Attorney General of
24   New York, and RAYMOND CUNNINGHAM,
25   Superintendent of Woodbourne Correctional
26   Facility,*
27
28                    Respondents-Appellees.
29
30   - - - - - - - - - - - - - - - - - - - -x
31

32         Before:          JACOBS, Chief Judge, KATZMANN, and HALL,
33                          Circuit Judges.
34
35         Appeal from a judgment of the United States District



           *
            We direct the Clerk of Court to amend the official
     caption as noted above.
1    Court for the Eastern District of New York, Allyne R. Ross,

2    Judge, denying Petitioner-appellant Derrick Bell’s

3    application for a writ of habeas corpus pursuant to 28

4    U.S.C. § 2254.   For the following reasons, we reverse the

5    decision of the District Court and remand for the entry of

6    judgment conditionally granting the writ and ordering

7    Derrick Bell’s release unless the State provides him a new

8    trial within 60 days.

 9                               Anne S. Raish (Mark Pomerantz,
10                               of counsel, Stephen H. Yuhan, on
11                               the brief) Paul, Weiss, Rifkind,
12                               Wharton & Garrison, LLP, New
13                               York, NY, for Petitioner-
14                               Appellant.
15
16                               Lara M. Shalov, Stillman,
17                               Friedman, & Shechtman, P.C., New
18                               York, NY for Petitioner-
19                               Appellant.
20
21                               Steven Banks, Lawrence T.
22                               Hausman, The Legal Aid Society,
23                               New York, NY for Petitioner-
24                               Appellant.
25
26                               Howard B. Goodman, Assistant
27                               District Attorney (Ann Bordley
28                               and Leonard Joblove, of counsel,
29                               Charles J. Hynes, District
30                               Attorney, Kings County, on the
31                               brief), Office of the Kings
32                               County District Attorney,
33                               Brooklyn, NY.
34

                                   2
1    DENNIS JACOBS, Chief Judge:

2        Petitioner-appellant Derrick Bell, who was convicted of

3    robbery and assault in New York State Supreme Court, Kings

4    County, is seeking a writ of habeas corpus on the ground

5    that his lawyer was constitutionally deficient for having

6    failed to consult a medical expert regarding the reliability

7    of the complaining witness’s identification-–the only

8    evidence tying Bell to the crime.   The witness was shot in

9    the thigh, lost half his blood, was heavily medicated,

10   lapsed into a coma for eleven days, and identified Bell by

11   name after recovering consciousness-–notwithstanding that at

12   the scene of the attack he had described his attacker

13   generically, as though the attacker was unknown to him.     The

14   District Court denied the petition on the ground that the

15   state court’s rejection of Bell’s claims was not based on an

16   unreasonable application of federal law, see 28 U.S.C. §

17   2254(d).   We reverse.

18                            BACKGROUND

19       Brentonol Moriah was held up at gunpoint as he was

20   walking in Brooklyn at 2:30 a.m. on July 16, 1996.   His

21   assailant, armed with a full-length shotgun, demanded money.


                                   3
1    Soon after Moriah surrendered the contents of his pockets,

2    headlights flashed from a nearby intersection and the

3    assailant fired into Moriah’s thigh and fled, weapon in

4    hand.

5        When the police came to the scene, Moriah was lying on

6    the street, having lost copious amounts of blood.   Moriah

7    told the officers that someone tried to rob him and then

8    shot him in the thigh.   A police officer testified that

9    Moriah described the perpetrator (in Moriah’s words) as “a

10   male black, wearing a lemon-colored shirt.”   Moriah said

11   nothing to the officers that would evince any familiarity

12   with the shooter; accordingly, the police reports from the

13   crime scene list the perpetrator’s identity as “unknown” and

14   “unidentified.”

15       For the following eleven days, Moriah was hospitalized

16   in a heavily sedated state, comatose if not actually in a

17   coma.   When he regained consciousness on July 28, 1996,

18   Moriah told the detective that his assailant was one Derrick

19   Bell, who had been his neighbor in a rooming house.

20       Bell was arrested on August 14, 1996, and charged with

21   first-degree assault, second-degree assault, fourth-degree


                                   4
1    grand larceny, and two counts of first-degree robbery.   Bell

2    had no prior criminal record.

3        On August 19, 1996, Moriah again named Bell in

4    videotaped grand jury testimony given from his hospital bed.

5    Moriah stated that he continued to take painkillers every

6    four hours and to suffer from memory lapses and dizziness.

