Ronald PRESCOTT, Petitioner-Appellant, v. William LEE, Respondent-Appellee, 634 F. App'x 38

SUMMARY ORDER Petitioner-Appellant Ronald Prescott appeals from the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal, which we reference only as necessary to explain our decision. Prescott was convicted in 2009, after a jury trial in New York Supreme Court, of second-degree murder and second-degree criminal possession of a weapon in connection with the killing of Phillip Mason.

Both Prescott and Mason had been romantically involved with the same woman— Ella Pack. At trial, the prosecution presented the testimony of Pack, who testified, inter alia, that she had dropped off Mason to meet Prescott shortly before his murder. The prosecution also presented the testimony of Dwayne Herbert, who knew both Prescott and Mason: Herbert testified that he bumped into Prescott on the street shortly before the murder and that Prescott smelled of alcohol and had jokingly pulled a .38 caliber revolver on him.

Herbert also testified that he later heard two gunshots, observed Prescott “scuffling a little bit” with Mason, who was unarmed, and then saw Prescott fire four to six gunshots at Mason as Mason fled. Defense counsel vigorously challenged Herbert’s credibility on cross examination based on, inter alia, his criminal record and admitted heroin use on the night of the murder. Prescott presented an alibi defense through this aunt, who testified that Prescott was at her home on the night of the murder.

She also testified that she had not told police during an interview two days after the murder that she did not know whether Prescott had been at her home at the time of the murder because Prescott was “a grown man” who “comes and goes all the time.” E.D.N.Y. No. 11-cv-482, CM/ECF Doc. 12-6 (Trial Tr.) at 263-65. Her testimony was subsequently impeached by a rebuttal witness, one of two detectives who had interviewed her two days after the murder.

The details of that interview were memorialized in a complaint follow-up report, and that report had been provided to Prescott’s defense counsel before trial, The jury found Prescott guilty. He was sentenced principally to a term of imprisonment of 25 years to life, which he is currently serving. While his direct appeal was pending, Prescott moved to vacate the judgment pursuant to New York Criminal Procedure Law § 440.10.

Prescott argued that his trial counsel rendered ineffective assistance by, inter alia, presenting an alibi witness who “was effectively destroyed by a police rebuttal witness, even though the impeachment evidence had been memorialized in a report that had been furnished to the defense before trial.” J.A. at 19. The trial court rejected this argument and denied Prescott’s motion. That court concluded that “the record, when viewed objectively, reveals the existence of a trial strategy that might well have been pursued by a reasonably competent attorney.” J.A. at 45 (internal quotation marks and alteration omitted).

The state appellate court subsequently denied Prescott’s application for leave to appeal. On direct appeal from his conviction, Prescott again argued that trial counsel was ineffective for presenting an impeachable alibi defense. The state appellate court rejected that argument, concluding that Prescott had “failed to demonstrate the absence of strategic or other legitimate explanations for counsel’s alleged shortcomings.” J.A. at 48. In 2011, Prescott petitioned in the Eastern District of New York for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

He contended that the state courts’ rejection of his ineffective assistance of counsel claim was based on an unreasonable application of federal law. The district court denied the petition, and we granted a certificate of appealability on the following issue: “whether trial counsel rendered ineffective assistance by advancing the alibi defense,” 2d Cir. No. 13—1366—cv, CM/ECF Doc. 24 (Order). We review de novo the district court’s denial of a petition under 28 U.S.C. § 2254. Harris v. Kuhlmann, 346 F.3d 330, 342 (2d Cir.2003).

A federal court may not grant habeas relief under § 2254 “with respect to any claim that was adjudicated on the merits in State court” unless the state court decision either (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law,” or (2) “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). A federal court may override a state court ruling only if it was “so lacking in justification that there was ... [no] possibility for fair-minded disagreement.” Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

Prescott’s claim of ineffective assistance was subject to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), requiring that he demonstrate both (1) that his attorney’s performance was objectively unreasonable (a standard that affords counsel “wide latitude ... in making tactical decisions”), and (2) that the deficiency prejudiced his defense. Id. at 687-89, 104 S.Ct. 2052.

Because Prescott now challenges under § 2254 the state courts’ denial of his Strickland claim, “‘[t]he pivotal question’ for the federal habeas court ‘is whether the state court[ ]s[’] application, of the Strickland standard was unreasonable.’ ” Santone v. Fischer, 689 F.3d 138, 154 (2d Cir.2012) (quoting Richter, 562 U.S. at 101, 131 S.Ct. 770) (first alteration in original). “The standards created by Strickland and § 2254(

d) are both highly deferential”; a federal collateral attack on a state court’s Strickland ruling is therefore subject to a “doubly” deferential standard. Richter, 562 U.S. at 105, 131 S.Ct. 770 (internal quotation marks omitted). We agree with the district court that Prescott has failed to demonstrate his entitlement to habeas relief.

Prescott’s petition challenges conduct by counsel that fits trial strategy—the decision to pursue an alibi defense, and attack the credibility, of the only witness to have placed Prescott at the scene of the crime, to the exclusion of other defenses that would have conceded Prescott had killed Mason. That strategy may not have been winning, but the states courts’ finding that it was not objectively unreasonable was not itself unreasonable.

While Prescott now faults his trial counsel for pursing an impeachable alibi defense at the expense of an intoxication defense, the only evidence of intoxication was Herbert’s testimony that Prescott smelled of alcohol. Prescott’s arguments based on Henry v. Poole, 409 F.3d 48, 65 (2d Cir.2005), moreover, are not persuasive. In Henry, we concluded that a state court unreasonably applied federal law when it determined that trial counsel’s presentation of “an alibi[,] that was clearly given for the wrong day,” was not objectively unreasonable. 409 F.3d at 52.

Prescott’s alibi, however, was not so clearly inadequate—the testimony of his alibi witness was merely subject to impeachment and set up a credibility contest between the alibi witness and the interviewing detective for the jury to resolve. Prescott’s assertion that Henry is nevertheless controlling on the grounds that trial counsel “never subjected the prosecution’s case to any actual adversarial testing,” Appellant’s Br. at 23-24, is flatly contradicted by the record. We have considered Prescott’s remaining arguments and find them to be without merit. We therefore AFFIRM the judgment of the district court.