Waiters v. Lee

20-2190
Waiters 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 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 9th day of November, two thousand twenty-one.
4
5 Present:
6 DEBRA ANN LIVINGSTON,
7 Chief Judge,
8 REENA RAGGI,
9 Circuit Judge,
10 ERIC N. VITALIANO,
11 District Judge.*
12 _____________________________________
13
14 GENERAL WAITERS,
15
16 Petitioner-Appellant,
17
18 v. 20-2190
19
20 WILLIAM A. LEE, Superintendent of Greene Haven
21 Correctional Facility,
22
23 Respondent-Appellee.
24 _____________________________________
25
26 For Petitioner-Appellant: MEGAN WOLFE BENETT (Gary A. Farrell, on the brief),
27 Kreindler & Kreindler LLP, New York, NY.
28

*
Judge Eric N. Vitaliano, of the United States District Court for the Eastern District of New York, sitting
by designation.

1
29 For Respondent-Appellee: RHEA A. GROB (Leonard Joblove and Jodi L. Mandel,
30 on the brief), for ERIC GONZALEZ, District Attorney of
31 Kings County, Brooklyn, NY.
32
33 Appeal from a judgment of the United States District Court for the Eastern District of New

34 York (Brodie, J.; Bulsara, M.J.).

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

36 DECREED that the June 24, 2020 judgment of the district court is AFFIRMED.

37 Petitioner-Appellant General Waiters (“Waiters”) appeals from the denial of his petition

38 for a writ of habeas corpus, challenging his New York State convictions for, inter alia, second-

39 degree murder. See N.Y. Penal Law § 125.25(1). We detailed the uncontested facts of

40 Waiters’s crime in a prior opinion. See Waiters v. Lee (Waiters I), 857 F.3d 466, 468–71 (2d Cir.

41 2017). In this appeal, Waiters presses ineffective assistance of counsel arguments that we

42 instructed the district court to consider on remand in light of Waiters I. See id. at 484. Waiters

43 argues that his trial counsel was ineffective in failing (1) to request a jury instruction on the lesser-

44 included offense of second-degree manslaughter and (2) to impeach a witness with her prior and

45 allegedly inconsistent statement. Waiters argues that these errors, individually or together with

46 counsel’s alleged failure to adduce expert testimony, warrant habeas relief.

47 Over Waiters’s objections, the district court adopted Magistrate Judge Bulsara’s

48 recommendation to reject these claims, to deny the habeas petition, and to grant a certificate of

49 appealability “on the issue of whether he was denied his constitutional right to the effective

50 assistance of counsel.” Waiters v. Lee (Waiters II), No. 13-CV-3636, 2020 WL 3432638, at *14

51 (E.D.N.Y. June 23, 2020). We assume the parties’ familiarity with the underlying facts, the

2
 1 procedural history of this case, and the issues on appeal, which we lay out here only as necessary

2 to explain our decision to AFFIRM. 1

3 * * *

4 We review the district court’s denial of a petition for a writ of habeas corpus de novo.

5 Lynch v. Dolce, 789 F.3d 303, 310–11 (2d Cir. 2015). 2 Under 28 U.S.C. § 2254, as amended by

6 the Antiterrorism and Effective Death Penalty Act of 1996, we review a claim that was decided on

7 the merits in a state court only for an “objectively unreasonable” application of clearly established

8 federal law. Rivas v. Fischer, 780 F.3d 529, 546 (2d Cir. 2015); see also 28 U.S.C. § 2254(d).

9 To succeed on a claim for ineffective assistance of counsel, a defendant must show that

10 (1) “counsel’s representation fell below an objective standard of reasonableness,” and (2) “there is

11 a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

12 would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Federal

13 courts reviewing an ineffective assistance claim rejected by a state court on the merits “owe

14 deference to both [the petitioner’s] counsel and the state court.” Dunn v. Reeves, 141 S. Ct. 2405,

15 2410 (2021). Under this “doubly deferential” standard of review, “a federal court may grant

16 relief only if every fairminded jurist would agree that every reasonable lawyer would have made a

17 different decision,” id. at 2410–11 (first quoting Burt v. Titlow, 571 U.S. 12, 15 (2013), then

18 quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)), and if counsel’s failure resulted in a

19 “substantial” likelihood of a different result, see Harrington, 562 U.S. at 112.

1
Notwithstanding our decision to affirm, Petitioner-Appellant’s counsel, whom the district court appointed
in 2013, see Waiters I, 857 F.3d at 474, have ably discharged their responsibilities throughout the complex
and protracted proceedings in this case.
2
Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases,
footnotes, and citations are omitted.

3
 1 A. Failure to Request a Jury Instruction on Second-Degree Manslaughter

2 Waiters has failed to show that his trial counsel’s decision not to seek a second-degree

3 manslaughter charge was an unreasonable tactical decision, much less that each and every

4 fairminded jurist would so conclude.

