     13-3994
     White v. Racette

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 6th day of May, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                PETER W. HALL,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       EQUARN WHITE,
13                Petitioner-Appellant,
14
15                      -v.-                                             13-3994
16
17       STEVEN E. RACETTE, Superintendent,
18                Respondent-Appellee.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        RANDA D. MAHER, Great Neck, New
22                                             York.
23
24       FOR APPELLEE:                         DIANE R. EISNER (with Leonard
25                                             Joblove, Victor Barall, on the
26                                             brief), for Kenneth P. Thompson,
27                                             Kings County District Attorney,
28                                             Brooklyn, New York.

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 1        Appeal from a judgment of the United States District
 2   Court for the Eastern District of New York (Ross, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the judgment of the district court be
 6   AFFIRMED.
 7
 8        Equarn White, currently serving a fourteen-year prison
 9   sentence for first-degree assault, appeals from the judgment
10   of the United States District Court for the Eastern District
11   of New York (Ross, J.), denying White’s petition for a writ
12   of habeas corpus pursuant to 28 U.S.C. § 2254. We assume
13   the parties’ familiarity with the underlying facts, the
14   procedural history, and the issues presented for review.
15
16        In 2008, White was convicted of first-degree assault
17   after a jury trial in New York Supreme Court.
18
19        On August 8, 2006, sisters Darlene and Delrese
20   Whitfield stood waiting for a taxi in Brooklyn. Earlier
21   that day, the sisters had filed a complaint against their
22   uncle at the local police precinct, arising out of a
23   physical fight. Their uncle was arrested soon after. As
24   the Whitfield sisters waited for a taxi after their
25   complaint, somebody walked up to them, slashed Darlene
26   Whitfield’s face, and fled. The sisters named White--a
27   close friend of their uncle and an overnight guest in the
28   Whitfield household.
29
30        White’s first two jury trials for assault ended in
31   mistrial. At the third trial, the sisters identified White
32   as the person who attacked Darlene Whitfield. The
33   prosecution’s case-in-chief also included several prior
34   consistent statements by the sisters: on the day of the
35   assault, they had accused White in statements to police, a
36   neighbor, a paramedic, and a doctor. No objection was
37   raised to the admission of these prior consistent
38   statements.
39
40        On direct appeal, White argued that he was deprived of
41   effective assistance of counsel, because his trial counsel
42   had failed to object to the sisters’ prior consistent
43   statements identifying him as the assailant. The state
44   appellate court rejected this argument, concluding “that

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 1   counsel provided meaningful representation insofar as he
 2   employed ‘a trial strategy that might well have been pursued
 3   by a reasonably competent attorney.’” New York v. White,
 4   943 N.Y.S.2d 620, 621 (App. Div. 2d Dep’t 2012) (quoting New
 5   York v. Evans, 949 N.E.2d 457, 459 (N.Y. 2011)). The New
 6   York Court of Appeals denied leave to appeal. New York v.
 7   White, 975 N.E.2d 925 (N.Y. 2012).
 8
 9        In 2012, White petitioned pro se in the Eastern
10   District of New York for a writ of habeas corpus pursuant to
11   28 U.S.C. § 2254, contending that the state appeals court
12   had based its decision on an unreasonable application of
13   federal law. The district court denied the petition, and we
14   granted a certificate of appealability as to the following
15   issue: “whether trial counsel rendered ineffective
16   assistance by failing to object to the admissibility of
17   prior consistent statements.” (Motion Order, Mar. 31,
18   2014.)
19
20        We review de novo the district court’s denial of a
21   petition under § 2254. Harris v. Kuhlmann, 346 F.3d 330,
22   342 (2d Cir. 2003).
23
24        A federal court may not grant habeas relief under
25   § 2254 “with respect to any claim that was adjudicated on
26   the merits in State court” unless the state court decision
27   either (1) “was contrary to, or involved an unreasonable
28   application of, clearly established Federal law,” or
29   (2) “was based on an unreasonable determination of the
30   facts.” 28 U.S.C. § 2254(d). A federal court may override
31   a state court ruling only if it was “so lacking in
32   justification that there was . . . [no] possibility for
33   fairminded disagreement.” Harrington v. Richter, 562 U.S.
34   86, 103 (2011).
35
36        White’s state claim of ineffective assistance was
37   subject to Strickland v. Washington, 466 U.S. 668 (1984),
38   requiring that he demonstrate both (1) that his attorney’s
39   performance was objectively unreasonable (a standard that
40   affords counsel “wide latitude . . . in making tactical
41   decisions”), and (2) that the deficiency prejudiced his
42   defense. Id. at 687-89. Now that he challenges under
43   § 2254 the state court’s denial of his Strickland claim,
44   “‘[t]he pivotal question’ for the federal habeas court ‘is

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 1   whether the state court’s application of the Strickland
 2   standard was unreasonable.’” Standone v. Fischer, 689 F.3d
 3   138, 154 (2d Cir. 2012) (quoting Richter, 562 U.S. at 101).
 4   Because “[t]he standards created by Strickland and § 2254(d)
 5   are both highly deferential,” a federal collateral attack on
 6   a state court’s Strickland ruling is subject to a “doubly”
 7   deferential standard. Richter, 562 U.S. at 105 (internal
 8   quotation marks omitted).
 9
10        White’s petition challenges conduct by counsel that
11   fits trial strategy. The defense argued that the Whitfield
12   sisters had a plan to falsely accuse White pursuant to a
13   personal vendetta. According to a defense witness, the
14   Whitfield sisters were “liars” (Tr. 263) who had falsely
15   accused their uncle of assault earlier the same day and who
16   now continued that pattern by falsely accusing their uncle’s
17   friend, White. In his closing argument, defense counsel
18   argued that the Whitfield sisters had a plan to “get rid of
19   Equarn.” (Tr. 287.) White reiterates this theory in this
20   appeal: “the sisters’ motive to fabricate existed from the
21   outset”; “[t]heir motive to lie arose . . . a week before
22   the incident”; “the defense theory was that the sisters’
23   accusations against [White] were fabricated at the time of
24   the incident, and not after they made their statements”; and
25   “the complainant had ample time to reflect and there was no
26   evidence that she was not under the impetus of studied
27   reflection[] when she spoke to the officer.” (Appellant’s
28   Br. at 33-35 (internal quotation marks omitted).)
29
30        A trial attorney arguing that his client was a victim
31   of an accusation fabricated from the start may reasonably
32   prefer the accuser’s prior (and supposedly fabricated)
33   statements to be admitted rather than excluded. The state
34   appeals court, by allowing for that trial strategy,
35   reasonably applied Strickland. Furthermore, we reject
36   White’s argument that counsel’s strategy was irrational and
37   prejudicial because the first two trials, at which the
38   testimony of a police officer about a prior consistent
39   statement was excluded, ended in mistrials, while the
40   testimony was admitted at the third trial, which resulted in
41   conviction. The trials were sufficiently different in
42   several other respects, including an additional witness for
43   the prosecution rebutting White’s alibi defense, and the



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 1   absence of defense witnesses who had testified at the first
 2   two trials, to preclude this argument.
 3
 4        For the foregoing reasons, and finding no merit in
 5   White’s other arguments, we hereby AFFIRM the judgment of
 6   the district court.
 7
 8                              FOR THE COURT:
 9                              CATHERINE O’HAGAN WOLFE, CLERK
10
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