Spencer v. Capra

21-1703
Spencer v. Capra

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 15th day of September, two thousand twenty-two.
4
5 Present:
6 DEBRA ANN LIVINGSTON,
7 Chief Judge,
8 BARRINGTON D. PARKER,
9 EUNICE C. LEE,
10 Circuit Judges.
11 _____________________________________
12
13 ANDREW SPENCER,
14
15 Petitioner-Appellant,
16
17 v. 21-1703
18
19 MICHAEL CAPRA,
20
21 Respondent-Appellee.
22 _____________________________________
23
24 For Petitioner-Appellant: RICHARD W. LEVITT (Levitt & Kaizer), New York, NY.
25
26 For Respondent-Appellee: SHARON BRODT, Assistant District Attorney (District
27 Attorney, Queens County), Kew Gardens, NY.
28
Appeal from a judgment of the United States District Court for the Eastern District of New

York (Cogan, J.).
 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

* * *

Petitioner-Appellant Andrew Spencer (“Spencer”) appeals from the July 1, 2021 judgment

of the United States District Court for the Eastern District of New York (Cogan, J.) denying his

petition for habeas corpus relief under 28 U.S.C. § 2254. See Spencer v. Capra, 17-CV-2179,

2021 WL 2685226, at *1 (E.D.N.Y. June 30, 2021). In his petition, Spencer claims, inter alia,

that he received ineffective assistance of counsel at his 2007 trial in the Supreme Court of the State

of New York, Queens County, where he was convicted by jury of criminal possession of a weapon

in the second degree, criminal possession of a weapon in the third degree, assault in the third

degree, and menacing in the second degree, and was sentenced to 15 years’ imprisonment on the

second degree criminal possession conviction, to run concurrently with lesser sentences for the

other convictions.

At trial, the prosecution contended that Spencer confronted a group of individuals and

threatened them with a firearm, and was only stopped when off-duty police officer Malcolm

Palmer (“Officer Palmer”) drew his own weapon and forced Spencer to surrender. Spencer,

conversely, testified that he was never in possession of a firearm and was framed by Officer Palmer

to protect his friend “Kendel,” who Spencer had originally confronted and who Officer Palmer

knew to be a drug dealer. Spencer argues that his trial counsel was unconstitutionally deficient

because she failed to pursue certain witnesses that would have testified at trial in support of his

theory of the case. The district court denied Spencer’s habeas petition, ruling that Spencer did

not meet the high bar to show ineffective assistance of counsel under the standard outlined by the

Supreme Court in Strickland v. Washington, 466 U.S. 668, 690 (1984).

2
 For the reasons stated herein, we affirm the district court’s judgment denying Spencer’s

petition for habeas corpus. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

I. Procedural Bar to Federal Review 1

As a preliminary matter, Respondent-Appellee Michael Capra (“the State”) argues that the

district court was procedurally barred from considering Spencer’s petition because a New York

state court dismissed Spencer’s ineffective assistance claim on an independent state-law ground.

We disagree.

Generally, we do “not review questions of federal law presented in a habeas petition when

the state court’s decision rests upon a state-law ground that is independent of the federal question

and adequate to support the judgment.” Downs v. Lape, 657 F.3d 97, 101 (2d Cir. 2011) (internal

quotation marks omitted) (quoting Cone v. Bell, 556 U.S. 449, 465 (2009)); see also Whitley v.

Ercole, 642 F.3d 278, 285 (2d Cir. 2011) (“[P]rinciples of comity and federalism compel us to

defer to that state law ground and thus to decline to review the federal claim.” (internal quotation

marks and citations omitted)). However, a “state law ground is only adequate to support [a]

judgment and foreclose review of a federal claim if it is ‘firmly established and regularly followed’

in the state.” Garvey v. Duncan, 485 F.3d 709, 713 (2d Cir. 2007) (quoting Lee v. Kemna, 534

U.S. 362, 376 (2002)). Additionally, “in certain limited circumstances, even firmly established

and regularly followed state rules will not foreclose review of a federal claim if the application of

the rule in a particular case is ‘exorbitant.’” Id. at 713–14 (quoting Lee, 534 U.S. at 376). An

1
We review the district court’s denial of a petition for habeas corpus de novo, and its underlying findings
of fact for clear error. Waiters v. Lee, 857 F.3d 466, 477 (2d Cir. 2017).

3
application of a rule may be “exorbitant” where the procedural rule was applied in a manner that

does not comply with state law. See Fulton v. Graham, 802 F.3d 257, 262–63 (2d Cir. 2015).

