         12-3506-pr
         Pierre v. Ercole
                                      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 for the Second Circuit, held at the
 2       Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3       27th day of March, two thousand fourteen.
 4
 5       PRESENT:
 6
 7               ROBERT D. SACK,
 8               DEBRA ANN LIVINGSTON,
 9               RAYMOND J. LOHIER, JR.,
10
11                               Circuit Judges.
12       _______________________________________________
13
14       EMMANUEL PIERRE,
15
16                                         Petitioner-Appellant,

17                          -v.-                                                      No. 12-3506-pr
18
19       ROBERT ERCOLE, SUPERINTENDENT, GREEN HAVEN
20       CORRECTIONAL FACILITY,

21                               Respondent-Appellee.
22       _______________________________________________

23                                                  RANDA D. MAHER, Law office Of Randa D. Maher, Great
24                                                  Neck, NY, for Petitioner-Appellant.
25
26                                                  MALANCHA CHANDA (Susan Gliner, on the brief), for Cyrus
27                                                  R. Vance, Jr., District Attorney New York County, for
28                                                  Respondent-Appellee.



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 1             UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

 2   that the order of the District Court is AFFIRMED.

 3             Emmanuel Pierre, who stands convicted in New York following a jury trial for murder in the

 4   second degree, see N.Y. Penal Law § 125.25, appeals from a July 25, 2012 judgment of the United

 5   States District Court for the Southern District of New York (Forrest, J.) denying his petition

 6   pursuant to 28 U.S.C. § 2254 for habeas corpus relief. Pierre contends, in relevant part, that the

 7   district court erred in failing to conclude that the New York State Supreme Court’s denial of his CPL

 8   § 440.10 motion “amounted to an unreasonable application of clearly established federal law” as set

 9   forth in Strickland v. Washington, 466 U.S. 668 (1984). This Court granted a certificate of

10   appealability, see 28 U.S.C. § 2253(c), limited solely to whether trial counsel was ineffective for:

11   (1) failing to call as a witness Dr. Charles Wetli regarding his opinion as to the time of the victim’s

12   death; and (2) failing to investigate a police report describing an interview with Rose James who

13   may have provided testimony relating to the victim’s time of death. We assume the parties’

14   familiarity with the underlying facts and procedural history of the case, and with the issues on

15   appeal.

16                                                 *    *   *

17             While we review the denial of a habeas corpus petition de novo, see Jones v. West, 555 F.3d

18   90, 95 (2d Cir. 2009), pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

19   (“AEDPA”) a petitioner whose claim has been adjudicated in state court may obtain habeas corpus

20   relief only by showing that the state court’s denial of his claim was either “contrary to, or involved

21   an unreasonable application of, clearly established Federal law, as determined by the Supreme Court

22   of the United States,” or “was based on an unreasonable determination of the facts in light of the

                                                        2
 1   evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2); see Burt v. Titlow,

 2   134 S. Ct. 10, 15 (2013). Applying these standards, we may “reverse a state court ruling only where

 3   it was ‘so lacking in justification that there was . . . [no] possibility for fairminded disagreement.’”

 4   Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012) (quoting Harrington v. Richter, 131 S. Ct. 770,

 5   786-87 (2011)). As relevant here, where the alleged constitutional error on habeas review is

 6   ineffective assistance of counsel, the petitioner must show that the state court unreasonably applied

 7   Strickland v. Washington, 466 U.S. 668 (1984), and its progeny. Under Strickland, counsel’s

 8   representation is constitutionally defective only if (1) his representation“fell below an objective

 9   standard of reasonableness” measured under “prevailing professional norms,” and (2) prejudice

10   resulted such that “there is a reasonable probability that, but for counsel’s unprofessional errors, the

11   result of the proceeding would have been different.” Strickland, 466 U.S. at 687-88, 694; Santore

12   v. Fischer, 689 F.3d 138, 154 (2d Cir. 2012). “A reasonable probability is a probability sufficient

13   to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. With respect to the first

14   prong, counsel is “strongly presumed” to have rendered adequate assistance and to have made all

15   significant decisions in the exercise of reasonable professional judgment. Id. at 690.

