May v. Griffin

Background

Elliot May sought relief under 28 U.S.C. § 2254, asking the federal court to overturn his 2009 New York conviction for two counts of first-degree burglary, one count of first-degree assault, and two counts of attempted first-degree bribing of a witness. May represented himself in the federal case. A magistrate judge, Judith C. McCarthy, recommended denying the petition in full. May objected only to the recommendation concerning his claims that trial counsel had been ineffective.

The underlying prosecution arose from an October 2007 apartment invasion in which Pedro Gonzalez was injured after jumping from a window. The trial evidence included telephone records involving May and Steadman, testimony about May’s efforts to persuade others to influence Gonzalez, recorded jail calls, and other testimony. At trial, May’s defense investigator, Dwayne Kirkland, testified about an interview with Gonzalez. A recording and transcript of that interview showed that Gonzalez had made at least a partial identification of May, allowing the prosecution to question Kirkland about it.

Claims and analysis

May asserted five principal ineffective-assistance theories: counsel failed to object to what May called an inconsistent verdict; counsel surrendered the presumption of innocence through a closing-argument statement; counsel failed to use investigative material effectively; counsel failed to investigate an alibi placing May in Brooklyn; and counsel failed to object to unspecified hearsay.

The court explained that federal review of a state conviction is limited by the Antiterrorism and Effective Death Penalty Act. A petitioner generally must first present federal claims to the state courts and complete the available state review process. Claims not properly presented may be procedurally defaulted, meaning the federal court generally will not review them unless an exception applies.

The court disagreed with one part of the magistrate judge’s procedural analysis: it found that May’s claim concerning counsel’s closing statement had in fact been raised during his direct appeal and therefore was exhausted. The court nevertheless rejected that claim on the merits. It held that counsel’s statement that the jury served the people of New York through any verdict did not concede May’s guilt or waive the presumption of innocence.

The court rejected May’s claim concerning Kirkland’s testimony. Under the ineffective-assistance standard established in Strickland v. Washington, a petitioner must show both that counsel’s performance was objectively unreasonable and that the alleged error probably affected the outcome. The court held that the decision to call Kirkland was a tactical trial decision and that May had not shown it was objectively unreasonable. The court alternatively found no reasonable probability that the result would have changed, given the evidence supporting the conviction.

The court treated May’s challenge to the allegedly inconsistent verdict as unexhausted and procedurally barred because the state court had found that the claim was record-based and could not be raised through the state collateral procedure May used. The court added that, even if it reached the merits, the claim would fail because the burglary and attempted-robbery verdicts were not legally inconsistent, so counsel was not ineffective for failing to object.

The court also found May’s alibi-investigation claim unexhausted and plainly meritless. It agreed that counsel could reasonably decide not to investigate evidence that might place May in Westchester County when the crimes occurred. Finally, the court rejected the hearsay claim because May did not identify the statements that allegedly should have drawn objections, leaving the claim insufficiently supported.

Disposition

Judge Karas adopted the magistrate judge’s recommendation after reviewing May’s objections and the remainder of the report. The court denied the petition and stated in its conclusion that the writ of habeas corpus be dismissed. It entered judgment for Griffin, declined to issue a certificate of appealability because May had not made the required substantial showing of a constitutional violation, certified that an appeal would not be taken in good faith, and directed the Clerk of Court to close the case.