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13‐2376‐pr

Matthews v. Raymond

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

AMENDED SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL

EFFECT.    CITATION TO A SUMMARY ORDER FILED ON OR AFTER

JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE

OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE

32.1.1.    WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED

WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL

APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION

“SUMMARY ORDER”).  A PARTY CITING TO A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.   

1 At a stated term of the United States Court of Appeals for the Second

2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 30 3 th day of July, two thousand fourteen.

4 

5 PRESENT: CHESTER J. STRAUB,

6 ROBERT D. SACK,

7 RAYMOND J. LOHIER, JR.,

8      Circuit Judges.

9 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 

10 

11 LONNIE MATTHEWS,

12 

13 Petitioner‐Appellant,

14 

15 v. No. 13‐2376‐pr

16 

17 JAMES RAYMOND, Acting Superintendent,

18 Walkill Facility, and ERIC T. SCHNEIDERMAN,

19 New York State Attorney General,  

20 

21     Respondents‐Appellees.

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23 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 

24 
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1 FOR APPELLANT: SHEILAH FERNANDEZ, The Legal Aid Society, New

2 York, NY.

3 

4 FOR APPELLEES: RUTH E. ROSS, Assistant District Attorney

5 (Leonard Joblove, Victor Barall, Assistant District

6 Attorneys, on the brief), for Kenneth P. Thompson,

7 District Attorney, Kings County, Brooklyn, NY.

8 

9 Appeal from a judgment of the United States District Court for the Eastern

10 District of New York (Raymond J. Dearie, Judge).

11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

12 AND DECREED that the judgment of the District Court is AFFIRMED.

13 Petitioner‐appellant Lonnie Matthews challenges the District Court’s

14 denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.  He

15 seeks relief from a 2006 New York State court conviction, following a bench trial,

16 for burglary in the second degree.  The District Court granted a certificate of

17 appealability on the issue of whether Matthews received ineffective assistance of

18 counsel, in violation of the Sixth Amendment, due to his attorney’s failure to

19 present an alibi defense at trial.  We assume the parties’ familiarity with the facts

20 and record of the prior proceedings, to which we refer only as necessary to

21 explain our decision to affirm.

22 We review de novo the District Court’s decision to deny habeas relief.  

23 Hawthorne v. Schneiderman, 695 F.3d 192, 195 (2d Cir. 2012), cert. denied, 133 S.

24 Ct. 2338 (2013).  Under the Antiterrorism and Effective Death Penalty Act of 1996

25 (“AEDPA”), our review is “highly deferential” to the State court’s adjudication of

26 a federal claim on the merits.  Hardy v. Cross, 132 S. Ct. 490, 491 (2011).  We may

27 grant habeas relief only if the State court’s decision “was contrary to, or involved

28 an unreasonable application of, clearly established Federal law as determined by
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1 the Supreme Court of the United States,” or “was based on an unreasonable

2 determination of the facts in light of the evidence presented in the State court

3 proceeding.”  28 U.S.C. § 2254(d).   

4 Matthews contends that no deference is due to the State court here because

5 it adopted a standard contrary to Strickland v. Washington, 466 U.S. 668 (1984),

6 in evaluating his ineffective assistance of counsel claim.  The State court ruled

7 that Matthews’ ineffective assistance of counsel claim failed for two independent

8 reasons: (1) because Matthews “ha[d] not established by a preponderance of the

9 evidence that he did not receive meaningful representation” and (2) because

10 Matthews “ha[d] not established by a preponderance of the evidence . . . that the

11 verdict would have been more favorable to the defendant if the ‘quasi‐alibi’

12 defense ha[d] been presented.”

