JUDITH C. McCARTHY, Magistrate Judge.
To the Honorable Cathy Seibel, United States District Judge:
Petitioner Ralph Redding ("Petitioner") brings this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his state court conviction following a jury trial in New York State County Court, Westchester County. (Docket No. 1). Respondent opposed the Petition, (Docket No. 9), and Petitioner did not submit a reply. For the reasons set forth below, I respectfully recommend that the petition for a writ of habeas corpus be denied in its entirety.
Petitioner's convictions arose from a home invasion at a New Rochelle residence. Construing the evidence in the light most favorable to the State, see, e.g., Murden v. Artic., 497 F.3d 178, 184 (2d Cir. 2007), the following facts were established at trial.
On December 14, 2010, at approximately 12:30 a.m., Petitioner, who was driving a black sedan near Hubert Place and North Avenue in New Rochelle, NY, stopped alongside Stephen Wallace, an Iona College student, and called him over to the car. (Trial Tr.
A few minutes later, at approximately 12:40 a.m., Petitioner and his two accomplices, Sean Gray and Chad Jones, arrived at 43 Treno Street, New Rochelle, a three-story, single family house, where a group of Iona College students were gathered to watch a movie. (Trial Tr. at 607-09, 624, 648, 650, 728, 745, 863). The individuals in the home included John Havens and David Marcus, both of whom were tenants. (Id. at 607, 860, 875). The other students present were Christopher Boccio, Veronica Guzman, Jordan Ramos, and Gerilyn Carbeny, who were all seated on a couch in the living room watching a movie. (Id. at 609). Marcus was in his room on the second floor of the house. (Id.).
Havens heard a knock on the door, and thought that Marcus had ordered food. (Trial Tr. at 625-27). Havens then looked out the window and saw Petitioner. (Id. at 627-29). He was holding a pizza box from Canone's, a popular pizza place that Havens knew well. (Id.). As Havens looked out the window, Petitioner looked at him and said, "pizza." (Id. at 628). When Havens opened the door, Petitioner pulled out a gun, and pushed through the door, followed by Gray and Jones. (Id. at 628-32). Petitioner pointed the gun at Haven's head, and directed the others to put their cell phones on the table. (Id at 634-36, 660, 735). Petitioner demanded to know, "where the flick is Dave [Marcus] and where the fuck is the money." (Id. at 634, 735). Concerned about everyone's safety, Havens took Petitioner to Marcus. (Id. at 636). Petitioner and Gray accompanied Havens upstairs with the gun to his head. (Id. at 636-37, 640, 675). Although he was scared, Havens remained focused on the "faces [of the perpetrators] to make sure because nobody was wearing a mask or anything, so [he] was observing what these people were doing, what they looked like." (Id. at 644-45).
Meanwhile, Marcus was in his bedroom watching television and studying when he had heard a "loud knock" downstairs, followed by a "commotion" and "panicked voices." (Trial Tr. at 866-67). After lie got "frightened," Marcus closed his door, locked it, and attempted to call 911, but he was not connected. (Id. at 867). Marcus then heard a "loud knock" on his bedroom door. (Id.). Outside of Marcus' bedroom, Petitioner told Havens, "you have ten seconds. If he doesn't open his door, I'm going to blow your brains out." (Id. at 640). Havens looked at Petitioner, and then knocked on Marcus' door and said, "Dave, for my life, please open this door." (Id at 640, 676-77, 691). Marcus opened the door, Petitioner rushed into the room and put the gull to Marcus' throat as Gray pushed Havens down the staircase. (Id. at 640-41, 677, 691, 868-69, 894, 897, 902). Marcus was standing face-to-face with Petitioner, about six inches apart, "focusing on him" and his eyes. (Id at 869-70, 894-96, 912).
Jones told Havens to "get the F down here," grabbed him, and had him stay on the couch with the others. (Trial Tr. at 641-42, 677-78). Meanwhile, Petitioner was still holding Marcus at gunpoint upstairs, and demanded that Marcus "give [him] everything he had. (Id. at 870). Gray searched the room and found a cash box containing $800. (Id. at 870, 897, 901). Petitioner then took Marcus into the hallway and pistol whipped him on the top of his head with the butt end of the gun, causing him to fall to the ground. (Id. at 873-74). As Petitioner and Gray ran down the stairs, Petitioner pointed the gun at the others. (Id. at 642, 679-80, 683, 692, 738-39, 781-82). As soon as Petitioner, Gray, and Jones left, Havens and Boccio ran upstairs and found Marcus lying in the hallway with his head bleeding. (Id. at 643-44, 740, 874). The entire ordeal lasted approximately three to five minutes. (Id. at 660, 736, 738, 761-62, 781, 804). Throughout the incident, Boccio and Guzman also observed Petitioner, and both got a clear view of his face on more than one occasion. (Id. at 735-40, 751-53, 766, 778-81).
The police were called and commenced an investigation. (Collins Aff.
Petitioner and his two accomplices were arrested separately. (Collins Aff. at 6). Petitioner was arrested on January 17, 2011. (Id. at 6). Following grand jury presentations, Petitioner was indicted and charged with the crimes of burglary in the first degree (two counts); robbery in the first degree; robbery in the second degree; assault in the second degree (two counts); and assault in the third degree. (Docket No. 9-1). On March 9, 2011, Petitioner was arraigned in New York State County Court, Westchester County, and entered a plea of not guilty. (Collins Aff. at 6). During the criminal proceedings, Petitioner was represented by assigned counsel, David Rifas, Esq. (Id.).
Petitioner's defense attorney, David Rifas, filed an omnibus motion on May 5, 2011. (Docket No. 9-2). In his counseled motion, Petitioner sought to, among other things, suppress the identification evidence against him on the ground that the procedures employed were suggestive. (Id. at 4-5). In the alternative, Petitioner requested a Wade
By Decision and Order of the New York State County Court, Westchester County, the court denied Petitioner's motion to suppress the out-of-court identifications and/or prospective identification testimony. (Docket No. 9-4 at 6). The court granted Petitioner a Wade hearing to determine whether any of the identification procedures employed were unlawful, unduly suggestive and/or conducive to irreparably mistaken identification. (Id. at 6-7). The court further held that in the event that any of the identification procedures were found to be unduly suggestive, the prosecution would be required to set forth the independent source for any witness affected, so as to permit an in-court identification. (Id. at 7).
The court held a Wade hearing from October 17-19, 2011. (Pre-Trial Hearing Tr. at 1-363). The following testimony was elicited from Detective Carpano, the sole witness to testify at the hearing.
On the night of the incident, Carpano met with Havens and Marcus at the New Rochelle Police Department (NRPD) headquarters. (Pre-Trial Hearing Tr. at 99-101, 174-76). Havens described the gunman as a "large male, black, dark skin with scary eyes." (Id. at 99, 101, 177). Marcus described the gunman as "six feet tall, 230 pounds, dark skin with a pudgy face," and stated that he "was wearing a black jacket and a beanie." (Id.). Marcus further stated that he was focused on the gunman's "scaly, evil eyes." (Id. at 113-14, 174). Throughout the investigation, Carpano told Havens and Marcus not to discuss the details of the investigation with anyone. (Id. at 115, 157-58, 170).
The police received an anonymous tip that a person by the name of "KO", later identified as Petitioner, was involved in the home invasion. (Pre-Trial Hearing Tr. at 178-79). Detective Fudge, who was familiar with Petitioner, also identified Petitioner as a suspect based on the witnesses' description of the gunman, especially the statement that he had "scaly, evil eyes." (Id. at 135, 137, 141, 174-76).
On December 20, 2010, Carpano met with Marcus and Boccio at the NRPD headquarters to conduct identification procedures. (Pre-Trial Hearing Tr. at 14, 18, 21, 121-25). The two witnesses were separated throughout the procedures. (Id. at 21, 25, 47, 149). Carpano showed each witness a different set of photographs; each contained eleven photographs of different black males of similar age, skin tone, and features. (Id. at 17-24). Carpano was particularly focused on "the eyes," because "on several occasions, the victims in this case" referred to the "slant of the eyes." (Id. at 17). The same photographs were included in each set of photo packets, with Petitioner's photograph being the fifth one in each packet. (Id. 20, 26). Carpano, together with the NRPD Detectives Messina and Fudge, prepared the photo packets using arrest booking photographs. (Id. at 17-18, 22-23, 31). Petitioner's photograph was the only one in the packet to have a white, or light, background, as compared to the others, which had darker backgrounds of charcoal. (Id. at 144-45, 153, 164).
Before conducting the identification procedures, Carpano instructed Boccio and Marcus that they were going to view "various photographs, that the person involved in the crime may or may not be included among the photographs [they] were about to view and that [they] should not feel pressure to make any identifications." (Pre-Trial Hearing Tr. at 148). During the identification procedures with Boccio and Marcus, respectively, Carpano placed the photographs face down in front of the witnesses and told them to turn the photographs over sequentially and to start viewing them one by one. (Id. at 19-20, 25-26). Both Boccio and Marcus identified Petitioner as the gunman. (Id.). On the back of Petitioner's photograph, Boccio signed his name and wrote "this is the guy that was holding the gun when entering the house at 43 Treno Street that robbed my friend David Marcus on Tuesday, 14, December 2010." (Id. at 20). Marcus wrote, "this is the man that held me at gun point and robbed me, then struck me on the head with a revolver and stole $800, Tuesday, the 14
On January 6, 2011, Carpano met with Havens, Carberry, and again with Marcus at the NRPD headquarters. (Pre-Trial Hearing Tr. at 28). Carpano told them, just as he told the other witnesses, that the individual(s) responsible for the crime may or may not be included in the photo array, and that they should not feel obligated to make any identifications. (Id. at 29). Carpano then placed the three witnesses in separate offices. (Id.).
Carpano showed Havens a photo packet consisting of 13 photographs in the same format as the packet that was given to the other witnesses, with two additional photographs. (Pre-Trial Hearing Tr. at 30-31, 161-62). The sequence of the photographs was also changed, with Petitioner's photo being the ninth in the packet. (Id.). Two of the photographs, including Petitioner's, had white backgrounds, while all the other photographs had charcoal shades. (Id. at 163). Employing the same procedures that took place with the other witnesses, Carpano asked Havens to turn over each photograph. (Id. at 32). Havens identified the Petitioner in photograph number nine as "the one with the gun who forced me to bring him to Dave Marcus's room on December 14, 2010 at around 12:40 a.m. at my home, 43 Treno Street, New Rochelle." (Id.). Carberry could not identify the Petitioner because she remained downstairs and "the only person she had the best look at would have been the one that stayed there with them." (Id at 168).
On January 19, 2011, Carpano met with Guzman alone at the NRPD headquarters. (Pre-Trial Hearing Tr. at 33, 181). Carpano and Messina compiled a separate photo packet containing eight photographs for Guzman to view. (Id. at 33-34). The photo packet was in the same format as the photo packets shown to the other witnesses; it contained photographs of black males of similar age, skin tone and facial features, particularly the eyes. (Id. at 33-35). The photos contained a mix of arrest booking photographs and MySpace pictures. (Id. at 34). Petitioner's photograph was fifth sequentially. (Id. at 35). Carpano gave Guzman the same instructions that he had given to all other witnesses with respect to the identification procedure. (Id. at 36). Guzman then "positively identified [Petitioner] in photo number five as the person who walked in with the handgun on the date and time and location of this occurrence." (Id.).
On January 27, 2011, Carpano met with Wallace at the NRPD headquarters. (Pre-Trial Hearing Tr. at 37). Carpano handed Wallace an individually prepared photo packet containing eight photographs of similar looking black males. (Id. at 39). Carpano used the same procedures in preparing this photo packet and gave Wallace the same instructions as the others. (Id. at 39-40). Seven out of the eight pictures were obtained from MySpace accounts, while Petitioner's picture was an arrest booking photograph. (Id. at 339-41). Wallace identified Petitioner as the person who offered him money to obtain an empty pizza box. (Id. at 39-40, 190).
The court ruled that the photographic identifications by Marcus, Boccio, Havens, and Guzman were not suggestive. (Pre-Trial Hearing Tr. at 315, 332, 337). Specifically, the court found that each of the witnesses arrived at police headquarters voluntarily, and were appropriately separated before any identification procedures were conducted. (Id. at 312-13, 315). The court concluded that the witnesses were duly "given neutral advisement with respect to whether or not there would be a suspect and whether or not they had some obligation to identify." (Id. at 315). The court further found that there was no evidence of collusion among the witnesses with respect to the identifications since there was "no pressure to put on [them] to identify any specific person and the instruction[s] to them were clear that they were not to discuss anything among themselves." (Id. at 315-17).
The court also held that there was no constitutional infirmity in the photo arrays with respect to the white fillers used in Petitioner's photographs. (Pre-Trial Hearing Tr. at 319-27). The court found that, although the photo packets used for Marcus, Boccio, and Havens contained a white background in Petitioner's photo that highlighted him in a certain manner, "other elements of the other pictures in the array highlight those particular individuals when viewed in a sequence or as a category or group of photographs viewed one after the other." (Id. at 323-27). The court next found that any significance attached to the fact that Petitioner's photograph was positioned fifth in the packets shown to both Marcus and Boccio was "negated by the fact that neither witness saw the other viewing that particular [photo]," and also because the sequence of fillers in each packet were mixed. (Id. at 324-25). The court next found that any significance of the light background in the photo packet shown to Havens was even more diminished by the fact that the packet contained two additional filler photographs with a different photographic sequence. (Id. at 326-27).
With respect to the packet viewed by Guzman, the court found that the MySpace pictures mixed with booking pictures was not significant since the photos contained no identifying marks, and were "not different to the point where it makes it suggestive." (Pre-Trial Hearing Tr. at 333-36). The court further concluded that the fact that Petitioner's photograph was also fifth sequentially was of no moment since Guzman made his identification long after the other witnesses made their identifications. (Id. at 337).
Lastly, the court found that the photo packet used in Wallace's identification of Petitioner was tainted because it contained Petitioner's arrest booking photograph, while all of the other photographs were "MySpace type photographs." (Pre-Trial Hearing Tr. at 338-41). The court thus ordered an independent source hearing with respect to Wallace's identification of Petitioner. (Id.).
The court held the independent source hearing on October 24, 2011. (Pre-Trial Hearing Tr. at 363-410). Wallace testified that the area where he first saw Petitioner was well lit, and that he could see Petitioner in the front seat of his black sedan throughout their entire exchange on December 14, 2010 between 11:00 p.m. and 12:00 a.m. (Id. at 368-75, 384, 400). Wallace further testified that he was confident that the person he identified to the police on January 27, 2011 was the same person he saw in the car on the evening of the home invasion. (Id. at 376, 401). Accordingly, the court found that there was an independent source. (Id. at 410-12).
Petitioner filed a counseled motion for an identification expert, dated August 25, 2011, which sought to admit expert testimony at trial on eyewitness misidentification. (Docket No. 9-5). Petitioner proffered to admit testimony by Steven D. Penrod, J.D., PhD concerning factors that contribute to misidentification. (Id.). Specifically, Petitioner requested that Dr. Penrod be permitted to testify as to the topics of: "1) cross racial bias; 2) weapon focus; 3) stress; 4) line-up or photo array fairness; 5) unconscious transference." (Id. at 4). Petitioner also requested that Dr. Penrod be permitted to testify "without a Frye
The court heard extensive oral argument on the motion at both pretrial hearings and at trial. (Pre-Trial Hearing Tr. at 4-9, 105-09, 357-63, 471-82, Trial Tr. at 537-66, 920-58). Petitioner maintained that an identification expert was appropriate in this case because there was no forensic evidence, and eyewitness identification in the face of stressful and life-threatening situations is inherently unreliable. (Trial Tr. at 539, 920-23, 941). Petitioner cited the following factors in support of his argument — the "stranger on stranger" aspect of the case, "weapons focus," "cross-race identification," alleged witness collusion, incident duration, and the alleged inability of the witnesses to see the gunman's entire face. (Id. at 540, 542, 921-24, 932-33, 936-38, 941).
The court denied the motion on the ground that there was sufficient corroborating evidence in the identification of Petitioner to obviate the need for an expert. (Trial Tr. at 946-58). Specifically, the court found that five eyewitnesses had positively identified Petitioner as the perpetrator. (Id. at 476-77, 541, 546, 559, 939-41, 946-58). The court concluded that the witnesses had the opportunity to view Petitioner with a "perfect vantage point" and for a "substantial" duration, (id. at 928-30, 933), that the witnesses who spoke to Petitioner "face-to-face" essentially "had a ring side seat to the events that were occurring," (id. at 929), that the "lighting conditions were as good as they are ever going to get," and that Petitioner's face was not covered. (Id. at 956). The court further held that with respect to their identification of Petitioner, there was "absolutely no evidence" of collusion among the witnesses. (Id. at 936). The court also considered the evidence relating to the pizza box that Wallace obtained for Petitioner. (Id. at 545-46, 559, 953-56). In sum, the court stated that "the identifications of the defendant are strong ... this is as strong an ID case as I have ever seen." (Id. at 958).
The court held jury selection from October 24, 2011 through October 28, 2011 for the consolidated trial of Petitioner and Gray.
Five witnesses positively identified Petitioner as the perpetrator. Havens, Boccio, and Guzman all identified Petitioner as the gunman who entered the house carrying an empty Canone's pizza box and held a gun to Haven's head. (Trial Tr. at 631, 644-45, 741, 776, 779). Marcus testified that Petitioner held a gun to him and pistol whipped him and that Gray stole his money. (Id. at 868-72). Wallace testified that Petitioner asked him to procure the empty pizza box from Canone's. (Id. at 837). Officer Francis Flanigan, one of the first officers to respond to the scene, testified that the porch light was on and that none of the students appeared to have been drinking or smoking. (Trial Tr. at 720-22). Detective Barber, an expert in "latent fingerprinting," testified that on February 8, 2011, Detective Carpano brought him the Canone's pizza box for testing and analysis. (Id. at 824-45). Barber testified that although no prints were recovered from the box, this was not unusual under the circumstances.
Petitioner denied any involvement with the robbery. (Trial Tr. at 1014). He testified that, among other things, he was at his Aunt Wendy's house in Long Island with his cousin, Johnson, on the night of December 13, 2010 and early morning of December 14, 2010. (Id. at 1011). Petitioner also denied having ever been on Treno Street in New Rochelle, or that he had ever met, and did not know, Havens, Marcus, Guzman, or Boccio. (Id. at 1012-13). Johnson testified that Petitioner was with him on Long Island on the night of the incident, and that Petitioner did not have access to a car that evening. (Id. at 985-88).
On November 7, 2011, the jury convicted Petitioner on the charges of burglary in the first degree (two counts); robbery in the first degree; robbery in the second degree; assault in the second degree (two counts); and assault in the third degree. (Trial Tr. at 1151-52).
On February 23, 2012, Petitioner was sentenced to the following concurrent terms of imprisonment: twelve years determinate for each of his convictions of burglary in the first degree (two counts); twelve years determinate for his convictions of robbery in the first degree; ten years determinate for his conviction of robbery in the second degree; seven years determinate for each of his convictions of assault in the second degree (two counts); and one year local imprisonment for his conviction of assault in the third degree. (Sentencing Tr.
Prior to sentencing, Petitioner submitted a counseled motion to set aside the verdict pursuant to N.Y. C.P.L. § 330.30. (Docket No. 9-7). The motion was based upon an affidavit from Gray, Petitioner's co-defendant, in which Gray stated that Petitioner did not participate in the home invasion. (Id.). The State opposed the motion. (Docket No. 9-8).
By Decision and Order, dated February 29, 2012, the count denied the motion. (Docket No. 9-47). The court held that the affidavit was "purportedly prepared some six months prior to trial," and that Petitioner "provide[d] no explanation as to why this information could not have been discovered prior to trial with due diligence." (Id. at 2-3).
Petitioner filed a counseled motion to set aside the verdict pursuant to N.Y. C.P.L § 440.10 ("440 Motion"), dated July 3, 2013. (Docket No. 9-9). The State opposed the motion, by papers dated September 5, 2013. (Docket No. 9-10). Petitioner filed a counseled reply in further support of his 440 Motion, dated October 14, 2013. (Docket No. 9-11-9-35). Petitioner argued, in relevant part, that the photo arrays utilized by the NRPD were unduly suggestive. (Docket No. 9-11 at 6-7). The State filed a sur-reply in further opposition to Petitioner's 440 Motion, dated November 25, 2013. (Docket No. 9-36). Petitioner also raised a multitude of other claims, such as Brady
By Decision and Order, dated March 26, 2014, the New York State County emit, Westchester County, summarily denied Petitioner's 440 Motion as procedurally barred and without merit. (Docket No. 9-37). The court found, in relevant part, that Petitioner's claim that the photo arrays were unduly suggestive were record-based, and therefore not cognizable on a 440 Motion. (Id. at 12). On June 13, 2014, the State of New York, Appellate Division, Second Judicial Department ("Second Department") granted Petitioner leave to appeal the state court's denial of his 440 Motion. See People v. Redding, No. 2014-04520, 2014 NY Slip Op. 75103(U) (2d Dep't 2014).
On June 16, 2014, the Second Department granted Petitioner's application to consolidate his direct appeal from his judgment of conviction with his appeal from the state court's denial of his 440 Motion. See People v. Redding, No. 2012-02646, 2014 NY Slip Op. 75211(U) (2d Dep't 2014). Carl F. Berman, Esq. was assigned to represent Petitioner on his appeal. (Collins Aff. at 26). Petitioner submitted his counselled appellate brief on December 11, 2014. (Docket Nos. 9-38, 9-39). Petitioner asserted, in relevant part, that he was denied a fair trial because the jury heard unreliable eyewitness identification testimony, and that the trial court erred in precluding his proposed expert on the subject without first holding a Frye hearing. (Docket No. 9-38 at 23). Petitioner also claimed that the trial court erred in failing to suppress identification testimony given the suggestiveness of the photographic arrays that violated best practice standards. (Id. at 38). Petitioner raised a number of other claims, including ineffective assistance of counsel and Brady violations. (See Docket Nos. 9-38, 9-39). The State opposed the appeal by papers dated March 24, 2015. (Docket Nos. 9-40, 9-41). Petitioner filed a reply brief on April 29, 2015. (Docket No. 9-42).
The Second Department denied Petitioner's consolidated appeal in its entirety on October 7, 2015. See People v. Redding, 132 A.D.3d 700 (2d Dep't 2015). The court held, in relevant part, that the trial court properly denied Petitioner's omnibus motion that sought to suppress the identification testimony on the basis of suggestive photographic arrays. Id. at 700. Despite the lighter background and the poorer resolution of the photo arrays, the court found the arrays were not suggestive since "the various persons depicted in the photo packets . . . were sufficiently similar in appearance to [Petitioner] that there was little likelihood [Petitioner] would be singled out for identification based on particular characteristics. Id. at 700-01. The court also concluded that the trial court properly precluded Petitioner's expert witness testimony "on the issue of reliability of eyewitness identifications since there was sufficient corroborating evidence connecting the defendant to the crimes to obviate the need for expert testimony." Id.
On November 6, 2015, Petitioner sought leave to appeal the Second Department's decision to the New York State Court of Appeals ("Court of Appeals"). (Docket No. 9-43). In his leave application, Petitioner asserted that the trial court and Second Department violated his right to present a defense. (Id. at 3). Specifically, Petitioner argued that the courts improperly applied a "cross-corroboration" exception to the first prong in People v. LeGrand, 8 N.Y.3d 449 (2006).
On July 12, 2016, Petitioner filed a petition for writ of certiorari to the United States Supreme Court, (Docket No. 9-45), raising two questions for review:
(Id. at 6). The United States Supreme Court denied the petition for writ of certiorari. See Redding v. New York, 137 S.Ct. 208 (2016).
Petitioner filed the instant habeas corpus petition ("Petition") on September 11, 2017.
"The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)." Harrington v. Richter, 562 U.S. 86, 97 (2011). "Before a federal district court may review the merits of a state court criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254." Visich v. Walsh, No. 10 Civ. 4160 (ER) (PED), 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013).
Federal habeas corpus petitions are subject to AEDPA's strict, one-year statute of limitations, 28 U.S.C. § 2244(d)(1). The statute allows for four different potential starting points to determine the limitations period and states that the latest of these shall apply. As the statute explains:
28 U.S.C. § 2244(d)(1)(A)-(D). However, this one-year period will be tolled during the pendency of a properly filed application for post-conviction relief. 28 U.S.C. § 2244(4)(2). This period may also be subject to equitable tolling, but "only in the rare and exceptional circumstance." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (internal quotation marks omitted); see also Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)) (setting forth a two-step analysis for equitable tolling).
A habeas petition may not be granted unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b). As the statute prescribes:
28 U.S.C. § 2254(b)-(c).
Exhaustion requires a prisoner to have "fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts." Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (internal quotation marks omitted). If a petitioner "cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court." Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001); see also Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (even "a minimal reference to the Fourteenth Amendment" presents a federal constitutional claim to the state courts). However, a petitioner may fairly present his claim even without citing to the U.S. Constitution. As the Second Circuit has stated:
Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). Fair presentation includes petitioning for discretionary review in the state's highest appellate court. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999) ("[A] state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement[.]").
However, "a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred." Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotation marks omitted). In such cases, although the claim is technically unexhausted, the district court may deem the claim to be exhausted but procedurally barred from habeas review. See id. at 140 (IA] claim is procedurally defaulted for the purposes of federal habeas review where `the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'" (quoting Coleman v. Thompson, 501 U.S. 722, 735 (1991)).
Under New York law, defendants are permitted only one direct appeal. See Dasney v. People of the State of New York, No. 15 Civ. 5734 (RJS), 2017 WL 253488, at *5 (S.D.N.Y. Jan. 19, 2017) (citing N.Y. Ct. App. R. § 500.20);
To avoid the procedural default of an unexhausted claim, a petitioner may show "cause for the default and prejudice, or that failure to consider the claim will result in miscarriage of justice, i.e., the petitioner is actually innocent." Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003).
