Charles W. Brinkley v. Eugene S. Lefevre

621 F.2d 45

• Court: Court of Appeals for the Second Circuit
• Decided: April 8, 1980
• Docket: 740, Docket 79-2179
• Status: Published

Opinions

PER CURIAM:

Charles W. Brinkley, a state prisoner convicted on August 5, 1975, by the Supreme Court of the State of New York, County of Kings, of felony murder, N.Y.Penal Law § 125.25[3], Laws of 1965, as amended 1967, appeals from an order of the District Court for the Eastern District of New York entered by Judge Thomas C. Platt on July 25, 1979, denying without hearing his petition for a writ of habeas corpus seeking his release on the ground that the State deprived him of due process because of (1) insufficiency of evidence to support his conviction, and (2) denial of effective assistance of counsel at his state trial. The petition was based on the undisputed record of the state court proceedings and it is not contended that a hearing before the district court was required to receive any additional evidence.

The record reveals both claims to be meritless. The proof of Brinkley’s guilt of felony murder, as the Appellate Division, Second Judicial Department, of the State of New York, unanimously found, was overwhelming. See 57 A.D.2d 964, 395 N.Y.S.2d 68 (2d Dept. 1977). A witness testified to seeing two black persons break into a 1972 brown Buick Electra 225 in which the victim was located, grab him by the throat, and take him to a point close to where the victim’s body was later found. Brinkley, later the same day, was stopped by the police as he, with co-defendant Murray, was in a car fitting the description of that seen by the witness and, when asked for the registration, turned over papers of the victim, claiming the victim was his uncle. Brinkley the next day admitted to a witness that he and Murray had stolen the ear, beaten up and killed the victim, from whom they had taken $10 and some whiskey. Bloodstains were found in the car and on the clothing of the two defendants.

Under the test laid down by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979), upon the record evidence a rational trier of the fact could clearly have found guilt beyond a reasonable doubt; indeed it would be difficult not to do so.

Turning to appellant’s Sixth Amendment claim of inadequate representation, although his counsel had not spent much time with him prior to the case being called for trial, the trial was postponed 5 days to enable counsel to prepare and there is no showing he did not do so during that period. Infrequency of visitation is not alone enough to demonstrate ineffectiveness of counsel. United States ex rel. Testamark v. Vincent, 496 F.2d 641, 643 (2d Cir. 1974), cert. denied, 421 U.S. 951, 95 S.Ct. 1685, 44 L.Ed.2d 105 (1975). The failure of petitioner’s attorney to cross-examine more vigorously the witness Leslie Haile who testified to his admissions does not show ineffectiveness here. The witness had been fully cross-examined by counsel for the co-defendant Murray with respect to the conversations between the three in which the involvement of Brinkley in the murder was discussed. There was no incompetence under these circumstances in relying on co-counsel’s presentation. United States v. Williams, 575 F.2d 388, 393 (2d Cir.), cert. denied, 439 U.S. 842, 99 S.Ct. 134, 58 L.Ed.2d 141 (1978). Moreover, a fishing expedition with such an incriminating witness was hardly advisable. Nor was it a sign of incompetency not to object to the admissibility of admissions made by co-defendant Murray to the witness Leslie Haile in Brinkley’s presence, especially since Brinkley had in the same conversation admitted stealing the car and beating the victim. Since the failure to give a Brutontype instruction regarding Murray’s admissions would be harmless error, the failure to request it was hardly ineffective assistance.

On this record it is therefore unnecessary for us to review this Circuit’s “shock the conscience — farce and mockery of justice” standard for determining whether there was a denial of effective assistance of counsel, since it is clear beyond any doubt that not only under that test but under the standards adopted by other Circuits (e. g., reasonably effective assistance) there was no violation of appellant’s Sixth Amendment rights. See Indiviglio v. United States, 612 F.2d 624, 632 (2d Cir. 1979), and Bellavia v. Fogg, 613 F.2d 369 (2d Cir. 1979), for a list of decisions discussing these standards.

The order is affirmed.