Teddy May v. The Warden, State Prison (2010)

MEMORANDUM OF DECISION

MEMORANDUM OF DECISION

I have considered the evidence presented, the testimony and the exhibits.   I've considered the pre-trial briefs of counsel.   I've considered the arguments of counsel and based on that and the following reasons that I will detail, the petition for writ of habeas corpus is denied.

First, as may be obvious, I believe that this case should-in this case the defense of laches should have been presented, and I believe the state dropped the ball in that regard.

The conviction was entered in the year 2000.

Eight years later the petitioner files a habeas corpus petition and here we are in 2010, trying the matter.

In the meantime trial counsel's, whose effectiveness is attacked, can no longer retrieve his file and, understandably, does not recall much, if at all, of the specific facts of this case.   Clearly, there's an undue delay by the petitioner and what appears to be prejudice to the state, but laches is an affirmative defense and has to be raised by the respondent;  it was not, so I am not going to decide the case on those grounds.

To decide the case on the merits one has to review the petitioner's testimony since the petitioner's case rests almost entirely on it, and I find the petitioner's testimony not credible in all material respects.

Petitioner claims things such as that he did not talk to Mr. O'Brien concerning the merits of the case.   Mr. O'Brien never even asked what happened in the incident.   This is simply unbelievable in a murder case and I believe that the petitioner's memory is either very selective or it has dimmed over the past eleven years in view of the passage of time.

The petitioner adds that he never even told Mr. O'Brien what happened and that was because he was just a kid.   He was sixteen at the time, but looking at the other evidence in this case, I do not think he was just a kid.   By his own admission he was carrying a .22 caliber sawed-off rifle, and after this shooting, traveled to New York City on his own and then on to Miami, supposedly not to get away, but just because he was leaving, or not to escape prosecution, but just to-because he was leaving, as if he were an adult leaving on vacation.   He had, according to his statement, money hidden in a building.

According to his statement to the police he was selling drugs.   So, he was not just a kid.   He was very streetwise.   Besides, even a kid knows to tell an adult why he should not get in trouble for something he's accused of;  even a kid can say self-defense or I was just protecting myself.

I believe the petitioner's statement to the police at the time is a much more accurate rendition of what happened than petitioner's recantation of the events eleven years later.   So, I do not credit the petitioner's testimony in all material respects.

Turning to the specific claims, the first claim is that counsel was ineffective in failing to secure a guardian.   As the testimony and the briefs establish, there's no absolute requirement that a guardian accompany a sixteen-year-old, or at least at the time in adult court, and to the degree that a guardian was important or necessary, there were guardians in court at the time of the plea and the sentencing.   Furthermore, the evidence showed that the petitioner and Mr. O'Brien talked the case over with the petitioner's father, who, before they went into court, and the petitioner's father concurred with counsel's recommendation that the petitioner plead guilty.   So, the father was kept apprised and I believe there's also evidence that the father provided advice to the petitioner to accept the-to enter his plea and simply just could not make it to court on the day of the plea.

The petitioner testified in court that the fact that the father was not there did not affect his actions in court.   But the fact is that they did go into court the day before the plea on May 3rd, in somewhat of an unusual proceeding, but one which reflects caution on the part of all-both counsel to the criminal prosecution and the court, and in court on May 3rd, the father indicated that he agreed with the plea agreement and that it would be okay for them to proceed without him, and the court then approved it.

At sentencing the issue arose again and all parties agreed that the father did not have to be there because there was an agreed upon recommendation and that it would make no difference if the father were there.

So, there was nothing more that counsel could have or should have done in this instance, and there was no ineffective assistance of counsel because any right that the petitioner had to a guardian was fully preserved and the purpose of the guardian was fully served in the discussions both in and out of court.

The next two claims are that defense counsel should have offered a self-defense theory or a manslaughter theory either as, apparently, an alternative to the plea to murder or as a basis for going to trial.

Resolution of this case is-or of these issues is made difficult by the fact that it occurred so long ago and, understandably, Mr. O'Brien does not remember the specific facts of the case, but I at least credit his honesty in saying that.   However, there is circumstantial evidence that Mr. O'Brien had discussed the merits of the case with his client and was well aware of the costs and benefits of a plea versus the cost and benefit of a trial.

The May 3rd, 2000 transcript in which the father's inability to be in court the next day was discussed, has Mr. O'Brien saying on Page 1. (As read) Your Honor, we have discussed-Mr.   May and Teddy May have met and discussed the case in its entirety and it is my understanding that Teddy May will be taking a plea.

On the next day in court the petitioner is asked by the court:  (As read) Have you discussed the matter with counsel?   The petitioner says yes.   Are you satisfied with his advice?   The petitioner says yes.

Further on in the transcript on Pages 9 to 10.  (As read) Mr. O'Brien, Just regarding yesterday, I did meet with the father and we discussed with Mr. May;  we discussed fully all the range of options, the likelihood of one versus the other and they were both fully aware of the risks that they were taking, if they went to trial.   So, with that as the context, I'd like the court to be aware of that.