"It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that `is independent of the federal question and adequate to support the judgment.'" Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729); see also Downs v. Lape, 657 F.3d 97, 23 (2d Cir. 2011). This preclusion applies even if the state court alternatively rules on the merits of the federal claim, so long as there is an adequate and independent state ground that would bar the claim in state court. See, e.g., Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).
"A state court decision will be `independent' when it `fairly appears' to rest primarily on state law." Taylor v. Connelly, 18 F.Supp.3d 242, 253 (E.D.N.Y. 2014) (quoting Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006)). In the normal case, a ground is adequate "only if it is based on a rule that is `firmly established and regularly followed' by the state in question." Garcia, 188 F.3d at 77 (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); see also Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003). A decision that a state procedural rule is inadequate should not be made "lightly or without clear support in state law." Garcia, 188 F.3d at 77 (internal quotation marks omitted). However, "there are `exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.'" Cotto, 331 F.3d at 240 (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)). In determining whether a case is "exceptional" in that the state ground should be held inadequate, the Second Circuit uses the following factors as "guideposts":
Id. (internal quotation marks omitted).
To avoid a procedural default based on independent and adequate state grounds, a petitioner must "show `cause' for the default and `prejudice attributable thereto,' ... or demonstrate that failure to consider the federal claim will result in a `fundamental miscarriage of justice.'" Harris, 489 U.S. at 262 (quoting Murray v. Carrier, 477 U.S. 478, 485 (1986)).
When a federal court reaches the merits of a habeas petition, AEDPA prescribes a "highly deferential" standard for reviewing state court rulings. Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015). An application for a writ of habeas corpus:
28 U.S.C. § 2254(d)(1)-(2).
Courts have interpreted the phrase "adjudicated on the merits" in AEDPA as meaning that a state court "(1) dispose[d] of the claim on the merits, and (2) reduce[d] its disposition to judgment." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (internal quotation marks omitted). Courts examine the "last reasoned decision" by the state courts in determining whether a federal claim was adjudicated on the merits. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground."). "[W]hen a state court issues an order that summarily rejects without discussion all the claims raised by a defendant, including a federal claim that the defendant subsequently presses in a federal habeas proceeding, the federal habeas court must presume (subject to rebuttal) that the federal claim was adjudicated on the merits." Johnson v. Williams, 568 U.S. 289, 293 (2013) (emphasis in original). The same presumption applies when "a state court rules against the defendant and issues an opinion that addresses some issues but does not expressly address the federal claim in question." Id. at 292. This "presumption is a strong one that may be rebutted only in unusual circumstances." Id. at 302.
If a state court adjudicates a federal claim on the merits, the Court must apply AEDPA deference to that state court ruling.
A state court decision involves an "unreasonable application" of Supreme Court precedent if: (1) "the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case," or (2) "the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 529 U.S. at 407. For a federal court to find a state court's application of Supreme Court precedent unreasonable, the state court's decision must have been more than "incorrect or erroneous" — it must have been "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). In other words, "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as `fair-minded jurists could disagree' on the correctness of the state court's decision." Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 665 (2004)). However, "the trial court's decision need not teeter on `judicial incompetence' to warrant relief under § 2254(d)." Alvarez v. Ercole, 763 F.3d 223, 229 (2d Cir. 2014) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). If a state court decision does not contain reasons for the dismissal of a defendant's federal claim, the Court must "consider `what arguments or theories ... could have supported[] the state court's decision,' and may grant habeas only if `fair-minded jurists could [not] disagree that those arguments or theories are inconsistent with the holding in a prior decision of the Supreme Court." Lynch v. Superintendent Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (alterations in original) (quoting Richter, 562 U.S. at 102).
Construing the Petition broadly, the Court finds that Petitioner asserts three grounds for relief. See William v. Kullman, 722 F.3d 1048, 1051 (2d Cir. 1983) ("pleading requirements in habeas proceedings should not be overly technical and stringent."). First, Petitioner claims that the trial court violated his right to present a defense under the Sixth Amendment when it denied his motion to offer expert testimony on misidentification. (Petition at 5). Second, Petitioner asserts that the Frye standard for the admission of scientific expert testimony is violative of his right to present evidence, and that it should be replaced with the standard set forth in Daubed. (Id. at 7). Third, Petitioner claims actual innocence. (Id.).
For the reasons that follow, I respectfully recommend that the Petition be denied in its entirety.
Petitioner claims that the trial court violated his Sixth Amendment right to present a defense when it denied his motion to offer expert testimony from Dr. Penrod regarding the photo array. (Petition at 5). Petitioner maintains that the photo array presented at trial was "biased" because his photo was the only one that had a white background, making his "face stand out." (Id.). Petitioner argues that an expert witness would have confirmed that the photo array was, in fact, biased. (Id.). The Court finds that this claim is unexhausted and procedurally barred. Furthermore, even if this claim were exhausted, it still fails on the merits.
Respondent argues that this claim is unexhausted and procedurally barred from review because Petitioner did not present it to the highest court in the state. (Docket No. 9 at 9-10). The Court agrees with Respondent. Although Petitioner referenced violations of "the right of the defense to present a defense" in his leave application to the Court of Appeals, (Docket No. 9-43 at 3), he did not address the constitutional right to present a defense under the Sixth Amendment in his appellate brief to the Second Department. Rather, Petitioner claimed that he was denied a fair trial because the jury heard unreliable eyewitness testimony, and that it was improper for the court to deny his expert testimony on the subject. (Docket No. 9-38 at 27). Petitioner presented this claim in terms of New York state evidentiary law on a trial court's discretion in admitting expert testimony on eyewitness identification. (Id. at 27-42). Petitioner's appellate brief thus failed to assert the claim in terms so particular to call to mind a specific right protected by the Constitution or allege a pattern of facts that is well within the mainstream of constitutional litigation. See Daye v. Attorney Gen. of State of N. Y., 696 F.2d at 194; see also Young v. Conway, 761 F.Supp.2d 59, 78 (W.D.N.Y. 2011) (which held that petitioner's claim that lie was deprived his constitutional right to present a defense was not exhausted because in his appellate brief, petitioner cited only to state cases that "did not employ any constitutional analyses, instead holding that the use of expert testimony regarding identification is a matter for the trial court's discretion, and that abuse of discretion may be erroneous as a matter of law.").
Further, "[i]t would be futile to dismiss [this] claim[] without prejudice to allow [Petitioner] to exhaust [the claim] because he is barred from doing so under state law, either on direct review or by collateral attack." Parrish v. Lee, No. 10-CV-8708, 2015 WL 7302762, at * 16 (S.D.N.Y. Nov. 18, 2015). Petitioner is only entitled to one direct appeal, see N.Y. Ct. R. 500.20(a)(2), and cannot raise this issue in another C.P.L. § 440.10 motion to vacate the judgment. See N.Y. C.P.L § 440.10(2)(c) (mandating dismissal of claim if it could have been raised on direct review but was not). Moreover, Petitioner has not overcome the procedural default by establishing cause and prejudice, or that the failure to consider the claim will result in miscarriage of justice, i.e., that he is actually innocent. Sweet, 353 F.3d at 141.
Accordingly, I respectfully recommend finding this claim unexhausted and procedurally barred.
Even if Petitioner's claim were exhausted, it still fails on the merits. Applying AEDPA deference, the Court turns to whether the state court's adjudication on the merits "was contrary to, or involved an unreasonable application of, clearly established, federal law." 28 U.S.C. § 2254(d)(1). A criminal defendant possesses a constitutional right to a "meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal quotations omitted). The Second Circuit has held that this principle includes expert witnesses. See Washington v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001). However, "that right is not without limits and `may in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.'" Hawkins v. Costello, 460 F.3d 238, 243 (2d Cir. 2006) (internal citations omitted); see also Connelly v. Senkowswki, No. 07-CV-4616(CBA), 2012 WL 5463915, at *7 (E.D.N.Y. Nov. 8, 2012) ("Trial courts ... enjoy `wide latitude,' and federal courts must be `reluctan[t] to impose constitutional constraints on ordinary evidentiary rulings by state trial courts.'" (citing Crane, 476 U.S. at 689)). A defendant's right to present expert testimony is "limited by the requirements of relevancy and by the trial court's traditional discretion to prevent prejudicial or confusing testimony." Agard v. Portuondo, 117 F.3d 696, 704-05 (2d Cir. 1997), rev'd on other grounds, 529 U.S. 61 (2000).
"In considering whether the exclusion of evidence violated a defendant's right to present a complete defense, we start with `the propriety of the trial court's evidentiary ruling.'" Hawkins, 460 F.3d at 244 (quoting Wade v. Mantello, 333 F.3d 51, 59 (2d Cir. 2003)). If evidence was erroneously excluded, "we must look to `whether the omitted evidence [evaluated in the context of the entire record] creates a reasonable doubt that did not otherwise exist.'" Id. (quoting Justice v. Hoke, 90 F.3d 43, 47 (2d Cir. 1996)) (internal quotations omitted). However, where an evidentiary ruling was correct pursuant to a state evidentiary rule, "[w]e consider whether the evidentiary rule is `arbitrary' or `disproportionate to the purposes [it is] designed to serve.'" Id. (quoting U.S. v. Scheffer, 523 U.S. 303, 308 (1998)) (internal quotations omitted). A state evidentiary rule will be deemed "unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused." Scheffer, 523 U.S. at 308.
The Court does not find that the trial court's preclusion of Petitioner's proffered expert was erroneous as a matter of New York evidentiary law. Generally, "the admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court." People v. Lee, 96 N.Y.2d 157, 162 (2001). "It is for the trial court in the first instance to determine when jurors are able to draw conclusions from the evidence based on their day-to-day experience, their common observation and their knowledge, and when they would be benefited by the specialized knowledge of an expert witness." Id. (internal quotations omitted). The trial court must determine "whether the proffered testimony `would aid a lay jury in reaching a verdict.'" Id. (quoting People v. Taylor, 75 N.Y.2d 277, 288 (1990)); see also LeGrand, 8 N.Y.3d at 452 (which held that it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications "where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime," and that testimony is "(1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror."). Moreover, "to the extent LeGrand has been understood to require courts to apply a strict two-part test that initially evaluates the strength of the corroborating evidence, it should instead be read as enumerating factors for trial courts to consider in determining whether expert testimony on eye-witness identification `would aid a lay jury in reaching a verdict.'" People v. McCullough, 27 N.Y.3d 1158, 1161 (2016).
As discussed supra, Section I.B.4, in considering whether to admit expert testimony on factors that contribute to misidentification, the trial court considered the following factors: (1) five eyewitnesses unequivocally identified Petitioner at trial as the perpetrator and gunman; (2) the witnesses had unobstructed views of Petitioner on the night of the incident; (3) there was no evidence of collusion regarding the identifications of Petitioner; and (4) the evidence relating to the pizza box procured from Canone's that was then brought to the residence. Since there was sufficient corroborating evidence connecting Petitioner to the crime, and there was nothing an expert could have added that would have aided the jury, the Court cannot say that the trial court's evidentiary ruling was erroneous as a matter of New York law. See McCullough, 27 N.Y.3d at 1159-61 (which held that the trial court did not abuse its discretion in precluding testimony from an identification expert about certain factors that could have influenced an eyewitness's ability to make a positive identification of defendant, on the basis that the eyewitness's testimony was corroborated by another witness); Young, 7 N.Y.3d at 42 (2006) (which held that trial court did not abuse its discretion in excluding expert testimony on subject of eyewitness identification where identifications were "strongly corroborated."); Lee, 96 N.Y.2d at 163 (which held that trial court did not abuse its discretion in denying defendant's motion for identification expert where "the court was in a position to weigh the request against other relevant factors, such as the centrality of the identification issue and the existence of corroborating evidence.").
Even if the trial court's preclusion of Petitioner's proffered expert was erroneous, it did not rise to the level of constitutional error because, "in the context of this case, the admission of the testimony would not have created an `otherwise non-existent' reasonable doubt about the petitioner's guilt." Schriver, 255 F.3d at 60 (quoting Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000)); see also Agard, 117 F.3d at 705 (which held that "[e]rroneous evidentiary rulings rarely rise to the level of harm to this fundamental constitutional right."). The Court agrees with both the trial court and the Second Department that "there was sufficient corroborating evidence connecting [Petitioner] to the crimes," Redding, 132 A.D.3d at 700-01, and further finds that expert testimony on Petitioner's proposed topics relating to misidentification would not have aided the jury. Since the identifications of Petitioner were overwhelmingly strong, expert testimony would likely not have changed the outcome of this case. Thus, any purported error in the preclusion of expert testimony was harmless.
The trial court has not made a state evidentiary error, therefore, the Court considers whether the evidentiary rule was "arbitrary" or "infringed upon a weighty interest" of Petitioner. Hawkins, 460 F.3d at 244. "In evaluating claims of violation of the right to present a complete defense, the Supreme Court has found the Constitution to be principally (but not always) concerned with state evidentiary rules leading to the `blanket exclusion' ... of categories of evidence when their application is `arbitrary or disproportionate to the purposes the [rules] are designed to serve.'" Wade v. Mantello, 333 F.3d 51, 60 (2d Cir. 2003) (internal citations and quotations omitted). Here, "[r]ather than involving the application of such a rule, the ruling at issue is one of those `ordinary evidentiary rulings by state trial courts' concerning the admissibility of evidence, upon which the Court is `traditional[ly] relucan[t] to impose constitutional constraints.'" Id. (quoting Crane, 476 U.S. at 690). In such cases, "the Constitution leaves to the judges ... `wide latitude' to exclude evidence..." Id.
As discussed supra, I.B.4, the trial court engaged in a thoughtful and extensive analysis in evaluating the admissibility of the expert evidence. Because this type of evidentiary ruling does not involve the "rigid application of state evidentiary rules prohibiting presentation of defense evidence," Wade, 333 F.3d at 57, it is not unconstitutionally arbitrary or disproportionate. See DeVaugn v. Graham, 14-CV-2322(NGG), 2017 WL 244837, at *14 (E.D.N.Y. Jan. 18, 2017) (which held that the trial court's exclusion of evidence pursuant to state rule that requires a court to balance the probative value against the risks of delay, prejudice, and confusion was not unconstitutionally arbitrary or disproportionate because it was "not the kind of blanket exclusion rule that traditionally risks running afoul of the Constitution."); Monk v. Bradt, 778 F.Supp.2d 352, 374 (W.D.N.Y. 2011) (same).
The state court's finding that the trial court properly precluded Petitioner's expert witness testimony was, therefore, not contrary to, nor an unreasonable application of, clearly established federal law. See Paccione v. New York, 353 F.Supp.2d 358, 370 (E.D.N.Y. 2005) (which denied petitioner's claim that he was denied the right to present a defense by the trial court's preclusion of the eyewitness identification expert because "[u]nder established law, the need for an expert, based upon the defense proffer, was within the trial court's discretion. Petitioner points to no Supreme Court precedent to the contrary."); Gil v. Mazzuca, 91 F.Supp.2d 586, 592 (S.D.N.Y. 2000) (which held that petitioner failed to demonstrate that trial court's decision to exclude expert testimony was "contrary to" or an "unreasonable application of" clearly established federal law where the petitioner failed to show that the expert testimony offered was "constitutionally mandated.").
Accordingly, I respectfully recommend denying Petitioner's claim that his right to present a defense under the Sixth Amendment was violated.
Petitioner claims that the New York Frye standard for the admission of scientific expert testimony is improper and violative of his rights to present evidence. (Petition at 7). Petitioner maintains that the Frye standard should be replaced with the more "liberal" rule set forth in Rule 702 of the Federal Rules of Evidence, which adopted Daubert. (Id.; see also Docket No. 9-43 at 6-7). This claim is without merit.
The instant record reflects that the trial court did not conduct a Frye hearing that led to the preclusion of Petitioner's expert. In his motion for an identification expert, Petitioner specifically requested that Dr. Penrod be permitted to testify "without a Frye inquiry being made." (Docket No. 9-5 at 7-10). Furthermore, as discussed supra, Section I.B.4, in deciding whether to allow Petitioner's expert testimony, the trial court considered, inter alia, the identification testimony of the eyewitnesses, the substance of the proffered testimony, and whether expert testimony would aid the knowledge of the jurors. Ultimately, the trial court precluded the expert testimony because it found that the identifications of Petitioner were sufficiently corroborated—not because it was deemed unaccepted in the scientific community under Frye.
Accordingly, I respectfully recommend that Petitioner's claim relating to New York's application of the Frye standard be denied.
Petitioner claims that he is innocent. (Petition at 7). Specifically, Petitioner maintains that the prevention of the expert scientific testimony of Dr. Penrod led to the jury finding him guilty of a crime he did not commit. (Id.). Petitioner's claim of actual innocence fails on the merits.
A claim of actual innocence is a "gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Herrera v. Collins, 506 U.S. 390, 404 (1993). To obtain such relief, a petitioner must establish that, "in light of new evidence, `it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" House v. Bell, 547 U.S. 518, 537 (2006) (quoting Schlup, v. Delo, 513 U.S. 298, 327 (1995)). Moreover, "a gateway claim requires `new reliable evidence— whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.'" Id. (quoting Schlup, 513 U.S. at 324). Here, Petitioner does not present any newly discovered evidence showing that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. See Schlup, 513 U.S. at 327. Instead, Petitioner simply restates his claim that the trial court erred in precluding his proposed expert testimony.
Accordingly, I respectfully recommend that Petitioner's claim of actual innocence be denied.
For the foregoing reasons, I respectfully recommend that the Petition be denied in its entirety. Further, because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
The Clerk of Court is requested to mail a copy of this Report and Recommendation to the pro se Petitioner.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from the receipt of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed. R. Civ. P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Cathy Seibel at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Requests for extensions of time to file objections must be made to the Honorable Cathy Seibel and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).
Randall D. Unger, Attorney at Law, Bayside, NY, Jonathan Isidor Edelstein, Law Office of Jonathan I. Edelstein, New York, NY, for Petitioner.
Kings County District Attorneys Office, Ruth Elizabeth Ross, Brooklyn, NY, for Respondent.
AMON, Chief Judge.
On August 4, 1994, Connelly killed Frank Gabucci and Angelo Russo with a knife in his home. The three, along with a few other friends, had spent the evening and the early morning hours drinking and using cocaine before Connelly invited everyone back to his home at around 6:00 A.M. Connelly, Gabucci, and Russo appeared to be on good terms to this point. According to Connelly, however, Gabucci and Russo began to badger him for money to buy more cocaine. Eventually, he demanded that they leave his home. When they did not, Connelly grabbed a knife, went up the stairs to where Gabucci, Russo, and two others were seated, and stabbed both victims numerous times.
At trial, the medical examiner testified that Gabucci had two stab wounds to the chest, one to the back, and one to the shoulder. The wounds to the chest and back alone could each have been fatal. After being stabbed, Gabucci jumped out of the second-story window. Connelly then stabbed Russo once in the chest and once in the back, both of which could have been fatal. Connelly fled the scene, but he was apprehended the following day at the home of Thomas Donovan, a longtime friend and an eyewitness to the murders.
Connelly was charged with four counts each of murder in the second degree, including two counts of intentional murder under New York Penal Law § 125.25(1) and two counts of depraved indifference murder under § 125.25(2), as well as one count of criminal possession of a weapon in the fourth degree. On the morning of the trial, Connelly's counsel filed written notice of the intent to introduce psychiatric evidence and sought an adjournment to have Connelly examined. Judge Marrus found this request to be little more than a "dilatory tactic." Noting that the trial would be substantially delayed and that the prosecution would be prejudiced by admitting psychiatric evidence, he denied the request for adjournment.
When the prosecution rested its case, Connelly moved to dismiss all charges for insufficiency of the evidence. Judge Marrus denied the motion, finding that the prosecution's evidence was sufficient as to all charges. Connelly's testimony concluded the defense case. He testified that he believed Russo and Gabucci were going to burglarize his home. He claimed that he had stabbed both in self-defense, and that his only goal was to "get them out of my house." According to Connelly, he had "no intention of killing them." Trial Tr. at 815. He did not follow Gabucci or Russo after stabbing them. Id. at 815-6. And hours after the incident he had a neighbor named Marie Schnell call his house "to see if everybody was alright." Id. at 815. "I know I hurt them, but I didn't think they were dead," he testified. Id.
On February 18, 2003, Connelly brought a motion to set aside his conviction pursuant to New York Criminal Procedure Law § 440.10. Connelly alleged ineffective assistance of counsel for, inter alia, failure to provide notice for and present psychiatric evidence in support of a defense of extreme emotional disturbance. Connelly claimed that this failure was prejudicial because an extreme emotional disturbance defense would have supported submitting manslaughter in the first degree as a lesser-included charge to the jury. Connelly did not advance any argument that presentation of psychiatric evidence would also have supported his defense of justification, nor did he make any claim of error by the trial court itself. Judge Marrus denied the motion, People v. Connelly, No. 9473/94 (N.Y.Sup.Ct. July 30, 2003), and the Appellate Division denied Connelly's motion for leave to appeal, (N.Y.App. Div.2d Dep't Oct. 9, 2003).
His collateral attack thwarted, Connelly sought direct review of his conviction. He argued that the trial court erred when it (1) refused to adjourn trial to allow counsel to develop a psychiatric defense; (2) denied Connelly's request to include the lesser included offense of second degree manslaughter; (3) failed to give the jury an intoxication instruction; and (4) failed to give a "no duty to retreat" instruction. After oral argument, the Appellate Division requested post-argument briefing on a fifth issue, whether the conviction for depraved indifference murder was supported by sufficient evidence.
Ultimately, the Appellate Division affirmed the conviction finding (1) that Connelly failed to preserve the claim that Judge Marrus denied his right to present a defense; (2) that no reasonable view of the evidence would have supported a lesser included manslaughter charge without supporting the greater offense; (3) that Connelly waived his claim for failure to give an intoxication charge; (4) that the trial court's charge was otherwise proper; and (5) that Connelly both waived and failed to preserve his sufficiency of the evidence claim. People v. Connelly, 32 A.D.3d 863, 821 N.Y.S.2d 614 (App. Div.2d Dep't 2006). On November 7, 2006, the New York Court of Appeals denied leave to appeal. People v. Connelly, 7 N.Y.3d 901, 826 N.Y.S.2d 610, 860 N.E.2d 72 (2006).
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a habeas petition only where a state court's ruling on the merits was "contrary to, or an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court rules "contrary to" clearly established Supreme Court precedent if it "arrives at a conclusion opposite to that reached by th[e] Court on a question of law or ... decides a case differently than th[e] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court's ruling is "an unreasonable application" of clearly established Supreme Court precedent if it "applied [Supreme Court law] to the facts of [the] case in an objectively unreasonable manner." Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002). As long as "fairminded jurists could disagree" about whether a state court's denial of a claim on the merits was inconsistent with Supreme Court precedent, federal habeas relief must be denied. Harrington, 131 S.Ct. at 786 (internal quotation marks omitted). Stated differently, federal habeas relief is available only if the state court ruling "was so lacking in justification that there was an error well understood and comprehended in existing [Supreme Court] law beyond any possibility for fairminded disagreement." Harrington, 131 S.Ct. at 786-87.
Ordinarily, "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). In finding Connelly's insufficiency claim unpreserved, the Appellate Division relied upon New York's contemporaneous objection rule, N.Y.Crim. P. Law § 470.05(2), Connelly, supra, which has long been considered such an "adequate and independent ground," See Whitley v. Ercole, 642 F.3d 278, 292 (2d Cir.2011). New York's rule requires that an alleged error be "brought to the attention of the trial court at a time and in a way that gave [it] the opportunity to remedy the problem and thereby avert reversible error," People v. Luperon, 85 N.Y.2d 71, 78, 623 N.Y.S.2d 735, 647 N.E.2d 1243 (1995). Though defense counsel did object during the charge conference, his objection was not based on the sufficiency of the evidence.
Connelly argues that this case falls within the narrow exception established by the Supreme Court's decision in Lee v. Kemna, 534 U.S. 362, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002), and applied by the Second Circuit in Cotto v. Herbert, 331 F.3d 217, 247 (2d Cir.2003). Reply at 3.
Because his claim is barred by an adequate and independent procedural rule, Connelly must demonstrate either "cause for the procedural default and prejudice resulting therefrom," Grey v. Hoke, 933 F.2d 117, 121 (2d Cir.1991), or "that he is actually innocent of the crime for which he has been convicted," Dunham v. Travis, 313 F.3d 724, 730 (2d Cir.2002). To establish cause, Connelly must show "that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 479 (1986).
Because Connelly failed to comply with New York's contemporaneous objection rule and cannot demonstrate cause for his noncompliance, his claim is procedurally defaulted.
Even if Connelly's claim were not procedurally defaulted, this Court would deny his claim on the merits. Since the Appellate Division did not reach the merits of this claim, this Court's review is de novo.
A petitioner "challenging the sufficiency of the evidence bears a very heavy burden." Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d. Cir.1997). If, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," a petitioner is not entitled to relief. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Moreover, where a Court is "faced with a record of historical facts that supports conflicting inferences [it] must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id. at 326.
