Anton Bramble v. Patrick Griffin, Superintendent, Sullivan Correctional
Opinion
12‐3322‐cv Anton Bramble v. Patrick Griffin, Superintendent, Sullivan Correctional Facility
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
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1 At a stated term of the United States Court of Appeals for the Second Circuit, held 2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 3 York, on the 19th day of September, two thousand thirteen. 4 5 PRESENT: 6 7 JOHN M. WALKER, 8 DEBRA ANN LIVINGSTON, 9 DENNY CHIN, 10 11 Circuit Judges. 12 _______________________________________________ 13 14 ANTON BRAMBLE, 15 16 Petitioner‐Appellant,
17 18 ‐v.‐ No. 12‐3322‐cv 19 20 PATRICK GRIFFIN, Superintendent, 21 Sullivan Correctional Facility,
22 Respondent‐Appellee. 23 _______________________________________________
1 DANIEL M. PEREZ, Law Offices of Daniel M. Perez, 2 Newton, New Jersey, for Petitioner‐Appellant.
3 LORI GLACHMAN (Leonard Joblove, Victor Barall, on the 4 brief), Assistant District Attorneys, for Charles J. Hynes, 5 District Attorney, Kings County, Brooklyn, New York, 6 for Respondent–Appellee.
7 Appeal from a judgment of the United States District Court for the Eastern District 8 of New York (Cogan, J.). 9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 10 DECREED that the judgment entered on July 18, 2012, is AFFIRMED. 11 Anton Bramble appeals from the denial of his petition for a writ of habeas corpus, 12 see 28 U.S.C. § 2254, which challenged his New York conviction for second degree murder. 13 We review the denial of a habeas petition de novo, see Freeman v. Kadien, 684 F.3d 30, 33 (2d 14 Cir. 2012), and limit our discussion here to the two issues on which the district court 15 granted a certificate of appealability regarding the testimony of Detective Edgar Bourdon: 16 (1) whether defendant’s counsel was ineffective “for failing to move for a mistrial based on 17 [Detective] Bourdon’s testimony when it became apparent that Carter would not testify”; 18 and (2) whether the Appellate Division’s alternative holding on the merits was contrary to 19 or an unreasonable application of the Supreme Court’s decisions in Bruton v. United States, 20 391 U.S. 123 (1968), or Crawford v. Washington, 541 U.S. 36 (2004). We assume familiarity 21 with the underlying facts and procedural history of this case. See Bramble v. Griffin, No. 12 22 Civ. 1697 (BMC), 2012 WL 2930146 (E.D.N.Y. July 18, 2012).
1 1. Procedural Default 2 We “‘will not review questions of federal law presented in a habeas petition when 3 the state court’s decision rests upon a state‐law ground that is independent of the federal 4 question and adequate to support the judgment,’“ Downs v. Lape, 657 F.3d 97, 101 (2d Cir. 5 2011) (quoting Cone v. Bell, 556 U.S. 449, 465 (2009)), cert. denied, ‐‐‐ U.S. ‐‐‐, 132 S.Ct. 2439, 6 182 L.Ed.2d 1070 (2012), lest we risk “ignor[ing] the [s]tate’s legitimate reasons for holding 7 the prisoner,” Coleman v. Thompson, 501 U.S. 722, 730 (1991). The New York Supreme 8 Court, Appellete Division, determined that Bramble’s Confrontation Clause claim was not 9 preserved for appellate review because Bramble failed to raise the issue before the trial 10 court, in violation of New Yorkʹs “contemporaneous objection rule.” Under the 11 contemporaneous objection rule, a party fails to preserve an issue for appeal if he does not 12 “object to what he . . . believes is a legal error in a trial court’s ruling or instruction ‘at the 13 time of such ruling or instruction or at any subsequent time when the court had an 14 opportunity of effectively changing the same.’“ Gutierrez v. Smith, 702 F.3d 103, 110 (2d Cir. 15 2012) (quoting N.Y. Crim. Proc. Law. § 470.05(2)). In addition, the Appellate Division also 16 held that Bramble had not been denied effective assistance of counsel at trial. 17 Arguing that his trial counsel was ineffective for not moving for a mistrial based on 18 Detective Bourdon’s testimony once it became apparent that Warren Carter would not 19 testify, Bramble argues that his procedural default should be excused because he can
1 demonstrate both “cause” and “prejudice” as the result of this ineffective assistance, see 2 Walker v. Martin, 131 S. Ct. 1120, 1127 (2011) (explaining that an independent and adequate 3 procedural ground will preclude habeas relief “absent showings of ‘cause’ and 4 ‘prejudice’”), and that the state court erred in concluding that ineffective assistance had not 5 been established. We are not persuaded. 6 First, Bramble cannot establish cause. To demonstrate that “counsel was not 7 functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment,” Wilson v. Mazzuca, 8 570 F.3d 490, 502 (2d Cir. 2009) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)), 9 Bramble must demonstrate that his attorney acted in a manner that “cannot be explained 10 convincingly as resulting from a sound legal strategy, but instead arose from oversight, 11 carelessness, ineptitude, or laziness,” id. Bramble asserts that his attorney fundamentally 12 erred when he failed to move for a mistrial after learning that Carter would not testify. 13 However, as Bramble’s attorney argued in summation, without Carter, the charges against 14 Bramble rested on the testimony of “a single, solitary person” – namely, the sixteen‐year 15 old deli employee who testified that he saw Bramble shoot the victim, Caprice Conner, in 16 front of the deli. As such, it was far from an unreasonable strategic choice for Bramble’s 17 attorney to permit the case to go to a jury on the testimony of one eyewitness rather than 18 risk that Carter, the second purported eyewitness who was alleged to have seen Bramble 19 running from the scene holding a gun, would be produced at a second trial.
1 Similarly, Bramble cannot establish any prejudice from Detective Bourdon’s 2 testimony given the trial court’s careful instructions and thus cannot show “that there is 3 a reasonable probability that, but for counsel’s unprofessional error[ ],” in failing to move 4 for a mistrial on the basis of this testimony, “the result of the proceeding would have been 5 different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient 6 to undermine confidence in the outcome.” Id. And, as discussed in the district court’s 7 order, “juries are presumed to follow the court’s instructions regarding the limitations on 8 their review of evidence.” Bramble, 2012 WL 2930146, at *10 (collecting cases). After the 9 prosecution in its opening statement informed the jury that Carter would implicate 10 Bramble in the shooting, Detective Bourdon testified during the trial that as part of his 11 investigation, he conducted a lineup including Bramble which both Carter and the deli 12 employee viewed separately. Although Detective Bourdon testified that he arrested 13 Bramble after the lineup, he did not state that either witness identified Bramble. After it 14 became apparent that Carter could not be located, the trial judge clearly instructed the jury 15 in its charge that the deli employee was the “sole” witness to the shooting. And when the 16 jury thereafter asked during deliberations specifically about Detective Bourdon’s 17 testimony, the judge replied:
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