Cortez v. Kopp

Opinion

24-2376 Cortez v. Kopp

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 TO 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, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 6th day of November, two thousand twenty-five.

4 PRESENT:

5 DENNY CHIN, 6 RICHARD J. SULLIVAN, 7 BETH ROBINSON, 8 Circuit Judges. 9 _____________________________________

10 PAUL CORTEZ, 11 Petitioner-Appellant, 12 v. No. 24-2376

13 MARLYN KOPP, SUPERINTENDENT OF SING 14 SING CORRECTIONAL FACILITY,

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1 Respondent-Appellee. * 2 _____________________________________

For Petitioner-Appellant: RANDALL D. UNGER, Kew Gardens, NY.

For Respondent- BRENT YARNELL, Assistant District Appellee: Attorney (Steven C. Wu, Chief, Appeals Division; Stephen J. Kress, Chief, Federal Habeas Corpus Unit, on the brief), for Alvin L. Bragg, Jr., District Attorney for New York County, New York, NY.

3 Appeal from a judgment of the United States District Court for the Southern 4 District of New York (Paul A. Engelmayer, Judge). 5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 6 ADJUDGED, AND DECREED that the August 9, 2024 judgment of the district 7 court is AFFIRMED. 8 Paul Cortez appeals from the district court’s denial of his petition for a writ 9 of habeas corpus pursuant to 28 U.S.C. § 2254, following his conviction for the 10 second-degree murder of his former girlfriend Catherine Woods. See N.Y. Penal 11 Law § 125.25(1). On appeal, Cortez asserts that the district court correctly 12 determined that his trial counsel performed in an objectively unreasonable 13 manner under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984),

* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.

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1 but erred in concluding that counsel’s deficient performance did not prejudice his 2 defense in violation of the Sixth Amendment’s guarantee of “effective assistance 3 from his attorney[s] at all critical stages in the proceedings,” Gonzalez v. United 4 States, 722 F.3d 118, 130 (2d Cir. 2013). We assume the parties’ familiarity with 5 the underlying facts, procedural history, and issues on appeal, to which we refer 6 only as needed to explain our decision. 7 I. Standard of Review. 8 We review de novo the denial of a section 2254 petition. Murray v. Noeth, 32 9 F.4th 154, 157 (2d Cir. 2022). A federal court may not grant a writ of habeas 10 corpus pursuant to section 2254, as amended by the Antiterrorism and Effective 11 Death Penalty Act of 1996 (“AEDPA”), unless (1) the state court’s decision “was 12 contrary to, or involved an unreasonable application of, clearly established 13 [f]ederal law, as determined by the Supreme Court of the United States,” or (2) the 14 state court’s decision “was based on an unreasonable determination of the facts in 15 light of the evidence presented in the [s]tate court proceeding.” 28 U.S.C. 16 § 2254(d); see Harrington v. Richter, 562 U.S. 86, 100 (2011). Because Cortez argues 17 only that the New York state courts unreasonably applied clearly established 18 federal law, we limit our discussion to section 2254(d)(1).

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1 A decision is an unreasonable application of clearly established federal law 2 if it is “objectively unreasonable, not merely wrong,” meaning that “even clear 3 error will not suffice.” White v. Woodall, 572 U.S. 415, 419 (2014) (internal 4 quotation marks omitted). In other words, the state court’s ruling must be “so 5 lacking in justification that there was an error well understood and comprehended 6 in existing law beyond any possibility for fairminded disagreement.” Id. at 419– 7 20 (internal quotation marks omitted); see also Brown v. Davenport, 596 U.S. 118, 136 8 (2022) (“[Section 2254] asks whether every fairminded jurist would agree that an 9 error was prejudicial.”). 10 To succeed on a claim of ineffective assistance of counsel, a petitioner must 11 show that (1) counsel’s representation “fell below an objective standard of 12 reasonableness” according to “prevailing professional norms,” and (2) “the 13 deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687–88. 14 Courts will not find prejudice unless “the likelihood of a different result in the 15 absence of the alleged deficiencies in representation [is] substantial, not just 16 conceivable.” Garner v. Lee, 908 F.3d 845, 849 (2d Cir. 2018) (internal quotation 17 marks omitted). When combined with AEDPA’s already “highly deferential”

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1 standard, our review is “doubly so.” Richter, 562 U.S. at 105 (internal quotation 2 marks omitted).