7

8    A. Bell’s State Trial

9        At Bell’s trial, Moriah was the only prosecution

10   witness who identified Bell as the assailant.   Moriah

11   testified on direct that he and Bell shared a bathroom and

12   kitchen at a rooming house for more than a year, that they

13   spoke occasionally and never argued or fought, and that on

14   the night of the crime he stood face-to-face with Bell for

15   five minutes.   On cross, Moriah admitted that he first named

16   Bell eleven days after the crime took place; and that he did

17   not recall speaking with police officers on the night of the

18   crime.   Bell’s counsel asked Moriah no questions about the

19   medications he was administered while in the hospital

20   (including at the time he first identified Bell as his

21   assailant), nor did he ask about Moriah’s memory loss,


                                     5
1    which, according to Moriah’s grand jury testimony, persisted

2    for at least a month after the crime.

3        Dr. Robert Brewer, the emergency room surgeon who

4    treated Moriah on the night of the crime, testified for the

5    prosecution that Moriah lost 50 percent of his blood as a

6    result of the shooting.   On cross-examination, Bell’s trial

7    counsel inquired about the effect of that blood loss on

8    Moriah’s consciousness when he arrived at the hospital.

9    Counsel did not ask about the impact of blood loss on

10   memory, nor did he ask about the medications that were given

11   to Moriah at the hospital .

12       The prosecution called four other witnesses.

13   The policeman who had interviewed Moriah at the crime scene

14   testified as to Moriah’s description of his assailant: “a

15   male black wearing a lemon-colored shirt.”    The detective

16   assigned to the case testified that Moriah first identified

17   Bell as the perpetrator eleven days after the crime took

18   place, and that he was unable to interview Moriah before

19   then because Moriah had been unconscious.    Martin Payne, who

20   lived near the crime scene, testified that on the night of

21   the crime, he heard a person scream “no” several times,


                                   6
1    followed by a gunshot; however, Payne did not see the

2    shooting.   Richard Edmonds, the landlord of the rooming

3    house where Moriah and Bell once lived, testified about his

4    tumultuous landlord-tenant relationship with Bell.

5        Bell testified that he left work around midnight to

6    join friends, and they all played cards until five o’clock

7    the following morning.    Bell’s three alibi witnesses

8    confirmed that they played cards with Bell on the night in

9    question.

10       The jury convicted Bell of first-degree robbery and

11   second-degree assault.    The trial court sentenced Bell to

12   concurrent sentences of 12½-to-25 years on the robbery count

13   and seven years on the assault count, the maximum term for

14   both crimes.

15

16   B. State Appeal

17       Bell filed a timely notice of appeal in New York State

18   Supreme Court.    His direct appeal asserted various claims of

19   ineffective assistance of trial counsel but did not

20   challenge counsel’s failure to consult a medical expert.

21   The Second Department affirmed, People v. Bell, 298 A.D.2d


                                    7
1    398 (2d Dep’t 2002), and the New York Court of Appeals

2    denied leave to appeal.   People v. Bell, 99 N.Y.2d 555

3    (2002).

4        On February 13, 2004, Bell filed a motion to vacate his

5    conviction pursuant to N.Y. Crim. Proc. Law § 440.10.

6    There, for the first time, Bell argued that his trial

7    counsel was ineffective for having failed to consult a

8    medical expert regarding the effects of trauma, blood loss

9    and painkillers on Moriah’s memory.1   In support of his §

10   440 motion, Bell submitted the affidavit of Dr. Elkhonon

11   Goldberg, a neuropsychologist affiliated with New York

12   University and Columbia University, who reviewed the police

13   reports from the case, Moriah’s grand jury and trial

14   testimony, and the trial testimony and affidavit of Dr.

15   Brewer.   Dr. Goldberg opined that: “Mr. Moriah’s testimony

16   contains unequivocal evidence that he suffered from

17   retrograde amnesia for the events predating the loss of


          1
1           Other grounds for asserting ineffective assistance
2    were presented in Bell’s § 440 motion and in the habeas
3    petition, but those grounds are not before us here, as the
4    Certificate of Appealability is limited to the medical
5    expert issue. For the sake of simplicity, we refer to this
6    sole remaining claim as Bell’s “ineffective assistance
7    claim.”
                                   8
 1   consciousness”; the retrograde amnesia was exacerbated by

 2   such anxiolytic and amnestic medications as Dr. Brewer

 3   attested were likely administered to Moriah in the emergency

 4   room;2 false memories can be persistent and dominant,

 5   overriding true memories; and Moriah’s was unlikely to have

 6   regained full consciousness when he first named Bell.

 7   Accordingly, Dr. Goldberg concluded that Moriah’s

 8   identification of Bell was unreliable.

