We direct the Clerk of Court to amend the official caption as noted above.… v. Miller 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term,…

* We direct the Clerk of Court to amend the official
caption as noted above.
05-5235-pr
Bell v. Miller
1
UNITED STATES COURT OF APPEALS 2
3
FOR THE SECOND CIRCUIT 4
5
August Term, 2007 6
7
8
(Argued: August 29, 2007 Decided: August 31, 2007) 9
10
Docket No. 05-5235-pr 11
12
- - - - - - - - - - - - - - - - - - - -x 13
14
DERRICK BELL, 15
16
Petitioner-Appellant, 17
18
- v.- 19
20
DAVID L. MILLER, Superintendent 21
of Eastern Correctional Facility, 22
ANDREW CUOMO, Attorney General of 23
New York, and RAYMOND CUNNINGHAM, 24
Superintendent of Woodbourne Correctional 25
Facility,*
26
27
Respondents-Appellees. 28
29
- - - - - - - - - - - - - - - - - - - -x 30
31
Before: JACOBS, Chief Judge, KATZMANN, and HALL, 32
Circuit Judges. 33
34
Appeal from a judgment of the United States District 35

-- 1 of 20 --

2
Court for the Eastern District of New York, Allyne R. Ross, 1
Judge, denying Petitioner-appellant Derrick Bell’s 2
application for a writ of habeas corpus pursuant to 28 3
U.S.C. § 2254. For the following reasons, we reverse the 4
decision of the District Court and remand for the entry of 5
judgment conditionally granting the writ and ordering 6
Derrick Bell’s release unless the State provides him a new 7
trial within 60 days. 8
Anne S. Raish (Mark Pomerantz, 9
of counsel, Stephen H. Yuhan, on 10
the brief) Paul, Weiss, Rifkind, 11
Wharton & Garrison, LLP, New 12
York, NY, for Petitioner- 13
Appellant. 14
15
Lara M. Shalov, Stillman, 16
Friedman, & Shechtman, P.C., New 17
York, NY for Petitioner- 18
Appellant. 19
20
Steven Banks, Lawrence T. 21
Hausman, The Legal Aid Society, 22
New York, NY for Petitioner- 23
Appellant. 24
25
Howard B. Goodman, Assistant 26
District Attorney (Ann Bordley 27
and Leonard Joblove, of counsel, 28
Charles J. Hynes, District 29
Attorney, Kings County, on the 30
brief), Office of the Kings 31
County District Attorney, 32
Brooklyn, NY. 33
34

-- 2 of 20 --

3
DENNIS JACOBS, Chief Judge: 1
Petitioner-appellant Derrick Bell, who was convicted of 2
robbery and assault in New York State Supreme Court, Kings 3
County, is seeking a writ of habeas corpus on the ground 4
that his lawyer was constitutionally deficient for having 5
failed to consult a medical expert regarding the reliability 6
of the complaining witness’s identification-–the only 7
evidence tying Bell to the crime. The witness was shot in 8
the thigh, lost half his blood, was heavily medicated, 9
lapsed into a coma for eleven days, and identified Bell by 10
name after recovering consciousness-–notwithstanding that at 11
the scene of the attack he had described his attacker 12
generically, as though the attacker was unknown to him. The 13
District Court denied the petition on the ground that the 14
state court’s rejection of Bell’s claims was not based on an 15
unreasonable application of federal law, see 28 U.S.C. § 16
2254(d). We reverse. 17
BACKGROUND 18
Brentonol Moriah was held up at gunpoint as he was 19
walking in Brooklyn at 2:30 a.m. on July 16, 1996. His 20
assailant, armed with a full-length shotgun, demanded money. 21

