09-0019-pr
Moore v. New York


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY TH IS CO URT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN WHICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING A SUM M ARY
O RDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRO NIC D ATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A D ATAB ASE, THE CITATION M UST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.


       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 21 st day of December, two thousand nine.

PRESENT:            RALPH K. WINTER,
                    REENA RAGGI,
                    DEBRA ANN LIVINGSTON,
                              Circuit Judges.

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ROBERT MOORE, The State of New York ex rel.,
                            Petitioner-Appellant,

                               v.                                                       No. 09-0019-pr

THE STATE OF NEW YORK,
                                                   Respondent-Appellee.
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APPEARING FOR APPELLANT:                                      MICHAEL SPORN, New York, New York.

APPEARING FOR APPELLEE:                                       LISA ELLEN FLEISCH M A N N , A ssistan t
                                                              Attorney General (Barbara D. Underwood,
                                                              Solicitor General, Roseann B. MacKechnie,
                                          Deputy Solicitor General), for Andrew M.
                                          Cuomo, Attorney General of the State of New
                                          York, New York, New York.

       Appeal from the United States District Court for the Southern District of New York

(George B. Daniels, Judge; Henry Pitman, Magistrate Judge).

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

DECREED that the judgment entered on November 13, 2008, is AFFIRMED.

       Petitioner Robert Moore was convicted in New York state court of criminal sale of

a controlled substance in the third degree and criminal sale of a controlled substance near

school grounds in violation of N.Y. Penal Law §§ 220.39 and 220.44, respectively. He now

appeals from the denial of a petition for a writ of habeas corpus. See 28 U.S.C. § 2254. We

granted a certificate of appealability on the issue of whether Moore’s trial counsel was

constitutionally ineffective in failing to interview and call as a trial witness Joyce Dixon,

Moore’s alleged buyer in the drug counts of conviction. See Strickland v. Washington, 466

U.S. 668 (1984). In support of an unsuccessful state collateral challenge to his conviction,

Moore had submitted an affidavit from Dixon asserting that she had purchased the drugs at

issue from someone other than Moore. We assume the parties’ familiarity with the facts and

the record of prior proceedings, which we reference only as necessary to explain our decision

to affirm.




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       1.     Standard of Review

       While we review a district court’s denial of a habeas petition de novo, our review is

subject to several limiting principles. See, e.g., Acosta v. Artuz, 575 F.3d 177, 184 (2d Cir.

2009). For example, the state court’s reliance on an independent and adequate state law

ground to reject a constitutional challenge to conviction would normally preclude our review

of the merits. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). That principle does

not apply in this case, however, because, although the state court determined that Moore had

failed timely to raise his ineffective assistance claim, see N.Y. Crim. Proc. Law

§ 440.10(3)(a), respondent does not argue procedural bar in opposition to federal habeas

relief, see Trest v. Cain, 522 U.S. 87, 89 (1997). Further, the Antiterrorism and Effective

Death Penalty Act (“AEDPA”) generally requires federal habeas courts to defer to state

merits adjudications of constitutional claims absent an unreasonable application of clearly

established federal law as stated by the Supreme Court or an unreasonable determination of

the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C.

§ 2254(d). The district court, however, determined that AEDPA deference did not apply here

because the state court’s ruling on the merits of Moore’s ineffective assistance claim was

only “contingent.” Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007). The state submits that

this case is distinguishable from Bell v. Miller. We need not pursue that issue because, even

if we were to resolve it in Moore’s favor, we would not grant him habeas relief.




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       2.     Ineffective Assistance of Counsel

       A defendant seeking to overturn his conviction based on ineffective assistance of

counsel “bears a heavy burden.” United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004).

He must demonstrate both (a) that his counsel’s performance was objectively unreasonable,

and (b) that, but for his counsel’s unprofessional errors, the result of the proceedings would

have been different. See Strickland v. Washington, 466 U.S. at 687, 694. After an

evidentiary hearing at which both Dixon and Moore’s trial counsel testified, Magistrate Judge

Pitman issued a detailed report finding that Moore had failed to carry his burden on the

prejudice prong of Strickland analysis and recommending that the district court deny the writ.

