Corey TURNER, Petitioner-Appellant, v. James DZURENDA, Respondent-Appellee, 381 F. App'x 41

SUMMARY ORDER Defendant-appellant Corey Turner appeals from a judgment of the United States District Court for the District of Connecticut (Chatigny, J.) denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Turner v. Dzurenda, 596 F.Supp.2d 525 (D.Conn. 2009). Petitioner was convicted in 1997, following a joint jury trial in Connecticut Superior Court, of murder and assault in the first degree, and his brother, Charles Turner, was convicted of being an accessory to those crimes. The Connecticut state courts affirmed the convictions. State v.

Turner, 252 Conn. 714, 751 A.2d 372 (2000). Petitioner then filed a state petition for habeas relief claiming, inter alia, ineffective assistance of trial counsel in violation of the Sixth Amendment. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petition alleged that petitioner’s trial counsel was ineffective in failing to attempt to impeach the State’s main witness, Kendrick Hampton, with a sworn statement that Hampton had given to a detective three days after the murder.

At the state habeas hearing, petitioner’s trial counsel explained why he did not cross-examine Hampton regarding the discrepancies between his identification testimony at trial and the prior sworn statement. Counsel testified that although Hampton’s trial testimony identified petitioner with greater certainty than the earlier statement had, he saw no inconsistency between the two that could be used to undermine Hampton’s credibility. He explained: It’s a judgment call.... [Hampton] didn’t say anything at trial that disagreed with what he said in his [prior] statement.... The testimony that Mr.

Hampton gave at trial was more specific and more detailed and more positive than what he said in his statement.... But, it was not inconsistent with what he said. He just said more. Turner, 596 F.Supp.2d. at 532 (internal citation omitted). Petitioner’s trial counsel also testified that he did not confront Hampton with the prior signed statement because [Hampton] was so emphatic ... in his direct examination, I was concerned that, by going over and trying to contradict him, that I would give him the opportunity to be more emphatic with the jury.

I wasn’t confident that the cross-examination would break his testimony. I thought it would offer an opportunity to reinforce his testimony. Id. (internal citation omitted).

Ultimately, the state habeas court agreed with petitioner’s counsel that whether Hampton’s trial testimony and prior signed statement are inconsistent is a “judgment call,” and concluded that petitioner’s counsel decided to refrain from cross-examining Hampton more extensively with regard to the prior statement “for strategic reasons.” The court observed that Hampton was not going to change his testimony identifying the petitioner as the shooter.... The court also concluded that further cross-examination regarding Hampton’s signed statement would not have changed the result of the trial.

Id. (internal citations omitted). The state habeas court thus dismissed Turner’s petition. Id. Petitioner’s request for certification to appeal was denied. The Connecticut Appellate Court dismissed petitioner’s uncertified appeal, Turner v. Comm’r of Corr., 86 Conn.App. 341, 861 A.2d 522 (2004), and the Connecticut Supreme Court denied certification to appeal. Turner v. Comm’r of Corr., 272 Conn. 914, 866 A.2d 1286 (2005). Petitioner then filed the instant petition in the United States District Court for the District of Connecticut.

The district court dismissed the petition, Turner, 596 F.Supp.2d at 537, but issued a certificate of appealability with respect to two questions: (1) whether the state habeas court’s rejection of petitioner’s claim that his trial counsel was ineffective in failing to cross-examine the only witness who identified petitioner as the shooter concerning the discrepancies between his identification testimony at trial and a prior sworn statement constitutes an unreasonable application of the first prong of Strickland; and (2) whether the state habeas court’s determination that petitioner failed to show a reasonable probability that but for his trial counsel’s error the outcome would have been different constitutes an unreasonable application of the second prong of Strickland.

Id. We assume the parties’ familiarity with the remaining facts and procedural history. DISCUSSION “We review a district court’s denial of a petition for a writ of habeas corpus de novo.” Ortiz v. N.Y.S.

Parole in Bronx, N.Y., 586 F.3d 149, 155 (2d Cir.2009). “When [a] state court has adjudicated the merits of [a] petitioner’s claim, we apply the deferential standard of review established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), under which we may grant a writ of habeas corpus only if the state court’s adjudication ‘was contrary to, or involved an unreasonable application of, clearly established Federal law[,] as determined by the Supreme Court of the United States.’ ” Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir.2009) (quoting 28 U.S.C. § 2254(d)(1)).