-- 3 of 20 --

4
Soon after Moriah surrendered the contents of his pockets, 1
headlights flashed from a nearby intersection and the 2
assailant fired into Moriah’s thigh and fled, weapon in 3
hand. 4
When the police came to the scene, Moriah was lying on 5
the street, having lost copious amounts of blood. Moriah 6
told the officers that someone tried to rob him and then 7
shot him in the thigh. A police officer testified that 8
Moriah described the perpetrator (in Moriah’s words) as “a 9
male black, wearing a lemon-colored shirt.” Moriah said 10
nothing to the officers that would evince any familiarity 11
with the shooter; accordingly, the police reports from the 12
crime scene list the perpetrator’s identity as “unknown” and 13
“unidentified.” 14
For the following eleven days, Moriah was hospitalized 15
in a heavily sedated state, comatose if not actually in a 16
coma. When he regained consciousness on July 28, 1996, 17
Moriah told the detective that his assailant was one Derrick 18
Bell, who had been his neighbor in a rooming house. 19
Bell was arrested on August 14, 1996, and charged with 20
first-degree assault, second-degree assault, fourth-degree 21

-- 4 of 20 --

5
grand larceny, and two counts of first-degree robbery. Bell 1
had no prior criminal record. 2
On August 19, 1996, Moriah again named Bell in 3
videotaped grand jury testimony given from his hospital bed. 4
Moriah stated that he continued to take painkillers every 5
four hours and to suffer from memory lapses and dizziness. 6
7
A. Bell’s State Trial 8
At Bell’s trial, Moriah was the only prosecution 9
witness who identified Bell as the assailant. Moriah 10
testified on direct that he and Bell shared a bathroom and 11
kitchen at a rooming house for more than a year, that they 12
spoke occasionally and never argued or fought, and that on 13
the night of the crime he stood face-to-face with Bell for 14
five minutes. On cross, Moriah admitted that he first named 15
Bell eleven days after the crime took place; and that he did 16
not recall speaking with police officers on the night of the 17
crime. Bell’s counsel asked Moriah no questions about the 18
medications he was administered while in the hospital 19
(including at the time he first identified Bell as his 20
assailant), nor did he ask about Moriah’s memory loss, 21

-- 5 of 20 --

6
which, according to Moriah’s grand jury testimony, persisted 1
for at least a month after the crime. 2
Dr. Robert Brewer, the emergency room surgeon who 3
treated Moriah on the night of the crime, testified for the 4
prosecution that Moriah lost 50 percent of his blood as a 5
result of the shooting. On cross-examination, Bell’s trial 6
counsel inquired about the effect of that blood loss on 7
Moriah’s consciousness when he arrived at the hospital. 8
Counsel did not ask about the impact of blood loss on 9
memory, nor did he ask about the medications that were given 10
to Moriah at the hospital. 11
The prosecution called four other witnesses. 12
The policeman who had interviewed Moriah at the crime scene 13
testified as to Moriah’s description of his assailant: “a 14
male black wearing a lemon-colored shirt.” The detective 15
assigned to the case testified that Moriah first identified 16
Bell as the perpetrator eleven days after the crime took 17
place, and that he was unable to interview Moriah before 18
then because Moriah had been unconscious. Martin Payne, who 19
lived near the crime scene, testified that on the night of 20
the crime, he heard a person scream “no” several times, 21

-- 6 of 20 --

7
followed by a gunshot; however, Payne did not see the 1
shooting. Richard Edmonds, the landlord of the rooming 2
house where Moriah and Bell once lived, testified about his 3
tumultuous landlord-tenant relationship with Bell. 4
Bell testified that he left work around midnight to 5
join friends, and they all played cards until five o’clock 6
the following morning. Bell’s three alibi witnesses 7
confirmed that they played cards with Bell on the night in 8
question. 9
The jury convicted Bell of first-degree robbery and 10
second-degree assault. The trial court sentenced Bell to 11
concurrent sentences of 12½-to-25 years on the robbery count 12
and seven years on the assault count, the maximum term for 13
both crimes. 14
15
B. State Appeal 16
Bell filed a timely notice of appeal in New York State 17
Supreme Court. His direct appeal asserted various claims of 18
ineffective assistance of trial counsel but did not 19
challenge counsel’s failure to consult a medical expert. 20
The Second Department affirmed, People v. Bell, 298 A.D.2d 21