The district court adopted the recommendation. We agree. See United States v. Guang, 511

F.3d 110, 120 (2d Cir. 2007) (“Because the defendant[] cannot show prejudice, ‘this court

need not consider the objective reasonableness of counsel’s actions.’” (quoting United States

v. Birkin, 366 F.3d 95, 101 (2d Cir. 2004))).

       To demonstrate prejudice on his ineffective assistance claim, Moore was required to

prove a “reasonable probability” that counsel’s investigation of Dixon would have altered

the outcome of his case. Strickland v. Washington, 466 U.S. at 694 (requiring “probability

sufficient to undermine confidence in the outcome”); accord Wilson v. Mazzuca, 570 F.3d

490, 507 (2d Cir. 2009).

       In finding such a probability lacking, Magistrate Judge Pitman relied largely on his

direct assessment of Dixon as a potential trial witness. We accord this assessment, based on

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the judge’s “unique ability” to observe the witness, considerable deference. See Ortega v.

Duncan, 333 F.3d 102, 107 (2d Cir. 2003). Judge Pitman observed that Dixon’s demeanor

at the hearing was hardly that of a witness likely to inspire jury confidence. Consistent with

her life-long drug dependency, Dixon “presented as an addict in need of drugs,” who, in only

a half hour on the stand facing non-aggressive questioning, seemed unduly “agitated” and

“extremely uncomfortable” to be testifying. Moore v. New York, No. 04-cv-02965, 2008

WL 4891215, at *10 (S.D.N.Y. Nov. 12, 2008). She was, moreover, generally subject to

impeachment based on an extensive record of convictions for theft and drug offenses. In

connection with at least one arrest, she lied to law enforcement officers about her identity.

Further, as Judge Pitman detailed, Dixon’s hearing testimony was riddled with

inconsistencies as to when she first met Moore, a fact critical to her claim that she had not

bought drugs from him on the date of their arrests. See id. at *8 (comparing affidavit

claiming Dixon met Moore in 2002 with hearing testimony giving three different accounts

of 2008 meeting). On this record, Judge Pitman found that, even though Dixon denied

buying drugs from Moore on the date of their arrest, it was unlikely that any responsible

defense attorney who interviewed her would have called such an “unstable and unreliable”

individual as a defense witness. Id. at *10. Although we review a cold record, we reach the

same conclusion.

       Indeed, like Judge Pitman, we further conclude that even if counsel had called Dixon

to testify it would not likely have altered the outcome of his trial. If the inculpatory evidence

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against Moore “cannot be characterized as overwhelming,” it was “not insubstantial.” Id.

Undercover officers testified to direct dealings with Moore in which, although he refused to

sell them drugs because he did not know them, he made statements that strongly indicated

his involvement in such illicit sales. Further, officers directly observed a hand-to-hand

exchange between Moore and Dixon moments before Moore was arrested in possession of

a sum of cash and Dixon, spotting the arresting officers, attempted to throw away a bag of

crack cocaine. Trial counsel’s cross-examination of the officers at Moore’s first trial had

raised sufficient doubts as to whether they had witnessed a drug transaction from Moore to

Dixon to result in a hung jury. If Dixon had testified, she would have strengthened the

government’s case to the extent she admitted that she had in fact purchased drugs on the

charged date. To the extent she denied that her seller was Moore, her credibility would have

been seriously undermined by the now-reinforced testimony of the officers who witnessed

her transaction with Moore as well as by the numerous and significant adverse factors noted

at the hearing by the magistrate judge.

       Accordingly, even if AEDPA deference is not applicable to this case, we conclude that

Moore was not prejudiced by counsel’s failure either to interview Dixon or to call her as a

trial witness. We have considered Moore’s other arguments on appeal, and we conclude that

they lack merit. We therefore AFFIRM the judgment of the district court denying a writ of




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habeas corpus.

                 FOR THE COURT:
                 CATHERINE O’HAGAN WOLFE, Clerk of Court


                 By:   ___________________________________




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