14-701-pr
Woodard v. Chappius



                           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.



       At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
22nd day of January, two thousand sixteen.

Present:       ROSEMARY S. POOLER,
               PETER W. HALL,
               SUSAN L. CARNEY,
                          Circuit Judges.


_____________________________________________________

JUSTIN WOODARD,

                              Petitioner-Appellant,

                      v.                                                   14-701-pr

PAUL CHAPPIUS,

                        Respondent-Appellee.
_____________________________________________________

Appearing for Appellant:      Jane S. Meyers, Brooklyn, NY.

Appearing for Appellee:       Lisa Ellen Fleischmann, Assistant Attorney General for Eric T.
                              Schneiderman, Attorney General of the State of New York, New
                              York, NY.

Appeal from the United States District Court for the Western District of New York (Telesca, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.

        Petitioner-Appellant Justin Woodard appeals from the January 13, 2014 order of the
United States District Court for the Western District of New York (Telesca, J.), dismissing his
petition for habeas corpus brought pursuant to 28 U.S.C. § 2254 and denying his motion for a
stay so that he could exhaust his unexhausted claims in state court. We assume the parties’
familiarity with the underlying facts, procedural history, and specification of issues for review.

         At issue in this appeal is whether the district court improperly denied a stay of the
proceedings to allow Woodard to exhaust available state court remedies on his claim that trial
counsel was constitutionally ineffective in failing (1) to request a hearing as to the validity of
Woodard’s warrantless arrest, and (2) to investigate whether arrest circumstances warranted
suppression of Woodard’s confession for violation of Miranda v. Arizona, 384 U.S. 436 (1966).
We review a district court’s denial of a stay for abuse of discretion. Under Rhines v. Weber, 544
U.S. 269 (2005), a district court abuses its discretion in denying a stay to exhaust claims in a
mixed petition if the unexhausted claims are not plainly meritless, if the petitioner has good
cause for failing to exhaust, and if the petitioner did not engage in abusive or dilatory litigation
tactics. Id. at 277-78.

        The district court did not abuse its discretion in denying a stay so that Woodard could
exhaust his ineffective assistance of counsel claims because these claims are plainly meritless.
Pursuant to the well-known two-part test of Strickland v. Washington, 466 U.S. 668 (1984), a
habeas petitioner alleging ineffective assistance of counsel “must demonstrate (1) that his
counsel’s performance fell below what could be expected of a reasonably competent practitioner;
and (2) that he was prejudiced by that substandard performance.” Pearson v. Callahan, 555 U.S.
223, 241 (2009) (citing Strickland, 466 U.S. at 687). To show actual prejudice under Strickland,
Woodard must show that “that there is a reasonable probability that the verdict would have been
different absent the excludable evidence.” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
Woodard argues that his attorney was constitutionally ineffective in failing to investigate the
circumstances of the statement he gave police on November 20, 2007, and failing to move to
suppress that statement on several grounds. However, even if Woodard is correct that the
statement should have been suppressed, there is no reasonable probability of a different verdict
and, therefore, no prejudice.

        In addition to giving the November 20, 2007 statement confessing to participating in the
attempted robbery and the felony murder of Keith Holloway, Woodard also testified about his
participation in those crimes before a grand jury pursuant to a cooperation agreement that he
later violated, and after signing a waiver of immunity. Specifically, Woodard testified that on
January 14, 2007, he was with Robert Brewer. Woodard and Brewer ran into William Miller,
who was upset because he believed someone had raped his nephew. Miller stated that he wanted
to go to Rochester to rob the individual he believed had raped his nephew. Woodard testified that
Brewer stated that he wanted to participate in the robbery, and that Woodard agreed to give them
a ride to Rochester. Woodard testified that after arriving in Rochester, they drove around
searching for the victim, Holloway, because, according to Woodard, “we wanted to rob him.”
App’x at 1206. Woodard also testified that, when they were driving to Rochester, he saw that


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Brewer had a nine-millimeter gun. Woodard testified that he left for a period of time with
Brewer, but he then received a call from Miller that Holloway was going to Miller’s sister’s
house, and Woodard and Brewer therefore went to that house. Woodard testified that when
Holloway arrived, Brewer pointed the gun at him, and Miller said, “Where’s it at?,” meaning,
“Where’s the stuff, where’s the money[?]” App’x at 1210. Brewer pistol-whipped Holloway, and
then shot at his feet. Holloway then ran toward the kitchen, with Brewer running after him and
shooting at him. Miller asked Brewer if Holloway was dead, Brewer said he did not know, and
Miller told him, “Finish him.” App’x at 1211. Brewer returned to the kitchen, and Woodard
heard another shot. Woodard testified that he saw everything that occurred. Woodard testified
that he then drove Brewer and Miller to Miller’s mother’s house, during which Brewer threw the
nine-millimeter gun out the window, and then drove Brewer and Miller to Elmira. This
testimony, in addition to the November 20, 2007 statement, was introduced against Woodard at
trial. The substance of Woodard’s grand jury testimony was essentially identical to his prior
statement. The only even arguably material fact included in the November 20, 2007 statement,
but not the grand jury testimony, was that Miller told Woodard prior to the attempted robbery
that he also had a gun.

        Woodard’s grand jury testimony was corroborated by other evidence at trial. Kentrell
Burks, another witness to the attempted robbery and murder, testified against Woodard at trial,
corroborating in large part the details of Woodard’s grand jury testimony. Finally, an evidence
technician testified about recovering bullets and nine-millimeter casings in the locations where
Woodard described shots being fired, and the medical examiner testified that Holloway sustained
blunt force trauma to his face, which was consistent with Woodard’s testimony that Brewer
pistol-whipped Holloway before shooting him.

       Woodard raises no colorable argument that the grand jury testimony should have also
been suppressed, or that he would not have testified before the grand jury had the statement been
suppressed. Indeed, he testified before the grand jury on December 14, 2007, and the suppression
hearing was not until January 15, 2009. Thus, even if the November 20, 2007 statement had been
suppressed, given that another confession, given under oath, was introduced at trial and
corroborated by other evidence, there is simply no reasonable probability that Woodard would
not have been convicted at trial. Because he has suffered no actual prejudice, his Strickland
claims are plainly meritless, and the district court did not abuse its discretion in denying
Woodard’s motion for a stay so that he could exhaust those claims.

       We have considered the remainder of Woodard’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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