-- 7 of 20 --

1 Other grounds for asserting ineffective assistance 1
were presented in Bell’s § 440 motion and in the habeas 2
petition, but those grounds are not before us here, as the 3
Certificate of Appealability is limited to the medical 4
expert issue. For the sake of simplicity, we refer to this 5
sole remaining claim as Bell’s “ineffective assistance 6
claim.” 7
8
398 (2d Dep’t 2002), and the New York Court of Appeals 1
denied leave to appeal. People v. Bell, 99 N.Y.2d 555 2
(2002). 3
On February 13, 2004, Bell filed a motion to vacate his 4
conviction pursuant to N.Y. Crim. Proc. Law § 440.10. 5
There, for the first time, Bell argued that his trial 6
counsel was ineffective for having failed to consult a 7
medical expert regarding the effects of trauma, blood loss 8
and painkillers on Moriah’s memory.1 In support of his § 9
440 motion, Bell submitted the affidavit of Dr. Elkhonon 10
Goldberg, a neuropsychologist affiliated with New York 11
University and Columbia University, who reviewed the police 12
reports from the case, Moriah’s grand jury and trial 13
testimony, and the trial testimony and affidavit of Dr. 14
Brewer. Dr. Goldberg opined that: “Mr. Moriah’s testimony 15
contains unequivocal evidence that he suffered from 16
retrograde amnesia for the events predating the loss of 17

-- 8 of 20 --

2 Mr. Moriah’s medical records were marked as exhibits, 1
but the District Attorney’s Office has been unable to 2
retrieve them. It is unclear whether Bell could have 3
obtained them by other means or whether he will be able to 4
do so now. 5
3 § 440.10(2)(c) mandates denial of a motion to vacate 6
where, though “sufficient facts appear on the record of the 7
proceedings underlying the judgment to have permitted, upon 8
appeal from such judgment, adequate review of the ground or 9
issue raised upon the motion, no such appellate review or 10
determination occurred owing to the defendant’s . . . 11
unjustifiable failure to raise such ground or issue upon an 12
appeal actually perfected by him.” 13
9
consciousness”; the retrograde amnesia was exacerbated by 1
such anxiolytic and amnestic medications as Dr. Brewer 2
attested were likely administered to Moriah in the emergency 3
room;2 false memories can be persistent and dominant, 4
overriding true memories; and Moriah’s was unlikely to have 5
regained full consciousness when he first named Bell. 6
Accordingly, Dr. Goldberg concluded that Moriah’s 7
identification of Bell was unreliable. 8
On October 4, 2004, the state court denied Bell’s § 440 9
motion without a hearing. It applied N.Y. Crim. Proc. Law 10
§ 440.10(2)(c) to Bell’s ineffective assistance claim, 11
citing as unjustifiable Bell’s failure to raise the issue on 12
direct appeal.3 The court added: “But if the merits were 13
reached, the result would be the same.” The state court 14

-- 9 of 20 --

10
observed that Dr. Goldberg’s affidavit was “fraught with 1
hedge words,” and questioned whether, at the time of Bell’s 2
trial in 1997, Goldberg’s expert testimony regarding a 3
“single witness identification issue” would have been 4
admissible in a New York State court. 5
6
C. Federal Habeas Proceedings 7
Bell filed his federal habeas petition in the Eastern 8
District of New York on February 5, 2005. On August 12, 9
2005, the District Court issued an opinion denying the 10
petition and declining to issue a Certificate of 11
Appealability. The District Court concluded that Bell’s 12
ineffective assistance claim was not procedurally barred 13
because N.Y. Crim. Proc. Law § 440.10(2)(c) is not an 14
“adequate” state ground because New York courts do not apply 15
that rule regularly to ineffective assistance claims, as 16
such claims often depend on extrinsic evidence and therefore 17
must be brought through collateral attack. Bell v. Miller, 18
No. 05-cv-0663, 2005 WL 1962413, at *5 (E.D.N.Y. Aug. 12, 19