I believe that these contemporaneous entries into the record are the best evidence of what actually happened rather than the petitioner's version eleven years later.

Furthermore, I credit Mr. O'Brien's testimony that it was his general practice to discuss cases with his client in that it would be, in fact, malpractice not to get the petitioner's version of events and, therefore, he did get the petitioner's version of the events.

So, given that evidence I believe that Mr. O'Brien was aware of the following facts and discussed them with the petitioner.

First, the petitioner's statement to the police.   In the petitioner's statement to the police he admits selling cocaine and denies shooting the victim, denies having a gun, and never even mentions self-defense.   All this certainly would have undercut a self-defense theory, if it had been presented.   Instead the petitioner's statement is he simply did not do it, and this is not a basis either for self-defense or manslaughter.

We next get to the evidence from George Fable, who did testify in court here today, but admitted that the most accurate account of what he saw and heard was in the police report and which contains-in his statement which were given about eleven years earlier.   In his statement he claims that he just-and it's similar to his trial testimony or testimony today, in his statement he claims that he just heard three or four shots, but did not see who fired them because he was running away, although he does see the petitioner walking backwards and the victim apparently approaching him, he did not see the victim attacking the petitioner and certainly-and did not see who fired the shots, did not see the victim with a gun or provide any other evidence that would support the use of-the use of deadly force, which the petitioner used, support or justify the use of deadly force and self-defense.

Looking at the other witness statements, Ms. Carol Colon was an eyewitness to this incident.   She stated that the petitioner came out of the driveway with a gun and shot the victim four times.   There's no suggestion that the victim had a gun, no suggestion of self-defense being justified or of manslaughter.

Mr. Haneef Brooks, the petitioner came out of an alley with a gun;  the petitioner fired some sort of blank shot, and then fired several more times hitting the victim.

Ms. Niwkia McKenzie provided a statement that was similar to Mr. Brooks and has the petitioner firing, I believe in the air, and then firing at the victim.   In neither case did either witness see the victim with a gun.

In the police report there's evidence from a Daryl Tindall, who observed the petitioner with a .22 caliber rifle, saw the victim coming toward him, but no mention that the victim had a gun.   Mr. Tindall then heard shots and sees the petitioner running away with a gun.

There is no evidence whatsoever that the victim had a gun.   Therefore, there is no evidence to support a self-defense or use of-justified use of deadly force, given the petitioner's repeated firings or attempts to fire, there's no evidence of manslaughter.

I credit Mr. O'Brien's testimony that he would have recommended going to trial, if there were any evidence of self-defense, but in this case there was no basis to pursue a plea, or a lesser included offense of manslaughter, or a plea, or a lesser included offense of manslaughter, or a trial based on self-defense.   Instead, Mr. O'Brien got the petitioner the minimum sentence, which was an excellent deal, given the facts.

The final claim is that Mr. O'Brien advised the petitioner that he would only have to serve eighteen years on his twenty-five year sentence.   For the reasons I've already stated I do not credit the petitioner's testimony in that regard.   Although, Mr. O'Brien, understandably, does not remember specifically the discussions about the plea that he had with the petitioner, I do credit his testimony that he was aware of the good time credit statute at the time and that aside from good time there would be no basis to suggest that the petitioner would only have to serve eighteen years out of twenty-five and, in fact, Mr. O'Brien would tend to emphasize the worse case scenario so as not to raise false hopes in his client.

In addition, I'll note that in the sentencing transcript, Exhibit D, Page 6 on June 30, 2000, Judge Clifford does say that, “When you get out, you'll probably be in your early forties.”   There's no suggestion of any sort of early release, no reaction from the petitioner or his counsel that there was some understanding that the petitioner would get out before then.   So, I find no basis to conclude that Mr. O'Brien informed the petitioner that he would be released after eighteen years and no ineffective assistance of counsel in that regard.

In conclusion there is no evidence of deficient performance by Mr. O'Brien.   With regard to the prejudice prong, there is perhaps circumstantial evidence that Mr. May might have insisted on trial, had his-if his allegations of ineffective assistance were true, but under the Copas standard the petitioner must also prove that there's a reasonable probability of some measure of success had they gone to trial.   Based on my findings that there is no evidence of self-defense or manslaughter, I do not find that the petitioner has proven a reasonable probability or whatever the applicable standard is for showing prejudice, if he had gone to trial.   Because the petitioner has not proven deficient performance or prejudice, I'm denying the petition for writ of habeas corpus.

I'm ordering that the court reporter produce a transcript of my decision, that it be provided to counsel, and that petitioner prepare a judgment file within thirty days and the petitioner be advised of his right to appeal.

THE CLERK:  Please note for the record that I'm handing petition for certification and applications for waiver of fees to counsel and the petitioner.

THE COURT:  Thank you.

Schuman, J.

Schuman, Carl J., J.