Mack v. Collado

Background

Jerome Mack, proceeding without a lawyer, filed a petition under 28 U.S.C. § 2254 challenging his New York state conviction. A jury had convicted him of attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree, criminal use of a firearm in the first degree, conspiracy in the fourth degree, and possession of stolen property in the fourth degree. Mack raised multiple challenges, including insufficient evidence, an allegedly repugnant verdict, prosecutorial misconduct, lack of probable cause, ineffective assistance of counsel, admission of prior-bad-acts evidence, and the use of cell-site location information.

Magistrate Judge Paul E. Davison recommended denying the petition. Mack objected. The district court reviewed the challenged portions of the recommendation independently and reviewed the remainder for clear error.

Procedural bars

The court agreed that several claims were procedurally barred. A procedural bar prevents federal habeas review when a state court rejected a claim under a state procedural rule that is independent of the federal issue and adequate to support the judgment.

The court upheld the finding that Mack’s insufficient-evidence claim was procedurally barred because the New York Appellate Division determined that the claim had not been preserved for appeal. The court also held that Mack’s third and sixth claims, along with most of his ineffective-assistance arguments, were procedurally barred because his applications for leave to appeal did not specifically ask New York’s Court of Appeals to review those issues.

The court separately held that Mack’s challenge to the admission of prior bad acts evidence was procedurally barred. Although Mack had referred to due process and a fair trial, the court found that he had not fairly presented a federal constitutional claim to the state courts. His arguments relied on state-law cases and did not adequately alert the state courts to a federal constitutional issue. The court also rejected Mack’s contention that the state court’s alternative discussion of the merits required federal review.

Cell-site location information

Mack argued that the government improperly obtained and used his historical cell-site location information without a warrant. The court recognized that the Supreme Court later held in Carpenter v. United States that the government generally must obtain a warrant supported by probable cause before acquiring such records.

The court nevertheless held that the good-faith exception applied. When the government obtained Mack’s information, appellate decisions had indicated that historical cell-site information acquired under the Stored Communications Act did not require a warrant. The court therefore agreed that the prosecution’s use of the information at trial did not require habeas relief.

Ineffective assistance of counsel

Mack argued that his trial lawyer was ineffective for failing to request a Wade hearing or a Rodriguez hearing concerning Simmons’s identification of him. A Wade hearing examines whether police procedures improperly influenced an identification. A Rodriguez hearing determines whether a witness was already sufficiently familiar with the defendant that the identification was confirmatory rather than the product of police suggestion.

Applying the two-part test from Strickland v. Washington, the court held that Mack had not shown deficient performance. Simmons testified that he and Mack grew up in the same neighborhood, had a dispute in 1999, and were incarcerated together in 2006, where they had another altercation. Given those substantial interactions, the court agreed that the identification was merely confirmatory and that counsel was not unreasonable for failing to request either hearing.

The court also agreed that Mack could not show prejudice. Because the identification was confirmatory, the court found no possibility that requesting a Wade or Rodriguez hearing would have changed the trial’s outcome.

Disposition

The court adopted the result recommended by Judge Davison, denied Mack’s habeas petition, and dismissed the writ with prejudice. The court declined to issue a certificate of appealability because Mack had not made a substantial showing that a constitutional right had been denied. It also certified that an appeal from the judgment on the merits would not be taken in good faith and directed the Clerk of Court to close the case.