3 II. Cortez Fails to Show that His Trial Counsel’s Allegedly Deficient 4 Performance Prejudiced His Defense.

5 We begin – and end – with Strickland’s prejudice prong. See 466 U.S. at 697; 6 accord Torres v. Donnelly, 554 F.3d 322, 327 (2d Cir. 2009) (“As [petitioner] fails to 7 demonstrate prejudice under the second prong of the Strickland test, we need not 8 determine whether defense counsel’s conduct fell below an objective standard of 9 reasonableness.”). “To establish prejudice, a petitioner ‘must show that there is a 10 reasonable probability that, but for counsel’s unprofessional errors, the result of 11 the proceeding would have been different.’” Kovacs v. United States, 744 F.3d 44, 12 51 (2d Cir. 2014) (quoting Strickland, 466 U.S. at 694). Where, as here, a habeas 13 petitioner alleges that counsel performed deficiently by failing to investigate or 14 present evidence at trial, a reviewing court must consider “all the relevant 15 evidence that the jury would have had before it,” Wong v. Belmontes, 558 U.S. 15, 16 20 (2009) (emphasis omitted), including evidence unfavorable to the petitioner. 17 Where the evidence of guilt is “overwhelming,” a petitioner will struggle to 18 establish prejudice. United States v. Hasan, 586 F.3d 161, 170 (2d Cir. 2009); see also,

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1 e.g., Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir. 2001); United States v. Reiter, 897 2 F.2d 639, 645 (2d Cir. 1990). 3 Here, the prosecution introduced robust circumstantial evidence 4 establishing Cortez’s guilt. A fingerprint matching Cortez’s left index finger was 5 found on Woods’s bedroom wall, and DNA testing revealed that a bloody smudge 6 overlapping the print contained Woods’s blood. Cell-phone records “list[ed] 7 some 14 calls” from Cortez to Woods on November 27, the day of the murder, and 8 “there was proof that of these, several, made between 5:27 p.m. and 6:33 p.m., 9 originated from the vicinity of [Woods’s] East 86th [Street] residence.” People v. 10 Cortez, 22 N.Y.3d 1061, 1062 (2014) (Lippman, C.J., concurring); see also App’x at 11 619; Sp. App’x at 4; Tr. at 604–07. Phone records also revealed that Cortez 12 “stopped calling [Woods] around the time she was killed,” App’x at 666, 13 supporting an inference that he was aware of her murder since Cortez had phoned 14 Woods 292 times in the month preceding the murder and often called more 15 frequently at night and in the early morning, when her live-in boyfriend, David 16 Haughn, was at work, Tr. at 1792, 1987–88; App’x at 299. In addition, entries from 17 Cortez’s journal showed motive – that he was obsessed with Woods.

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1 The prosecution also introduced evidence that Cortez had lied about his 2 whereabouts on the night of the murder, telling a bandmate that he had missed a 3 scheduled rehearsal at 6 p.m. because “he had overslept” and missed the train, 4 even though cell-site records placed him near Woods’s apartment at that time. 5 Tr. at 1004–05. And the prosecution introduced Woods’s bed sheets, which 6 contained a bloody boot-print that corresponded to the make and model of a pair 7 of boots that a witness saw Cortez wearing on the night of the murder and which 8 matched Cortez’s shoe size (10 ½). 9 Cortez’s arguments to the contrary are unpersuasive. First, he contends 10 that his counsel’s failure to further investigate the bloody fingerprint found on 11 Woods’s apartment wall – and “to call an expert in the field to testify” – “deprived 12 [him] of his right to a fair trial.” Cortez Br. at 40. In particular, Cortez focuses 13 on his counsel’s failure to follow up with Kenneth Moses, a fingerprint examiner 14 who had been contacted by counsel before trial. But Cortez fails to demonstrate 15 that further investigation by Moses would have helped his cause, let alone that 16 counsel’s failure to “follow up” with Moses after an initial consultation, id. at 43, 17 prejudiced his defense “beyond any possibility for fairminded disagreement,” 18 Richter, 562 U.S. at 103. Indeed, Moses confirmed that the fingerprint belonged to

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1 Cortez and told counsel that he would need to analyze “the original piece of 2 sheetrock” to determine “whether the print had been placed there before or after 3 the blood stains on the wall.” App’x at 203. In other words, whether counsel’s 4 failure to follow up with Moses was prejudicial is speculative given that “we 5 cannot even say with confidence what [Moses] might have testified to, if he had 6 taken the stand.” Garner, 908 F.3d at 869. Such conjecture cannot demonstrate a 7 “reasonable probability that . . . the result of the proceeding would have been 8 different” or “undermine confidence in the outcome” reached at trial. Kovacs, 744 9 F.3d at 51 (internal quotation marks omitted). 10 The same is true for the post-judgment forensic experts proffered by Cortez 11 to “demonstrate[] the inadequacy of the [prosecution’s] fingerprint evidence” at 12 trial. App’x at 641. One set of experts asserted that their post-trial review of the 13 crime-scene photographs revealed “no evidence of a friction ridge impression” – 14 that is, fingerprint markings – “made in either wet or dry blood,” suggesting that 15 Cortez’s fingerprint was left on the sheetrock “BEFORE [Woods’s] blood 16 splattered on that location.” Cortez Br. at 55–56 (quoting App’x at 217). Cortez 17 maintains that these findings would have “dramatically undermined the 18 prosecution’s case.” Id. at 56. But Cortez’s counsel effectively probed whether