In conducting a sufficiency analysis, this Court must look to New York state law at the time Connelly's conviction became final in February of 2007. See Rivera v. Cuomo (Rivera I), 649 F.3d 132, 140 (2d Cir.2011) (since revisited on other grounds) (in determining the sufficiency of the evidence, the applicable law is the law as it existed on the date petitioner's conviction became final, i.e., 90 days after the Court of Appeals denied leave to appeal); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 811 (2d Cir.2000) ("When it considers the sufficiency of the evidence of a state conviction, `[a] federal court must look to state law to determine the elements of the crime.'"). New York Penal Law § 125.25(2), the depraved indifference murder statute, provides that a person is guilty of second degree murder when "[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." In a series of cases culminating in People v. Feingold, 7 N.Y.3d 288, 819 N.Y.S.2d 691, 852 N.E.2d 1163 (2006), the New York Court of Appeals redefined the distinction between intentional and depraved indifference murder by overruling its prior understanding, set forth in People v. Register, 60 N.Y.2d 270, 276, 469 N.Y.S.2d 599, 457 N.E.2d 704 (1983), that the mens rea for depraved indifference murder was simple recklessness and that the term "depraved indifference" referred merely to the objective circumstances of the crime. Instead, the Court of Appeals determined that depraved indifference to human life refers to a mental state that is more culpable than simple recklessness and that is both distinct from and incompatible with intentional murder. See Register, 60 N.Y.2d 270, 469 N.Y.S.2d 599, 457 N.E.2d 704 (1983); People v. Sanchez, 98 N.Y.2d 373, 748 N.Y.S.2d 312, 777 N.E.2d 204 (2002), People v. Hafeez, 100 N.Y.2d 253, 762 N.Y.S.2d 572, 792 N.E.2d 1060 (2003); People v. Gonzalez, 1 N.Y.3d 464, 775 N.Y.S.2d 224, 807 N.E.2d 273 (2004), People v. Payne, 3 N.Y.3d 266, 786 N.Y.S.2d 116, 819 N.E.2d 634 (2004), People v. Suarez, 6 N.Y.3d 202, 212, 811 N.Y.S.2d 267, 844 N.E.2d 721 (2005), and Feingold, 7 N.Y.3d at 294, 819 N.Y.S.2d 691, 852 N.E.2d 1163. The decisions in Hafeez, Gonzalez, Payne, and Suarez also stand for the proposition "that a defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances." Suarez, 6 N.Y.3d at 212, 811 N.Y.S.2d 267, 844 N.E.2d 721.
Having reviewed the record, the Court cannot conclude that the evidence adduced at trial so clearly establishes Connelly's intent that no rational trier of fact could have found him guilty of depraved indifference murder. Rather, the Court concludes that the record contains ample evidence upon which a reasonable jury could conclude that Connelly did not intend to kill Gabucci and Russo, but rather acted with the depravedly indifferent state of mind defined in these cases. Connelly's violent outburst occurred early in the morning after a previouslyamicable night of alcohol and drug use turned sour. Trial Tr. at 197; 407-08; 665-66; 739-40. The stabbings were committed with a kitchen knife that Connelly had grabbed from his kitchen moments before. Trial Tr. at 643, 645. According to the testimony of eyewitnesses Thomas Donovan and Melissa Ortiz, Gabucci was sitting next to Ortiz on the couch when Connelly ran up the stairs, lunged over the railing, and stabbed Gabucci once in the back, twice in the chest, and once in the shoulder. Trial Tr. at 206-07, 251-52 (testimony of Thomas Donovan); id. at 418-19, 819 N.Y.S.2d 691, 852 N.E.2d 1163; 483-85 (testimony of Melissa Ortiz). He then pivoted and stabbed Russo. There is no suggestion in the record that Connelly attempted to isolate Gabucci or Russo. The inferences a reasonable juror could draw from these facts-that Connelly was seriously intoxicated, that the violence erupted spontaneously, that the stabbings were committed in a novice manner, and that the acts endangered others-are not consistent with intentional murder but support instead depraved indifference.
Connelly's own testimony at least in part supports the depraved indifference charge. Connelly testified that "he had no intention of killing" Gabucci and Russo. Trial Tr. at 815. He also testified that he did not believe he had killed either, but that instead of going after them, he ran away from his own house. Id. at 816, 819 N.Y.S.2d 691, 852 N.E.2d 1163. Subsequently, he testified that he called his neighbor, Marie Schnell, and requested that she "go down and check if everybody's all right." Id. at 817, 819 N.Y.S.2d 691, 852 N.E.2d 1163. As such, Hafeez, Gonzalez, Payne, and Suarez, which were principally directed at cases where "a defendant's conduct is specifically designed to cause the death of the victim," Gonzalez, 1 N.Y.3d at 467, 775 N.Y.S.2d 224, 807 N.E.2d 273, are of little help to Connelly.
This conclusion is consistent with recent, factually similar cases in this Circuit addressing sufficiency-of-the-evidence challenges to depraved indifference murder by petitioners whose convictions became final after New York's depraved indifference law had changed.
As in Garbutt, there is evidence in this record upon which a juror could conclude that Connelly "struck out in blind anger, without explicitly intending to cause death"; that "he ran away before verifying that [the victims] had died"; and that his actions were so "violent and callous [a] response" to his victims conduct as to constitute depraved indifference. Cf. People v. Castellano, 41 A.D.3d 184, 837 N.Y.S.2d 643, 644 (App. Div. 1st Dep't 2007) (finding that "wildly flailing a knife at multiple persons, without intending to kill or injure, is ... akin to the classic depraved indifference situations" and noting that jury could have credited defendant's testimony that he did not intend harm despite People's intentional murder theory); People v. Mannix, 302 A.D.2d 297, 756 N.Y.S.2d 33, 34 (App. Div. 1st Dep't 2010) (finding evidence of depraved indifference murder sufficient where defendant, after being punched by the victim, fired through the door into a bathroom in which he knew victim and a third party were hiding); see also Payne, 3 N.Y.3d at 271, 786 N.Y.S.2d 116, 819 N.E.2d 634 (distinguishing "homicides in which a defendant lacking the intent to kill (but oblivious to the consequences and with depraved indifference to human life) shoots into a crowd or otherwise endangers innocent bystanders").
Taking the evidence in the light most favorable to the prosecution, a reasonable juror could have convicted Connelly of depraved indifference murder. The claim is denied.
Connelly advances two claims of error with respect to the preclusion of psychiatric evidence at trial. First, he claims that he was denied his due process right to present a complete defense
The Appellate Division once again relied on New York's contemporaneous objection rule in barring Connelly's due process claim. Connelly, 821 N.Y.S.2d at 615. Though Connelly's attorney did ask for an adjournment, he did not raise the constitutional error he asserts here. Connelly argues neither that the Appellate Division's application of the contemporaneous objection rule was "exorbitant" nor that cause and prejudice should excuse his default. This Court has reviewed the record and similarly finds no grounds to forgive his default. His claim is therefore barred. Peterson v. Scully, 896 F.2d 661, 663 (2d Cir.1990) ("If a state appellate court refuses to review the merits of a criminal defendant's claim of constitutional error because of his failure to comply with [the] contemporaneous objection rule, a federal court generally may not consider the merits of the constitutional claim on habeas corpus review.").
Even if Connelly's claim were not barred, he would still not be entitled to relief. Although Connelly did not raise any claim of error by the trial court in his motion to vacate pursuant to N.Y.Crim. Pro. Law § 440.10, Judge Marrus's opinion nonetheless found that "the Court properly granted the People's motion to preclude psychiatric testimony." Connelly, No. 9473/94, at 4 (citing People v. Berk, 88 N.Y.2d 257, 644 N.Y.S.2d 658, 667 N.E.2d 308 (1996)). Because the due process claim was not before the motion court, and because the Appellate Division did not review the claim on the merits, the Court applies a de novo standard. Even under this standard, however, the claim fails.
The Supreme Court held in Crane v. Kentucky that "the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense." 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (internal quotation marks omitted). Trial courts, however, enjoy "wide latitude," and federal courts must be "reluctan[t] to impose constitutional constraints on ordinary evidentiary rulings by state trial courts." Id. at 689. In this Circuit, where an evidentiary ruling was correct pursuant to a state evidentiary rule, a federal habeas court may reverse only if that rule is "arbitrary or disproportionate to the purposes [it is] designed to serve." United States v. Scheffer, 523 U.S. 303, 330, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (internal quotation marks omitted); Hawkins v. Costello, 460 F.3d 238, 244 (2d Cir.2006). A trial court's application of a state evidentiary rule will be deemed unconstitutionally "arbitrary" or "disproportionate" only if it has "infringed upon a weighty interest of the accused." Scheffer, 523 U.S. at 308; Hawkins, 460 F.3d at 244, 245.
The trial court in this case denied Connelly's request for an adjournment to develop and present psychiatric testimony pursuant to New York Criminal Procedure Law § 250.10. That rule provides that "[p]sychiatric evidence is not admissible upon a trial unless the defendant serves ... written notice of his intention to present psychiatric evidence ... not more than thirty days after entry of the plea of not guilty to the indictment." N.Y.Crim. P. Law § 250.10(2). The rule also allows trial courts to permit later notice "in the interest of justice and for good cause shown...." N.Y.Crim. P. Law § 250.10(2). Connelly did not provide notice of his intent to offer psychiatric evidence until the morning of jury selection. The essence of defense counsel's excuse was that "the psychologist has not been able to see him for reasons beyond my control." Voir Dire Tr. at 14. Defense counsel did not so much as venture a guess as to what the psychiatric examination or evidence might show. Id. Moreover, one of the prosecution's key witnesses, Thomas Donovan, was then serving in the Navy and would have been unavailable for months had the case been adjourned. Id. at 18-19. This Court therefore cannot say that the trial court's application of its rule was improper.
Connelly argues in the alternative that the trial judge's preclusion of his psychiatric testimony was a direct result of his attorney's failure "to act diligently in the investigation of [his] case and in the gathering of such evidence." Pet. at 56. As he argued in his § 440.10 motion, Connelly contends that psychiatric evidence, particularly related to abusive acts he witnessed against his mother and sister, could have supported a defense of extreme emotional disturbance, which, he insists, would have supported submitting the intentional murder-and lesser-included first degree manslaughter-charge to the jury. Pet. Reply at 14-15, 18-19.
The standard for ineffective assistance of counsel is found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a petitioner must show that (1) he was deprived of "reasonably effective assistance," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 687, 694. "The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances," and "[t]here is a strong presumption that counsel's performance falls within the wide range of professional assistance." Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).
Because the motion court's decision was not an unreasonable application of clearly established Supreme Court precedent, the claim is denied.
III. Improper Jury Instruction
Lastly, Connelly argues that his due process rights were violated when the trial judge declined to instruct the jury that a person has no duty to retreat in his own home. Pet. at 58. Specifically, Connelly argues that the Appellate Division's rejection of this claim was an "unreasonable application" of the rule established by the Supreme Court in Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), which recognized that an improper jury instruction violates due process if it "so infected the entire trial that the resulting conviction violates due process." Pet. at 65. Connelly fails to make the requisite showing here.
Connelly's counsel did not raise the issue of a "no duty to retreat" instruction until after Judge Marrus had already given the jury its instructions. Trial Tr. at 987. In response to counsel's objection, Judge Marrus properly pointed out that there was no need to apprise the jury that Connelly had no duty to retreat in his own home because the court had determined not to give any instruction on the duty to retreat. Id. at 990-91. As the jury was not under the impression that Connelly was under a duty to retreat, there was no need to provide the counterbalancing charge that this duty did not apply within his home. Id.
For the above reasons, the petition is denied. Connelly has not made a substantial showing of the denial of a federal constitutional right, so no certificate of appealability shall issue. 28 U.S.C. § 2253(c). The clerk of court is directed to enter judgment accordingly and close the case.
SO ORDERED.
Not Reported in F.Supp.2d. 2012 WL 5463915
Murdaline Dasney, Bedford Hills, NY, pro se.
Lisa E. Fleischmann, New York State Office of the Attorney General, New York, NY, for Respondent.
RICHARD J. SULLIVAN, District Judge:
Petitioner's conviction arose from a 2011 incident in which Petitioner, then a resident in a homeless shelter in New York County, stabbed a security guard in the chest after an altercation relating to Petitioner's unauthorized travel to a floor of the shelter on which she did not live. Specifically, on the night of November 8, 2011, security guards Desmond Odunze and Norma Santiago were working the 4:00 p.m. to 12:00 a.m. shift at the Washington Hotel, a homeless shelter in New York County. (Trial Tr. I at 40-42, 67, 115-117.) They were stationed at the front desk in the lobby area of the shelter. (Id. at 42, 46-48, 116.) Petitioner and her husband lived in a room on the second floor. (Id. at 57, 119.)
Earlier that evening, Odunze saw Petitioner walking down the stairs from the third floor of the shelter (one floor above where Petitioner lived). (Id. at 90, 134.) He warned Petitioner that she was not permitted to go to the third floor, and Petitioner returned to her room. (Id. at 52, 82-83, 120, 133.) Approximately one hour later, however, Odunze and Santiago saw Petitioner again walking down the stairs from the third floor of the shelter. (Id. at 53, 83-84, 93, 120, 146.) This time, Odunze told Petitioner that he would have to "write her up" for breaking the rules and going to the third floor. (Id. at 53, 92-94.) Petitioner replied, "I don't care, write me up," and "Go ahead, you can do whatever the [expletive] you want." (Id. at 53-54, 95-96, 120, 133.) Petitioner then tried to kiss Odunze. (Id. at 53-55, 95-96, 120-22.) As she leaned in, Odunze determined that Petitioner was "intoxicated" because he "could smell from her breath" that she was "drunk." (Id. at 54.) Odunze pushed her away, and she fell on the floor because "she was intoxicated." (Id. at 54-55, 96-97, 122-24.) At trial, Petitioner testified that she had consumed three 22-ounce cans of beer that night. (Trial Tr. II at 166, 169, 186.) Petitioner got up and went to get her husband from their room. (Trial Tr. I at 56, 98.)
Petitioner later approached the front desk without being detected by Odunze or Santiago. (Id. at 60, 102, 126-27, 147.) When Odunze—who had his back to the open office door—turned to face her, Petitioner stabbed him in the chest. (Id. at 59-60, 126.) The incident "happened quickly." (Id. at 102, 147-48.) After stabbing Odunze, Petitioner stomped her feet and said, "Bring it [expletive], I am ready for you, I am ready for you"; "[y]ou want any more[?]" (Id. at 62, 127.) Petitioner then ran into her room while Santiago called the building manager, Jae London, who in turn called the police. London arrived at the shelter shortly thereafter. (Id. at 62, 127, 148, 152, 155, 170-71.) When London asked Petitioner why she had stabbed Odunze, Petitioner replied, in a "nonchalant" manner, that she did not know the reason why, and she "kind of shrugged her shoulders." (Id. at 155.) A police officer, Alvin Rivera, later arrived at the shelter and visited Petitioner's room, where Petitioner was sitting on the bed. (Trial Tr. II at 22-26.) Officer Rivera asked Petitioner about the location of the knife, and Petitioner replied, "What knife?" and acted "as if she didn't know what [Rivera] was talking about." (Id. at 26.) After asking Petitioner to step out of the room, Officer Rivera quickly looked around the room for the knife but could not find it. (Id. at 27, 51-53.) Officer Rivera then arrested Petitioner. (Id. at 27.)
Paramedics brought Odunze to the trauma center at St. Luke's Roosevelt Hospital. (Id. at 63-64, 110.) There, Odunze was treated by, among others, Dr. Barbara Wexelman, who was the chief surgical resident at St. Luke's Roosevelt. (Id. at 97, 99-106.) After determining that Odunze had not sustained any injuries to his vital organs, Dr. Wexelman stapled the stab wound closed and released Odunze after approximately 36 hours of observation and testing. (Id. at 101-05, 108-10, 112-15.) As a result of the stabbing, Odunze continued to suffer some residual pain; he also sustained a one-inch scar that he displayed to the jury at trial. (Trial Tr. I at 61, 63.)
Approximately one or two months after the stabbing, Washington Hotel homeless shelter staff alerted London, the building manager, that they had found a knife in the back yard of the shelter. (Trial Tr. I at 156-57, 167, 169-70.) London sent a photo of the knife to Odunze and asked him whether it resembled the knife that Petitioner had used to stab him. (Id. at 105-06, 169-70.) When Odunze confirmed that the knife in the photo was the knife that Petitioner had used to stab him, London turned it over to the police. (Id. at 105-06, 169-70.)
Trial commenced in New York State Supreme Court, New York County, on September 6, 2012. (Id. at 1.) At trial, the prosecution called Odunze (id. at 36), Santiago (id. at 114), London (id. at 149), an EMT who treated Odunze (Trial Tr. II at 5), Officer Rivera (id. at 18), and Dr. Wexelman (id. at 96); the defense called an investigator with the Legal Aid Society (id. at 129) and Petitioner (id. at 143). On September 17, 2012, the jury found Petitioner not guilty of attempted second-degree murder, but guilty of attempted first-degree assault and second-degree assault. (Id. at 340-42.) On October 22, 2012, the trial court sentenced Petitioner to concurrent prison terms of five and three years on those two counts, respectively, to be followed by three years of post-release supervision. (Sent'g Tr. at 10-11.)
Petitioner filed the instant petition for habeas relief on July 20, 2015. (Doc. No. 1 ("Pet.").) As grounds for relief, Petitioner makes several assertions, including that she has no criminal record, has potential for rehabilitation, did not seriously injure Odunze, was "very drunk" at the time of the stabbing, and that the prosecution failed to prove her guilt beyond a reasonable doubt because the evidence established that Petitioner's intoxication caused her to act recklessly. (Pet. at 6, 8.) The Court construes these assertions as claims that (1) the evidence at trial was insufficient to support the requisite mental state (intent) because of Petitioner's intoxication, and (2) Petitioner's sentence was excessive. See Haines, 404 U.S. at 520-21 (pro se allegations are "h[e]ld to less stringent standards than formal pleadings drafted by lawyers"). Respondent filed an answer and opposition to the petition on October 27, 2015. (Doc. Nos. 10, 11.) As of the date of this Order, Petitioner has not filed a reply, which was due within 30 days after service of Respondent's answer.
A federal court may grant habeas corpus relief only if a claim that was adjudicated on the merits in state court (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). "Clearly established Federal law means the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state court decision." Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (internal quotation marks omitted). A state court decision is "contrary to" such a holding only where the state court "either `arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law' or `confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at [the opposite result].'" Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001) (quoting Williams v. Taylor, 529 U.S. 362, 402 (2000)). An "`unreasonable application of' those holdings must be `objectively unreasonable,' not merely wrong; even `clear error' will not suffice." White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (internal quotation marks omitted). A federal court should grant habeas relief only if "the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
Here, Petitioner was convicted of (1) attempted first-degree assault and (2) second-degree assault. A person is guilty of attempted first-degree assault when, "[w]ith intent to cause serious physical injury to another person ... by means of a deadly weapon or a dangerous instrument," she "engages in conduct which tends to effect the commission of [that] crime." N.Y. Penal Law §§ 100.00 (attempt), 120.10.1 (assault in the first degree). A person is guilty of second-degree assault when, "[w]ith intent to cause physical injury to another person, [s]he causes such injury to such person ... by means of a deadly weapon or a dangerous instrument." Id. § 120.05.2.
Addressing the sufficiency of the evidence on direct appeal, the Appellate Division held that "[t]he evidence supports the conclusion that although intoxicated, [Petitioner] had the intent to cause serious physical injury when she stabbed the victim in the chest." Dasney, 126 A.D.3d at 521. The court further found that "[t]he circumstances of the crime were indicative of a deliberate attack" and that Petitioner's "purposeful efforts to cover up" the crime "immediately after the stabbing" provided "additional support for the conclusion that [Petitioner's] intoxication did not render her incapable of forming the requisite intent." Id. (citing People v. Sanchez, 298 A.D.2d 130 (1st Dep't 2002)).
Upon review of the trial record, the Court finds that the Appellate Division's decision is clearly supported by the evidentiary record. Notably, Petitioner does not dispute that she stabbed Odunze in the chest with a knife. She challenges the sufficiency of the evidence only on the ground that, due to her intoxication, she acted recklessly, rather than intentionally, as required for first- and second-127 degree assault. (Pet. at 6, 8.) However, "[a] person who is intoxicated may possess the requisite intent to commit a crime." People v. Mercado, 200 A.D.2d 424, 425 (1st Dep't 1994). "Intoxication is not a defense but merely a matter to be considered by the fact finder in determining whether it negates an element of the crime charged." Id. at 424; see also People v. Beaty, 22 N.Y.3d 918, 921 (2013). Thus, "it is for the finder of the facts to decide if the extent of the intoxication was such as to negate the element of intent." Mercado, 200 A.D.2d at 425; see, e.g., People v. Natal, 100 A.D.3d 509, 509 (1st Dep't 2012) ("The evidence supported the trier of fact's determination that although intoxicated, defendant had the intent to cause serious physical injury when he stabbed the victim in the chest." (citation omitted)).
Here, the trial court properly instructed the jury on Petitioner's intoxication defense (Trial Tr. II at 274), but the jury nevertheless found the requisite intent. Given the jury's finding and the Appellate Division's conclusion that "[t]he circumstances of the crime were indicative of a deliberate attack," Dasney, 126 A.D.3d at 521, the Court sees no basis for overturning the jury's verdict. On the contrary, Petitioner's intent is amply supported by the facts that (1) the stabbing occurred a short time after an altercation between Petitioner and Odunze, (2) Petitioner was able to avoid detection by stealthily approaching Odunze with the knife, and (3) Petitioner attempted to conceal the crime by throwing the knife out the window and denying knowledge of the knife when questioned by Officer Rivera. Furthermore, to the extent Petitioner's contention that Odunze's wounds were "non-life-threatening" (Pet. at 8) is offered in support of her argument that she lacked the requisite intent, the Court finds that the location of Odunze's stab wound (his chest) supports the opposite inference. In other words, Petitioner stabbed Odunze in a potentially life-threatening part of his body; the fact that she ultimately failed to cause grave harm does not support an inference that she lacked intent to cause serious physical injury to Odunze. Accordingly, the Court finds that Petitioner has fallen well short of demonstrating that "the evidence in support of h[er] state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt." Jackson, 443 U.S. at 321.
Before the Appellate Division, Petitioner did not challenge her sentence on federal constitutional grounds; she simply asked the Appellate Division to exercise its discretion to "reduce the sentence in the interest of justice." (SR 035-037.) Thus, she failed to exhaust her federal claim. However, if Petitioner were to present her federal challenge to her sentence in state court now, the claim would be procedurally barred because she is permitted only one request for leave to appeal to the New York Court of Appeals (which was made and denied), see N.Y. Ct. App. R. 500.20(a) (2), and because Petitioner could have raised the issue on direct appeal but did not, see N.Y. Crim. P. Law § 440.10.2(c). Accordingly, Petitioner's excessive sentence claim is procedurally defaulted for purposes of federal habeas review unless there is a basis to excuse her default.
A procedural default may be excused if a petitioner "demonstrat[es] `cause for the default and prejudice' or by showing that [s]he is `actually innocent' of the crime for which [s]he was convicted." Id. (quoting Carvajal, 633 F.3d at 104). But Petitioner has not demonstrated (or even alleged) sufficient cause and prejudice to excuse her default, nor has she identified any "new evidence" that would support an actual innocence claim. See McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013). Thus, Petitioner's excessive sentence claim is procedurally defaulted. See Jones, 694 F.3d at 247; Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991).
Moreover, even if Petitioner's excessive sentence claim were not barred, it would still fail on the merits. The law is clear that "[n]o federal constitutional issue is presented where ... the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); Jones v. Racette, No. 15-cv-7297 (JPO), 2016 WL 7189851, at *8 (S.D.N.Y. Dec. 12, 2016) (rejecting excessive sentence claim because petitioner "d[id] not argue that the sentence falls outside of the statutory range"); Sorrentino v. Lavalley, No. 12-cv-7668 (VSB), 2016 WL 3460418, at *4 (S.D.N.Y. June 21, 2016) (rejecting excessive sentence claim because, "in the absence of a challenge to the relevant statute itself, an excessive-sentence claim may only be maintained if the sentence imposed fails to comply with state law"). Here, Petitioner received concurrent five- and three-year sentences for attempted first-degree assault and for second-degree assault. For the attempted first-degree assault, she could have received a maximum determinate sentence of up to fifteen years, and for the second-degree assault, she faced a maximum determinate sentence of up to seven years. See N.Y. Penal Law § 70.02(3)(b), (c). Thus, because her aggregate five-year sentence falls well within the statutory range, Petitioner is not entitled to relief on this ground.
SO ORDERED.
Not Reported in Fed. Supp., 2017 WL 253488
Alex Devaughn, Auburn, NY, pro se.
New York State Attorney Generals Office, Queens County District Attorneys Office, John M. Castellano, Queens County DA's Office, Kew Gardens, NY, for Respondent.
NICHOLAS G. GARAUFIS, United States District Judge.
At trial, the prosecution charged that on January 9, 2000, Petitioner and an accomplice, Wydell Simpkins, noticed two men, Roy Douglas and Wayne Wright, outside a store in Queens, New York, wearing "expensive chains," and approached them with guns drawn.
The jury also heard testimony from two men, Jamel Pinkney and Jahmier Everett, with whom Petitioner allegedly committed a series of similar robberies in the month prior to the January 9, 2000, charged offense.
The jury also heard testimony from the getaway driver of the January 9, 2000, incident, Patrick Brunache, who the trial court concluded was an accomplice as a matter of law. (
At the conclusion of the parties' cases, the court instructed the jury on the elements of the charged crimes. Of relevance in this petition, the trial court stated:
(
On July 22, 2004, the jury found Petitioner guilty of two counts of murder in the second degree on felony murder theory, and two counts of robbery in the first degree.
Petitioner appealed his convictions to the Appellate Division, Second Department. Petitioner obtained new counsel for his appeal, and his appellate counsel argued three grounds for reversal, namely that: (1) the trial court erred in admitting evidence of uncharged crimes; (2) Petitioner was denied his Sixth Amendment right to confront the witnesses against him and to present a defense when the trial court denied him the opportunity to put forth credible evidence of an alternate, drug-related motive for the killing of Douglas; and (3) Petitioner was denied due process when the trial court used the disjunctive "or" rather than the conjunctive "and" in its charge on felony murder to the jury, thus eliminating an essential element of the crime. (See Appellant's Br. (Dkt. 15-1 at ECF No. 659) at 1.)
