Dubois v. Capra

Background

Gary Dubois, represented by counsel, filed a petition under 28 U.S.C. § 2254, the federal law allowing a state prisoner to challenge custody based on an alleged violation of federal law or the Constitution. He had received an aggregate 15-year prison sentence after a New York Supreme Court jury convicted him of first-degree gang assault, attempted first-degree assault, and second-degree assault.

Dubois’s claims centered on a text message sent to Torry Clark that said, “Make sure you got something on you.” The timing of the message was disputed. A T-Mobile records custodian testified at trial about the message’s time, but later told Dubois’s appellate counsel that he had been mistaken about how T-Mobile’s time-zone system applied to the records. Dubois argued that the prosecution violated due process by presenting false testimony and that his trial counsel was ineffective for failing to investigate, exclude, and adequately challenge the testimony.

The petition was referred to Magistrate Judge Katharine H. Parker, who recommended denying it. Dubois filed objections, and the State responded.

Court’s analysis

Judge Vyskocil reviewed the objected-to portions of the report and recommendation independently and reviewed the remaining portions for clear error. The court adopted the report and recommendation in full.

On the due-process claim, the court applied standards concerning both proof beyond a reasonable doubt and the use of false testimony. The court concluded that Dubois had not shown a reasonable likelihood that the disputed testimony affected the verdict. It also noted that the record contained substantial additional evidence, including the victim’s testimony that Dubois directed his son to stab him, surveillance footage placing Dubois at the scene, testimony that supported the victim’s account, phone calls, and incriminating statements Dubois made while in pretrial detention. The court stated that whether the law required proof that the testimony amounted to perjury was unclear, but found that issue not decisive because Dubois could not show the required likelihood of prejudice.

On the ineffective-assistance claim, the court applied the two-part test from Strickland v. Washington: the defendant must show that counsel’s performance fell below an objective standard of reasonableness and that the alleged errors probably affected the result. The court found that trial counsel had moved several times to exclude the text message and had questioned the T-Mobile witness twice about the time record. It concluded that the challenged decisions did not amount to constitutionally deficient performance and that excluding the message or further questioning the witness would not likely have changed the verdict.

The court also denied Dubois’s request for an evidentiary hearing. It found no clear error in the magistrate judge’s conclusion that the trial evidence was sufficient to establish guilt even if the text message had been excluded.

Disposition

The court overruled Dubois’s objections, adopted the report and recommendation, and denied the petition. It declined to issue a certificate of appealability because Dubois had not made a substantial showing that a constitutional right was denied. It also certified that an appeal would not be taken in good faith for purposes of proceeding without paying the filing fee and requested that the clerk close the case.