In his initial post-trial state-court appeal, Spencer claimed that he was improperly

prohibited from presenting a defense when the trial court precluded him from testifying “as to his

personal observations of [Officer Palmer] drag racing cars with [Kendel], and [Kendel] dealing

drugs in front of [Officer Palmer]’s home.” People v. Spencer, 87 A.D.3d 751, 752 (2d Dep’t

2011), aff’d, 20 N.Y.3d 954 (2012). Spencer did not make an ineffective assistance of counsel

claim. Both the New York Appellate Division and New York Court of Appeals agreed with

Spencer that, “[c]ontrary to the trial court’s conclusion, this proof should not have been excluded

on the basis that it was collateral, as such exclusion goes directly to the defendant’s constitutional

right to present a defense.” Spencer, 87 A.D.3d at 752; see Spencer, 20 N.Y.3d at 956 (same).

However, both state appellate courts nevertheless concluded that Spencer’s claim failed because

the error was “harmless beyond a reasonable doubt” given the “overwhelming independent proof

adduced at trial, including the testimony of several other eyewitnesses who corroborated [Officer

Palmer and the prosecution]’s version of the events and the 911 calls admitted into evidence . . . .”

Spencer, 20 N.Y.3d at 956–57; see Spencer, 87 A.D.3d at 752 (“[T]here is no reasonable

possibility that the error might have contributed to the defendant’s conviction.”).

Later, in 2016, Spencer filed a pro se motion to vacate the trial court’s judgment of

conviction pursuant to New York Criminal Procedure Law § 440.10. Among other things, under

Section 440.10, a New York court “may, upon motion of the defendant, vacate [a] judgment upon

the ground that: . . . (h) The judgment was obtained in violation of a right of the defendant under

the constitution of [New York] or of the United States . . . .” N.Y. Crim. Proc. Law § 440.10(1).

The New York Supreme Court, Queens County (the “Section 440.10 Court”), denied Spencer’s

4
Section 440.10 motion after determining that the Appellate Division and Court of Appeals had

already adjudicated and rejected his ineffective assistance claim on his direct appeal immediately

after his criminal trial. See id. § 440.10(2) (“[T]he court must deny a motion to vacate a judgment

when: (a) The ground or issue raised upon the motion was previously determined on the merits

upon an appeal from the judgment . . . .”).

The parties agree that New York Criminal Procedure Law § 440.10(2)(a) is firmly

established and regularly followed. The parties disagree, though, on whether the Section 440.10

Court exorbitantly applied the law in ruling that the New York appellate courts already adjudicated

and denied Spencer’s ineffective assistance claim and that his motion to vacate was thus

procedurally barred under Section 440.10(2)(a). We agree with the district court that Spencer

never raised an ineffective assistance claim in his post-trial appeals and that the Appellate Division

and Court of Appeals never rejected this claim on the merits. We thus conclude that the Section

440.10 Court applied New York Criminal Procedure Law § 440.10(2)(a) exorbitantly in dismissing

Spencer’s motion.

The State counters that the Appellate Division and Court of Appeals indirectly decided

Spencer’s ineffective assistance claim on the merits when those courts addressed his claim that he

was improperly prohibited from testifying about Kendel’s alleged drug dealing and the supposed

improper relationship between Officer Palmer and Kendel. Spencer’s habeas petition here is

largely premised on the claim that he was prejudiced by his trial counsel’s failure to call certain

witnesses at trial who would have provided testimony challenging the State’s version of events,

including testimony regarding an improper relationship been Officer Palmer and Kendel.

According to the State, because the New York appellate courts determined that the exclusion of

Spencer’s testimony on the supposedly improper relationship between Officer Palmer and Kendel

5
was harmless beyond a reasonable doubt, Spencer cannot show that he was prejudiced by his trial

counsel’s alleged failure to present essentially the “same evidence” from other witnesses.

(Appellee’s Br. at 11, 23.) See Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001) (noting prejudice

is a necessary component of an ineffective assistance of counsel claim). For the following

reasons, we disagree.

As rightly determined by the district court, “the legal issue for each claim was entirely

different—the deprivation of defense claim [on direct appeal] asserted an error by the trial court,

while the § 440 motion asserted an ineffective assistance claim against petitioner’s trial counsel.”

Spencer, 2021 WL 2685226, at *5. True, much of Spencer’s ineffective assistance claim is

premised on the argument that trial counsel was ineffective for not investigating and eliciting

testimony from potential witnesses who would have testified at trial that Officer Palmer had a close

and improper relationship with Kendel. But Spencer’s post-trial appeal was largely based on the

argument that he should have been permitted by the trial court to testify himself on Officer Palmer’s

relationship with Kendel. See Spencer, 20 N.Y.3d at 956. Spencer “did not purport to offer any

evidence beyond his own testimony to support his theory that he was framed by Officer Palmer.”