On September, 9, 2010, the State of New York responded, arguing that: (1) the trial court did not abuse its discretion in admitting evidence of the uncharged robberies and, in any event, any error was harmless due to overwhelming evidence of guilt; (2) Petitioner's Sixth Amendment claim lacked merit and, regardless, was unpreserved; and (3) Petitioner's claim relating to the jury charge lacked merit and was also otherwise unpreserved. (
On January 12, 2013, Petitioner filed a
On June 4, 2013, Petitioner applied to the Appellate Division for leave to appeal the May 21, 2013, Order. (
On or around July 9, 2014, Petitioner filed a
On April 22, 2015, the Appellate Division denied the application, reasoning that Petitioner failed to establish that he was denied effective assistance of appellate counsel.
On September 4, 2015, Petitioner amended his habeas corpus petition after exhausting the ineffective assistance of appellate counsel claims in the state court error
Under 28 U.S.C. § 2254(a), a district court is empowered to "entertain an application for a writ of habeas corpus [on] behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." A person in custody pursuant to a judgment of a state court must generally meet three requirements to obtain relief: (1) exhaustion; (2) lack of a procedural bar; and (3) satisfaction of the deferential standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996).
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1). "The exhaustion requirement is not satisfied unless the federal claim has been fairly presented to the state courts," i.e., the petitioner "informed the state court of both the factual and the legal premises of the claim he asserts."
"A petitioner is not required to cite `book and verse on the federal constitution' in order for a claim to be `fairly presented.'"
Notably,
"It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that is independent of the federal question and adequate to support the judgment."
"[T]he adequacy of state procedural bars to the assertion of federal questions is ... not within the State's prerogative finally to decide; rather, adequacy is itself a federal question."
The concepts of procedural bar and exhaustion often interact in an important way. If a § 2254 petitioner has failed to present a claim to a state court but can no longer do so, e.g., if the time to file a state court appeal has expired, then that claim is considered procedurally barred rather than unexhausted.
Where a state court has reached the merits of a claim asserted in a § 2254 petition, the state court's decision is reviewed under the deferential standard set forth in AEDPA, which provides that:
28 U.S.C. § 2254(d):
"Clearly established federal law `refers to the holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state-court decision.'"
Also under AEDPA, "a determination of a factual issue made by a State court [is] presumed to be correct," and the petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding."
Petitioner asserts that he was denied due process when the trial court admitted evidence of uncharged crimes, and that such evidence was significantly prejudicial to him. (
The court concludes that Petitioner exhausted his remedies in state court relating to the admission of uncharged crimes. (
2.
3.
Because Petitioner exhausted his claim and his claim was adjudicated on the merits, the court will review the state court determination pursuant to the deferential standard set out in AEDPA. The court concludes that the Appellate Division's decision was neither contrary to, nor involved the unreasonable application of, clearly established Supreme Court precedent. Accordingly, Petitioner's claim relating to admission of uncharged crimes fails.
As an initial matter, the Supreme Court has not specifically addressed whether the admission of uncharged crimes evidence constitutes a violation of due process.
The pertinent question then is whether the Appellate Division's affirmance of Petitioner's conviction, in light of the admission of uncharged crimes testimony, was an unreasonable application of Supreme Court precedent. For an erroneous admission of evidence to rise to the level of a constitutional violation of due process, Petitioner must show that the evidence was "so extremely unfair that its admission violates `fundamental conceptions of justice.'"
The court cannot conclude that the admission of testimony of uncharged crimes violated Petitioner's right to due process. Similar to federal law, New York law bars evidence of uncharged crimes or prior bad acts if that evidence is offered solely to establish a defendant's predisposition to commit the charged crime.
Furthermore, the trial court mitigated any potential unfairness by issuing limiting instructions to the jury. After Pinkney testified as to the uncharged crimes, the trial court explained: "It's not being offered to prove that this defendant was involved in those prior robberies [so] do not consider it for any purpose ... other than [these] two purposes: [r]elationship and [the] reasons for the conversation, and the bring back to the scene after the crime." (Appellant's Br. at 7.)
At best, "fairminded jurists could disagree" as to whether the contested evidence rendered Petitioner's trial so fundamentally unfair that his right to due process was violated.
Petitioner also asserts that he was denied his rights under the Confrontation Clause of the Sixth Amendment. (Am. Pet. at 7.) Petitioner argues that the trial court erroneously limited the scope of his cross-examination of Wayne Wright, the surviving robbery victim, when the court prevented Petitioner's counsel from presenting a drug-related theory for the robbery. (Appellant's Br. at 22.) The Confrontation Clause claim is exhausted but procedurally barred. Accordingly, the claim fails.
Petitioner exhausted his remedies for his Confrontation Clause claim. Petitioner's brief on direct appeal specifically referenced violations of "his rights of confrontation" and the "right to conduct a full and fair cross-examination." (Appellant's Br. at 1.) This is sufficient to alert the state court as to the claim's federal nature.
2.
It is clear that Petitioner's Confrontation Clause claim was denied on an independent state law ground. A state law ground is independent if it "fairly appear[s] to rest primarily on state procedural law."
Even where the state court dismissed a claim on an independent state law ground, a habeas court must still assess the adequacy of the procedural bar because it has "an independent duty to scrutinize the application of state rules that bar [ ] review of federal claims."
c. Cause and Prejudice or Miscarriage of Justice
Petitioner may still obtain review of the procedurally barred claim if he can establish cause for the procedural default and prejudice from denial of habeas review.
1.
Petitioner satisfied the exhaustion requirement for his claim by fairly raising the federal claim in his direct appeal. Petitioner explicitly argued that his right to present a defense was grounded in the U.S. Constitution and cited relevant Supreme Court precedent. (Appellant's Br. at 21-22.)
2.
Petitioner's right to present a defense claim is not procedurally barred. The Appellate Division addressed the right to present a defense on direct review, and denied Petitioner's appeal on the merits without invoking any procedural barriers.
3.
The court thus analyzes the Appellate Division's adjudication on the merits pursuant to the deferential standard set out in AEDPA. Because the Appellate Division's decision was neither contrary to, nor involved the unreasonable application of, clearly established Supreme Court precedent, Petitioner's claim relating to his right to present a defense fails.
a. Contrary to Clearly Established Federal Law
While it is true that the Supreme Court has made clear that "a criminal defendant has a constitutional right— grounded in the Sixth Amendment's Compulsory Process and Confrontation Clauses and the Fourteenth Amendment's Due Process Clause—to `a meaningful opportunity to present a complete defense,'"
b. Unreasonable Application of Clearly Established Federal Law
i.
In New York, "[w]here a defendant seeks to pursue a defense of third-party culpability at trial, evidence offered in support of that defense is subject to the `general balancing analysis that governs the admissibility of all evidence.'"
The court finds that the third party culpability evidence was wholly speculative, and thus properly excluded. According to Petitioner's trial counsel, the preliminary investigative report indicated that Wright was a marijuana dealer and Douglas, the deceased was Wright's supervisor in these drug activities. (Trial Tr. 1188:1-13.) The report also provided that just before the robbery and shooting at issue, Douglas and Wright discussed the recent stabbing of a rival drug dealer. (
Because the exclusion of evidence regarding a potential drug-related motive to the deceased's killing was neither contrary to, or an unreasonable application of, clearly established federal law, Petitioner's claim that his right to present a defense was violated fails.
Petitioner next asserts that the trial court erred in ordering his sentences for robbery to run consecutively to his sentences for murder. Petitioner characterizes this as an improper enhancement to his sentence in violation of his Eighth and Fourteenth Amendment rights. (Am. Pet. at 9.) The court construes the Amended Petition to challenge his sentence on the grounds that it is cruel and unusual punishment under the Eighth Amendment as applied to the states through the Fourteenth Amendment.
Petitioner's constitutional claim related to his sentences for robbery, running consecutively to his sentences for felony murder are unexhausted because they were not fairly presented as a federal claim to the state court While Petitioner challenged the legality of his sentences via a motion to vacate under § 440.20 of the New York Criminal Procedure Law, the only legal basis for his motion was based on New York state law, specifically, New York Penal Law § 70.25(2), governing the imposition of consecutive sentences. (Aff. of Alex DeVaughn in Supp. of Mot to Set Aside Sentence ¶ 4.) By only referring to state law violations and failing to mention any constitutional provisions, Petitioner did not "assert[] . . . [his] claim[s] in terms so particular as to call to mind a specific right protected by the constitution."
Petitioner's claim is not procedurally barred. An unexhausted claim may be procedurally barred, and thus deemed exhausted, if it is clear that the state court to which a petitioner must present his claim would now find the claim procedurally defaulted.
Petitioner argues that the imposition of consecutive sentences for his felony murder and robbery charges was cruel and unusual in violation of the Eighth Amendment "Eighth amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence."
As relevant here, New York law grants a sentencing court discretion to decide whether multiple sentences of imprisonment should run consecutively or concurrently N.Y. Penal Law § 702.5(1). One exception to this general rule is sentences for "two or more offenses committed . . . through an act or omission which itself constituted one of the offenses and also was a material element of the other"; these sentences must run concurrently.
Because the court finds that Petitioner's consecutive sentences claim fails to raise a cognizable constitutional issue, and because the court denies Petitioner's other grounds for habeas relief (
Finally, Petitioner claims that he was denied his right to effective assistance of counsel when appellate counsel failed to argue on appeal that trial counsel was ineffective for: (1) failing to object to the medical examiner's testimony regarding an autopsy that was performed by a different medical examiner, (2) opening the door to questioning and testimony regarding uncharged crimes; (3) failing to object when the prosecutor vouched for the truthfulness of a cooperating witness, (4) failing to object to the trial court's refusal to issue a requested jury charge as to accessorial liability, (5) failing to adequately prepare and investigate on Petitioner's behalf, (6) failing to object to the lack of a multiple defendant jury charge, and (7) failing to investigate the law. (
Petitioner's ineffective assistance of appellate counsel claims were exhausted. He petitioned the Appellate Division for a writ of
Because the state appellate court adjudicated Petitioner's ineffective assistance claims on the merits, this court will review that court's denial pursuant to the deferential standard of AEDPA. For the following reasons, Petitioner's claims of ineffective assistance of appellate counsel do not warrant habeas relief.
As an initial matter, the Appellate Division's denial of Petitioner's request for a writ of error
The court next turns to whether the Appellate Division's denial of the
The court finds it useful to briefly note the arguments appellate counsel did raise on appeal. Appellate counsel's well-reasoned, twenty-nine page opening brief stressed three points on appeal: (1) trial court erred in admitting evidence of uncharged crimes; (2) Petitioner was denied his Sixth Amendment right to confront witnesses against him and to present a defense when the trial court precluded him from putting forth evidence of a drug-related motive for the death of the deceased; and (3) Petitioner was denied his right to due process when the trial court failed to include an essential element of felony murder in its charge to the jury. (
The court reviews Petitioner's grounds for ineffective assistance of appellate counsel in turn.
Petitioner asserts that appellate counsel should have argued that trial counsel was ineffective for not objecting to the medical examiner's testimony. (
Petitioner has not shown that appellate counsel's failure to raise this issue on appeal was unreasonable. While it is true that the Confrontation Clause has been interpreted to bar admission of "testimonial evidence," the Supreme Court has only stated "testimonial evidence" includes "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations," and has yet to define the full contours of what it means to be "testimonial."
Appellate counsel's choice not to argue trial counsel was ineffective on this ground was reasonable. "[T]he decision of appellate counsel to choose among plausible options of appellate issues is preeminently a strategic choice and is `virtually unchallengeable.'"
Petitioner next claims that his appellate counsel should have argued on appeal that trial counsel was ineffective for failing to object when the prosecutor vouched for the truthfulness of cooperating witness testimonies. (Am. Pet. at 14.) Petitioner enumerates two instances of allegedly improper vouching. The court addresses them separately.
The first incident allegedly occurred during voir dire. (
Because the prosecutor's statements were not improper vouching, any argument by appellate counsel alleging ineffective assistance of trial counsel on this basis would have been meritless and appellate counsel cannot be faulted for omitting it.
Petitioner also contends that his appellate attorney was ineffective because he should have argued that trial counsel was ineffective for failing to object when the trial court erred in its jury charge on accessorial liability. (Am. Pet. at 16.) The trial court instructed the jury that "[w]hen one person engages in conduct which constitutes an offense, another is criminally liable for such conduct when acting with the
Petitioner's last enumerated ground for ineffective assistance of appellate counsel is that appellate counsel failed to argue on appeal that trial counsel was ineffective for not objecting to the erroneous felony murder instructions. (DeVaughn Suppl.
(Trial Tr. 1846:9-15 (emphasis added).) The statute, however, uses the conjunctive "and" rather than the disjunctive "or." N.Y. Penal Law § 125.25(3) (stating "in the course of
Appellate counsel's decision not to argue ineffectiveness of trial counsel on direct appeal was plainly strategic, and the court cannot conclude that Petitioner has overcome the high bar imposed on challenges to such tactical choices.
The court finally assesses whether the cumulative effect of errors allegedly made by Petitioner's appellate counsel justifies a finding of ineffective assistance of counsel.
* * *
Having considered each ground of Petitioner's ineffective assistance of appellate counsel claim individually and cumulatively, the court concludes that habeas relief is not warranted.
For the foregoing reasons, the Amended Petition is DENIED. Because Petitioner has not made a substantial showing of the denial of a constitutional right, no certificate of appealability shall issue. The court certifies pursuant to 28 U.S.C. § 1915(a) (3) that an appeal from this judgment would not be taken in good faith, and therefore
Not Reported in Fed. Supp., 2017 WL 244837
Rodney Lowman, Moravia, NY, pro se.
Priscilla I. Steward, New York State Attorney General's Office, New York, NY, for Respondent.
MICHAEL A. TELESCA, District Judge.
For the reasons stated below, habeas relief is denied and the petition is dismissed.
On August 10, 2005, Sandra Moracco ("Moracco"), a confidential informant working with the police, called Police Officer Brian Choffin ("Officer Choffin") and told him that she had observed Petitioner sell crack cocaine to an individual and that Petitioner was in possession of an additional quantity of crack cocaine. Moracco told Officer Choffin that she would be driving Petitioner to a McDonald's restaurant and gave Officer Choffin her travel route. Officer Choffin, along with other police officers, pulled over the car and searched Petitioner. Officer Choffin recovered $325 from Petitioner, but no drugs. Petitioner was then taken to the police precinct and a warrant was issued for the search of Petitioner's person. Officer Choffin recovered from Petitioner's rectum 38 small bags of crack cocaine alone with larger chunks of cocaine.
By Ontario County Indictment No. 05-07-089, Petitioner was charged with one count of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39[1]), two counts of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]), and one count of Criminal Possession of a Controlled Substance in the Fifth Degree (Penal Law § 220.06). After a trial, Petitioner was found guilty as charged.
On January 17, 2006, the Hon. Craig J. Doran conducted a hearing on Petitioner's motion to suppress physical evidence based on a lack of probable cause for arresting him.
On August 10, 2005, Officer Choffin received a telephone call from a confidential informant that he had been utilizing to investigate Petitioner's drug activities.
The hearing court credited the testimony of Officer Choffin and made factual findings consistent with Officer Choffin's testimony. H.M. 29. The hearing court denied Petitioner's probable cause challenge, concluding that "there was probable cause for the officer to engage in the initial encounter with the vehicle in which [Petitioner] was a passenger." H.M. 31.
On March 27, 2006, Petitioner proceeded to trial before Justice Doran and a jury.
On April 1, 2005, Moracco, a crack cocaine user, was pulled over in her car by the police. At that time, her driver's license had expired. Trial Trans. [T.T.] 137-138, 140, 161-162. Rather than issue her a ticket, the police worked out an arrangement whereby she would provide them with information about drug activity in the Geneva area. T.T. 141-142.
On July 12, 2005, Moracco worked with Police Investigator Susan Kaduc ("Investigator Kaduc") to purchase drugs from Petitioner. T.T. 145, 173, 245. Moracco called Petitioner and told him that she had $100, and he told her that he would sell her six bags worth $20 each. They agreed to meet at a liquor store. T.T. 146-147, 174. Moracco and Investigator Kudac went to the store and saw Petitioner arrive in his vehicle. As Moracco and Investigator Kudac got out of their vehicle, Petitioner said that he "did not want to meet any of [her] friends," so Investigator Kudac went back to the car. T.T. 148, 175. Moracco gave Petitioner the money and Petitioner gave her a napkin containing six small bags of crack cocaine. After Petitioner drove away, Moracco gave the drugs to Kudac. T.T. 149, 167, 176-178.
On August 10, 2005, Moracco was inside a friend's apartment when Petitioner arrived. At some point, Petitioner sat on a couch next to Moracco, and another person in the apartment gave Petitioner money for drugs. Moracco saw Petitioner reach into his boxers and pull out "a plastic bag holding numerous baggies and two big chunks of cocaine in the baggie." T.T. 150153. Petitioner gave two baggies to the man that gave him money. Petitioner asked Moracco if she would drive him to McDonald's. When Petitioner went to the bathroom, Moracco called Officer Choffin and told him that Petitioner had "about $1000 worth" of cocaine and that they would be driving toward McDonald' s. Before they left, Moracco saw Petitioner adjust his boxer shorts with his hand. T.T. 155, 168, 238-239.
As Moracco drove, Officer Choffin signaled for her to stop the car. T.T. 157-158, 241. Officer Choffin asked Petitioner if he had anything illegal on him. Petitioner said that he did not and invited Officer Choffin to search his pockets. T.T. 242. Officer Choffin removed Petitioner from the car and searched Petitioner's pockets. Officer Choffin recovered $325, but did not recover any drugs. T.T. 242. Officer Choffin searched Moracco's car for the drugs but did not find them. T.T. 244. Officer Choffin handcuffed Petitioner and directed another officer to drive Petitioner to the precinct. T.T. 194-195. Moracco gave Officer Choffin a signed statement reporting that Petitioner had individual baggies of cocaine in addition to two "rocks" of cocaine. T.T. 159-160.
Petitioner presented no witnesses at trial.
On March 28, 2006, Petitioner was found guilty as charged. He was sentenced as a second felony drug offender to concurrent, determinate prison terms of four years for each count of third degree sale and drug possession, three years for the fifth degree drug possession count, plus five years post-release supervision. T.T. 359, 365-367.
On appeal, through counsel, Petitioner raised the following issues: (1) the police's search of Petitioner's body cavity violated his right against unreasonable searches or seizures because the search exceeded the scope of the search warrant; (2) that the undignified manner in which the body cavity search was conducted warranted suppression of the drugs that were recovered regardless of whether the search was legally permissible; and (3) the trial court improperly permitted the People to introduce evidence of an uncharged drug sale. See Resp't Ex. A. Petitioner also filed a pro se supplemental brief, arguing that the hearing court improperly denied his motion to suppress physical evidence because the police lacked probable cause to arrest him. See Resp't Ex. B.
On March 14, 2008, the Appellate Division, Fourth Department ("Fourth Department") unanimously affirmed the judgment of conviction. People v. Lowman, 49 A.D.3d 1262, 856 N.Y.S.2d 342 (4th Dep't 2008) (Resp't Ex. D); lv. denied, 10 N.Y.3d 936, 862 N.Y.S.2d 343, 892 N.E.2d 409 (2008) (Resp't Ex. F).
On or about May 27, 2008, Petitioner filed a pro se motion to vacate the judgment, pursuant to N.Y.Crim. Proc. Law ("CPL") § 440.10, arguing that he was denied effective assistance of trial counsel. See Resp't Ex. G. That motion was denied on procedural grounds, and leave to appeal was denied. See Resp't Exs. I-M.
On or about January 8, 2009, Petitioner filed a pro se habeas corpus petition, seeking relief on the following grounds: (1) the People failed to fulfill its discovery obligations pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961); (2) the hearing court improperly failed to suppress the drugs recovered from Petitioner as fruit of an unlawful arrest; and (3) Petitioner was denied his right to a fair trial because he had an "all white jury." See Pet. ¶ 22, Ex. B. (Dkt.# 1).
By letter dated December 21, 2009, Petitioner seeks to amend the habeas petition again to raise the following additional ineffective assistance of counsel claims: (1) that his trial attorney was ineffective for failing to afford him the opportunity to testify before the grand jury; and (2) that both his trial and appellate attorneys failed to raise claims with regard to laboratory records that were introduced at trial. See Dkt. # 34. Respondent opposed Petitioner's request, and, in response, Petitioner filed a Reply. See Dkts. # 40, 45-46. Petitioner's request to amend the habeas corpus petition for a second time is currently pending before this Court.
Fed.R.Civ.P. 15(a) provides that leave to amend "shall be freely given when justice so requires." Littlejohn v. Artuz, F.3d 360, 362-64 (2d Cir.2001). However, where a proposed amendment is meritless or would be futile, federal courts should deny leave. Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir.1990). Habeas courts may also deny leave "in order to thwart tactics that are dilatory, unfairly prejudicial or otherwise abusive." Littlejohn, 271 F.3d at 363; see also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). For the reasons that follow, the Court denies Petitioner's request to amend the habeas petition for a second time to include additional ineffective assistance of counsel claims.
First, Petitioner has offered no legitimate reason for his failure to raise the additional claims in his prior habeas petitions. The claims Petitioner now seeks to raise relate to matters that occurred either prior to or during the trial, and, thus, the factual basis of these claims was known to Petitioner at the time he filed both the original and amended petitions. To this extent, the Court finds Petitioner's method of piecemeal submission of additional claims to be both unfair to the opposing party—who has responded to the original and amended petitions as well as to various miscellaneous motions Petitioner has filed in association therewith—and also to be a poor use of judicial resources.
Furthermore, Petitioner's claims are new and unrelated to the claims raised in the original habeas petition. Thus, the relation-back doctrine does not apply to render the new claims timely. See Fed. R. Civ. Pro. 15(c). The Supreme Court has held that a new habeas claim "does not relate back [and thereby escape AEDPA's one-year time limit] when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Mayle v. Felix, 545 U.S. 644, 650, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005). In determining whether claims in an amended petition relate back to the original pleading, the Second Circuit has stated that "the pertinent inquiry . . . is whether the original complaint gave the [respondent] fair notice of the newly alleged claims." Fama v. Comm. of Corr. Servs., 235 F.3d 804, 815 (2d Cir.2000), (quoting Wilson v. Fairchild Republic Co., 143 F.3d 733, 738 (2d Cir.1998). At no point in his original or amended petitions did Petitioner claim that he was denied the effective assistance of counsel owing to his trial attorney's failure to secure his grand jury testimony. Nor did Petitioner ever claim that his trial and/or appellate attorneys were ineffective for failing to raise a claim related to certain laboratory records that were introduced at trial.
Additionally, it would be futile to permit Petitioner to amend his habeas petition to include the new ineffective assistance of trial counsel claims because they are unexhausted. Accordingly, the Court denies Petitioner's December 21, 2009 request to amend his habeas corpus petition for a second time. The Court now turns to an analysis of Petitioner's amended habeas petition, which is the operative petition for purposes of this Decision and Order.
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d) (2). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir.2002), cert. denied, 540 U.S. 1197, 124 S.Ct. 1453, 158 L.Ed.2d 111 (2004).
Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir.2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091, 124 S.Ct. 962, 157 L.Ed.2d 798 (2003). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); accord, e.g., Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995). "The exhaustion requirement is not satisfied unless the federal claim has been `fairly presented' to the state courts." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984). The ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of fact that is well within the mainstream of constitutional litigation. Daye 696 F.2d at 194.
However, "[f]or exhaustion purposes, `a federal habeas court need not require that a federal claim be presented to a state if it is clear that the state court would hold the claim procedurally barred.'" Grey v. Hoke, 933 F.2d 117, 120 (2d Cir.1991) (quoting Harris v. Reed, 489 U.S. 255, 263, n. 9, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (other citations omitted). Under such circumstances, a habeas petitioner "no longer has `remedies available in the courts of the State' within the meaning of 28 U.S.C. Section 2254(b)." Id.
"It is now axiomatic that `cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred.'" Dunham v. Travis, 313 F.3d 724, 729 (quoting Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). A habeas corpus petitioner, however, may overcome a procedural default created by the state court's invocation of an "independent and adequate" basis for its decision by (1) showing cause for the default and prejudice attributable thereto, or (2) by demonstrating that a fundamental miscarriage of justice will ensue if the claim is not reviewed by the habeas court. See Harris, 489 U.S. at 262 (citing cases). The "fundamental miscarriage of justice" exception requires the petitioner to make a factual showing that he is "actually innocent" of the crime for which he was convicted. See id. It bears noting that "`actual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).
Petitioner contends, as he did in his pro se supplemental brief on appeal, that the police did not have probable cause to arrest him and, therefore, as a result, the drugs that were recovered from him following his arrest should have been suppressed. See Pet., Ex. B; Am. Pet., Grounds One-Two. The Fourth Department rejected this claim on the merits. See Lowman, 49 A.D.3d at 1264, 856 N.Y.S.2d 342. As discussed below, Petitioner's Fourth Amendment claim is barred from habeas review by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).
"Where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone, 428 U.S. at 494 (footnotes omitted). The Second Circuit has noted that Stone requires only that "the state have provided the opportunity to the state prisoner for full and fair litigation of the Fourth Amendment claim." Gates v. Henderson, 568 F.2d 830, 839 (2d Cir.1977) (en banc), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978). A Federal court may undertake habeas review only in one of two instances: (1) "if the state provides no corrective procedures at all to redress Fourth Amendment violations," or (2) if "the state provides the process but in fact the defendant is precluded from utilizing it by reason of an unconscionable breakdown in that process. . . ." Id. at 840; accord Capellan v. Riley, 975 F.2d 67, 70 (2d Cir.1992).
Petitioner may not raise his Fourth Amendment claim on habeas review because he was provided with, and indeed took full advantage of, the opportunity to fully adjudicate the issue in state court at a pre-trial suppression hearing. The record reflects that the hearing court engaged in a reasoned inquiry into the relevant issues surrounding Petitioner's arrest. After hearing all of the evidence presented on the issue, the trial court issued a decision denying Petitioner's motion to suppress. The Fourth Department subsequently affirmed the hearing court's ruling on the merits, and leave to appeal from the decision of the Fourth Department was denied by the Court of Appeals.
