11-1279-pr
Reily 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.

          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 8th day of August, two thousand twelve.

PRESENT:    RALPH K. WINTER,
            DENNY CHIN,
            CHRISTOPHER F. DRONEY,
                           Circuit Judges.

- - - - - - - - - - - - - - - - - - - -x

TERREL REILY,
          Petitioner-Appellant,

            -v.-                                          11-1279-pr

ROBERT ERCOLE,
          Respondent-Appellee.

- - - - - - - - - - - - - - - - - - - -x

FOR PETITIONER-APPELLANT:             RANDOLPH Z. VOLKELL, Merrick, New
                                      York.

FOR RESPONDENT-APPELLEE:              VICTOR BARALL, Assistant District
                                      Attorney (Leonard Joblove, Ann
                                      Bordley, Assistant District
                                      Attorneys, on the brief), for
                                      Charles J. Hynes, Kings County
                                      District Attorney, Brooklyn, New
                                      York.

            Appeal from a judgment of the United States District

Court for the Eastern District of New York (Vitaliano, J.).
           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

           Petitioner-appellant Terrel Reily appeals from the

district court's judgment of November 30, 2010, entered pursuant

to its memorandum and order of November 30, 2010, denying Reily's

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254,

and issuing a certificate of appealability as to Reily's due

process and ineffective assistance of counsel claims.    We assume

the parties' familiarity with the underlying facts, the

procedural history, and the issues presented for review.

           On September 8 and September 11, 2000, the Supreme

Court, Kings County (Lott, J.), conducted a pre-trial hearing

pursuant to United States v. Wade, 388 U.S. 218 (1967).     Prior to

the start of the Wade hearing, defense counsel made an

application requesting that the trial court assign independent

counsel so that he could testify at the Wade hearing and at trial

about alleged signaling by a police detective to Paulette

Patterson, an eyewitness, during a lineup on September 6, 2000.
The trial court denied the application, stating:

           [A]t this point, we are proceeding with
           cross-examination. If, in fact, it becomes
           necessary you will ultimately be a witness,
           then I may get [replacement] counsel. But at
           this point, I haven't heard anything that I
           [ ] think cannot [be] develop[ed] on
           cross.

(RA 47).   After the state rested at the hearing, defense counsel

again asserted that he would like to testify; the trial court

denied defense counsel's request.     Once trial had commenced,

                                -2-
however, defense counsel never renewed his request to testify,

and thus, the issue was not revisited by the trial court.

           The jury found Reily guilty, and on March 12, 2001, the

trial court entered judgment against Reily, convicting him of

murder in the second degree in violation of N.Y. Penal Law

§ 125.25[1], [2].    Reily was sentenced to a term of imprisonment

of 25 years to life.

           Reily appealed the judgment of the trial court to the

Appellate Division, Second Department, contending, inter alia,

that the trial court erred in precluding defense counsel from

testifying.    On May 5, 2003, the Appellate Division concluded

that defense counsel should have been permitted to testify at the

Wade hearing and remitted the case to the trial court for further
proceedings.    People v. Reily, 759 N.Y.S.2d 178, 179 (2d Dep't

2003).   The trial court subsequently held a hearing and issued a

report to the Appellate Division, concluding that the September

6, 2000 lineup was not suggestive.     In essence, the trial court

concluded that the error in not permitting counsel to testify at

the hearing was harmless.

           On December 20, 2004, the Appellate Division, after

reviewing the trial court's report, affirmed the judgment of

conviction.    People v. Reily, 787 N.Y.S.2d 657, 658 (2d Dep't
2004).   The Appellate Division noted that Reily's "remaining

contentions," including his claim that the trial court deprived

him of due process by not permitting his attorney to testify at

trial, were "unpreserved for appellate review or without merit."

Id.   On March 4, 2005, Judge Albert M. Rosenblatt of the New York

                                 -3-
Court of Appeals denied Reily's application for leave to appeal.