16           Petitioner first argues that counsel was ineffective for failing to call Dr. Wetli as a witness

17   at trial. The decision not to call a particular witness is typically a question of trial strategy. Greiner

18   v. Wells, 417 F.3d 305, 323 (2d Cir. 2005). Thus, the decision “whether to call specific witnesses

19   – even ones that might offer exculpatory evidence – is ordinarily not viewed as a lapse in

20   professional representation.” United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000) (internal

21   citations omitted). In evaluating counsel’s conduct we begin with “the presumption that counsel was

22   effective,” and, when reviewing the challenged conduct, “look for legitimate justifications for that

23   conduct, including justifications transparent on the record . . . .” Greiner, 417 F.3d at 320.

                                                         3
 1          Petitioner contends that Dr. Wetli’s testimony could have cast doubt on key prosecution

 2   testimony from Dr. James Gill, the state pathologist: specifically, Gill’s testimony that the victim,

 3   Sandra Bonaventure, could have died as early as June 20, 2002, rather than later on June 22 or June

 4   23, during which time Pierre had an alibi. The record shows, however, that counsel vigorously and

 5   effectively cross-examined Dr. Gill as to the victim’s time of death. In such circumstances,

 6   counsel’s decision not to call Dr. Wetli can reasonably be understood as a strategic choice to avoid

 7   exposing his own witness to potentially effective cross-examination that could dilute the force of

 8   the points established during the cross-examination of Dr. Gill. We cannot say that counsel was

 9   ineffective for electing not to call Dr. Wetli, much less that the state court’s decision not to afford

10   relief on this ground was “contrary to, or involved an unreasonable application of, clearly

11   established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. §

12   2254(d)(1); see Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (a “doubly deferential judicial

13   review [] applies to a Strickland claim evaluated under the § 2254(d)(1) standard”).

14          Petitioner next challenges his representation on the grounds that his counsel purportedly

15   failed to investigate Rose James, Bonaventure’s neighbor, who according to a police report, told

16   police that she believed she saw Bonaventure on the afternoon of June 20, 2012 (after the time the

17   State contended Bonaventure had been murdered). Petitioner, however, failed to present a single

18   sworn statement to support his assertion that his lawyer failed to investigate James as a possible

19   witness. The record contains no affidavit from counsel explaining his actions or lack thereof. Nor

20   is there an affidavit from James affirming that she would have testified that she saw Bonaventure

21   on the afternoon of June 20, 2002, or that petitioner’s lawyer failed to speak to her. Instead, there

22   is only an unsworn statement in a police report, purporting to record an officer’s recollection that


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 1   James told him that she “believed” she saw the victim on “Thursday [June 20, 2002].” As the state

 2   court determined, these “bare allegations” regarding counsel’s purported failure to investigate James

 3   were “insufficient to carry []his evidentiary burden.” Burt v. Titlow, 134 S. Ct. 10, 17 (2013)

 4   (“[T]he burden to show that counsel’s performance was deficient rests squarely on the defendant .

 5   . . [T]he absence of evidence cannot overcome the strong presumption that counsel’s conduct fell

 6   within the wide range of reasonable professional assistance.” (internal quotation marks and

 7   alternations omitted)). No Supreme Court decision, moreover, requires a post-conviction hearing

 8   in such circumstances. See Wright v. Van Patten, 552 U.S. 120, 126 (2008) (when Supreme Court

 9   cases “give no clear answer to the question presented . . . it cannot be said that the state court

10   unreasonabl[y] appli[ed] clearly established Federal law” (internal quotation marks omitted)).

11          Petitioner also argues that the district court erred by itself failing to hold a hearing on his

12   ineffective assistance claim. This argument is unavailing. The Supreme Court’s decision in Cullen

13   v. Pinholster, 131 S. Ct. 1388 (2010) forecloses any factual finding by a federal court where, as here,

14   the petitioner makes out only a claim of legal error under section 2254(d)(1). See id. at 1398

15   (“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that

16   adjudicated the claim on the merits.”).

17                                                  *    *   *

18          Pierre has failed to meet his burden of establishing that the state court’s decision was

19   contrary to, or an unreasonable application of the Supreme Court’s decision in Strickland and its

20   progeny. Therefore his claim that his attorney failed to provide him with constitutionally adequate

21   representation provides no basis for granting him a writ of habeas corpus.

22


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1          We have reviewed Pierre’s remaining arguments and find them to be without merit. For the

2   foregoing reasons, the judgment of the District Court is AFFIRMED.
3

4                                                     FOR THE COURT:
5                                                     Catherine O’Hagan Wolfe, Clerk


6


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