Moreover, Petitioner has not demonstrated that an "unconscionable breakdown" occurred in the courts below. His dissatisfaction with the determination of the hearing court, which was subsequently affirmed by the Fourth Department, does not constitute the sort of "breakdown" referred to in Gates. Rather, an "unconscionable breakdown in the state's process must be one that calls into serious question whether a conviction is obtained pursuant to those fundamental notions of due process that are at the heart of a civilized society." Cappiello v. Hoke, 698 F.Supp. 1042, 1050 (E.D.N.Y.1988), aff'd, 852 F.2d 59 (2d Cir.1988) (per curiam); accord, Capellan, 975 F.2d at 70 (observing that some sort of "disruption or obstruction of a state proceeding" of an egregious nature, e.g., the bribing of a trial judge, typifies an unconscionable breakdown). No such disruption is discernable on the record. And, even if the state court erroneously decided the issue, a petitioner cannot gain federal review of a Fourth Amendment claim simply because a Federal court may reach a different result. See Capellan, 975 F.2d at 71.
Thus, this Court is precluded from considering Petitioner's fully litigated Fourth Amendment claim. The claim is dismissed.
Petitioner contends that he was denied his right to a fair trial because he had an "all white jury." See Pet., Ex. B. Because Petitioner raises this claim for the first time in his habeas petition, the claim is unexhausted for purposes of federal habeas review. Nonetheless, the Court deems the claim exhausted but procedurally defaulted because Petitioner no longer has a state court forum available within which to exhaust the claim. See Grey, 933 F.2d at 120.
Petitioner's claim, therefore, is deemed exhausted but procedurally defaulted because state appellate review is no longer available to him. Petitioner has already used his one direct appeal to which he is entitled under New York law. See N.Y. Court Rules § 500.20. Collateral review of this claim—by way of another CPL § 440 motion—is also barred because the claim is a matter of record that could have been raised on direct appeal, but unjustifiably was not. See CPL § 440.10(2)(c) (the court must deny a motion to vacate a judgment when sufficient facts appear on the record to have permitted adequate review of the issue on appeal although no such review occurred due to Petitioner's unjustifiable failure to raise the issue on direct review). Thus, Petitioner's claim that he was denied a fair trial because he had an "all white jury" is deemed exhausted, but procedurally barred from habeas review.
A finding of procedural default bars habeas review of the federal claims unless the petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the claims will result in a miscarriage of justice. Murray, 477 U.S. at 492; Wainwright, 433 U.S. at 87-91. Petitioner has made no showing of the requisite cause and prejudice to overcome the procedural default, nor has he demonstrated that the Court's failure to review the claim will result in a miscarriage of justice. Petitioner's claim is therefore dismissed as procedurally defaulted.
In any event, Petitioner's claim is meritless. While the Sixth and Fourteenth Amendments require that a panel of jurors in a criminal trial must be "drawn from a source fairly representative of the community," the Constitution does not require that "petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population." Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). In other words, "[d]efendants are not entitled to a jury of any particular composition." Id.; see also United States v. Jackman, 46 F.3d 1240, 1244 (2d Cir.1995); Crenshaw v. Superintendent, 372 F.Supp.2d 361, 375 (W.D.N.Y.2005). Here, Petitioner has not demonstrated that there were any minorities who were improperly excluded from the panel of prospective jurors. Nor has Petitioner alleged that the prosecutor violated Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by exercising peremptory challenges in a discriminatory manner so as to exclude prospective non-white jurors from service. As such, Petitioner cannot point to any improper practice or procedure that led to the impaneling of an all-white jury for his trial, and his claim is, therefore, meritless.
In any event, Petitioner's claim is meritless. A prosecutor's obligations under Brady are well-settled: "[t]o the extent that [a] prosecutor knows of material evidence favorable to the defendant in a criminal prosecution, the government has a due process obligation to disclose that evidence to the defendant." Disimone v. Phillips, 461 F.3d 181, 192 (2d Cir.2006) (citations omitted). To establish a Brady violation, a petitioner must demonstrate that: (1) the evidence at issue is favorable to the accused, either because it is exculpatory or because of its impeachment value; (2) the evidence was suppressed by the State, either willfully or inadvertently; and (3) prejudice ensued from the failure to disclose the evidence. See Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)); Leka v. Portuondo, 257 F.3d 89, 98 (2d Cir.2001). To establish that the prosecutor suppressed evidence, "petitioner must demonstrate that his attorney did not possess the requested evidence in time for its effective use at trial." Harris v. Smith, 04-CV-1268 (LEK/GJD), 2008 U.S. Dist. LEXIS 59507, *36 (N.D.N.Y. Aug. 4, 2008). Thus, "as long as a defendant possesses Brady evidence in time for its effective use, the government has not deprived the defendant of due process of law simply because it did not produce the evidence sooner." Id. (quoting Lutes v. Ricks, 02-CV-1043 (TJM/DEP), 2005 U.S. Dist. LEXIS 32391, *49, n. 19 (2d Cir.2001)); Shomo v. Zon, 05 Civ. 10337 (JFK), 2008 U.S. Dist. LEXIS 58459, *32, 2008 WL 2981555 (S.D.N.Y. Aug. 1, 2008).
In this case, Petitioner's Brady claim is meritless because he has failed to demonstrate that the prosecutor suppressed evidence. Petitioner points to no specific item(s) that were withheld. Moracco's identity as the confidential informant was revealed when she testified at trial. Moracco explained her arrangement with the police and testified about her past drug use. Defense counsel cross-examined her with respect to her relationship with the police, and Petitioner does not claim that there existed any additional information that the defense did not receive that could have been used to impeach Moracco at trial. Moreover, Petitioner does not claim that there were facts that he was unable to explore on cross-examination owing to the prosecutor's failure to disclose the information when he asked for it on November 22, 2005. Accordingly, Petitioner has not demonstrated that the information regarding Moracco was suppressed or that an earlier disclosure of it would have resulted in a different outcome at trial. See Graham v. Ricks, 02-CV-0303, 2004 U.S. Dist. LEXIS 5803, *23, 2004 WL 768579 (N.D.N.Y. April 7, 2004) (finding no Brady violation where no reasonable probability that earlier disclosure of the evidence would have produced different result at trial).
Finally, insofar as Petitioner presents his claim as a violation of the prosecutor's discovery obligations under Rosario, his claim is not cognizable on habeas review. Federal courts in New York have consistently held that a Rosario claim, unlike a Brady claim, is based entirely upon New York State law and, thus, is not cognizable by a federal court on habeas review. See Martinez v. Walker, 380 F.Supp.2d 179, 185-86 (W.D.N.Y.2005); Green v. Artuz, 990 F.Supp. 267, 274-75 (S.D.N.Y.1998). Petitioner's claim is meritless and therefore provides no basis for habeas relief.
Petitioner appears to argue, as he did on direct appeal, that the trial court improperly permitted the People to introduce evidence of a prior uncharged drug transaction between Petitioner and Moracco in violation of People v. Molineux, 168 N.Y. 264, 61 N.E. 286 (1901).
As discussed above, Petitioner has already used his one direct appeal to which he is entitled under New York law. See N.Y. Court Rules § 500.20. Collateral review of this claim —by way of another C.P.L. § 440 motion—is also barred because the claim is a matter of record that could have been raised on direct appeal, but unjustifiably was not. See CPL § 440.10(2)(c) (the court must deny a motion to vacate a judgment when sufficient facts appear on the record to have permitted adequate review of the issue on appeal although no such review occurred due to Petitioner's unjustifiable failure to raise the issue on direct review).
Petitioner contends, for the first time in his habeas petition, that the prosecutor withheld information about an alleged drug sale between Petitioner and an undercover police officer. He further argues that the police subsequently "switched their story" and accused Petitioner of selling drugs to confidential informant Moracco, but sealed any records relating to the original allegation. See Am. Pet., Ground Three. Because Petitioner raises this claim for the first time in his habeas corpus petition, it is unexhausted for purposes of federal habeas review. Nonetheless, as discussed above, Petitioner no longer has a state court forum available to him within which to exhaust the claim and the Court therefore deems it exhausted but procedurally defaulted. See Grey, 933 F.2d at 120. Petitioner does not allege cause and prejudice to overcome the procedural default, nor has he demonstrated that this Court's failure to review the claim will result in a miscarriage of justice. Thus, the claim is dismissed.
In any event, Petitioner's claim is meritless. A review of the record reveals that the only reference to a drug transaction between Petitioner and an undercover police officer was from a statement made by an Assistant District Attorney during a November 22, 2005 (pre-trial) court appearance. At that time, the ADA stated, "Judge, my understanding is that there was a confidential informant who assisted but this is a direct hand to hand sale to an undercover police officer from the New York State Police CNET team." Trans. of 11/22/05 at 4. Based on this Court's review of the record, it appears that the ADA's understanding of the facts was either mistaken or that the ADA simply misspoke. The evidence at trial established that Moracco was accompanied to the site of the drug sale by Investigator Kudac, but that Investigator Kudac was not with Moracco at the precise moment the transaction occurred because Petitioner did not want Investigator Kudac to approach him. T.T. 148-49, 167, 175-78. There was no evidence presented to the jury that suggested Petitioner had conducted a drug transaction with an undercover police officer. Moreover, defense counsel had the opportunity to cross-examine Moracco with respect to the drug transaction and, in fact, did so. T.T. 167. Additionally, defense counsel could have questioned Investigator Kudac about her role in accompanying Moracco to purchase the drugs from Petitioner, but chose not to do so. T.T. 179-80. Thus, Petitioner's claim is meritless and provides no basis for habeas relief.
In any event, Petitioner's claim is not cognizable. As discussed at Section "IV, 1" above, Petitioner is not entitled to habeas relief for a contention that his arrest violated his Fourth Amendment rights. See Stone, 428 U.S. at 482.
Accordingly, Petitioner's claim presents no basis for habeas relief.
Petitioner argues, as he did in his CPL § 440.10 motion, that he received ineffective assistance of trial counsel because his attorney failed to file a timely motion to suppress the evidence police recovered from him on the ground that the police lacked probable cause for Petitioner's arrest. See Am. Pet., Ground Four. The Ontario County Court denied Petitioner's claim on procedural grounds, pursuant to CPL § 440.10(2)(a), (c). See Resp't Ex. I. The state court's reliance on an adequate and independent state law ground to deny the claim renders this claim procedurally barred from review by this Court.
A federal court may not review a question of federal law decided by a state court if the state court's decision rested on a state law ground that is independent of the federal question and adequate to support the judgment. See Coleman, 501 U.S. at 729. Here, the Ontario County rejected Petitioner's ineffective assistance of trial counsel claim pursuant to CPL § 440.10(2)(a), (c), finding that the claim was "either affirmatively addressed on appeal . . . or sufficient facts appeared in the record underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the instant motion and [Petitioner] failed to raise these grounds upon his appeal. . . ." Id. The Second Circuit has recognized CPL § 440.10(2)(c) as an adequate and independent state ground sufficient to preclude federal habeas review of a state-court defendant's claims. See e.g., Sweet v. Bennett, 353 F.3d 135, 139-40 (2d Cir.2003); Reyes v. Keane, 118 F.3d 136, 139 (2d Cir.1997); Aparicio, 269 F.3d at 91 (2d Cir.1991). Additionally, denial of a claim pursuant CPL § 440.10(2)(a) has been found to constitute an adequate and independent state ground. See, e.g., McClarin v. Smith, 05-CV-2478 (DLI), 2007 U.S. Dist. LEXIS 58717, 2007 WL 2323592 (E.D.N.Y.2007) (finding due process claim procedurally barred by New York Criminal Procedure Law § 440.10(2)(a) because it had been adjudicated on the merits during petitioner's direct appeal); D'Alessandro v. Fischer, No. 01 Civ. 2551(LTS)(DF), 2005 U.S. Dist. LEXIS 31381, 2005 WL 3159674 (S.D.N.Y.2005) (finding that the trial court's express reliance on CPL § 440.10(2)(a) indicates that the court rejected Petitioner's ineffective assistance claim on an independent and adequate state procedural ground precluding federal habeas review). Accordingly, the state court's reliance on CPL § 440.10(2) (a), (c) to deny Petitioner's claim bars this Court's review of Petitioner's ineffective assistance of trial counsel claim.
Petitioner argues that his appellate attorney rendered ineffective assistance because appellate counsel failed to argue in his brief that the evidence against Petitioner should have been suppressed because the police improperly arrested Petitioner. See Am. Pet., Ground Five.
In order to prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his attorney's representation was unreasonable under "prevailing professional norms," and that there is a reasonable probability that, but for his attorney's errors, "the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This standard applies equally to trial and appellate counsel. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.1994), cert. denied, 513 U.S. 820, 115 S.Ct. 81, 130 L.Ed.2d 35 (1994). A petitioner alleging ineffective assistance of appellate counsel must prove both that appellate counsel was objectively unreasonable in failing to raise a particular issue on appeal, and that absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful. Id. at 533-34; Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Moreover, counsel is not required to raise all colorable claims on appeal. See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Rather, counsel may winnow out weaker arguments and focus on one or two key claims that present "the most promising issues for review." Id. at 751-53. A petitioner may establish constitutionally inadequate performance if he shows that his appellate counsel omitted material and obvious issues while pursuing matters that were patently and significantly weaker. See Mayo, 13 F.3d at 533.
Accordingly, the Court cannot find that the state court's adjudication of Petitioner's ineffective assistance of appellate counsel claim contravened or unreasonably applied settled Supreme Court law. The claim is dismissed.
For the reasons stated above, the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the petition is dismissed. Because Petitioner has failed to make "a substantial showing of a denial of a constitutional right," 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of appealability. See, e.g., Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-113 (2d Cir.2000). The Court also hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this judgment would not be taken in good faith and therefore denies leave to appeal as a poor person. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
Petitioner must file any notice of appeal with the Clerk's Office, United States District Court, Western District of New York, within thirty (30) days of the date of judgment in this action. Requests to proceed on appeal as a poor person must be filed with United States Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of Appellate Procedure.
Not Reported in F.Supp.2d, 2011 WL 90996
THEODORE H. KATZ, United States Magistrate Judge.
Petitioner David O'Kane brings this action for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his July 8, 2004 conviction in New York State Supreme Court, New York County, upon his guilty plea, of Criminal Possession of a Controlled Substance in the Fourth Degree (N.Y. Penal Law § 220.09). Petitioner was sentenced, as a second felony offender, to an indeterminate prison term of 3 to 6 years.
In a decision dated October 2, 2008, the Appellate Division, First Department affirmed Petitioner's conviction. See People v. O'Kane, 55 A.D.3d 315, 316, 865 N.Y.S.2d 61 (1st Dep't 2008), lv. denied, 11 N.Y.3d 928, 874 N.Y.S.2d 13, 902 N.E.2d 447 (2009). Petitioner is currently incarcerated at the Upstate Correctional Facility in Malone, New York.
In his undated pro se motion for habeas corpus relief, which was later clarified in an amended Petition, dated January 20, 2010, Petitioner argues that: (1) his indictment was defective because false statements were made in the felony complaint and the prosecutor knowingly presented false evidence to the grand jury; and (2) he received ineffective assistance of counsel because his attorney: (a) failed to investigate and impeach purportedly false statements in the felony complaint and pretrial proceedings; and (b) allowed Petitioner to plead guilty although the evidence against him was false. (See Petition for Writ of Habeas Corpus, dated Jan, 20, 2010 ("Pet."), at 1-3.) Respondent opposes the Petition, arguing that Petitioner's claim that the indictment is defective is procedurally barred and is not cognizable on federal habeas review. (See Respondent's Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, dated May 28, 2010 ("Resp't Mem."), at 16-23.) Respondent further contends that Petitioner received meaningful assistance of counsel. (See id. at 23-26, 874 N.Y.S.2d 13, 902 N.E.2d 447.)
The Petition was referred to this Court for a Report and Recommendation, pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C). Having carefully considered the parties' submissions and the state court record, for the reasons that follow the Court respectfully recommends that the Petition be denied and Petitioner's claims be dismissed with prejudice.
On January 7, 2004, at approximately 3:20 P.M., Detective Ephrem Deshazo ("Deshazo"), who was working undercover as part of a field team in a buy-and-bust operation, was sitting in a car on the corner of 114th Street and Lenox Avenue in Manhattan. (Pretrial Hearing, dated Apr. 29, 2004 ("H."), at 10-14.) Deshazo observed three people approach Petitioner and line up in front of him. (See id. at 17-21, 874 N.Y.S.2d 13, 902 N.E.2d 447.) Petitioner handed each an object. (See id.) Deshazo could not see what the objects were, and could not see whether the three individuals gave Petitioner anything in exchange. (See id. at 18-19, 874 N.Y.S.2d 13, 902 N.E.2d 447.)
A short time later, Detective Glenn Puppa ("Puppa") arrived at the store. (See id. at 53-54, 874 N.Y.S.2d 13, 902 N.E.2d 447.) Deshazo informed Puppa that he had recovered the bags of crack cocaine from Petitioner. (See id.) Puppa handcuffed Petitioner, escorted him outside, and searched him, recovering from Petitioner's pockets a wallet, a key, and 71 cents. (See id. at 54-58, 874 N.Y.S.2d 13, 902 N.E.2d 447.) In response to Puppa's questions, Petitioner stated that the jacket that he was wearing did not belong to him, but the wallet and keys did. (See id. at 58, 60-63.)
At a Mapp/Huntley/Dunaway hearing on April 29, 2004, Petitioner introduced the jacket worn at the time of his arrest into evidence. Notably, the jacket had a left inside pocket, but no right inside pocket. Petitioner thus argued that Deshazo gave inconsistent testimony, since Deshazo testified at Petitioner's parole revocation proceeding that he recovered the drugs from the left inside jacket pocket, but had testified, both before the grand jury as well as at the instant hearing, that he recovered the drugs from the "right inside jacket pocket." (Id. at 78-80, 865 N.Y.S.2d 61.)
The court found that whether Deshazo recovered the drugs from the left or right inside jacket pocket was of no "particular moment," because it was clear that Deshazo recovered drugs from a pocket of the jacket that Petitioner was wearing at the time of his arrest. (See id. at 92, 865 N.Y.S.2d 61.)
The court denied Petitioner's motion to suppress the ziplock bags of crack cocaine and the statements made to Deshazo and Puppa. The court further held that Deshazo had probable cause to arrest Petitioner. (See id. at 90-92, 865 N.Y.S.2d 61.)
On May 5, 2004, Petitioner appeared before the court with his attorney. After an off-the-record conference with the attorney, the court announced that Petitioner wished to plead guilty. (Plea Hearing, dated May 5, 2004 ("P."), at 105-06.) The court informed Petitioner that he would plead guilty to Criminal Possession of a Controlled Substance in the Fourth Degree in exchange for a promised sentence of 3 to 6 years. (See P. at 105, 108.) The court also explained the terms of a cooperation condition, reminding Petitioner that there was no guarantee of a reduced sentence, and that the ultimate determination of whether the information provided by Petitioner was of value would be in the sole discretion of the prosecutor. (See id. at 108-09, 865 N.Y.S.2d 61.)
Petitioner then admitted to possessing over one ounce of crack cocaine on January 7, 2004. (See id, at 109-10, 865 N.Y.S.2d 61.) He confirmed that no one had threatened him, or otherwise compelled him to enter his guilty plea. The court accepted Petitioner's plea and adjudicated him a second felony offender. (See id. at 110-13, 865 N.Y.S.2d 61.)
Prior to the sentencing proceedings, Petitioner filed a pro se motion for inspection of the grand jury minutes, new counsel, and withdrawal of his guilty plea to fourth-degree criminal possession. On July 8, 2004, at the sentencing hearing, the court asked Petitioner why he should be allowed to withdraw his plea and be given a new attorney. (Sentencing Hearing, dated July 8, 2004 ("S."), at 2-5.) Petitioner argued that the officers lacked probable cause to stop and search him, and that he thought that if the court were to hear all of the evidence, it would have a "different outlook." (See S. at 5-6.)
The court reminded Petitioner that he "already pled guilty" and stated: "I don't have any reason to give you your plea back. You don't have an automatic right. You have to give me some reason. I don't have a reason." (Id. at 10, 865 N.Y.S.2d 61.) Petitioner argued, in response, that his attorney coerced him into pleading guilty, stating that;
(Id. at 10-11, 865 N.Y.S.2d 61.) The prosecutor objected, arguing that Petitioner wanted "three-to-six so bad," and that the plea itself was the result of "an extended negotiation" in which defense counsel convinced the prosecutor to lower his sentence offer from 4 ½ to 9 years to 3 to 6 years. Petitioner stated that he "didn't want three-to-six," and, again, pointed to the inconsistency in Deshazo's testimony, contending that the court did not make a credibility finding on that point at the pretrial hearing. (See id. at 12-14, 865 N.Y.S.2d 61.) The court disagreed: "I believe that was something that came up during the hearing, but I made my determination." (Id. at 15, 865 N.Y.S.2d 61.)
The court denied Petitioner's motion to withdraw his plea. (See id. at 16, 865 N.Y.S.2d 61.) Petitioner was sentenced to concurrent, indeterminate prison terms of 3 to 6 years on the fourth-degree 2004 drug possession count and 2½ to 5 years on the fifth-degree 1999 drug sale count.
On March 21, 2006, Petitioner filed a pro se motion, pursuant to New York Criminal Procedure Law ("CPL") § 440.10, to vacate the judgment of conviction, contending that: (1) the indictment on the 2004 criminal possession charge was defective because it was based on false testimony; (2) the prosecutor knowingly presented false testimony to the grand jury; (3) there was no probable cause for his arrest; and (4) he was denied the effective assistance of counsel because his attorney failed to: (a) impeach Deshazo's pretrial statements and testimony regarding from which pocket he had recovered the drugs; and (b) seek a motion to dismiss the indictment on the ground that Deshazo provided false statements in the felony complaint and testified falsely before the grand jury. (See CPL § 440.10 Motion, dated Mar. 21, 2006, attached as Ex. D to Resp't Mem.)
In his direct appeal, Petitioner argued that: (1) he was denied his counsel of choice when the court proceeded with the pretrial hearing notwithstanding Petitioner's request for an adjournment so that his family could retain a private attorney; (2) the drugs recovered from Petitioner should have been suppressed because the police lacked probable cause to arrest him; and (3) Petitioner's due process rights and right to effective assistance of counsel were violated when: (a) the court denied Petitioner's application for new counsel following his motion to withdraw his guilty plea; and (b) his counsel provided him with inadequate information concerning his case and "coerced" him into pleading guilty by insisting that the court would find him guilty at his bench trial. (See Petitioner's Appellate Brief, dated March, 2008, attached as Ex. M to Resp't Mem.)
On October 2, 2008, the Appellate Division, First Department, unanimously affirmed the judgment of conviction. See People v. O'Kane, 55 A.D.3d 315, 865 N.Y.S.2d 61 (1st Dep't 2008). Petitioner sought leave to appeal to the New York Court of Appeals, asking the court to review all of the issues raised in the appellate brief. On January 20, 2009, the New York Court of Appeals denied Petitioner's leave application. See People v. O'Kane, 11 N.Y.3d 928, 874 N.Y.S.2d 13, 902 N.E.2d 447 (2009).
Petitioner asserts in the instant Petition that: (1) the indictment was defective because Deshazo made false statements in the felony complaint, and the prosecutor knowingly presented false evidence to the grand jury; and (2) he received ineffective assistance of counsel, because his attorney: (a) failed to investigate and impeach Deshazo's purportedly false statements in the felony complaint and pretrial proceedings regarding the jacket pocket from which the drugs were taken; and (b) allowed Petitioner to plead guilty, even though the evidence against him was false. (See Pet. at 1-3.)
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a state court conviction "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d) (1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," Id. § 2254(d)(2).
"The `unreasonable application' standard is independent of the `contrary to' standard . . . [and] means more than simply an `erroneous' or `incorrect' application" of federal law," Henry v. Poole, 409 F.3d 48, 68 (2d Cir.2005) (citing Williams, 529 U.S. at 410, 120 S.Ct. at 1522). A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identifies the governing legal rule, but applies it in an unreasonable manner to the facts of a particular case. See Williams, 529 U.S. at 413, 120 S.Ct. at 1523. The inquiry for a federal habeas court is not whether the state court's application of the governing law was erroneous or incorrect, but, rather, whether it was "objectively unreasonable." Id. at 408-10, 120 S.Ct. at 1521-22; see also Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir.2001) ("[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently. The state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable.").
Moreover, under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [Petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir.2003) ("This presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 1041, 154 L.Ed.2d 931 (2003).
Petitioner argues, as he did in his CPL § 440 motion, that the 2004 indictment was defective and should have been dismissed. In particular, Petitioner contends that Deshazo's statement—that he recovered the drugs from Petitioner's "right inside jacket pocket"—was false, and that the prosecutor knowingly submitted this false evidence to the grand jury. (See Pet. at 1-3.) Respondent contends, and this Court agrees, that this claim is procedurally barred by an adequate and independent state law ground and is not cognizable in a federal habeas corpus proceeding. Specifically, Petitioner failed to raise this claim in his direct appeal and can no longer do so. In addition, as Respondent argues, the claim is not cognizable on federal habeas review.
To have his claims heard by a federal habeas court, a petitioner must return to state court if he has not exhausted his state remedies. See Engle v. Isaac, 456 U.S. 107, 125-126 n. 28, 102 S.Ct. 1558, 1570-71 n. 28, 71 L.Ed.2d 783 (1982); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir.1991); Robertson v. Artuz, No. 97 Civ. 2561(DC), 2000 WL 10265, at *3-4 (S.D.N.Y. Jan.4, 2000).
Federal habeas review is generally foreclosed when a petitioner's claim is barred by a state procedural rule which is "independent of [a] federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553, 115 L.Ed.2d 640 (1991); accord Brown v. Miller, 451 F.3d 54, 56 (2d Cir.2006). State procedural bars are independent and adequate when such laws are "firmly established and regularly followed" by the state in question. James v. Kentucky, 466 U.S. 341, 348, 104 S.Ct. 1830, 1835, 80 L.Ed.2d 346 (1984); see also Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir.2003).