5 As the district court observed and as Waiters conceded at oral argument in this court, he

6 “has not identified a Supreme Court decision”—or a decision of any other court—“finding that the

7 failure to request a lesser-included instruction constitutes deficient performance.” Waiters II,

8 2020 WL 3432638, at *7. Thus, this part of his ineffective assistance claim fails for lack of

9 support in clearly established law. See Lynch, 789 F.3d at 319 (holding that court may only grant

10 habeas petition “if the state courts’ denial of a petitioner’s claim was an unreasonable application

11 of clearly established federal law, as determined by the holdings of the United States Supreme

12 Court”).

13 Nevertheless, Waiters insists that because second-degree manslaughter, unlike the specific-

14 intent charges on which he was convicted, requires only that the defendant acted recklessly, see

15 N.Y. Penal Law § 125.15(1), his counsel should have sought the lesser charge. Waiters argues

16 that the jury might have concluded that he acted merely recklessly because he was intoxicated and

17 that second-degree manslaughter was, thus, the only instruction consistent with the proffered

18 intoxication defense.

19 But “whether or not to ask the trial judge to instruct the jury on lesser-included offenses is

20 a matter of strategy and tactics.” Waiters II, 2020 WL 3432638, at *9 (quoting People v. Colville,

21 20 N.Y.3d 20, 29 (2012)); see also Cruz v. Superintendant, No. 13-CV-2414, 2016 WL 2745848,

22 at *9 (S.D.N.Y. May 11, 2016) (attorney’s decision to “go for broke” and “not to request lesser-

23 included offense instruction . . . that could dilute that strategy” did not constitute ineffective

4
 1 assistance). Indeed, courts have specifically rejected ineffective assistance claims predicated on

2 counsel’s failure to request a second-degree manslaughter instruction in a murder prosecution

3 under New York law. Waiters v. Lee (R&R), No. 13-CV-3636, 2018 WL 10811222, at *7

4 (E.D.N.Y. June 23, 2020) (citing Ramdeo v. Phillips, No. 04-CV-1157, 2007 WL 1989469, at *34

5 (E.D.N.Y. July 9, 2007) (holding decision not to request second-degree manslaughter charge was

6 “strategic one,” providing no basis for ineffective assistance claim); Cassie v. Graham, No. 06-

7 CV-5536, 2007 WL 506754, at *25 (S.D.N.Y. Jan. 31, 2007) (deeming request for lesser-included

8 offense fundamentally inconsistent with strategy denying guilt), report and recommendation

9 adopted, 2009 WL 362134 (Feb. 10, 2009)).

10 Waiters’s counsel’s summation strongly suggests that he chose to pursue an “all or

11 nothing” trial strategy in which a successful intoxication defense would defeat specific intent and

12 yield a full acquittal. He argued:

13 It’s also not an issue of whether [Waiters] was reckless. Whether . . . being
14 intoxicated made him reckless. Because I submit to you if you believe his actions,
15 based on what you know about him, his interaction with the family was reckless,
16 meaning he had no business having that gun, he had no business taking out that
17 gun, but . . . alcohol . . . made him not think right and he was reckless, then you
18 would have to find him not guilty of these intent crimes. He’s not being charged
19 with being reckless.
20
21 Waiters II, 2020 WL 3432638, at *10 (quoting trial transcript). Counsel could reasonably have

22 made a strategic decision that this argument would have been undermined if the jury had been

23 charged also on second-degree manslaughter.

24 Counsel’s request for an instruction on first-degree manslaughter—a lesser-included,

25 specific-intent offense, see N.Y. Penal Law § 125.20; United States v. Scott, 990 F.3d 94, 121 (2d

26 Cir. 2021) (en banc)—warrants no different conclusion because that instruction was consistent

5
 1 with a strategy of declining to submit crimes with a recklessness mens rea in the hope that the jury

2 would acquit on all charges requiring specific intent.

3 Waiters notes that his counsel—testifying at an evidentiary hearing six years after trial—

4 could not specifically recall why he decided not to request the second-degree manslaughter charge

5 at trial. But as this court previously stated, “the fact that [counsel] no longer remembers his

6 reason for this decision does not preclude a determination that Waiters failed to establish

7 constitutionally defective representation.” Waiters I, 857 F.3d at 478. In sum, because we

8 cannot conclude that “every fairminded jurist would agree that every reasonable lawyer” would

9 have chosen to pursue a compromise verdict by requesting the second-degree manslaughter

10 instruction, Dunn, 141 S. Ct. at 2411, the district court correctly found no objectively unreasonable

11 application of clearly established federal law in the state court’s rejection of Waiters’s claim that

12 it was objectively unreasonable for his attorney to forego a second-degree manslaughter charge in

13 this case. 3

14 B. Failure to Impeach

15 At trial, prosecution witness Jacqueline Warren testified that she did not know how many

16 drinks Waiters consumed in a half-hour window during which he was with Warren and her aunt

17 on the morning of the crime and could not say whether he had more than one drink during that

18 period. Warren also testified that she began arguing with Waiters that morning after she took a

19 bottle of liquor away from him because, in her view, Waiters “had drank too much.” As to the

20 supposedly prior inconsistent statement, Warren told a defense investigator in the weeks following

3
Given this determination, we need not address whether Waiters was prejudiced by his counsel’s strategy,
nor whether Waiters would have been entitled to a second-degree manslaughter instruction if counsel had
requested it.