People v. Reily, 4 N.Y.3d 834, 834 (2005).   On May 13, 2008, the

Appellate Division denied Reily's application for a writ of error

coram nobis to vacate the conviction for ineffective assistance

of counsel.   People v. Reily, 856 N.Y.S.2d 864, 864 (2d Dep't

2008).

           In the instant appeal, Reily argues that the district

court erred in dismissing his habeas petition for two primary

reasons.   First, Reily contends that he was denied due process

when the trial court precluded defense counsel from testifying at

trial -- an error that Reily argues was not harmless.   See Brief
of Petitioner-Appellant (Reily) at 9, Reily v. Ercole, No. 11-

1279-pr (2d Cir. Nov. 7, 2011) ("[D]efense counsel's testimony

could still have been sufficient to raise a reasonable doubt in

the jury's minds.").   Second, Reily contends that he was denied

the effective assistance of counsel because his defense counsel

was also a potential witness and the trial court did not appoint

independent counsel.   Upon de novo review of the district court's

denial of Reily's habeas petition, we conclude that the district

court did not err in dismissing Reily's petition.   See Wood v.
Ercole, 644 F.3d 83, 90 (2d Cir. 2011),

           Under the Antiterrorism and Effective Death Penalty Act

("AEDPA"), a federal court may not grant a habeas petition on a

claim that was adjudicated on the merits in state court unless

that adjudication "was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by


                                -4-
the Supreme Court of the United States."    28 U.S.C. § 2254(d)(1);

see Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011); Watson v.

Greene, 640 F.3d 501, 508 & n.7 (2d Cir. 2011) (applying AEDPA

deference where Appellate Division held claim was "either . . .

unpreserved for appellate review, without merit, or [did] not

require reversal" because such holding was on merits (internal

quotation marks and citations omitted)).

           Upon de novo review of a district court's denial of a

petition for a writ of habeas corpus, see Parker v. Ercole, 666

F.3d 830, 834 (2d Cir. 2012), we conclude that the Appellate

Division did not unreasonably apply clearly established Supreme

Court precedent in rejecting Reily's claims with respect to

defense counsel taking the stand and the appointment of

independent counsel at trial, see 28 U.S.C. § 2254(d)(1).
           First, as to Reily's due process claim, Reily argues

that the trial court's denial of defense counsel's request to

testify at trial was not harmless.    At the Wade hearing, however,

the trial court left open the possibility of revisiting defense

counsel's request to testify at trial, but defense counsel never

renewed the request at trial.   The purpose of a Wade hearing is
only to determine whether there is sufficient evidence of the

reliability of an identification to allow it to be introduced at

trial.   See Brisco v. Ercole, 565 F.3d 80, 85 (2d Cir. 2009).

The dispositive weighing of the testimony and assessment of

credibility is left to the jury.     Because the trial court found

that the testimony of Reily's counsel at the Wade hearing would


                                -5-
not have prevented presentation of the identification at trial,

the trial court denied the request to testify while deferring a

decision on allowing it at trial.       Counsel, however, made no

request to testify at trial.     Further, any error that may have

existed could have been cured if defense counsel had re-raised

the issue.    We cannot fault the trial court for not raising the

issue sua sponte as defense counsel failed to renew the request

to testify.

             Second, as to the ineffective assistance of counsel

claim -- that the trial court should have appointed independent

counsel because defense counsel was a possible witness -- the

trial court was never asked to revisit the appointment of

independent counsel after the Wade hearing.       This claim thus also

fails.   The trial court cannot be faulted for failing to appoint

independent counsel at trial when the request was never renewed.

             We have considered Reily's remaining arguments and find

them to be without merit.     Accordingly, we hereby AFFIRM the

judgment of the district court.

                                 FOR THE COURT:
                                 CATHERINE O'HAGAN WOLFE, CLERK




                                  -6-