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1 the print could have been left before the murder, see Tr. at 1895, 1934, and even got 2 the prosecution’s forensic witness to admit on cross-examination that he “could 3 not authoritatively establish that Cortez’s fingerprint was left in blood, as opposed 4 to having been on the wall before the murder,” Sp. App’x at 15; see also Tr. at 1934 5 (defense counsel’s summation that “there is no proof beyond a reasonable doubt 6 . . . that [the print] was from that day.”). A “fairminded jurist,” Brown, 596 U.S. at 7 136, could assume that the jury already considered these alternatives and thus 8 conclude that counsel’s failure to further investigate the fingerprint evidence did 9 not prejudice Cortez’s defense. Put differently, “[t]his is not a case” where 10 additional development of the fingerprint evidence “would have so clearly altered 11 the entire evidentiary picture that the [state] court’s decision is indefensible.” 12 Waiters v. Lee, 857 F.3d 466, 484 (2d Cir. 2017) (first alteration adopted and internal 13 quotation marks omitted); see also People v. Cortez, 85 A.D.3d 409, 412 (1st Dep’t 14 2011) (concluding that “the fingerprint itself provided evidence of [Cortez’s] guilt, 15 and when combined with an extensive amount of other circumstantial evidence, 16 it provided overwhelming evidence of [Cortez’s] guilt.”), aff’d, 22 N.Y.3d 1061 17 (2014).

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1 Second, Cortez argues that his defense was prejudiced by counsel’s failure 2 to use the video-surveillance footage that allegedly depicted Woods’s live-in 3 boyfriend, David Haughn, walking away from their apartment building the night 4 of the murder. According to Cortez, the video’s filename, “06 (27-11-05 5 18’37’52),” established that the video recorded events taking place at 6 approximately 6:38 p.m. App’x at 243. He also contends that the testimony of 7 Woods’s neighbor, who reported hearing a disturbance in Woods’s apartment 8 between 6:20 p.m. and 6:25 p.m. while on a phone call, see Tr. at 209–12, revealed 9 that “Woods was murdered at about 6:25 p.m.,” Cortez Br. at 58. Based on these 10 two pieces of evidence, Cortez argues that the footage proves that Haughn must 11 have killed Woods. 12 We disagree. Even if we assume that the video’s file name accurately 13 indicates when it was recorded, the video proves only that Haughn was not in 14 Woods’s apartment at 6:38 p.m. – it does not definitively place Haughn in the 15 apartment at the time of the murder. And there was still a window of time in 16 which Cortez could have entered the apartment to commit the murder while the 17 neighbor who heard the disturbance was on the phone.

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1 What is more, Cortez’s counsel used other evidence to undercut the 2 prosecution’s timeline of events. To begin, law-enforcement officers testified that 3 Haughn told them that “he had left the apartment approximately twenty minutes” 4 before dialing 911 at 6:59 p.m., placing his departure around 6:39 p.m. Tr. at 1369. 5 Counsel used this testimony to confront Haughn on cross-examination about 6 whether he told police “that [he] believed [he] had left the apartment about 6:40 7 p.m.” Id. at 886. And counsel reiterated this point in closing, emphasizing that 8 “Paul Cortez was not in the apartment [at the time of the murder]. It was David 9 Haughn.” Id. at 1906; see also id. at 1882–83. Given counsel’s vigorous (though 10 ultimately unsuccessful) attacks on the prosecution’s theory at trial about the 11 timeline of the murder, a fairminded jurist could conclude that the lack of 12 surveillance footage did not prejudice Cortez’s defense because the jury already 13 considered and rejected his alternative account of events. 14 Finally, the footage does nothing to disturb the prosecution’s strong 15 circumstantial case – including the aforementioned cell-site location data placing 16 Cortez near Woods’s apartment around the time of her murder, cell-phone records 17 that showed repeated calls from Cortez to Woods up until the time of her death 18 and then no calls to Woods following her murder, Cortez’s lies to his bandmate

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1 and to the police about his whereabouts on the night of the murder, and testimony 2 that Cortez “owned the boot that fit the boot print made in blood.” App’x at 666; 3 cf. Waiters, 857 F.3d at 480 (underscoring that “habeas relief on the ground of 4 ineffective assistance is generally not warranted” on “a verdict or conclusion with 5 ample record support”). 6 In sum, Cortez fails to satisfy his “heavy burden” of showing that “his 7 attorney’s allegedly serious errors at trial merit the grant of habeas relief.” 8 Garner, 908 F.3d at 865 (internal quotation marks omitted). Because the New York 9 state court did not “appl[y] Strickland to the facts of [Cortez’s] case in an objectively 10 unreasonable manner,” Bell v. Cone, 535 U.S. 685, 699 (2002), he is not entitled to 11 habeas relief. 12 * * * 13 We have considered Cortez’s remaining arguments and find them to be 14 without merit. Accordingly, we AFFIRM the denial of Cortez’s petition.

15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk of Court