When engaging in an adequacy analysis of the procedural bar, federal courts should give deference to state court decisions and determine if there is a "fair or substantial basis" for the application of the state law to the particular case. Garcia v. Lewis, 188 F.3d 71, 78 (2d Cir.1999). "[T]he question is whether application of the procedural rule is `firmly established and regularly followed' in the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances." Cotto, 331 F.3d at 240 (citing Lee, 534 U.S. at 386-87, 122 S.Ct. at 877) (emphasis added).
Garvey, 485 F.3d at 714 (quoting Cotto, 331 F.3d at 240). While the factors "are not a test for determining adequacy, they are nonetheless used as guides in evaluating `the state interest in a procedural rule against the circumstances of a particular case.'" Id. at 714 (quoting Lee, 534 U.S. at 386-87, 122 S.Ct. at 891).
In his CPL § 440.10 motion, Petitioner argued that the judgment of conviction should be vacated because the 2004 indictment for criminal possession was procured on the basis of false testimony and was, therefore, defective. The New York County Supreme Court rejected Petitioner's motion, holding that his claims in connection with "alleged discrepancies in the witnesses' testimony at various pretrial stages, including at the grand jury and suppression hearing," were "thoroughly explored on the record before [Petitioner] entered a guilty plea" and were, therefore, "not the proper subject of a CPL [§] 440 motion." (440 Decision.) The state court noted that "[t]he grand jury minutes were reviewed by another Court who found them to be legally sufficient" and concluded that "[s]ince sufficient facts appeared on the record to permit review on direct appeal but [Petitioner] failed to make such appeal, [Petitioner's] motion with respect to this evidence is denied." (Id.)
Under New York law, all claims that are record-based must be raised in a direct appeal. See Dunham v. Travis, 313 F.3d 724, 729 (2d Cir.2002) ("In New York, a criminal defendant may not raise in a § 440 motion a claim that could have been raised on direct appeal."); CPL § 440.10(2)(c) (requiring courts to deny a motion to vacate the judgment where "sufficient facts appear on the record" for the claim to have been raised and decided on direct appeal). Indeed, the denial of a CPL § 440.10 motion for failure to raise a claim on direct appeal represents the application of a "firmly established and regularly followed" New York rule. See Arce v. Smith, 889 F.2d 1271, 1273 (2d Cir.1989); accord Williams v. Goord, 277 F.Supp.2d 309, 318-19 (S.D.N.Y.2003). It is only when a defendant's claim hinges upon facts outside the trial record, that he may collaterally attack his conviction by bringing a claim under CPL § 440.10. See CPL § 440.10(1); Aparicio, 269 F.3d at 91.
The application of the statutory procedural bar in this case satisfies the three factors identified in Garvey. As to the first Garvey factor, Petitioner's failure to raise his claim on direct appeal was plainly relied upon by the trial court, as evidenced by its decision. As to the second Garvey factor, it is clear, under New York law, that where the factual basis of a claim appears on the record, a defendant can raise that claim only on direct appeal, and relief by way of a CPL § 440.10 motion is precluded. Finally, as to the third Garvey factor, Petitioner did not "substantially comply" with the state procedural requirement. As the New York Court of Appeals has recognized, "the purpose of the provision is to prevent CPL [§] 440.10 from being employed as a substitute for direct appeal when [a] defendant [is] in a position to raise an issue on appeal (CPL [§] 440.10[2][b]) or could readily have raised it on appeal but failed to do so." People v. Cooks, 67 N.Y.2d 100, 103, 500 N.Y.S.2d 503, 491 N.E.2d 676 (1986); accord Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir.2003). Here, Petitioner could have, but failed to raise his claim on direct appeal. Had he done so, the Appellate Division could have reviewed his claim, which is now barred from federal habeas review.
If a state court judgment is based on an independent and adequate state procedural rule, federal courts generally cannot review the state court judgment in a habeas corpus proceeding, unless the petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S.Ct. at 2565; see also Jimenez, 458 F.3d at 149; Ramirez v. Attorney Gen. of New York, 280 F.3d 87, 94 (2d Cir.2001); Washington v. James, 996 F.2d 1442, 1447 (2d Cir.1993).
To demonstrate cause for his default, a petitioner must show "that `some objective factor external to the defense impeded [his] efforts' to raise the claim in state court." McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991) (quoting Murray v. Carrier, 477 U.S. 467, 488, 106 S.Ct. 2639, 2645 (1986)); accord Bloomer v. United States, 162 F.3d 187, 191 (2d Cir.1998); Rolling v. Fischer, 433 F.Supp.2d 336, 346 (S.D.N.Y.2006). Once a petitioner shows cause, the petitioner must also establish prejudice by demonstrating that there is a "reasonable probability" that, but for the constitutional violation that is the subject of the defaulted claim, the outcome of the relevant proceeding would have been different. See Strickler v. Greene, 527 U.S. 263, 289, 119 S.Ct. 1936, 1952, 144 L.Ed.2d 286 (1999); McClesky, 499 U.S. at 494, 111 S.Ct. at 1471; accord DiSimone v. Phillips, 461 F.3d 181, 192 (2d Cir.2006).
Alternatively, a claim that is barred from habeas review pursuant to independent and adequate state grounds can be considered if a petitioner demonstrates that failure to consider it would result in a miscarriage of justice. A miscarriage of justice occurs "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496, 106 S.Ct. at 2649; see also Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998); James, 996 F.2d at 1447. "Actual innocence means factual innocence, not mere legal insufficiency." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir.2002) (quoting Bousley, 523 U.S. at 623, 118 S.Ct. at 1611) (internal quotation marks omitted). "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence. . . ." Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 865, 130 L.Ed.2d 808 (1995). The doctrine of actual innocence applies only in "extraordinary case[s]" and "credible claims of actual innocence are extremely rare." Doe v. Menefee, 391 F.3d 147, 160-61 (2d Cir.2004) (quoting Murray, 477 U.S. at 479, 106 S.Ct. at 2642, and Schlup, 513 U.S. at 321, 115 S.Ct. at 864) (internal quotation marks omitted).
There is nothing in the record, however, to suggest that such exceptional circumstances can be demonstrated here. Specifically, without offering new evidence of his innocence, Petitioner cannot establish that a miscarriage of justice has occurred. See Dunham, 313 F.3d at 730 ("[Petitioner] presented no new evidence of his innocence and did not make the necessary showing required . . . to bypass the procedural bars.").
Accordingly, because Petitioner's claim that the indictment was defective is procedurally barred from further state review, and Petitioner has failed to demonstrate cause and prejudice, or a miscarriage of justice, Petitioner's indictment claim should be dismissed.
In addition to being procedurally barred, Petitioner's claim that his indictment was defective is not, on its substance, cognizable in a federal habeas corpus petition.
There is no federal constitutional right to a grand jury in state criminal proceedings. See, e.g., Alexander v. Louisiana, 405 U.S. 625, 633, 92 S.Ct. 1221, 1226-27, 31 L.Ed.2d 536 (1972). Consequently, errors alleged to have occurred at state grand jury hearings are not reviewable by federal habeas courts. See Alexander, 405 U.S. at 633, 92 S.Ct. at 1227; Fields v. Soloff, 920 F.2d 1114, 1118 (2d Cir.1990) (holding that Fifth Amendment right to indictment by a grand jury is not incorporated by the Due Process Clause of the Fourteenth Amendment and does not apply to the states); Dunn v. Sears, 561 F.Supp.2d 444, 453 (S.D.N.Y.2008) ("Federal courts have consistently held that the right to appear before the grand jury is not reviewable by a federal habeas court."). This rule applies to claims of perjury occurring before the grand jury. See May v. Warden, No. 07 Civ. 2176(BSJ) (GWG), 2010 WL 1904327, at *3 (S.D.N.Y. May 10, 2010); Brazeau v. Zon, No. 04-CV-031 (RJA), 2007 WL 2903617, at *7 (W.D.N.Y. Oct. 1, 2007) (finding petitioner's claim that prosecutor knowingly suborned perjury in the grand jury not cognizable on habeas review, because it asserts errors that allegedly occurred only at the grand jury proceeding). Thus, Petitioner's claim that his indictment is defective because it was procured on the basis of false testimony is a state law issue and affords no basis for federal habeas relief here.
Tollett, 411 U.S. at 267; accord United States v. Randall, 327 Fed. App'x 255, 256 (2d Cir.2009); see also United States v. Arango, 966 F.2d 64, 66 (2d Cir.1992) (holding that "[b]y pleading guilty . . . [the defendant] waived his right to object to the constitutionality of the search").
Petitioner's claims regarding deficiencies in the felony complaint, and the manner in which the prosecutor procured the indictment, are clearly independent claims arising out of events that occurred prior to the entry of Petitioner's guilty plea. Under well-settled Supreme Court law, these claims were thus waived when Petitioner entered his guilty plea. Accordingly, Petitioner's claim that the 2004 indictment was defective is not cognizable in this proceeding and should be dismissed
Petitioner contends that he was denied effective assistance of counsel on two grounds (1) as Petitioner argued in his CPL § 440 motion, counsel failed to investigate and impeach Deshazo's purportedly false statements in the felony complaint and pretrial proceedings, and (2) counsel allowed Petitioner to plead guilty even though the evidence against him was false, as Petitioner argued on direct appeal. (See Pet, at 1-3.)
To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must establish: (1) that his attorney's performance was so deficient that it "fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); and (2) that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, 104 S.Ct. at 2068; accord Cox v. Donnelly, 387 F.3d 193, 197 (2d Cir. 2004).
In evaluating the reasonableness requirement, a court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound ... strategy." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (internal quotation marks omitted); accord Cox, 387 F.3d at 198. The Second Circuit has defined a "strategic decision" as a "conscious, reasonably informed decision made by an attorney with an eye to benefitting his client" Cox, 387 F.3d at 198 (quoting Pavel v. Hollins, 261 F.3d 210, 218 (2d Cir. 2001)). A court must not use "perfect hindsight to criticize unsuccessful strategies." Eze v. Senkowski, 321 F.3d 110, 132 (2d Cir. 2003) see Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, Cox, 387 F.3d at 198.
For the purposes of AEDPA, it is well-settled that the Strickland standard constitutes the relevant "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); see Aparicio, 269 F.3d at 95 & n. 8; Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001). Thus, on habeas review, the question before a court is not whether, as a de novo matter, the court finds counsel to have been effective or ineffective; rather, the relevant question is whether the state court decision addressing the issue involved an "unreasonable application" of the Strickland standard to the facts of the petitioner's case. See Sellan, 261 F.3d at 314-15 & n. 6.
Petitioner contends that he was denied effective assistance of counsel because counsel failed to impeach Deshazo's purportedly false statements in the felony complaint and pretrial proceedings.
The New York County Supreme Court rejected Petitioner's ineffective assistance of counsel claim, holding that "the record bears out the fact that [Petitioner] did, in fact, receive meaningful assistance." (440 Decision.) The court found that Petitioner's attorney "filed adequate pretrial motions, represented [Petitioner] appropriately at the suppression hearing and assisted in negotiating a favorable plea bargain for [Petitioner]." (Id.) The Appellate Division denied Petitioner's application for leave to appeal There is no reason to conclude that these state court decisions were contrary to, or an unreasonable application of, clearly established Supreme Court law.
As an initial matter, any claims regarding Petitioner's attorney's performance—other than those relating to his guilty plea—relate to matters preceding his decision to plead guilty and are, therefore, rendered moot by his guilty plea See Tollett, 411 U.S. at 267, 93 S.Ct. at 1608; United States v. Tones, 129 F.3d 710, 715 (2d Cir. 1997); Arango, 966 F.2d at 66.
Moreover, even after the inconsistency was drawn to the trial court's attention, the court concluded that it was of no "particular moment to this Court," and that "[Deshazo] was clear that he recovered drugs from the pocket and somebody's left side could be somebody's right side, as far as I am concerned. I don't see the importance of that." (H. at 92.) Indeed, as the court stated on the record, Petitioner already conceded in his grand jury testimony that he did not dispute the fact that Deshazo found crack cocaine in his pocket (See id. at 81.) The key issue in the state court's view was not so much the location of the jacket pocket, but whether the jacket, in fact, belonged to Petitioner (See id.) Hence, even if counsel had cross-examined Deshazo with his prior inconsistent statements about the specific location of the jacket pocket, this would not have altered the outcome of the suppression hearing
Accordingly, Petitioner fails to satisfy either prong of the Strickland test with respect to this claim.
Petitioner further faults his attorney for allowing him to plead guilty, even though the evidence against him was false In particular, Petitioner contends that his lawyer provided him with inadequate information concerning his case and "coerced" him to plead guilty by insisting that he would most likely be convicted at a bench trial The Appellate Division rejected this claim, holding that Petitioner's "arguments concerning his motion to withdraw his plea, including his constitutional claims, are without merit," O'Kane, 55 A.D.3d at 316, 865 N.Y.S.2d at 62. The New York Court of Appeals denied Petitioner's leave application There is no basis to conclude that either decision was contrary, to, or an unreasonable application of, clearly established Supreme Court law.
To start, although Petitioner claims that his counsel did not provide him with an opportunity to review the grand jury minutes and police statements prior to trial, as the prosecutor stated on the record, copies of these documents had been provided to Petitioner's attorney, and Petitioner's attorney confirmed that Petitioner had every opportunity to view them with him, and that they "went over everything." (See S. at 18, 20.)
In addition, there is no merit to Petitioner's claim that he was "coerced" by his attorney into pleading guilty. Merely being advised of the likely outcome of his trial—conviction—does not constitute coercion. Moreover, given the substantial evidence against him, and the possibility of a lengthy prison sentence, his plea constituted a fair bargain, which was the product of "extended negotiations," and it was entirely reasonable for his attorney to suggest that he plead guilty according to its terms Indeed, as the 440 court itself noted "In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel." (440 Decision) (citation omitted) (emphasis added).
In particular, if convicted, Petitioner—a five-time predicate felon with a 25-year criminal history—faced a sentence of from 8 1/3 to 25 years on the 2004 drug possession charge, as well as the possibility of a consecutive sentence of up to that same amount of time on his pending 1999 drug sale charge. See Penal Law §§ 70.00(2), 70.06(3)(b). After extensive discussions with his attorney, however, Petitioner pled guilty to the lesser charge of fourth-degree criminal possession in exchange for a promised sentence of from 3 to 6 years in prison—to be served concurrently with a sentence of from 2 ½ to 5 years upon his pleading guilty to the 1999 drug sale charge. Petitioner did not waive his right to appeal as a condition of either plea.
Thus, although Petitioner contends that he pled guilty to the 2004 drug possession charge only because his attorney informed him that he would likely be convicted at a bench trial and receive a sentence higher than from 3 to 6 years, in light of his failed suppression motion, as well as the lengthy prison sentence that he risked in proceeding to trial, his lawyer's advice that he accept the guilty plea constitutes, in this Court's view, not coercion, but rational advice.
Moreover, throughout the pretrial proceedings, the state court repeatedly reminded Petitioner that the decision to plead guilty was entirely "up to" him and explained to Petitioner that if he did not plead guilty, he would be "tak[ing] a chance" and "roll[ing] the dice," as his sentence could be "at least 4 ½ to 9 [years]"—if not "higher"—if he were found guilty at trial. (See H. at 77-81.) In other words, Petitioner's guilty plea was entered voluntarily, and with a full understanding of the "risks" associated with pleading not guilty. (See id. at 82.)
Accordingly, for all the reasons given, Petitioner's claim of ineffective assistance of counsel is meatless and should be dismissed.
For the reasons set forth above, this Court respectfully recommends that Petitioner's request for habeas relief be denied and that this action be dismissed with prejudice Further, because Petitioner has not made a substantial showing of the denial of a federal right, the Court recommends that no certificate of appealability be issued. See 28 U.S.C. § 2253(c)(2), Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). The Court further recommends that the Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from its order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 920-21, 8 L.Ed.2d 21 (1962).
All Citations.
Not Reported in F.Supp.2d, 2011 WL 3809945.
Reginald B. Parrish, Stonily NY, Pro se Petitioner.
John James Sergi, Esq., Westchester County District Attorney's Office, White Plains, NY, Counsel for Respondent.
KENNETH M. KARAS, District Judge.
On December 22, 2004, sixteen-year-old Robert Roderick, Jr. was abducted by four men, who took him to the Yonkers waterfront, and slit his throat. (See Mem. of Law ("Resp.'s Mem.") 2 (Dkt. No. 19), Resp.'s Mem, Ex 3 (Aff. in Opp'n) 2 (Dkt. No. 34).)
Yonkers Police Department Detective Victor Mendez was assigned to investigate the assault. (Resp's Mem Ex 7 (Decision & Order) 1.) On January 25, 2005, Detective Mendez went to a private residence where he spoke to a woman who told him that Petitioner was not home. (Id. at 2.) On the same day, Detective Mendez went to 170 or 172 South Broadway, Yonkers, NY, "based upon information he had been given that [Petitioner's] girlfriend ... lived at this address," but he "did not find anyone there by that name." (Id. at 2-3.) Detective Mendez returned to the first residence on January 28, 2005 and February 12, 2005, but did not find Petitioner (See id. at 3.)
On April 20, 2005, a felony complaint was filed against Petitioner, (id.), and on April 27, 2005, Police Officer Mark Carozza received an arrest warrant for Petitioner, (see id. at 5, 7). Officer Carozza logged the information about Petitioner into the Yonkers Police Department's computer system, which is linked to nationwide and statewide law enforcement databases. (Id.) On May II, 2005, June 7, 2005, and June 22, 2005, the Yonkers Police Department's warrant squad returned to 4 Waring Row, Petitioner's last known address, but there was no answer (Id. at 8) On October 4, 2005, the warrant squad returned to the location and spoke with a woman identified as Petitioner's mother, who said that she was unaware of her son's whereabouts. (Id.) Members of the warrant squad returned to 4 Waring Row on January 11, 2006, and again spoke with the woman who stated she did not know her son's whereabouts but would call them when she had such information (Id.) On April 24, 2006, Petitioner was placed on the Yonkers Police Department's "Most Wanted" website. (Id.) On June 29, 2006, the warrant squad received information that Petitioner had been arrested in Jacksonville, Florida, and finally was extradited to Westchester County on July 12, 2006 (Id.) Petitioner was arraigned on July 13, 2006 (Resp.'s Mem. Ex. 3 (Suppl. Aff. in Opp'n) 2-3.)
On May 3, 2007, Petitioner was convicted by a jury of attempted murder in the second degree, gang assault in the first degree, and two counts of assault in the first degree. People v. Parrish, 898 N.Y.S.2d 551, 552 (App. Div. 2010). He was sentenced as a second felony offender to concurrent determinate terms of imprisonment of 22 years for attempted murder, 20 years on each of the remaining charges, to be followed by a term of five years of supervised release. (See Resp.'s Mem Ex. 9 (Decision & Order) 1.)
Before trial, Petitioner sought relief from the trial court, including dismissal of the Indictment for a violation to his right to a speedy trial (See Resp's Mem. Ex. 2 (Motion), at 2 (moving for an "ORDER pursuant to C.P.L., 30.20 and 30.30 dismissing the indictment on the grounds that the defendant has been denied his right to a speedy trial").) The trial court conducted a five-day hearing on that motion, as well as the other pending pre-trial matters, after which the judge concluded that dismissal was not warranted. (See Resp's Ex, 4 (Decision & Order), at 3 (ordering a hearing on the speedy trial issue), Tr. of Hearings Before Trial (Indictment No. 485-2005) (Feb. 8, 2007, Feb. 9, 2007, Feb. 15, 2007, Feb. 27, 2007, Feb. 28, 2007), Resp.'s Mem. Ex. 7 (Decision & Order), at 1, 20-21 (ruling that the pre-arrest delay "was not so unreasonable as to establish a violation of [Petitioner's] constitutional right to a speedy trial" and that, with respect to his state speedy trial claim, "427 days of the approximate 13-month delay from ... April 20, 2005 to July 12, 2006 was due to [Petitioner's] absence" and that "the Yonkers Police Department made diligent efforts to locate him during that period," that "he was not incarcerated during this period," and that Petitioner made no "claim of resultant prejudice).) During trial, Petitioner also objected to the portion of the jury charge dealing with consciousness of guilt. (Resp.'s Mem. Ex. 10 (Pet'r's Appellate Brief), at 17; Trial Tr. at 614-20 (Indictment No. 485/05).)
Petitioner appealed his conviction to the Appellate Division, Second Department on the following grounds (1) "the evidence was legally insufficient to support [P]etthoner's conviction and the verdict was against the weight of the evidence," (2) "[P]etitioner was denied a fair trial because the trial court erroneously instructed the jury with regard to avoidance of arrest (flight) and consciousness of guilt," and (3) "the trial court erroneously denied [P]etitioner's speedy trial motion to dismiss the indictment.' (R & R 3 (Dkt. No. 23); see also Resp's Mem. Ex. 10 (Pet'r's Appellate Brief).) Petitioner's conviction was affirmed on the merits on March 2, 2010. See People v. Parrish, 898 N.Y.S.2d 551, 552 (App. Div. 2010).
On March 30, 2010, Petitioner sought leave to appeal to the New York Court of Appeals. (See Resp.'s Mem. Ex. 13, at 1.) This leave application will be discussed in detail below. The New York Court of Appeals denied Petitioner's application for leave to appeal on May 26, 2010 See People v. Parish, 929 N.E.2d 1014 (N.Y. 2010).
Judge Yanthis recommended that the Court deny the Petition in its entirety, (R & R 14.) He recommended that the Court deny the first two claims—the insufficient evidence claim and the jury charge claim—as unexhausted but procedurally barred, (id. 5-7), and that the Court deny the third claim—the speedy trial claim—on the merits, (id. 9-14). With respect to the speedy trial claim, Judge Yanthis found that the length of the delay, the reason for the delay, and Petitioner's assertion of his right to a speedy trial weighed in favor of Petitioner, however, he held that because there was no prejudice, the state court's holding that Petitioners speedy trial right was not violated was not erroneous or unreasonable, (Id. 9-14,)
Petitioner objected to Judge Yanthis's recommendations on all three claims. (See Pet'r's Objs. to R & R ("Pet'r's Objs.") (Dkt. No. 28).) As for the Speedy Trial claim, Petitioner disagreed with the R & R on the merits (See id. at unnumbered 6-11.) Petitioner also objected to Judge Yanthis's recommendation that the Court find the insufficiency of the evidence claim and the jury instruction claim to be procedurally barred. (See id. at unnumbered 11-12.) Petitioner appeared to argue that these claims were exhausted because Petitioner included his brief to the Appellate Division Saying out these claims in his application for leave to appeal to the Court of Appeals. (Id. at unnumbered 12.) Additionally, Petitioner claimed that such a ruling would be unfair and would violate Due Process, (Id.) Finally, Petitioner argued that such a decision would amount to a "miscarriage of [j]ustice to say the least" (Id. (internal quotation marks omitted).)
Respondent also objected to Judge Yanthis's recommendations regarding Petitioner's constitutional speedy trial claim on two grounds, one procedural and one on the merits First, Respondent asserted that this claim was never exhausted because it was not properly raised in Petitioners leave application to the New York Court of Appeals, (Letter from John M. Collins, Assistant District Attorney, to Court ("Resp's Obis.") at unnumbered 1-2 (Dkt. No. 27).) In particular, Respondent argued that this claim was not raised to the New York Court of Appeals because Petitioner's leave application did not allege a violation of his federal constitutional speedy trial right, instead focusing on his state speedy trial right, and because his brief to the Appellate Division, which was appended to his leave application, includes only one sentence on the constitutional claim (Id.) Second, while Respondent agreed with the ultimate outcome recommended by Judge Yanthis, he objected to some of Judge Yanthis's analysis on the merits of Petitioner's speedy trial claim. (Id. at unnumbered 2.) In particular, Respondent objected to Judge Yanthis's determination that the "reason for the delay" factor from Barker v. Wingo, 407 U.S. 514 (1972), pointed in Petitioner's favor (Id.) Respondent urged the Court to instead find that the police used due diligence to find Petitioner, and therefore that this Barker factor also points to Petitioner's speedy trial right not being violated (Id.)
Where a party timely submits objections to a report and recommendation, as Petitioner and Respondent have done here, the district court reviews de novo the parts of the report and recommendation to which the party objected. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). When evaluating a magistrate judge's report and recommendation, "[a] district court...may adopt those portions of the report [and recommendation] to which no `specific, written objection' is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law Adams v. N. Y. State Dept of Educ, 855 F.Supp.2d 205, 206 (S.D.N.Y. 2012) (quoting Fed. R. P. 72(b)(2)), aff'd sub nom. Hochstadt v. N.Y. State Edw. Dep't, 547 Fed.Appx 9 (2d Cir. 2013). Here, Petitioner made specific written objections to Judge Yanthis's recommendations with respect to all three claims, and Respondent objected to Judge Yanthis's recommendations with respect to the Speedy Trial claim, (See generally Pet'r's Obis; Resp.'s Objs.) Therefore, the Court will review all three of Petitioner's claims de novo.