-- 10 of 20 --

4 The State does not contest this aspect of the 1
District Court’s opinion on appeal, and so we decline to 2
address it. See Jimenez v. Walker, 458 F.3d 130, 141 n.8 3
(2d Cir. 2006) (“Because the existence of an adequate and 4
independent procedural bar is not jurisdictional in the 5
habeas context, a federal court is not required to raise it 6
sua sponte; rather, it is a defense that the State is 7
obligated to raise and preserve if it is not to lose the 8
right to assert the defense thereafter.” (internal citation 9
omitted)). 10
11
2005). This ruling is unchallenged on appeal.4 The 1
District Court also concluded that because the state court 2
decision “provided a full analysis” of Bell’s ineffective 3
assistance claim, it constituted an “adjudication on the 4
merits,” triggering the more deferential standard of review 5
required by the Antiterrorism and Effective Death Penalty 6
Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d)(1). Id. at *6. 7
This ruling is challenged, and decided below. 8
As to the merits, the District Court found that Bell 9
did not show that the failure of trial counsel to consult a 10
medical expert fell below prevailing professional norms in 11
1997 when Bell was tried. Id. at *7. The District Court 12
distinguished the cases Bell relied on as applying only to 13
expert medical testimony in child sexual abuse cases. Id. 14
at *8. The District Court also found that Bell failed to 15
show prejudice, characterizing Dr. Goldberg’s conclusions as 16

-- 11 of 20 --

12
attenuated and speculative. Id. 1
On June 12, 2006, this Court issued a Certificate of 2
Appealability on the sole question of whether trial 3
counsel’s failure to consult a medical expert constituted 4
ineffective assistance of counsel. 5
6
DISCUSSION 7
We review de novo the District Court’s denial of Bell’s 8
petition for habeas corpus. Thibodeau v. Portuondo, 486 9
F.3d 61, 64 (2d Cir. 2007). 10
11
I. AEDPA Deference 12
Under AEDPA, if a habeas petitioner’s claim “was 13
adjudicated on the merits in State court proceedings,” a 14
federal court can grant habeas only if the state court’s 15
decision was “contrary to, or involved an unreasonable 16
application of, clearly established Federal law, as 17
determined by the Supreme Court of the United States,” or 18
“was based on an unreasonable determination of the facts in 19
light of the evidence presented.” 28 U.S.C. § 2254(d). 20
An “adjudication on the merits” is one that “(1) 21

-- 12 of 20 --

13
disposes of the claim on the merits, and (2) reduces its 1
disposition to judgment.” Sellan v. Kuhlman, 261 F.3d 303, 2
312 (2d Cir. 2001) (emphasis added and internal quotation 3
marks omitted). The state court’s ruling on Bell’s § 440 4
motion discussed the merits and was reduced to a judgment; 5
but the wording of the opinion reflects that the disposition 6
was not premised on the court’s view of the merits. The 7
discussion of the merits was preceded by a contrary-to-fact 8
construction: “if the merits were reached, the result would 9
be the same.” And a contrary-to-fact construction is not 10
the same as an alternative holding. See Zarvela v. Artuz, 11
364 F.3d 415, 417 (2d Cir. 2004) (concluding that state 12
court had reviewed the claim on the merits where it found 13
“petitioner’s claim to be unpreserved, and, in any event, 14
without merit,” constituted an adjudication on the merits) 15
(emphasis added). We decline to read a contingent 16
observation as an “adjudication on the merits.” 17
Accordingly, we review Bell’s claim de novo. 18
19
II. Merits 20
A criminal defendant asserting that counsel is 21