 9       On October 4, 2004, the state court denied Bell’s § 440

10   motion without a hearing.   It applied N.Y. Crim. Proc. Law

11   § 440.10(2)(c) to Bell’s ineffective assistance claim,

12   citing as unjustifiable Bell’s failure to raise the issue on

13   direct appeal.3   The court added:   “But if the merits were

14   reached, the result would be the same.”    The state court

          2
1           Mr. Moriah’s medical records were marked as exhibits,
2    but the District Attorney’s Office has been unable to
3    retrieve them. It is unclear whether Bell could have
4    obtained them by other means or whether he will be able to
5    do so now.
          3
 6          § 440.10(2)(c) mandates denial of a motion to vacate
 7   where, though “sufficient facts appear on the record of the
 8   proceedings underlying the judgment to have permitted, upon
 9   appeal from such judgment, adequate review of the ground or
10   issue raised upon the motion, no such appellate review or
11   determination occurred owing to the defendant’s . . .
12   unjustifiable failure to raise such ground or issue upon an
13   appeal actually perfected by him.”
                                   9
1    observed that Dr. Goldberg’s affidavit was “fraught with

2    hedge words,” and questioned whether, at the time of Bell’s

3    trial in 1997, Goldberg’s expert testimony regarding a

4    “single witness identification issue” would have been

5    admissible in a New York State court.

6

7    C. Federal Habeas Proceedings

8        Bell filed his federal habeas petition in the Eastern

9    District of New York on February 5, 2005.    On August 12,

10   2005, the District Court issued an opinion denying the

11   petition and declining to issue a Certificate of

12   Appealability.   The District Court concluded that Bell’s

13   ineffective assistance claim was not procedurally barred

14   because N.Y. Crim. Proc. Law § 440.10(2)(c) is not an

15   “adequate” state ground because New York courts do not apply

16   that rule regularly to ineffective assistance claims, as

17   such claims often depend on extrinsic evidence and therefore

18   must be brought through collateral attack.   Bell v. Miller,

19   No. 05-cv-0663, 2005 WL 1962413, at *5 (E.D.N.Y. Aug. 12,




                                     10
 1   2005).   This ruling is unchallenged on appeal.4   The

 2   District Court also concluded that because the state court

 3   decision “provided a full analysis” of Bell’s ineffective

 4   assistance claim, it constituted an “adjudication on the

 5   merits,” triggering the more deferential standard of review

 6   required by the Antiterrorism and Effective Death Penalty

 7   Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d)(1).     Id. at *6.

 8   This ruling is challenged, and decided below.

 9       As to the merits, the District Court found that Bell

10   did not show that the failure of trial counsel to consult a

11   medical expert fell below prevailing professional norms in

12   1997 when Bell was tried.   Id. at *7.   The District Court

13   distinguished the cases Bell relied on as applying only to

14   expert medical testimony in child sexual abuse cases.    Id.

15   at *8.   The District Court also found that Bell failed to

16   show prejudice, characterizing Dr. Goldberg’s conclusions as

          4
 1          The State does not contest this aspect of the
 2   District Court’s opinion on appeal, and so we decline to
 3   address it. See Jimenez v. Walker, 458 F.3d 130, 141 n.8
 4   (2d Cir. 2006) (“Because the existence of an adequate and
 5   independent procedural bar is not jurisdictional in the
 6   habeas context, a federal court is not required to raise it
 7   sua sponte; rather, it is a defense that the State is
 8   obligated to raise and preserve if it is not to lose the
 9   right to assert the defense thereafter.” (internal citation
10   omitted)).
                                   11
1    attenuated and speculative.   Id.

2        On June 12, 2006, this Court issued a Certificate of

3    Appealability on the sole question of whether trial

4    counsel’s failure to consult a medical expert constituted

5    ineffective assistance of counsel.

6

7                             DISCUSSION

8        We review de novo the District Court’s denial of Bell’s

9    petition for habeas corpus.   Thibodeau v. Portuondo, 486

10   F.3d 61, 64 (2d Cir. 2007).

11

12                        I. AEDPA Deference

13       Under AEDPA, if a habeas petitioner’s claim “was

14   adjudicated on the merits in State court proceedings,” a

15   federal court can grant habeas only if the state court’s

16   decision was “contrary to, or involved an unreasonable

17   application of, clearly established Federal law, as

18   determined by the Supreme Court of the United States,” or

19   “was based on an unreasonable determination of the facts in

20   light of the evidence presented.”    28 U.S.C. § 2254(d).