13 The State court’s first reason is an application of the State “meaningful

14 representation” test for ineffectiveness under People v. Baldi, 54 N.Y.2d 137, 147

15 (1981).  “[W]e have recognized that the New York ‘meaningful representation’

16 standard is not contrary to the Strickland standard.”  Rosario v. Ercole, 601 F.3d

17 118, 124 (2d Cir. 2010).  We therefore owe deference to the State court’s

18 conclusion that Matthews was provided meaningful representation, and we need

not address the State court’s second rationale.1 19   

 

1  Although not entirely clear, the State court seems to have required that

Matthews prove by a preponderance of the evidence that he had been prejudiced

by his counsel’s error.  People v. Matthews, Decision & Order No. 1443/05 (N.Y.

Sup. Ct. Kings Cnty. Mar. 23, 2009), Sp. App’x, at 1.  This standard of proof,

which appears to be required by New York law, see N.Y. Crim. Proc. Law

§ 440.30(6), can be seen to be in tension with Strickland’s requirement that

petitioners need only show a “reasonable probability” of prejudice, see Williams

v. Taylor, 529 U.S. 362, 405–06 (2000) (stating that it would be “contrary to”

Strickland to require a petitioner to establish prejudice by a preponderance of the
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1 To prevail on an ineffective assistance claim, Matthews must show that his

2 counsel’s performance fell below an objective standard of reasonableness and

3 that the deficiency prejudiced his defense.  Strickland, 466 U.S. at 687; Cardoza v.

4 Rock, 731 F.3d 169, 178 (2d Cir. 2013).  “Actions and/or omissions taken by

5 counsel for strategic purposes generally do not constitute ineffective assistance of

6 counsel.”  Gibbons v. Savage, 555 F.3d 112, 122 (2d Cir. 2009) (citing Strickland,

7 466 U.S. at 690–91).  Our review is therefore “doubly deferential.”  Cullen v.

8 Pinholster, 131 S. Ct. 1388, 1403 (2011).  “We take a ‘highly deferential’ look at

9 counsel’s performance, through the ‘deferential lens of § 2254(d).’”  Id. (citations

10 omitted).

11 Department of Corrections documents place Matthews in downtown

12 Brooklyn, approximately 3.5 miles away from the crime scene, just 75 to 100

13 minutes before the burglary was committed.  This gave him very little time to

14 reach the crime scene, acquire the burglary tools later found in the apartment,

15 pick up the bicycle he would later use to flee the scene, circumvent the locks on

16 the outside of the building and on the door to the second‐floor apartment

17 without leaving signs of forced entry, and locate and take possession of the

18 victim’s jewelry box and two laptop computers in the victim’s apartment.  

19 Although these feats are not beyond the realm of physical possibility, an alibi

20 defense based on this evidence, even without testimony from the defendant,

21 might well have raised substantial doubts in the mind of the judge, as trier of the

22 facts here, as to Matthews’ guilt.

23 Nevertheless, even if we thought that the failure to pursue this alibi

 

evidence).  But we are bound by this Court’s prior case law holding that the

meaningful representation test, properly applied under New York law, is not

“contrary to” Strickland.  
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1 defense fell short of the bar set in Strickland, we must defer to the judgment of

2 the State court so long as “fairminded jurists could disagree” as to the proper

3 application of precedent.  Harrington v. Richter, 131 S. Ct. 770, 786 (2011); accord

4 Hawthorne, 695 F.3d at 196.  Defense counsel stated that he declined to pursue

5 the alibi because the evidence did not conclusively establish Matthews’

6 innocence and because it could supply a possible motive for the burglary.  Even

7 if we were of the view that counsel erred and that this justification did not

8 amount to a reasonable trial strategy in light of the alibi’s exculpatory value, we

9 cannot conclude in the face of the contrary State court judgment that any and all

10 “fairminded jurists” would agree.  Harrington, 131 S. Ct. at 786.  We therefore

11 conclude, as we must, that Matthews’ habeas petition was properly denied.  

12 We have considered Matthews’ remaining arguments and conclude that

13 they are without merit.  For the foregoing reasons, the judgment of the District

14 Court is AFFIRMED.

15 

16        FOR THE COURT:

17        Catherine O=Hagan Wolfe, Clerk of Court

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