Spencer v. Capra, 788 F. App’x 21, 24 (2d Cir. 2019) (summary order). The ineffective

assistance claim here, in contrast, is based on the argument that there were numerous other

individuals who were willing to testify in support of his theory of the case but did not do so because

of errors on the part of his trial counsel. The trial court (as well as the New York appellate courts)

were wholly unaware of these potential witnesses and their potential testimony, as they were not

on the record at trial. Given that Spencer makes a different claim supported by new evidence,

6
we conclude that the New York appellate courts did not hold on the merits that, even if his trial

counsel was ineffective, Spencer was not prejudiced by said ineffectiveness.

II. The Merits

Turning to the merits of Spencer’s habeas petition, the district court ruled that Spencer

failed to meet his burden of showing ineffective assistance of counsel at his state criminal trial.

We agree with the district court that Spencer has not shown ineffective assistance of counsel and

that his habeas petition thus must be dismissed. 2

The Sixth Amendment “guarantees the right to effective assistance of counsel.” United

States v. Melhuish, 6 F.4th 380, 393 (2d Cir. 2021) (citation omitted). To establish that counsel

was constitutionally ineffective, a “defendant must demonstrate that (1) counsel’s performance fell

below an objective standard of reasonableness; and (2) the deficient representation prejudiced the

defendant.” United States v. Gahagen, 44 F.4th 99, 107 (2d Cir. 2022) (citing Strickland, 466

U.S. at 687–88). The burden is on the petitioner to show that both of the ineffective assistance

prongs are met. See United States v. Cohen, 427 F.3d 164, 167 (2d Cir. 2005). The standard to

establish ineffective assistance is “‘rigorous’ and ‘presents a high bar’ because courts apply

2
The State argues that the district court erred in reviewing the merits of Spencer’s habeas petition
de novo, as opposed to applying the more deferential standard of review under the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, “when a state court
adjudicates a petitioner’s habeas claim on the merits, a district court may only grant relief where
the state court’s decision was ‘contrary to, or involved an unreasonable application of, clearly
established Federal law,’ or was ‘based on an unreasonable determination of the facts in light of
the evidence presented.’” Waiters, 857 F.3d at 477 (quoting 28 U.S.C. § 2254(d)). Because we
agree that the result would be the same regardless of whether the district court employed AEDPA’s
deferential standard of review or the de novo standard, we need not reach the issue of which
particular standard of review applies here. See Monroe v. Kuhlman, 248 F. App’x 223, 224 (2d
Cir. 2007) (summary order) (citing Cotto v. Herbert, 331 F.3d 217, 230–31, 252–53 (2d Cir.
2003)).

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‘a presumption of effective performance.’” Melhuish, 6 F.4th at 393 (quoting United States v.

Nolan, 956 F.3d 71, 79 (2d Cir. 2020)); see Cohen, 427 F.3d at 167 (“[A] defendant ‘bears a

heavy burden’ of showing” ineffective assistance (quoting United States v. Gaskin, 364 F.3d 438,

468 (2d Cir. 2004))).

Under the performance prong, a “defense counsel’s performance is unreasonable when it

is so deficient that it falls outside the ‘wide range of professionally competent assistance.’”

Kovacs v. United States, 744 F.3d 44, 50 (2d Cir. 2014) (quoting Strickland, 466 U.S. at 690).

But any “[a]ctions or omissions by counsel that ‘might be considered sound trial strategy’ do not

constitute ineffective assistance.” United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000)

(quoting Strickland, 466 U.S. at 689). Generally, the “decision whether to call any witnesses on

behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged

in by defense attorneys in almost every trial.” United States v. Smith, 198 F.3d 377, 386 (2d Cir.

1999) (quoting United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992)). This is because,

typically, Strickland “does not require defense counsel to call any particular witness.” Nolan,

956 F.3d at 82; see Best, 219 F.3d at 201 (“Nor do we see anything unreasonable in counsel’s

decision not to call the potential witnesses.”); United States v. Schmidt, 105 F.3d 82, 90 (2d Cir.

1997) (counsel’s decision as to “whether to call specific witnesses—even ones that might offer

exculpatory evidence—is ordinarily not viewed as a lapse in professional representation”); see

also Gaskin, 364 F.3d at 468 (“[A] reviewing court must ‘indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the circumstances, the challenged action

might be considered sound legal strategy.’” (alteration marks omitted) (quoting Strickland, 466

8
U.S. at 689)); Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (there is a “strong presumption” of

reasonable representation).