Petitions for habeas corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which provides that, where the decision was not based on an unreasonable determination of the facts, a habeas petition "shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law." 28 U.S.C. § 2254(d) (1). In this context, "it is the habeas applicant's burden to show that the state court applied [federal law] to the facts of his case in an objectively unreasonable manner" See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) "[A]n unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002); see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) ("The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold.") Section 2254(d) "reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal," Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (internal quotation marks omitted). Consequently, a federal court must deny a habeas petition in some circumstances even if the court would have reached a conclusion different than the one reached by the state court, because "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102; see also Cullen v. Pinholster, 131 S.Ct. 1388, 1411 (2011) ("Even if the [federal] Court of Appeals might have reached a different conclusion as an initial matter, it was not an unreasonable application of our precedent for the California Supreme Court to conclude that [the petitioner] did not establish prejudice."); Hawthorne v. Schneiderman, 695 F.3d 192, 197 (2d Cir. 2012) ("Although we might not have decided the issue in the way that the [New York State] Appellate Division did—and indeed we are troubled by the outcome we are constrained to reach&mdash:we .... must defer to the determination made by the state court (emphasis added) (citation omitted)),
"Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citation and internal quotation marks omitted); see also 28 U.S.C. § 2254(b)(1)(A) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that...the applicant has exhausted the remedies available in the courts of the State ...."). Accordingly, "the prisoner must fairly present his claim in each appropriate slate court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Baldwin, 541 U.S. at 29 (internal quotation marks omitted), see also 28 U.S.C. § 2254(c) ("An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."). This requirement reflects "notions of comity between the federal and State judicial systems," Strogov v. Att'y Gen. of N.Y., 191 F.3d 188, 191 (2d Cir. 1999).
There are two components to the exhaustion requirement. See McCray v. Bennet, Mo. 02-CV-839, 2005 WL 3182051, at *7 (S.D.N.Y. Nov. 22, 2005) ("A two-step analysis is used to determine whether a claim has been exhausted ...."). "First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts." Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981), overruled on other grounds by Daye v. Att'y, Gen. of N.Y., 696 F.2d 186 (2d Cir. 1982); see also tuner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (same); Oliver v. Kirkpatrick, No. 06-CV-6050, 2012 WL 3113146, at *5 (E.D.N.Y. July 31, 2012) (same) This requirement is satisfied if the claim is presented in a way that is "likely to alert the court to the claim's federal nature," Dare, 696 F.2d at 192, and the state courts are "apprised of both the factual and the legal premises of the claim [the petitioner] asserts in federal court," Jones v. Lacco, 126 F.3d 408, 413 (2d Cir. 1997) (alteration in original) (internal quotation marks omitted); see also Bermudez v. Conway, No. 09-CV-1515, 2012 WL 3779211, at *8 (E.D.N.Y. Aug. 30, 2012) (same). In other words, a state prisoner need not cite "chapter and verse of the Constitution" to satisfy this requirement. Daye, 696 F.2d at 194. However, it is "not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made." Anderson v. Hatless, 459 U.S. 4, 6 (1982) (citations omitted). Rather, the claims must be made in such a way so as to give the state courts a "fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim." Id. (internal quotation marks omitted).
see also O'Kane v. Kirkpatrick, No. 09-CV-5167, 2011 WL 3809945, at *7 (S.D.N.Y. Feb 15, 2011) ("Under New York law, all claims that are record-based must be raised in a direct appeal ... It is only when a defendant's claim hinges upon facts outside the trial record, that he may collaterally attack his conviction by bringing a claim under CPL § 440.10."), adopted by 2011 WL 3918158 (S.D.N.Y. Aug. 25, 2011). In addition, New York permits only one application for direct review. See N.Y. Court Rules § 500.20(a)(2); Jimenez v. Walker, 458 F.3d 130, 149 (2d Cir. 2006) ("[The petitioner] has already taken his one direct appeal [under New York law] ..."). "New York procedural rules bar its state courts from hearing either claims that could have been raised on direct appeal but were not, or claims that were initially raised on appeal but were not presented to the Court of Appeals." Sparks, 2012 WL 4479250, at *4. Accordingly, in these situations a petitioner no longer has any available state court remedy, and the unexhausted claims are therefore deemed exhausted, but procedurally barred. See Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) ("If a habeas applicant fails to exhaust state remedies by failing to adequately present his federal claim to the state courts so that the state courts would deem the claim procedurally barred, we must deem the claim procedurally defaulted.' (alteration and internal quotation marks omitted)), see also Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001) (noting the reality that deeming an unpresented claim to be exhausted is "cold comfort"). A dismissal of a habeas petition on such grounds is a "disposition ... on the merits." Aparicio, 269 F.3d at 90.
"An applicant seeking habeas relief may escape dismissal on the merits of a procedurally defaulted claim only by demonstrating `cause for the default and prejudice' or by showing that he is `actually innocent' of the crime for which he was convicted." Carvajal, 633 F.3d at 104 (quoting Aparicio, 269 F.3d at 90); see also Dretke v. Haley, 541 U.S. 386, 388 (2004) ("[A] federal court will not entertain a procedurally defaulted constitutional claim in a petition for habeas corpus absent a showing of cause and prejudice to excuse the default," or a showing that the petitioner "is actually innocent of the underlying offense ...."); Harris v. Reed, 489 U.S. 255, 263 n.9 (1989) ("[A] federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state cote would hold the claim procedurally barred."), Acosta v. Arluz, 575 F.3d 177, 188 (2d Cir. 2009) (holding that, because the petitioner could not "present his unexhausted claim of trial error to the state courts, ... the claim [was deemed] procedurally barred" O'Kane, 2011 WL 3809945, at *6, *8 (holding that habeas claims were deemed exhausted but nonetheless procedurally barred under New York law because petitioner had failed to raise the claims in his direct appeal).
Because the exhaustion analysis is the same for Petitioner's sufficiency and jury instruction claims, the Court will consider these two claims together. In order to exhaust his state court remedies, Petitioner was required to raise these claims in his leave application to the New York Court of Appeals. See O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (dismissing as procedurally defaulted three claims that petitioner "pressed before the Appellate Court of Illinois," but failed to "include[ ] in his petition for leave to appeal to the Illinois Supreme Court"), see also Aparicro, 269 F.3d at 89-90 ("To satisfy § 2254's exhaustion requirement, a petitioner must present the substance of the same federal constitutional claim[s] that he now urges upon the federal courts to the highest court in the pertinent state (alteration in original) (citation and internal quotation marks omitted)). Petitioner failed to do so here.
Petitioner also attached to his leave application a copy of his Brief to the Appellate Division, Respondent's Brief to the Appellate Division, and the Appellate Division's ruling on his appeal (See Id. at 1, Pefr's Objs at unnumbered 12.) But in his leave application, Petitioner noted, "One issue of law, preserved in the trial court and raised by the appellant in the intermediate appellate court [which] will be stressed [i]n this application[,] ... was [whether] the appellant's right to a Speedy Trial was violated." (Resp.'s Mem. Ex. 13, at 1-2) Additionally, in his leave application Petitioner requested "that the appellant be given the opportunity to present these and other pertinent arguments to the Court of Appeals." (Id. at 4.) This statement came at the end of three pages of arguments solely concerning Petitioner's state statutory speedy trial rights. In response to Petitioner's leave application, Respondent wrote a letter that addressed only Petitioner's state speedy trial rights, and then stated, "For the reasons set forth above and those in respondent's brief filed below, defendant's application for a further appeal should be denied." (See generally Resp's Mem. Ex. 14.) In his objections to the R & R, Petitioner seizes on the fact that his application for leave to appeal included his Appellate Division brief, and argues that it would be inappropriate to find that because Petitioner's counsel highlighted one argument contained in that brief—the state speedy trial claim —that the other claims were not presented to the Court of Appeals (Pet'r's Objs. at unnumbered 12.)
The case law does not support Petitioner's position In a case very similar to this one, the Second Circuit held in Grey v. Hoke, 933 F.2d 117 (2d Cir. 1991), that arguing one claim in an application for leave to appeal to the Court of Appeals and then appending a brief submitted to a lower court that contained the identified claim, as well as several others, did not fairly present the non-argued claims to the Court of Appeals See id. at 120 The Second Circuit reasoned.
Id. (citations and internal quotation marks omitted) Grey led to two lines of cases, one beginning with Morgan v. Bennett, 204 F.3d 360 (2d Cir. 2000), and the other with Jordan v. Lefevre, 206 F.3d 396 (2d Cir. 2000).
The import of Morgan is that to preserve any claims made to intermediate appellate courts, a petitioner need only state in a reasonably clear fashion that he intends to press those claims. That the leave application might emphasize one of those claims will not be deemed to have abandoned the other claims, as long as it is made explicit to the Court of Appeals that he intends to press all of them For example, in Galdame: v. Keane, the petitioner did not "specify particular claims in his application for leave to appeal, but simply enclosed a copy of the Appellate Division's decision affirming the conviction, and stated that the appellant... request[ed] leave to appeal to this [c]ourt[,] ... [and] later provided the briefs that he had submitted to the Appellate Division." Galdamez, 394 F.3d at 75 (alterations and internal quotation marks omitted). The Second Circuit held that the petitioner had exhausted his claims because, even though the leave application did not specifically request review of all issues, it nonetheless "reasonably could be construed only as a request for further appellate review of all issues in the attached briefs ..." Id. at 76-77. in so holding, the Second Circuit noted in particular that "[s]ubmitting appellate briefs with a terse letter requesting leave to appeal does not communicate to the Court of Appeals that it should focus on some claims to the exclusion of others." Id. at 76 Consistent with this line of cases, in Gajadhar v. Ercole, No. 09-CV-1964, 2010 WL 3036498 (S.D.N.Y. Aug. 4, 2010), a court in this district held that a petitioner exhausted his claims contained in an appended brief where his leave application focused on one issue but a footnote in his application explicitly stated that the petitioner sought leave to appeal the issues raised in the appended briefs and then specifically identified all of the issues raised in the briefs. Id. at *3.
On the other hand, the Second Circuit and district courts within the Second Circuit have held that appending briefs does not fairly apprise the New York Court of Appeals of claims within those briefs if the leave application focuses only on one claim and nothing explicit is said about preserving the other claims. In Jordan, the petitioner's application for leave to appeal to the Court of Appeals "forcefully argued" one claim, a Batson claim, and then asked "that he be given permission to appeal for all of these reasons and the reasons set forth in his Appellate Division Briefs." 206 F.3d at 198 (alterations and internal quotation marks omitted) In holding that this was insufficient to exhaust the claims contained in the brief other than the Batson claim, the Second Circuit reasoned as follows:
Following Jordan, lower courts in the Second Circuit have held that claims not explicitly preserved in a leave application are unexhausted even where some reference is made to their presentation to the Appellate Division See, e.g., Chung v. Filion, No. 03-CV-1913, 2007 WL 749725, at *3 (E.D.N.Y. Mar. 7, 2007) (holding that the petitioner did not present ineffective assistance and sufficiency of the evidence claims to the Court of Appeals where he submitted his brief to the Appellate Division, and wrote a letter noting that "`[o]n appeal, appellant raised several points, including the claim that he was denied effective assistance of trial counsel and that the evidence was insufficient' to support a conviction, but then proceeded to argue only that the trial court improperly denied suppression" (alteration in original)), Fabricio Arms, No. 06-CV-2049, 2007 WL 119462, at *3-4 (S.D.N.Y. Jan. 11, 2007) (holding that a petitioner's Confrontation Clause claim was unexhausted where he argued other claims explicitly in his leave application to the Court of Appeals, enclosed the parties' briefs to the Appellate Division, and stated that `"[i]n support of this application, [the petitioner] also relies on the briefs he submitted to the Appellate Division'" (first alteration in original)), adopted by 2009 WL 928039 (S.D.N.Y. Mar. 12, 2009); Lopez v. Fischer, No. 05-CV-2558, 2006 WL 2996548, at *5-6 (S.D.N.Y. Oct. 16, 2006) (holding that the petitioner's second, third, and fourth claims were unexhausted where his leave application argued his first claim and contained a footnote describing the petitioner's arguments below, but did not ask the Court of Appeals to review those claims); Jamison v. Berbcay, No. 01-CV-5547, 2002 WL 1000283, at *15-19 (S.D.N.Y. May 15, 2002) (report and recommendation) (holding one of the petitioner's claims unexhausted where he argued certain claims at length and, with regard to the unexhausted claim, stated only, `"In sum, for the reasons set forth above and in [the petitioner's] briefs submitted along with this letter application, this [c]ourt should grant leave to appeal on each and every claim raised'").
The Second Circuit has described the line between Moigan and Jordan as follows:
Ramirez v. Attorney Gen., 280 F.3d 87, 97 (2d Cir. 2001) (alteration in original). The instant case falls on the Jordan side of the line Petitioner did not merely attach his Appellate Division brief, nor did he explicitly seek review of "all issues" contained in the appended brief, see Morgan, 204 F.3d at 370-71; Gajadhar, 2010 WL 3036498, at *3. Moreover, Petitioner made no explicit reference to his sufficiency of evidence or jury charge claims in his leave application, and, as in Jordan, Petitioner's reference to "other pertinent arguments," which followed a long discussion of one claim —the state statutory speedy trial claim—appeared to be a reference to other state speedy trial-related arguments raised in his brief See Galdamez, 394 F.3d at 74-75 (describing Jordan and noting, in particular, that the "letter's concluding language might as easily have been a reference to additional reasons for reviewing the Batson claim as an incorporation of other, different claims asserted in the lower court" (internal quotation marks omitted)). Similarly, the statement at the beginning of Petitioner's leave application that the application addressed "[o]ne issue of law ...[that] will be stressed [i]n this application' is insufficient to give notice to the Court of Appeals that Petitioner intended to raise all of the claims contained in the appellate briefs (Resp.'s Mem. Ex, 13, at 1.) Deciding otherwise would be to require the New York Court of Appeals to "look for a needle in a paper haystack." Grey, 933 F.2d at 120 (internal quotation marks omitted). Therefore, the Court concludes that Petitioner did not exhaust his sufficiency of the evidence and July charge arguments in state court
As noted, "before a federal court can consider a habeas application brought by a state prisoner, the habeas applicant must exhaust all of his state remedies." Carvajal, 633 F.3d at 104, see also 28 U.S.C. § 2254(b)(1)(A) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that... the applicant has exhausted the remedies available in the courts of the State" where a state corrective process sufficient to protect the rights of the applicant is available). Before AEDPA came into effect, "a state was normally obligated to raise and preserve the procedural default defense," but "[a]t the same time, it was clear that a federal appellate court was not obligated to regard the prosecution's omission of the defense as an absolute waiver of the claim." Carvajal, 633 F.3d at 105 (alterations and internal quotation marks omitted) (citing Rest v. Cain, 522 U.S. 87, 89 (1997), Granberry v. Greer, 481 U.S. 129, 133 (1987)) However, under AEDPA, "[a] State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement" 28 U.S.C. § 2254(b)(3). Accordingly, the Second Circuit has held, "when a state's procedural default argument is predicated on a habeas applicant's failure to exhaust (as is the case here)," the Court "may consider such an argument for the first time on appeal unless it was expressly waived in the district court. This is a stringent requirement. Waiver by nature must be knowing and intentional, express waiver would seem to require that these features be made manifest" Carvajal, 633 F.3d at 105 (citation omitted).
Here, Respondent made no statement regarding exhaustion of the speedy trial claim in his initial opposition to the Petition, and raised the issue for the first time in his objections to the R R Therefore, there was no express or intentional waiver See Lurie v. Witmer, 228 F.3d 113, 123 (2d Cir. 2000) (holding that even a statement by the state's counsel that the petitioner "also made these arguments He did make these arguments in the Appellate Division" did not constitute an express waiver of the exhaustion claim (italics omitted)) Respondent has not identified any case where a state raised an exhaustion argument for the first time in objections to a magistrate judges R & R. However, the Court finds the reasoning in Carvajal to be persuasive in this case, and by analogy holds that because Respondent did not waive the exhaustion argument, the Court may consider it despite the fact that it was not raised before the magistrate judge.
New York protects a defendant's speedy trial rights in two ways. The first, codified in N.Y.C.P.L. § 30.30, addresses how much time may elapse between the commencement of a criminal action and when the case is trial ready As applied to this case, § 30.30 provides that the indictment is to be dismissed if, after six months of the commencement of the criminal action, the prosecution was not ready for trial N.Y. Crim. Proc. Law § 30.30. When calculating the six months, time is excluded for a number of reasons, including time during which the defendants "location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence," and time during which the defendants "location is known but his presence for trial cannot be obtained by due diligence." Id. § 30.30(4)(c)(i) This provision is purely a creature of New York state statute and does not protect a federal constitutional right. See Gibriano v. Attorney Gen., 965 F.Supp. 489, 492 (S.D.N.Y. 1997) ("Section 30.30 is a statutory time frame in which the People of the State of New York must be ready for trial." (internal quotation marks omitted)); see also Caddilla v. Johnson, 119 F.Supp.2d 366, 374 (S.D.N.Y. 2000) ("Because C.P.L. § 30.30 is merely a state law provision requiring the prosecution to be ready for trial, a § 30.30 claim does not raise a federal constitutional claim."). Therefore, a § 30.30 claim is not cognizable in a federal habeas case. See Dowling v. Fisher, No. 11-CV-2025, 2014 WL 3611645, at *4 (E.D.N.Y. July 22, 2014); Cox v. Bradt, No. 10-CV-9175, 2012 WL 2282508, at *25 (S.D.N.Y. June 15, 2012) (report and recommendation); Smith v. LaClair, No. 04-CV-4356, 2008 WL 728653, at *3 (S.D.N.Y. Mar. 17, 2008).
Courts in the Second Circuit have held that raising a N.Y. C.P.L. § 30.30 claim in state court does not exhaust a federal constitutional speedy trial clam See, e.g., Smith v. LaClair, No. 04-CV-4356, 2008 WL 728653, at *3 (S.D.N.Y. Mar 17, 2008) ("Because C.P.L. § 30.30 is merely a state law provision requiring the prosecution to be ready for trial, a § 30.30 claim does not raise a federal constitutional claim." (internal quotation marks omitted)); Edwards v. Mazzuca, No. 00-CV-2290, 2007 WL 2994449, at *13 (S.D.N.Y. Oct. 15, 2007) ("[A] CPL § 30.30 claim is not the equivalent of a federal constitutional speedy trial claim made pursuant to the Sixth and Fourteenth Amendments; therefore, it cannot be reviewed in a federal habeas corpus proceeding."); Delvalle v. Sabourm, No. 00-CV-3302, 2002 WL 1000968, at *3 (S.D.N.Y. May 16, 2002) ("In his direct appeal in state court, [the petitioner] asserted a speedy trial claim citing N.Y. Cram. Proc. Law § 30.30, but making no mention whatsoever of the United States Constitution. It is well settled that a petitioner who raises only a statutory speedy trial claim pursuant to N.Y. Crim, Proc. Law § 30.30 has not invoked the federal constitution and therefore has not exhausted a federal claim"); Gibnano, 965 F. Supp. at 492 ("[W]hen the petitioner twice raised his statutory speedy trial claim in the state court under Section 30.30, he did not effectively present to those courts the federal constitutional speedy trial claim that he raises now in this court" (internal quotation marks omitted)). By contrast, because N.Y.C.P.L. § 30.20 embodies the federal constitutional speedy trial right, raising that claim in state court can exhaust a federal constitutional speedy trial claim Cf. Mills v. Lempke, No. 11-CV-440, 2013 WL 435477, at *51 (W.D.N.Y. Feb. 4, 2013) ("[The petitioner] did not cite CPL § 30.20, the section of the statute that embodies the Sixth Amendment's constitutional guarantee to a speedy trial Thus, [he] did not properly assert his constitutional right to a speedy trial at that point." (citation omitted)); Woodard v. Berry, No. 90-CV-1053, 1992 WL 106508, at *2 (E.D.N.Y. Apr. 24, 1992) ("[B]ecause the petitioner presented his `speedy trial' claim in the state courts only as a claim under Section 30.30—rather than as a claim under the Sixth Amendment to the federal Constitution or as a claim under Section 30.20—he did not give the state courts a `fair opportunity' to consider the federal question he now presents to this court,").
Respondent argues that, like his weight of the evidence claim and his July instruction claim, Petitioner's federal constitutional speedy trial claim is actually unexhausted but should be deemed exhausted and procedurally barred. (See Resp.'s Objs. 1-2.) In particular, Respondent argues that Petitioner "failed to exhaust this issue since he never asserted his federal Speedy Trial Claim to the New York Court of Appeals." (Id. at 1.) According to Respondent, in his application for leave, Petitioner "narrowed his claim to assert a violation under New York Criminal Procedure Law 30.30 only." (Id.) According to Respondent, the principal case cited by Petitioner in his application for leave referred only to § 30.30. (See id.) Furthermore, "[n]owhere in this leave application [did] [P]etitioner mention his constitutional right to a speedy trial nor [did] he refer to any federal caselaw in support of this claim." (Id.) For that reason, Respondent argues that this third claim is also unexhausted. (Id. at 2.) The Court agrees.
Daye, 696 F.2d at 194; see also Carvajal, 633 F.3d at 104 (same); Babcock v. Heath, No. 11-CV-4631, 2014 WL 4979448, at *9 (S.D.N.Y. Oct. 3, 2014) (same); Stanley v. Smith, No. 12-CV-6362, 2014 WL 5039444, at *10 (S.D.N.Y. Sept. 26, 2014) (same).
The first issue the Court will address is whether Petitioner clearly asserted a federal claim to the Court of Appeals. Petitioners application for leave to appeal focused on his claim pursuant to N.Y.C.P.L. § 30.30. (Resp.'s Mem. Ex 13, at 2-4.) Nowhere in Petitioner's leave application did he so much as reference the Constitution, a federal constitutional speedy trial claim, or N.Y.C.P.L. § 30.20. (See generally Id.) Instead, he refereed only to § 30.30, the state statutory provision (See id. at 2.) As discussed above, petitioner did append his brief to the appellate division (See id. at 1.) That brief, which may not have even contained enough constitutional references to properly raise Petitioner's federal claim to the Appellate Division, is insufficient to alert the Court of Appeals to his federal claim. In his appeal to the Appellate Division, Petitioner's speedy trial arguments focused on his state statutory claims and made only passing references to the U.S. Constitution In his argument about his speedy trial rights, which comes under the heading "INASMUCH AS THE PEOPLE DID NOT EXERT THE TYPE OF `CREDIBLE, VIGOROUS ACTIVITY' REQUIRED BY CASE LAW IN DEFINING THE TERM `DUE DILIGENCE' THE COURT BELOW ERRED WHEN IT DENIED DEFENDANT'S SPEEDY TRIAL MOTION BROUGHT PURSUANT TO CPL 30.30 TO
Expecting the Court of Appeals to read this leave application, which does not specifically alert the court to other claims, then pour over his 41-page appellate brief and find a two-sentence reference to his constitutional speedy trial rights would be requiring the Court of Appeals to look "for a needle in a paper haystack." Grey, 933 F.2d at 120 (internal quotation marks omitted). The law requires more to preserve a federal constitutional claim See Calderon v. Perez, No. 10-CV-2562, 2011 WL 293709, at *18 n. 29 (S.D.N.Y. Jan. 28, 2011) ("[I]n his reply brief before the First Department, [the petitioner] made passing references to his federal speedy trial right, but argued only under N.Y.C.P.L. § 30.30 speedy trial provisions and employed only state cases and state law analysis Such references, without more, are insufficient to exhaust [his] federal speedy trial claim." (citation omitted)), adopted by 2011 WL 1405029 (S.D.N.Y. Apr. 5, 2011); Yampierre v. Phillips, No. 05-CV-2249, 2010 WL 744526, at *10 (E.D.N.Y. Mar, 1, 2010) (noting that the Second Circuit has not addressed whether passing reference is sufficient for exhaustion in the Sixth Amendment context and collecting district court cases holding it was not); Arce v. West, No. 04-CV-6607, 2009 WL 1956175, at *4 (W.D.N.Y. July 6, 2009) ("[T]he vague reference to the `constitutional right to a speedy trial,' without appropriate argument, and with the only argument being under the state statutory speedy trial right of N.Y.C.P.L. § 30.30, was not sufficient to put the state appellate court on notice of the federal constitutional basis of the claim and to exhaust the federal claim."); Holden v. Miller, No. 00-CV-926, 2000 WL 1121551, at *7 (S.D.N.Y. Aug. 8, 2000) (report and recommendation) (noting that the line of cases holding that a passing reference to the Constitution is sufficient has not been extended to speedy trial claims and holding that a "passing reference to the Sixth Amendment should not change the result [and be sufficient to exhaust the claim] where ... the only argument in [the] petitioner's state appellate brief [was] based entirety on the different state statutory CPL § 30.30 speedy trial claim").
Petitioner also could have exhausted his claims through reliance on state cases employing constitutional analysis in like fact situations. See Daye, 696 F.2d at 194 Petitioner described N.Y.C.P.L. § 30.30 as requiring the People to be ready for trial within six months of commencement of the criminal action and only permitting time to be excluded when the defendant is absent or unavailable if the People demonstrate due diligence in locating the defendant. (Resp.'s Mem. Ex. 13, at 2.) The question, according to Petitioner, was whether the police exercised due diligence. (Id.) Petitioner then cited Washington as the New York standard for whether the "minimal attempts that were made to locate [Petitioner] satisfy the due diligence requirement.' (Id.) Petitioner also cited Quiles in support of the proposition that "once a defendant makes a prima facia [sic] showing that the People exceeded the six month period, the burden of proof falls on the People to demonstrate that the delay of greater than six months should be excluded," and for the proposition that "minimal efforts to locate a defendant and secure his presence in court will not satisfy the due diligence standard[.]" (Id.) Finally, Petitioner again cited Washington as establishing that "the People must undertake credible, vigorous activity" to show due diligence. (Id. (internal quotation marks omitted).)
It is evident that Petitioner relied on these two cases merely for their holdings regarding the state statutory speedy trial right, not for any authority on the federal constitutional right to a speedy trial Furthermore, the cited cases do not employ any constitutional analysis In Washington, the New York Court of Appeals in a three-paragraph opinion, which did not cite any case law, solely addressed whether a seven-month delay between indictment and arrest violated the New York statutory speedy trial provision codified in N.Y.C.P.L. § 30.30, or whether the People showed that the case fell under a statutory exception. 372 N.E.2d at 795. In addressing this question, the Washington court engaged in no constitutional analysis In Quiles, the Appellate Division, in another three-paragraph decision, addressed whether due diligence under § 30.30 was satisfied and whether a 1984 amendment to the statutory speedy trial right codified in § 30.30 changed the due diligence requirement. 574 N.Y.S.2d at 188-89 Furthermore, the one case that is cited in Quiles, People v. Jackson, 541 N.Y.S.2d 478 (App. Div. 1989), similarly addressed only the state statutory speedy trial right codified in § 30.30 and did not employ any constitutional analysis. See Jackson, 541 N.Y.S.2d at 478-79. Because Petitioner relied only on state law cases that employ state statutory analysis, his citation of Washington and Quiles did not fairly alert the New York Court of Appeals to his federal constitutional claim and did not exhaust his claim.