-- 13 of 20 --

14
constitutionally deficient must show that the lawyer’s 1
performance “fell below an objective standard of 2
reasonableness” and that “there is a reasonable probability 3
that, but for counsel’s unprofessional errors, the result of 4
the proceeding would have been different.” Strickland v. 5
Washington, 466 U.S. 668, 688, 694 (1984). The standard of 6
Strickland “is rigorous, and the great majority of habeas 7
petitions that allege constitutionally ineffective counsel 8
founder on [it].” Lindstadt v. Keane, 239 F.3d 191, 199 (2d 9
Cir. 2001). 10
Bell’s claim threads this needle. The only evidence 11
connecting Bell to the crime was Moriah’s testimony. Three 12
friends testified that Bell was elsewhere playing cards. 13
Given the trauma Moriah endured and the medical treatments 14
he received, Moriah’s memory was highly vulnerable to attack 15
by scientific evidence. Minutes after an encounter in which 16
he stood face-to-face with the assailant for five minutes, 17
Moriah told police officers that his assailant was a “male 18
black wearing a lemon-colored shirt,” a description that 19
implicitly but undeniably indicates that the assailant was a 20
stranger: one does not fall back on general features (a 21

-- 14 of 20 --

15
“male black”) or the color of a shirt (“lemon” yellow) to 1
express the identity of a person known by name or 2
affiliation. By the time Moriah identified Bell as the 3
assailant, Moriah had (in sequence) lost nearly half his 4
blood, undergone surgery, would (in usual course) have been 5
given anxiolytic and amnestic pharmaceuticals, entered a 6
sedated, coma-like state, remained semi-conscious (at best) 7
for eleven days, and awakened with cognitive abilities that 8
were in doubt. On August 19, 1996, over a month after the 9
initial trauma, Moriah reported that he continued to take 10
painkillers and suffer memory loss and dizziness. And he 11
had forgotten altogether the conversation at the crime scene 12
in which he described his assailant but did not name him. 13
Taking the Strickland requirements in reverse order, 14
there is a “reasonable probability” that had trial counsel 15
consulted with a medical expert, “the result of the 16
proceeding would have been different.” Strickland, 466 U.S. 17
at 694. The prosecution’s case against Bell was thin--there 18
was no eyewitness other than Moriah; no witness or other 19
evidence (forensic or otherwise) linked Bell to the crime. 20
See Strickland, 466 U.S. at 696 (“a verdict . . . only 21

-- 15 of 20 --

16
weakly supported by the record is more likely to have been 1
affected by errors than one with overwhelming record 2
support”). Impeaching Moriah’s memory was therefore all in 3
all for the defense. Armed with the insight and advice of a 4
medical expert, a lawyer could have vastly increased the 5
opportunity to cast doubt on this critical evidence. 6
It is likely that the state trial court would have 7
permitted a medical expert to testify as to the effects of 8
trauma, blood loss, and anxiolytic and amnestic medications 9
on the human brain, as those topics are well “beyond the ken 10
of the typical juror.” People v. Taylor, 75 N.Y.2d 277, 288 11
(1990) (internal citation omitted); see, e.g., People v. 12
Cronin, 60 N.Y.2d 430, 433-34 (1983) (reversing trial 13
court’s preclusion of expert testimony on the impact of 14
alcohol, marijuana and Valium on defendant’s ability to act 15
purposefully); People v. Real, 137 A.D.2d 416, 416 (1st 16
Dep’t 1988) (“Since the key issue for the jury’s 17
determination was whether defendant could have formed the 18
required intent for the charged crimes, the court erred in 19
precluding defendant from calling an expert to testify as to 20
the effect of ‘angel dust’ intoxication on his ability to 21