Spencer argues that his trial counsel was ineffective because she failed to investigate

potential witnesses that would have testified in support of his theory of the case. He includes

with his petition several affidavits from individuals who purport either to have seen his

confrontation with Officer Palmer or to have personal knowledge of Officer Palmer’s supposedly

improper relationship with Kendel, and who were each willing to testify at Spencer’s trial. Under

Strickland, a petitioner may show constitutionally deficient performance by counsel by evidencing

that counsel’s litigation choices “resulted from an entirely absent investigation.” Greiner v.

Wells, 417 F.3d 305, 325 (2d Cir. 2005) (citing Kimmelman v. Morrison, 477 U.S. 365, 386

(1986)). This is because trial counsel’s “duty to investigate” is “essential to the adversarial

testing process,” as “‘th[e] testing process generally will not function properly unless defense

counsel has done some investigation into the prosecution’s case and into various defense

strategies.’” Id. at 320 (quoting Kimmelman, 477 U.S. at 384); but see id. at 321 (this duty “does

not, however, compel defense counsel to investigate comprehensively every lead or possible

defense, or to scour the globe on the off-chance something will turn up” (internal quotation marks

and citations omitted)).

Here, Spencer has not met his heavy burden of showing that his trial counsel was

objectively unreasonable for not discovering these potential witnesses or calling them to testify at

trial. At the district court’s evidentiary hearing in 2020, Spencer’s trial counsel could not recall

whether she hired an investigator to find potential witnesses or whether she had ever spoken to

most of the potential witnesses identified in the affidavits. But of the five potential witnesses that

did not testify at Spencer’s trial, only one stated in her affidavit that she actually reached out to

9
Spencer’s lawyer with the information she had. That witness did not actually see the altercation

between Spencer and Officer Palmer, but rather stated in her affidavit that she had seen Officer

Palmer and Kendel together on multiple occasions, including at least once instance in which

Kendel sold drugs with Officer Palmer standing nearby. According to their respective affidavits,

the other potential witnesses either do not purport to have related their observations to anyone or

solely reported them to Spencer’s mother, who did not give any indication within her own affidavit

that she relayed the information to Spencer’s trial counsel. And while Spencer submitted an

affidavit attesting to having informed his counsel of two of these potential witnesses, the only

relevant information he purports to have relayed is that these witnesses observed Kendel sell drugs

in the vicinity of Officer Palmer’s home. Accordingly, Spencer has not met his burden of

showing that these potential witnesses were either not discovered or not called to testify at trial

because of some objectively unreasonable performance by his trial counsel, as opposed to various

other reasonable explanations such as counsel’s trial tactics or the inability to find these individuals

before the trial even with a reasonable amount of investigating. 3 See Gaskin, 364 F.3d at 468.

Spencer also argues that it was unreasonable for his trial counsel to fail to question his

mother regarding Officer Palmer’s relationship with Kendel when she testified at his trial. But

once again, Spencer has not met his heavy burden of rebutting the strong presumption that his trial

counsel acted reasonably. Spencer’s mother did not see the altercation between Officer Palmer

3
Spencer’s emphasis on the fact that his trial counsel could not recall whether she hired an investigator or
interviewed the potential witnesses does not rebut the strong presumption of reasonable performance.
Spencer’s trial attorney testified before the district court at an evidentiary hearing for Spencer’s habeas
petition roughly 13 years after his state criminal trial. His attorney cannot be faulted for not remembering
details of the case after such a significant period of elapsed time. While “[t]ime inevitably fogs the
memory of busy attorneys,” that “inevitability does not reverse the Strickland presumption of effective
performance.” Greiner, 417 F.3d at 326; see Waiters, 857 F.3d at 477 (“[T]he fact that [an attorney] no
longer remembers [her] reason for [a] decision does not preclude a determination that [petitioner] failed to
establish constitutionally defective representation.”).

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and Spencer. And there is no indication that she had firsthand knowledge about Officer Palmer’s

supposed relationship with Kendel. Moreover, the trial court repeatedly excluded evidence about

the purportedly corrupt relationship between Officer Palmer and Kendel. Thus, trial counsel’s

decision to not elicit testimony from Spencer’s mother after being prevented from eliciting related

testimony by the trial court does not evidence objectively unreasonable performance.

We conclude that Spencer has failed to show that his trial counsel was objectively

unreasonable. His ineffective assistance of counsel claim thus fails. 4

* * *

We have considered Petitioner-Appellant Spencer’s remaining arguments and find them to

be without merit. We AFFIRM the judgment of the district court.

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

4
Having concluded that Spencer failed to meet his burden of showing that his trial counsel’s performance
was objectively unreasonable, we need not address whether Spencer suffered prejudice. See Strickland,
466 U.S. at 697.

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