21       An “adjudication on the merits” is one that “ (1)


                                   12
1    disposes of the claim on the merits, and (2) reduces its

2    disposition to judgment.”    Sellan v. Kuhlman, 261 F.3d 303,

3    312 (2d Cir. 2001) (emphasis added and internal quotation

4    marks omitted).     The state court’s ruling on Bell’s § 440

5    motion discussed the merits and was reduced to a judgment;

6    but the wording of the opinion reflects that the disposition

7    was not premised on the court’s view of the merits.     The

8    discussion of the merits was preceded by a contrary-to-fact

9    construction:     “if the merits were reached, the result would

10   be the same.”     And a contrary-to-fact construction is not

11   the same as an alternative holding.     See Zarvela v. Artuz,

12   364 F.3d 415, 417 (2d Cir. 2004) (concluding that state

13   court had reviewed the claim on the merits where it found

14   “petitioner’s claim to be unpreserved, and, in any event,

15   without merit,” constituted an adjudication on the merits)

16   (emphasis added).     We decline to read a contingent

17   observation as an “adjudication on the merits.”

18   Accordingly, we review Bell’s claim de novo.

19

20                              II. Merits

21       A criminal defendant asserting that counsel is


                                     13
1    constitutionally deficient must show that the lawyer’s

2    performance “fell below an objective standard of

3    reasonableness” and that “there is a reasonable probability

4    that, but for counsel’s unprofessional errors, the result of

5    the proceeding would have been different.”   Strickland v.

6    Washington, 466 U.S. 668, 688, 694 (1984).   The standard of

7    Strickland “is rigorous, and the great majority of habeas

8    petitions that allege constitutionally ineffective counsel

9    founder on [it].”   Lindstadt v. Keane, 239 F.3d 191, 199 (2d

10   Cir. 2001).

11       Bell’s claim threads this needle.   The only evidence

12   connecting Bell to the crime was Moriah’s testimony.     Three

13   friends testified that Bell was elsewhere playing cards.

14   Given the trauma Moriah endured and the medical treatments

15   he received, Moriah’s memory was highly vulnerable to attack

16   by scientific evidence.   Minutes after an encounter in which

17   he stood face-to-face with the assailant for five minutes,

18   Moriah told police officers that his assailant was a “male

19   black wearing a lemon-colored shirt,” a description that

20   implicitly but undeniably indicates that the assailant was a

21   stranger: one does not fall back on general features (a


                                   14
1    “male black”) or the color of a shirt (“lemon” yellow) to

2    express the identity of a person known by name or

3    affiliation.   By the time Moriah identified Bell as the

4    assailant, Moriah had (in sequence) lost nearly half his

5    blood, undergone surgery, would (in usual course) have been

6    given anxiolytic and amnestic pharmaceuticals, entered a

7    sedated, coma-like state, remained semi-conscious (at best)

8    for eleven days, and awakened with cognitive abilities that

9    were in doubt.   On August 19, 1996, over a month after the

10   initial trauma, Moriah reported that he continued to take

11   painkillers and suffer memory loss and dizziness.     And he

12   had forgotten altogether the conversation at the crime scene

13   in which he described his assailant but did not name him.

14       Taking the Strickland requirements in reverse order,

15   there is a “reasonable probability” that had trial counsel

16   consulted with a medical expert, “the result of the

17   proceeding would have been different.”   Strickland, 466 U.S.

18   at 694.   The prosecution’s case against Bell was thin--there

19   was no eyewitness other than Moriah; no witness or other

20   evidence (forensic or otherwise) linked Bell to the crime.

21   See Strickland, 466 U.S. at 696 (“a verdict . . . only


                                   15
1    weakly supported by the record is more likely to have been

2    affected by errors than one with overwhelming record

3    support”).   Impeaching Moriah’s memory was therefore all in

4    all for the defense.     Armed with the insight and advice of a

5    medical expert, a lawyer could have vastly increased the

6    opportunity to cast doubt on this critical evidence.

7        It is likely that the state trial court would have

8    permitted a medical expert to testify as to the effects of

9    trauma, blood loss, and anxiolytic and amnestic medications

10   on the human brain, as those topics are well “beyond the ken

11   of the typical juror.”    People v. Taylor, 75 N.Y.2d 277, 288

12   (1990) (internal citation omitted); see, e.g., People v.

13   Cronin, 60 N.Y.2d 430, 433-34 (1983) (reversing trial

14   court’s preclusion of expert testimony on the impact of

15   alcohol, marijuana and Valium on defendant’s ability to act

16   purposefully); People v. Real, 137 A.D.2d 416, 416 (1st

17   Dep’t 1988) (“Since the key issue for the jury’s

18   determination was whether defendant could have formed the

19   required intent for the charged crimes, the court erred in

20   precluding defendant from calling an expert to testify as to

21   the effect of ‘angel dust’ intoxication on his ability to


                                     16
1    form such intent.”).     The State cites cases to show that

2    expert testimony on the reliability of eyewitnesses was

3    inadmissible in New York.    See, e.g., People v. Lee, 96

4    N.Y.2d 157 (2001).     But those cases exclude expert testimony

5    from social scientists on the fallibility of eyewitness

6    identifications in general.