-- 16 of 20 --

17
form such intent.”). The State cites cases to show that 1
expert testimony on the reliability of eyewitnesses was 2
inadmissible in New York. See, e.g., People v. Lee, 96 3
N.Y.2d 157 (2001). But those cases exclude expert testimony 4
from social scientists on the fallibility of eyewitness 5
identifications in general. 6
True, counsel cross-examined Moriah and Dr. Brewer in 7
an effort to cast doubt on Moriah’s identification. But 8
counsel’s failure even to investigate the scientific 9
implications of Moriah’s trauma, blood loss and sedation 10
handicapped his cross-examination of those key prosecution 11
witnesses. See Eze v. Senkowski, 321 F.3d 110, 129 (2d Cir. 12
2003) (explaining that by not investigating the scientific 13
accuracy of prosecution witness’s conclusions, counsel 14
“missed out on the chance to impeach him on contrary medical 15
literature”). Thus counsel failed to ask Dr. Brewer how 16
Moriah’s blood loss--estimated to be 50 percent--might have 17
altered Moriah’s memory of the crime, including the 18
potential for retrograde amnesia. And counsel failed to 19
ascertain from Dr. Brewer what drugs he administered to 20
Moriah, let alone how those medications might have impacted 21

-- 17 of 20 --

18
Moriah’s memory. Likewise, counsel failed to elicit any 1
testimony from Moriah about those medications, even though 2
Moriah had testified to the grand jury (on videotape) that, 3
over a month after the crime, he continued to take 4
painkillers and suffer memory lapses and dizziness. 5
As to the first requirement under Strickland, we must 6
make “every effort . . . to eliminate the distorting effects 7
of hindsight,” and “indulge a strong presumption that 8
counsel’s conduct falls within the wide range of reasonable 9
professional assistance; that is, the defendant must 10
overcome the presumption that, under the circumstances, the 11
challenged action might be considered sound trial strategy.” 12
Strickland, 466 U.S. at 689 (internal quotation marks 13
omitted). Even affording this deference, we conclude that 14
counsel’s performance was deficient. 15
Counsel’s performance cannot fairly be attributed to a 16
“strategic decision” arrived at by “diligent counsel . . . 17
draw[ing] a line [based on] good reason to think further 18
investigation would be a waste.” Rompilla v. Beard, 545 19
U.S. 374, 383 (2005). Bell’s lawyer failed even to consider 20
consulting a medical expert regarding the reliability of 21

-- 18 of 20 --

19
Moriah’s memory. Cf. Wiggins v. Smith, 539 U.S. 510, 525- 1
529 (limiting scope of investigation into potential 2
mitigation was not entitled to deference because it was made 3
at an unreasonable stage, rendering an informed decision 4
impossible); Williams v. Taylor, 529 U.S. 362, 390 (2000) 5
(failing to uncover and present extensive mitigating 6
evidence could not be justified on decision to focus on 7
other defense because that decision was made prematurely, 8
without the benefit of a thorough investigation). 9
Moreover, the record reveals no “tactical justification 10
for the course” trial counsel chose. United States v. 11
Luciano, 158 F.3d 655, 660 (2d Cir. 1998) (per curiam). The 12
defense proceeded along two strategic lines: impeaching 13
Moriah and establishing an alibi. The first of these would 14
have been promoted, without any appreciable downside, by 15
expert medical testimony on the impact that blood loss and 16
painkillers had on Moriah’s memory. See, e.g., Pavel v. 17
Hollins, 261 F.3d 210, 219 (2d Cir. 2001) (finding 18
ineffectiveness for failure to call witness whose testimony 19
could have bolstered defense theory). 20
Our disposition of this appeal does not announce a per 21

-- 19 of 20 --

20
se rule requiring a defense counsel to consult with a 1
medical expert in order to cast doubt on a key prosecution 2
witness. But where the only evidence identifying a criminal 3
defendant as the perpetrator is the testimony of a single 4
witness, and where the memory of that witness is obviously 5
impacted by medical trauma and prolonged impairment of 6
consciousness, and where the all-important identification is 7
unaccountably altered after the administration of medical 8
drugs, the failure of defense counsel to consider consulting 9
an expert to ascertain the possible effects of trauma and 10
pharmaceuticals on the memory of the witness is 11
constitutionally ineffective. 12
13
CONCLUSION 14
For the foregoing reasons, we reverse the decision of 15
the district court and remand for the entry of judgment 16
conditionally granting the writ and ordering Derrick Bell’s 17
release unless the State provides him a new trial within 60 18
days. The mandate will issue forthwith. 19

-- 20 of 20 --