Under Strickland, to establish ineffective assistance of counsel, a habeas petitioner must “(1) demonstrate that his counsel’s performance fell below an objective standard of reasonableness in light of prevailing professional norms; and (2) affirmatively prove prejudice arising from counsel’s allegedly deficient representation.” Carrion v. Smith, 549 F.3d 583, 588 (2d Cir.2008) (quoting United States v. Cohen, 427 F.3d 164, 167 (2d Cir.2005)) (internal quotation marks omitted).

To satisfy the “performance” prong, “the record must demonstrate that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir.2009) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052) (internal quotation marks omitted). “In assessing whether counsel’s performance was objectively reasonable, we must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Brown v. Greene, 577 F.3d 107, 110 (2d Cir.2009) (quoting Aparicio v.

Artuz, 269 F.3d 78, 95 (2d Cir.2001)) (internal quotation marks omitted). Counsel’s omissions fall outside this range of reasonableness only if they “cannot be explained convincingly as resulting from a sound trial strategy, but instead arose from oversight, carelessness, ineptitude, or laziness.” Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir.2003) (emphasis added).

To satisfy the “prejudice” prong, petitioner must demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see also Mazzuca, 570 F.3d at 502. In assessing prejudice stemming from the failure to investigate and introduce certain evidence, a court must consider “all the relevant evidence that the jury would have had before it” had the evidence been introduced, including unfavorable evidence. Wong v.

Belmontes, — U.S. -, 130 S.Ct. 383, 386, 175 L.Ed.2d 328 (2009) (per curiam). As petitioner proceeded pro se before the district court, we construe his habeas petition to raise the strongest arguments that it suggests. See, e.g., Ruiz-Martinez v. Mukasey, 516 F.3d 102, 120 (2d Cir. 2008); Brownell v. Krom, 446 F.3d 305, 310 (2d Cir.2006).

As noted, petitioner asserted that trial counsel was ineffective in failing to attempt to impeach Hampton (who at trial identified Turner as the person who had shot and killed the victim) with his prior inconsistent statement, evidenced in his voluntary sworn statement given to a detective three days after the murder.

We conclude that, even assuming petitioner’s counsel’s failure to cross-examine Hampton as to the discrepancies between his identification testimony at trial and a prior sworn statement fell below an objective standard of reasonableness, petitioner is unable to show that his counsel’s alleged errors resulted in any prejudice to him. Like the district court, we conclude that “[petitioner's counsel’s failure to impeach Hampton’s identification testimony with his statement to [the detective] was not as prejudicial as petitioner now claims.” Turner, 596 F.Supp.2d. at 536.

Upon review of the record, we agree with the district court’s analysis: The probative value of the discrepancies between Hampton’s testimony and prior statement is the suggestion that he was unsure of his identification when he spoke with [the detective] because he did not actually see any part of the shooter’s face. It is unlikely that this suggestion, had it been raised by petitioner’s trial counsel, would have swayed the jury to have a reasonable doubt about petitioner’s guilt.

If this suggestion had been raised, the prosecutor could have persuasively argued that Hampton’s prior statement actually evinces no uncertainty about the identity of the perpetrators. The statement positively identifies petitioner’s brother as the person who worked in concert with the shooter by setting up the ambush and helping the shooter escape; it effectively identifies petitioner as the shooter, and it even provides a motive for the murder (one that did not come out at trial).

Id. (emphasis added); see also Strickland, 466 U.S. at 695, 104 S.Ct. 2052 (“[A] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.”).

Additionally, “[t]o rebut the suggestion that the shooter’s mask prevented Hampton from seeing any part of the shooter’s face, the prosecutor could point to testimony of other witnesses corroborating Hampton’s trial testimony.” 596 F.Supp.2d. at 536; see also id. (“In view of the testimony of these other witnesses, there is no reasonable probability that if petitioner’s counsel had impeached Hampton using the omissions from his pri- or sworn statement, the outcome of the trial would have been different.”).

Petitioner has not shown that there was a “reasonable probability” that had his counsel questioned Hampton as to the discrepancies between his identification testimony at trial and a prior sworn statement, “the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see also Belmontes, 130 S.Ct. at 386. For the foregoing reasons, the judgment of the disti’ict court is AFFIRMED.