6
 1 the shootings that Waiters had consumed “about a pint” of liquor that morning by himself. 4

2 Waiters argues that any fair-minded jurist would conclude that his trial counsel was ineffective for

3 failing to impeach Warren with this prior statement. We are not persuaded.

4 At the start, Warren’s statements were arguably not inconsistent because they all

5 acknowledge heavy drinking. “Decisions about ‘whether to engage in cross-examination, and if

6 so to what extent and in what manner, are strategic in nature’ and generally will not support an

7 ineffective assistance claim.” Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002) (quoting

8 United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987)). Here, counsel elicited from

9 Warren that she took the liquor bottle away from Waiters because he already “had too much to

10 drink.” Warren also testified that “she and Waiters drank every day” and that “sometimes a fifth

11 of rum managed to last them two days.” Waiters I, 857 F.3d at 469 (emphasis added). As we

12 explained in Waiters I, based on this and other evidence, “the jury was well aware that Waiters

13 had been drinking . . . and that he was intoxicated when he emptied his revolver in the direction of

14 Warren’s family”—facts supporting the defense theory that he lacked the capacity for specific

15 intent. Id. at 481. Contrary to Waiters’s description, then, Warren’s testimony did not seek to

16 minimize the extent of his alcohol consumption on the morning of the crime, and we do not think

17 that every reasonable lawyer would necessarily have sought to impeach Warren for purported

18 inconsistency.

19 Indeed, had counsel attempted to do so, he would have been required to afford Warren “an

20 opportunity to explain or deny” her purportedly inconsistent statement. Fed. R. Evid. 613(b);

21 Manley v. AmBase Corp., 337 F.3d 237, 248 (2d Cir. 2003). Warren might have done so in a

4
In the same statement, Warren told the investigator that Waiters “is a drinker. He has a high tolerance
for liquor, and a gallon of Hennessey is nothing for him to drink.”

7
 1 manner undermining the defense because she had also told the defense investigator before trial

2 that “a gallon of Hennessey is nothing for [Waiters] to drink,” a statement that could have harmed

3 the defense case by demonstrating Waiters’s heightened alcohol tolerance.

4 For these reasons, Waiters has not met his burden to show that “every fairminded jurist

5 would agree that every reasonable lawyer” would have impeached Warren with her prior statement

6 to the defense investigator. Dunn, 141 S. Ct. at 2411. Nor has he shown that, even assuming

7 deficient performance with regard to such impeachment, a state court reasonably applying

8 Strickland could not conclude that he was not prejudiced—that is, but for this supposed deficiency,

9 there is a reasonable probability “the result of the proceeding would have been different.”

10 Strickland, 466 U.S. at 694. Accordingly, the district court did not err in declining to grant habeas

11 relief as to this claim.

12 C. Cumulative Errors

13 No different conclusion is warranted by considering the alleged errors cumulatively. As

14 Magistrate Judge Bulsara noted, “implicit in such a claim is, first, that the alleged individual errors

15 a petitioner seeks to aggregate are actually errors.” R&R, 2018 WL 10811222, at *16 (quoting

16 Joyner v. Miller, No. 01-CV-2157, 2002 WL 1023141, at *13 (S.D.N.Y. Jan. 7, 2002)); see also

17 United States v. Lumpkin, 192 F.3d 280, 290 (2d Cir. 1999) (“[T]he accumulation of non-errors

18 does not warrant a new trial.”). As explained above, the state court did not unreasonably apply

19 Strickland in rejecting Waiters’s claim that his counsel was deficient, either as to the lesser-

20 included offense instruction or as to Warren’s impeachment. Consequently, even if counsel’s

21 failure to call a medical expert amounted to deficient performance—an issue we found unnecessary

8
1 to reach in Waiters I—there are no errors here to aggregate with it. Waiters’s final argument

2 therefore constitutes no basis for habeas relief. 5

3 * * *

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

5 We therefore AFFIRM the judgment of the district court.

6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk of Court

5
Given this summary disposition, we need not determine whether this claim, which is not specifically
referenced in the certificate of appealability, is properly before us, nor assess its viability as a matter of
clearly established federal law. But see Hill v. Davis, 781 F. App’x 277, 280–81 (5th Cir. 2019) (noting
that “[t]he Supreme Court has never squarely held that the cumulative error doctrine governs ineffective
assistance of counsel claims”).

9