7        True, counsel cross-examined Moriah and Dr. Brewer in

8    an effort to cast doubt on Moriah’s identification.     But

9    counsel’s failure even to investigate the scientific

10   implications of Moriah’s trauma, blood loss and sedation

11   handicapped his cross-examination of those key prosecution

12   witnesses.   See Eze v. Senkowski, 321 F.3d 110, 129 (2d Cir.

13   2003) (explaining that by not investigating the scientific

14   accuracy of prosecution witness’s conclusions, counsel

15   “missed out on the chance to impeach him on contrary medical

16   literature”).   Thus counsel failed to ask Dr. Brewer how

17   Moriah’s blood loss--estimated to be 50 percent--might have

18   altered Moriah’s memory of the crime, including the

19   potential for retrograde amnesia.    And counsel failed to

20   ascertain from Dr. Brewer what drugs he administered to

21   Moriah, let alone how those medications might have impacted


                                     17
1    Moriah’s memory.   Likewise, counsel failed to elicit any

2    testimony from Moriah about those medications, even though

3    Moriah had testified to the grand jury (on videotape) that,

4    over a month after the crime, he continued to take

5    painkillers and suffer memory lapses and dizziness.

6        As to the first requirement under Strickland, we must

7    make “every effort . . . to eliminate the distorting effects

8    of hindsight,” and “indulge a strong presumption that

9    counsel’s conduct falls within the wide range of reasonable

10   professional assistance; that is, the defendant must

11   overcome the presumption that, under the circumstances, the

12   challenged action might be considered sound trial strategy.”

13   Strickland, 466 U.S. at 689 (internal quotation marks

14   omitted).   Even affording this deference, we conclude that

15   counsel’s performance was deficient.

16       Counsel’s performance cannot fairly be attributed to a

17   “strategic decision” arrived at by “diligent counsel . . .

18   draw[ing] a line [based on] good reason to think further

19   investigation would be a waste.”   Rompilla v. Beard, 545

20   U.S. 374, 383 (2005).   Bell’s lawyer failed even to consider

21   consulting a medical expert regarding the reliability of


                                   18
1    Moriah’s memory.   Cf. Wiggins v. Smith, 539 U.S. 510, 525-

2    529 (limiting scope of investigation into potential

3    mitigation was not entitled to deference because it was made

4    at an unreasonable stage, rendering an informed decision

5    impossible); Williams v. Taylor, 529 U.S. 362, 390 (2000)

6    (failing to uncover and present extensive mitigating

7    evidence could not be justified on decision to focus on

8    other defense because that decision was made prematurely,

9    without the benefit of a thorough investigation) .

10       Moreover, the record reveals no “tactical justification

11   for the course” trial counsel chose.    United States v.

12   Luciano, 158 F.3d 655, 660 (2d Cir. 1998) (per curiam).      The

13   defense proceeded along two strategic lines: impeaching

14   Moriah and establishing an alibi.     The first of these would

15   have been promoted, without any appreciable downside, by

16   expert medical testimony on the impact that blood loss and

17   painkillers had on Moriah’s memory.    See, e.g., Pavel v.

18   Hollins, 261 F.3d 210, 219 (2d Cir. 2001) (finding

19   ineffectiveness for failure to call witness whose testimony

20   could have bolstered defense theory).

21       Our disposition of this appeal does not announce a per


                                   19
1    se rule requiring a defense counsel to consult with a

2    medical expert in order to cast doubt on a key prosecution

3    witness.   But where the only evidence identifying a criminal

4    defendant as the perpetrator is the testimony of a single

5    witness, and where the memory of that witness is obviously

6    impacted by medical trauma and prolonged impairment of

7    consciousness, and where the all-important identification is

8    unaccountably altered after the administration of medical

9    drugs, the failure of defense counsel to consider consulting

10   an expert to ascertain the possible effects of trauma and

11   pharmaceuticals on the memory of the witness is

12   constitutionally ineffective.

13

14                            CONCLUSION

15       For the foregoing reasons, we reverse the decision of

16   the district court and remand for the entry of judgment

17   conditionally granting the writ and ordering Derrick Bell’s

18   release unless the State provides him a new trial within 60

19   days.   The mandate will issue forthwith.




                                     20
