    13-1366-cv
    Prescott v. Lee




                           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
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO 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 30th day of December, two thousand fifteen.

    PRESENT:
                BARRINGTON D. PARKER,
                PETER W. HALL,
                SUSAN L. CARNEY,
                      Circuit Judges.
    _____________________________________

    RONALD PRESCOTT,

                            Petitioner-Appellant,

                      v.                                                  No. 13-1366-cv


    WILLIAM LEE,

                      Respondent-Appellee.
    _____________________________________


    For Petitioner-Appellant:                        SALLY WASSERMAN, New York, N.Y.

    For Respondent-Appellee:                         JILL K. OZIEMBLEWSKI (Leonard Joblove and
                                                     Howard B. Goodman, on the brief), for
                                                     Kenneth P. Thompson, Kings County
                                                     District Attorney, Brooklyn, N.Y.
       Appeal from a judgment of the United States District Court for the Eastern District of New

York (Ross, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Petitioner-Appellant Ronald Prescott appeals from the district court’s denial of his petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We assume the parties’ familiarity with

the underlying facts, the procedural history of the case, and the issues on appeal, which we

reference only as necessary to explain our decision.

       Prescott was convicted in 2009, after a jury trial in New York Supreme Court, of

second-degree murder and second-degree criminal possession of a weapon in connection with the

killing of Phillip Mason. Both Prescott and Mason had been romantically involved with the same

woman—Ella Pack.

       At trial, the prosecution presented the testimony of Pack, who testified, inter alia, that she

had dropped off Mason to meet Prescott shortly before his murder. The prosecution also

presented the testimony of Dwayne Herbert, who knew both Prescott and Mason. Herbert

testified that he bumped into Prescott on the street shortly before the murder and that Prescott

smelled of alcohol and had jokingly pulled a .38 caliber revolver on him. Herbert also testified

that he later heard two gunshots, observed Prescott “scuffling a little bit” with Mason, who was

unarmed, and then saw Prescott fire four to six gunshots at Mason as Mason fled. Defense

counsel vigorously challenged Herbert’s credibility on cross examination based on, inter alia, his

criminal record and admitted heroin use on the night of the murder.


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       Prescott presented an alibi defense through this aunt, who testified that Prescott was at her

home on the night of the murder. She also testified that she had not told police during an

interview two days after the murder that she did not know whether Prescott had been at her home at

the time of the murder because Prescott was “a grown man” who “comes and goes all the time.”

E.D.N.Y. No. 11-cv-482, CM/ECF Doc. 12-6 (Trial Tr.) at 263–65.                 Her testimony was

subsequently impeached by a rebuttal witness, one of two detectives who had interviewed her two

days after the murder. The details of that interview were memorialized in a complaint follow-up

report, and that report had been provided to Prescott’s defense counsel before trial.

       The jury found Prescott guilty. He was sentenced principally to a term of imprisonment of

25 years to life, which he is currently serving.

       While his direct appeal was pending, Prescott moved to vacate the judgment pursuant to

New York Criminal Procedure Law § 440.10. Prescott argued that his trial counsel rendered

ineffective assistance by, inter alia, presenting an alibi witness who “was effectively destroyed by

a police rebuttal witness, even though the impeachment evidence had been memorialized in a

report that had been furnished to the defense before trial.” J.A. at 19. The trial court rejected this

argument and denied Prescott’s motion. That court concluded that “the record, when viewed

objectively, reveals the existence of a trial strategy that might well have been pursued by a

reasonably competent attorney.” J.A. at 45 (internal quotation marks and alteration omitted).

The state appellate court subsequently denied Prescott’s application for leave to appeal.

       On direct appeal from his conviction, Prescott again argued that trial counsel was

ineffective for presenting an impeachable alibi defense. The state appellate court rejected that


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argument, concluding that Prescott had “failed to demonstrate the absence of strategic or other

legitimate explanations for counsel’s alleged shortcomings.” J.A. at 48.

          In 2011, Prescott petitioned in the Eastern District of New York for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. He contended that the state courts’ rejection of his ineffective

assistance of counsel claim was based on an unreasonable application of federal law. The district

court denied the petition, and we granted a certificate of appealability on the following issue:

“whether trial counsel rendered ineffective assistance by advancing the alibi defense,” 2d Cir. No.

13-1366-cv, CM/ECF Doc. 24 (Order).

          We review de novo the district court’s denial of a petition under 28 U.S.C. § 2254. Harris

v. Kuhlmann, 346 F.3d 330, 342 (2d Cir. 2003).

          A federal court may not grant habeas relief under § 2254 “with respect to any claim that

was adjudicated on the merits in State court” unless the state court decision either (1) “was

contrary to, or involved an unreasonable application of, clearly established Federal law,” or

(2) “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). A federal

court may override a state court ruling only if it was “so lacking in justification that there

was . . . [no] possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103

(2011).

          Prescott’s claim of ineffective assistance was subject to Strickland v. Washington, 466 U.S.

668 (1984), requiring that he demonstrate both (1) that his attorney’s performance was objectively

unreasonable (a standard that affords counsel “wide latitude . . . in making tactical decisions”), and

(2) that the deficiency prejudiced his defense. Id. at 687–89. Because Prescott now challenges

under § 2254 the state courts’ denial of his Strickland claim, “‘[t]he pivotal question’ for the
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federal habeas court ‘is whether the state court[]s[’] application of the Strickland standard was

unreasonable.’” Santone v. Fischer, 689 F.3d 138, 154 (2d Cir. 2012) (quoting Richter, 562 U.S.

at 101) (first alteration in original). “The standards created by Strickland and § 2254(d) are both

highly deferential”; a federal collateral attack on a state court’s Strickland ruling is therefore

subject to a “doubly” deferential standard. Richter, 562 U.S. at 105 (internal quotation marks

omitted).

       We agree with the district court that Prescott has failed to demonstrate his entitlement to

habeas relief. Prescott’s petition challenges conduct by counsel that fits trial strategy—the

decision to pursue an alibi defense, and attack the credibility of the only witness to have placed

Prescott at the scene of the crime, to the exclusion of other defenses that would have conceded

Prescott had killed Mason. That strategy may not have been winning, but the states courts’

finding that it was not objectively unreasonable was not itself unreasonable. While Prescott now

faults his trial counsel for pursing an impeachable alibi defense at the expense of an intoxication

defense, the only evidence of intoxication was Herbert’s testimony that Prescott smelled of

alcohol.    Prescott’s arguments based on Henry v. Poole, 409 F.3d 48, 65 (2d Cir. 2005),

moreover, are not persuasive. In Henry, we concluded that a state court unreasonably applied

federal law when it determined that trial counsel’s presentation of “an alibi[,] that was clearly

given for the wrong day,” was not objectively unreasonable. 409 F.3d at 52. Prescott’s alibi,

however, was not so clearly inadequate—the testimony of his alibi witness was merely subject to

impeachment and set up a credibility contest between the alibi witness and the interviewing

detective for the jury to resolve. Prescott’s assertion that Henry is nevertheless controlling on the


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grounds that trial counsel “never subjected the prosecution’s case to any actual adversarial

testing,” Appellant’s Br. at 23–24, is flatly contradicted by the record.

       We have considered Prescott’s remaining arguments and find them to be without merit.

We therefore AFFIRM the judgment of the district court.


                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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