The Supreme Court's decision in Barker ... sets forth the four factors that must be considered in analyzing whether a defendant's constitutional right to a speedy trial has been violated: (1) the length of the delay, (2) the reasons for the delay, (3) whether the defendant asserted his right in the run-up to the trial, and (4) whether the defendant was prejudiced by the failure to bring the case to trial more quickly These factors "must be considered together with such other circumstances as may be relevant," and "have no talismanic qualities.' Rather, they require courts to "engage in a difficult and sensitive balancing process."
United States v. Cain, 671 F.3d 271, 296 (2d Cir. 2012) (citations omitted) (quoting Barker, 407 U.S. at 530, 533). As stated above, New York has codified this federal constitutional speedy trial right in N.Y.C.P.L. § 30.20. The analysis conducted by New York courts of § 30.20 claims is substantially similar to the Barker analysis described above. The New York test, as enumerated in People v. Taranovich, 335 N.E.2d 303 (N.Y. 1975), requires consideration of
Id. at 306.
The facts alleged by Petitioner in his leave application to the New York Court of Appeals concerned the People's "efforts at locating [Petitioner.]" (Resp.'s Mem. Ex. 13, at 3.) In addition to cataloging the efforts made (or not made) by the police, Petitioner noted that an arrest warrant was issued on April 20, 2005 and that Petitioner was finally arrested on June 29, 2006 (Id.) Other than that, Petitioner merely argued that the "efforts made by the People to locate [Petitioner] were cursory at best" and that these "perfunctory efforts do not satisfy the due diligence requirement." (Id. at 4.) These factual allegations concern two of the Taranovich factors—the extent of the delay and the reason of the delay—but Petitioner alleged no facts about the nature of the underlying charge, the extent of pretrial incarceration, or prejudice to the defense due to the delay under Taranovich or the Barker factors of whether Petitioner asserted his right in the run-up to the trial or asserted prejudice due to the delay. Because Petitioner did not allege facts concerning several factors of the relevant tests and because the constitutional test requires balancing of all factors, Petitioner's claims cannot be said to have alleged a pattern of facts well within the mainstream of constitutional litigation, but rather alleged facts "not theretofore commonly thought to involve constitutional constraints Daye, 696 F.2d at 193 Therefore, there is "little reason" to believe the Court of Appeals was alerted to the supposed constitutional nature of his speedy trial claim Id.; see also Phillips v. Warden, Clinton Corr. Facility, No. 08-CV-1887, 2010 WL 1189381, at *7 n.5 (E.D.N.Y. Mar 29, 2010) ("[T]he state speedy trial right under § 30.30 is distinct from the federal constitutional speedy trial right and involves a different factual and legal analysis. For this reason, when [the] petitioner raised his statutory speedy trial claim at the appellate level, he did not present a federal claim to those courts"); Vasquez v. Warden of Facility, No. 06-CV-4366, 2008 WL 6653635, at *3 (S.D.N.Y, Sept. 4, 2008) (report and recommendation) ("Although [the petitioner's] appellate attorney raised the speedy trial claim on direct appeal, the claim was based exclusively upon C.P.L. § 30.30 and New York State case law It did not implicate the United States Constitution, Supreme Court cases, or other federal cases."), Maher, 468 F. Supp. 2d at 470 ("[The petitioner's] brief referred only to C.P.L. § 30.30, dealt only with state statutory ready-for-trial issues under C.P.L. § 30.30, and employed only state cases and state law analysis; there is no reference in the table of authorities or in the rest of the brief of to any federal case law or to the federal constitution Clearly, the claim [the petitioner] raised in state court rested solely on state procedural grounds."); Walker v. Bennett, 262 F.Supp.2d 25, 31 (W.D.N.Y. 2003) ("[The petitioner's] appellate brief relying solely on C.P.L. § 30.30 is ... not sufficient to exhaust a federal constitutional speedy trial claim."); Rodriguez v. Miller, No. 96-CV-4723, 1997 WL 599388, at *2 (S.D.N.Y. Sept. 29, 1997) ("[A] CPL section 30.30 claim does not present the state court with the same factual and legal issues as a Sixth Amendment speedy trial claim A Section 30.30 claim focuses on the calculation of certain time periods that should be excluded from the time within which the people must be ready for trial, whereas a Sixth Amendment speedy trial claim focuses on different issues and requires a different presentation.").
Petitioner has not made "the showing necessary to overcome such a bar, namely `cause for the default and actual prejudice as a result of the alleged violation of federal law,' or that `failure to consider [his] claims will result in a fundamental miscamage of justice.'" Acosta, 575 F.3d at 188 (alteration in original) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)); see also Richardson v. Superintendent of Mid-Orange Corr. Facility, 621 F.3d 196, 201-02 (2d Cir. 2010) ("Because [the petitioner] shows no cause for or prejudice from the failure to raise the claim, and failing to consider it will not result in a `fundamental miscarriage of justice,' his claim cannot proceed."), Dhaity v. Warden, 5 F.Supp.3d 215, 224 (D. Conn. 2014) ("If the petitioner can ... show no cause for or prejudice from the failure to raise the claim, and failing to consider it will not result in a `fundamental miscarriage of justice,' his claim cannot proceed.' (some internal quotation marks omitted)).
First, Petitioner has not attempted to show "cause" for his procedural default. (See generally Pet'r's Obis.; Letter from Pet'r to Court (Sept. 9, 2013) (Dkt. No. 29).) In this regard, the Court notes that "[i]gnorance or inadvertence will not constitute `cause.'" Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993). Second, Petitioner has not demonstrated "prejudice." While Petitioner alleges that he suffered prejudice in his objections to the R & R, a close reading shows that what he is addressing is the prejudice he alleges as a result of the alleged violation of his right to a speedy trial, one of the factors to be considered on the merits of such an argument But, he does not "demonstrate that the alleged constitutional error worked to [Ills] `actual and substantial disadvantage.'" Van Stuyvesant v. Conway, No. 03-CV-3856, 2007 WL 2584775, at *15 (S.D.N.Y. Sept. 7, 2007) (emphasis in original) (quoting United Slates v. Frady, 456 U.S. 152, 170 (1982)). Therefore, Petitioner does not succeed in making a showing necessary to overcome the procedural default bar based on cause and prejudice. Petitioner similarly does not succeed in his allegation that a failure to consider his claims "will result in a fundamental miscarriage of justice Acosta, 575 F.3d at 188 (internal quotation marks omitted) Indeed, Petitioner merely makes a bare allegation that it would be unfair for the Court to bar his claims and that declining to consider the constitutional violations he alleges would be a miscarriage of justice. (See Pet'r's Obis at unnumbered 12.) This is insufficient To show that a "fundamental miscarriage of justice" would occur without review requires clear and convincing evidence that "but for a constitutional error, no reasonable juror would have found the petitioner guilty," Washington, 996 F.2d at 3447 (alterations and internal quotation marks omitted) Petitioner provides no evidence that this is the case, let alone clear and convincing evidence to that effect Therefore, the Court deems these claims exhausted and procedurally barred
As explained above, under Barker, when considering if a criminal defendant's constitutional right to a speedy trial was violated, courts are to consider the "[l]ength of delay, the reason for the delay, the defendant's assertion of his "right, and prejudice to the defendant." 407 U.S. at 530. The Supreme Court noted in Barker that that courts may express these factors in different ways. Id. at 530. Indeed, in New York, when evaluating federal speedy trial claims, state courts consider the factors set forth in Taranovich, which are, as noted above, "(I) the extent of the delay; (2) the reason for the delay, (3) the nature of the underlying charge, (4) whether...there has been an extended period of pretrial incarceration; and (5) whether there is any indication that the defense has been impaired by reason of the delay." 335 N.E.2d at 306 "Although the Taranovich factors and the Barker factors are not identically phrased, they are essentially identical tests." Brown v. Perez, No. 13-CV-4615, 2013 WL 5913306, at *9 (S.D.N.Y. Oct. 31, 2013) (internal quotation marks omitted), adopted by 2014 WL 5343309 (S.D.N.Y. Oct. 21, 2014), see also Holguin v. Lee, No. 13-CV-1492, 2014 WL 5508331, at *16 n.13 (S.D.N.Y. Oct. 31, 2014) (report and recommendation) ("The standard articulated in Taranovich has been treated as the functional equivalent of the federal test articulated in [Barked].") Thus, the state court's use of the Taranovich test itself did not violate clearly established federal law See Brown, 2013 WL 5913306, at *10 (holding that the state court's `analysis under Taranovich in substance was an analysis under Barker and therefore not contrary to established Supreme Court Precedent' (internal quotation marks omitted)); Gathers v. New York, No. 11-CV-1684, 2012 WL 71844, at *13 (E.D.N.Y. Jan. 10, 2012) ("[A]pplication of the Taranovich factors is not `contrary to' the federal law clearly established by Barker"); Garcia v. Annetts, No. 08-CV-736, 2011 WL 4810012, at *6 (N.D.N.Y. Sept. 1, 2011) ("[T]he Appellate Division's utilization of the Taranovich factors[,] which do not contradict the Barker factors[,] was not `contrary to' clearly established federal law as established by the Supreme Court" (alterations, ellipses, and some internal quotation marks omitted)), adopted by 2011 WL 4814913 (N.D.N.Y. Oct. 11, 2011); Williams v. Mazzuca, No. 02-CV-9131, 2007 WL 541699, at *3 (S.D.N.Y. Feb. 20, 2007) (noting that, `while the Taranovich factors applied by the state court differ slightly from those set forth in Barker, they do not contradict the Barker factors" and accordingly concluding that "the state court's decision was not `contrary to' clearly established federal law as established by the Supreme Court.").
The next factor to consider is the reason for the delay. Petitioner argues that the state is responsible for this delay, while Respondent argues that the Yonkers Police Office was diligent and should not be held responsible for this delay (Pet'r's Traverse at unnumbered 3, 6-20 (Dkt. No. 24), Resp.'s Mem. 34-40; Resp.'s Objs, at unnumbered 2.) As noted above, the state court made the following factual findings, which may only be dismissed by clear and convincing evidence that the pre-indictment delay "was not so unreasonable as to establish a violation of [Petitioner's] constitutional right to a speedy trial" and that, with respect to his state speedy trial claim, "427 days of the .. delay from ... April 20, 2005 to July 12, 2006 was due to [Petitioner's] absence,' and that "the Yonkers Police Department made diligent efforts to locate him during that period,' that "he was not incarcerated during this period," and that Petitioner made no claim of resultant prejudice." (Resp.'s Mem, Ex, 7 (Decision & Order), at 20.) Petitioner did put forth some evidence that could rebut the finding that the Police Department made diligent efforts to try to find him Petitioner's rap sheet as of July 13, 2006 stated that his address between March 5, 2004 and July 12, 2006 was 145 Elm Street, Yonkers, NY (Pet'r's Traverse Ex. 1 (Rap Sheet).)
The third factor under Barker is whether Petitioner asserted his right to a speedy trial in "due course." Doggett, 505 U.S. at 651. Here, Petitioner timely asserted this right, as his counsel made a motion to dismiss the Indictment based on a violation of his speedy trial right on October 29, 2006, as part of his omnibus motion for pre-trial relief (Resp's Mem. Ex. 2 (Motion).)
The final factor to be considered is prejudice to the Petitioner. The Supreme Court has instructed that courts are to consider prejudice in light of three interests the speedy trial right is designed to protect: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused, and (iii) to limit the possibility that the defense will be impaired." Barker, 407 U.S. at 532; see also United States v. Alvarez, 541 Fed.Appx 80, 84 (2d Cir. 2013) (same), Wilson v. Bradt, No. I3-CV-6937, 2014 WL 4116960, at *17 (S.D.N.Y. Aug. 20, 2014) (same); United States v. Guzman, No. 1 l-CR-1015, 2013 WL 3305308, at *2 (S.D.N.Y. July 1, 2013) (same). Petitioner did not suffer the first type of prejudice as a result of the delay, as the delay was in securing his arrest. Nor did he suffer anxiety and concern as a result of the delay, as he "asserts that he was unaware of the warrant against him until his arrest." (Pet'r's Traverse at unnumbered 14, see also Pet'r's Objs. at unnumbered 6) Finally, Petitioner makes no assertions—general or specific—that his defense was impaired, arguing instead that it is the Government's burden to rebut the presumption of prejudice. (See Pet'r's Traverse at unnumbered 14, Pet'r's Objs. at unnumbered 6-11.)
When considering all of the Barker factors, even assuming that the Government's negligence was to blame for Petitioner's pre-arrest delay, Petitioner has not established that the state court's decision "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law." 28 U.S.C. § 2254(d) (1). In particular, "[although a showing of prejudice is not a prerequisite to finding a [S]ixth [A]mendment violation, courts generally have been reluctant to find a speedy trial violation in the absence of genuine prejudice." United Slates v. Jones, 129 F.3d 718, 724 (2d Cir. 1997) (internal quotation marks omitted). Additionally, the Supreme Court has instructed that "to warrant granting relief, negligence unaccompanied by particularized trial prejudice must have lasted longer than negligence demonstrably causing such prejudice." Doggett, 505 U.S. at 657 In the absence of allegations or proof of prejudice to Petitioner or bad faith on the part of the Government, and where there was a prearrest delay of only approximately fifteen months, the Court cannot conclude that the stale court's decision was contrary to or involved an unreasonable application of federal law. See United States v. Jones, 91 F.3d 5, 9 (2d Cir. 1996) (holding where "the only delay which can reasonably be attributed to the government is 12 months," and "[i]n the absence of some additional compelling circumstance, such as bad faith by the prosecution or actual prejudice," the district court abused its discretion in dismissing the indictment); see also Smith v. La Clair, 353 Fed. Appx 486, 488 (2d Cir. 2009) (holding that a delay of two years, 11 months of which was attributable to the government's negligence, was "insufficient to compel the conclusion that the Appellate Division unreasonably applied established Supreme Court precedent in rejecting [the petitioner's] speedy trial claim even if [he] failed to identify any prejudice arising from the pretrial delays"), Rayborn v. Scully, 858 F.2d 84, 91-94 (2d Cir. 1988) (holding that, even if the court were to conclude that the state was negligent in searching for the petitioner for the first four and one-half years of delay, the indictment should still not be dismissed because there was no suggestion of a purposeful delay to gain a tactical advantage, Petitioner was late in asserting this right, and Petitioner was "not perceptibly prejudiced" as a result of the delay, noting that "courts generally have been reluctant to find a speedy trial violation in the absence of genuine prejudice), Flowers v. Warden, Conn. Corr. Inst., Somers, 853 F.2d 131, 134 (2d Cir. 1988) (holding that a 17-month delay "result[ing] from a rigid and troubling adherence to a lock-step, chronological approach to case management" did not amount to a denial of the petitioner's speedy trial right because there was "no bad faith, negligence, or tactical maneuvering," and Petitioner "suffered no prejudice to his defense"); Fisher, 2014 WL 128015, at *17 ("Absent any specific identification of prejudice, the 10-month delay between [the petitioner's] indictment and first plea did not violate his constitutional right to a speedy trial."); Dunavin v. Leonardo, No. 95-CV-296, 1997 WL 151771, at (N.D.N.Y. Mar. 31, 1997) ("In the absence of a showing of prejudice, courts generally will not find a speedy trial violation unless all of the remaining Barker factors weigh heavily in favor of the appellant."). Because the delay at issue here is significantly shorter than delays where no speedy trial violation was found, the presumption of prejudice is weaker because, at the very most, the delay was due to negligence, and no prejudice was even alleged, let alone shown, the Court cannot conclude that the state court's decision was contrary to or constituted an unreasonable application of established federal law.
The Clerk of the Court is respectfully directed to enter a judgment in favor of Respondent and to close this case.
SO ORDERED.
Not Reported in Fed. Supp., 2015 WL 7302762.
RAMOS, District Judge.
On August 29, 2012, Judge Davison issued a Report and Recommendation (the "Report"), recommending that the Petition be denied in full Doc. 24. Objections, if any, were due by September 17, 2012.
The factual background and procedural history relevant to the Petition are set forth in Judge Davison's Report, familiarity with which is assumed. See Report 2-10.
Petitioner was convicted, on November 13, 2003, after a jury trial in the Supreme Court of the State of New York, Rockland County, of two counts of murder in the first degree, two counts of murder in the second degree, and one count of robbery in the first degree, in relation to the murder of his wife, Evelyn Visich Petition ("Pet.") 1-2 He was sentenced to concurrent terns of life without the possibility of parole for each of the first-degree murder convictions, twenty-five years to life for each of the second-degree murder convictions, and twenty-five years for the robbery conviction Id. at 2.
On May 20, 2010, Petitioner timely filed the instant Petition, claiming: (1) the state court's refusal to strike the direct testimony of Eddie Cassatt and Frank Thon violated Petitioner's Sixth Amendment right to confront witnesses against him because the witnesses' invocation of the Fifth Amendment privilege against self-incrimination denied Petitioner his right to reasonable cross-examination, Pet. 68; Mem. Law Supp. Pet ("Pet'r's Mem."), 1-10, Doc. 2; (2) the prosecution failed to provide the defense with "critical information" indicating that Petitioner sought to have his wife assaulted, but not murdered, and the state court's refusal to vacate his conviction on the basis of the alleged Brady, violation was contrary to, or involved an unreasonable application of, the Supreme Court's decisions in Brady v. Maryland, 337 U.S. 83 (1963) and United States v. Bagley, 473 U.S. 667 (1985), Pet 68; Pet'r's Mem. 11-25, Doc. 2; and (3) the state court's refusal to suppress evidence seized from Petitioner's vehicle pursuant to his purported consent to search violated Miranda v. Arizona, 384 U.S. 436 (1966), because Petitioner's consent was the result of a custodial interrogation, and any such consent was subsequently revoked by the appearance of counsel on his behalf Pet. 69; Pet'r's Mem. 26-36.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, habeas petitions under 28 U.S.C. § 2254 may not be granted unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (d)(2). This deference is required under the AEDPA if, as here, the petitioner's claim "was adjudicated on the merits in State court proceedings." 28 U.S.C. § 2254(d); see Bell v. Miller, 500 F.3d 149, 154-155 (2d Cir.2007).
"Th[e] statutory phrase [`clearly established Federal law as established by the Supreme Court of the United States,'] refers to the holdings, as opposed to the dicta, of th[e] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000). In order for a federal court to find that the state court's application of Supreme Court precedent was unreasonable, the decision must be objectively unreasonable rather than simply incorrect or erroneous. Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The factual findings made by state courts are presumed to be correct under the second prong of the AEDPA, and petitioner has the burden to rebut this presumption by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see Nelson v. Walker, 121 F.3d 828, 833 (2d Cir.1997).
A district court reviewing a magistrate judge's report and recommendation "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Parties may raise "specific," "written" objections to the report and recommendation "[w]ithin fourteen days after being served with a copy." Id.; see also Fed.R.Civ.P. 72(b)(2). A district court reviews de novo those portions of the report and recommendation to which timely and specific objections are made. 28 U.S.C. § 636(b)(1)(C); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997). The district court may adopt those parts of the report and recommendation to which no party has timely objected, provided no clear error is apparent from the face of the record. Lewis v. Zon, 573 F.Supp.2d 804, 811 (S.D.N.Y.2008). The clearly erroneous standard also applies where a party's objections are conclusory, general or "merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition." Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y.2008) (citations and internal quotation marks omitted). "Objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate judge's proposal." IndyMac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No. 07 Civ. 6865(LTS) (GWG), 2008 WL 4810043, at *1 (S.D.N.Y. Nov. 3, 2008) (citing Camardo v. Gen. Motors Hourly—Rate Emps. Pension Plan, 806 F.Supp. 380, 382 (W.D.N.Y.1992)).
Plaintiff also asserts four specific objections to the Report, which are essentially disagreements with Judge Davison's summary of the facts relevant to Petitioner's first and third claims. Objections 8-18. Petitioner did not raise any objections to the portions of Judge Davison's Report addressing his Brady claim, and, after carefully reviewing that portion of the Report, the Court finds no error, clear or otherwise. Accordingly, the Court adopts Judge Davison's recommendation to dismiss Petitioner's Brady claim for the reasons stated in the Report. See Report 24-27.
In support of his first specific objection, Petitioner argues that Judge Davison failed to address the "overwhelming evidence that Cassatt lied and the People knew it," and that Judge Davison's findings are not based on the entire record because he "ignor[ed] this perjury." Objections 11. Petitioner's first objection merely reiterates facts and arguments that were presented to, and considered by, Judge Davison, see, e.g., Pet'r's Mem. 4, 6, and therefore this objection does not warrant de novo review of the Report. Kirk v. Burge, 646 F.Supp.2d 534, 538 (S.D.N.Y.2009) (citations omitted). Moreover, contrary to Petitioner's assertions, the facts he alleges Judge Davison "ignored" were explicitly referenced in the Report. See Report 7, 18. The Court has carefully reviewed Judge Davison's Report relating to Petitioner's Confrontation Clause claim and finds no error, clear or otherwise. Accordingly, the Court adopts Judge Davison's recommendation that Petitioner's Confrontation Clause claim be dismissed for the reasons stated in the Report. Id. at 21-24.
The balance of Petitioner's specific objections relate to facts that he contends are vital to his Fourth Amendment claim, and which he asserts Judge Davison misconstrued or ignored. Objections 12-18. The facts set forth in Petitioner's Objections were all presented to Judge Davison, see, e.g., Pet. 9-31; Pet'r's Mem. 22, 26-36, and there is no indication that Judge Davison ignored any of Petitioner's arguments or assertions. Because Petitioner's second, third and fourth objections are "merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition," the clearly erroneous standard applies. Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y.2008) (citations and internal quotation marks omitted).
For the reasons set forth above, the Court adopts Judge Davison's Report in its entirety. Petitioner's petition for a writ of habeas corpus is DENIED. As Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. Love v. McCray, 413 F.3d 192, 195 (2d Cir.2005); 28 U.S.C. § 2253. The Clerk of the Court is respectfully directed to close this case.
It is SO ORDERED.
PAUL E. DAVISON, United States Magistrate Judge.
Petitioner Peter Visich, through his counsel, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted on November 13, 2003, after a trial by jury, of two counts of murder in the first degree, two counts of murder in the second degree, and one count of robbery in the first degree in Rockland County Court (Kelly, J.). He was sentenced to concurrent terms of (1) life without the possibility of parole for each of the first-degree murder convictions, (2) twenty-five years to life for each of the second-degree murder convictions, and (3) twenty-five years for the robbery conviction.
This Petition is before me pursuant to an Order of Reference dated May 24, 2010. See Dkt. No. 3. For the reasons set forth below, I respectfully recommend that the Petition be
On January 7, 2003, Evelyn Visich, Petitioner's estranged wife, was murdered in the Visich family home in Chestnut Ridge, New York by Frank Thon, who had been hired by Petitioner to kill his wife. In November 2002, Petitioner had been introduced to Thon over the telephone by a mutual acquaintance, Eddie Cassatt. Following their initial conversation, Petitioner and Thon spoke and met several times between November 2002 and January 2003 regarding arrangements for Mrs. Visich's murder.
On January 7, 2003, Petitioner and his young son left their home for the day to visit Petitioner's family and friends. Mrs. Visich also left the home some time that day. Early that evening, while no one was at home, Thon entered the house through a back door that Petitioner had left unlocked for him and waited for Mrs. Visich to return. After Mrs. Visich arrived home later that evening, Thon stabbed her several times and slashed her neck down to the bone, nearly decapitating her. Thon left the knife that he had used to commit the murder in Mrs. Visich's chest, removed some jewelry from her body, and then fled the scene. Petitioner returned home some time later with his son and "discovered" Mrs. Visich's body. Petitioner then ran to a neighbor's house to report what he had "found," and the neighbor called the police to report the crime.
Petitioner's van was searched over the course of several days. During this search, the police recovered, among other items, several pre-paid calling cards and a bank envelope containing $3700 in cash. Based on records for the calling cards that were recovered from Petitioner's van, the police were able to trace forty-seven telephone calls that Petitioner had made to Thon between November 2002 and January 2003.
The Rockland County Grand Jury returned an indictment charging Petitioner with two counts of murder in the first degree, in violation of New York Penal Law §§ 125.27(1)(a) (vi) and (b)
Before Petitioner's trial commenced, the court held an eight-day suppression hearing at which Petitioner challenged the admissibility of evidence that had been seized from his van. Petitioner argued that his consent was involuntary because it was the product of custodial interrogation and, alternatively, that his counsel's subsequent appearance on his behalf effectively revoked the consent that he had given earlier that day. Petitioner further argued that the items seized from the van exceeded the scope of the search warrant that the police had subsequently obtained. The trial court determined that Petitioner's consent was voluntary, that the search of his van exceeded neither the scope nor the duration contemplated by this consent, and that Petitioner had not revoked this consent. Alternatively, the trial court found that the search and seizure were within the scope of the warrant. Accordingly, the court denied Petitioner's motion to suppress the evidence that had been recovered from his van. See Ciganek Aff., Ex. S (October 21, 2003 Order).
Because the prosecution had indicated to Petitioner's trial counsel in advance that Thon and Cassatt likely would invoke the privilege if asked about these prior activities, trial counsel had asked the court to preclude these witnesses from testifying altogether on the ground that Petitioner's right to reasonable cross-examination would be violated by the witnesses' invocation of the privilege. Petitioner later renewed this request by moving to strike the direct testimony of each of the witnesses after they did in fact invoke the privilege on these issues during cross-examination. According to Petitioner, the witnesses' responses to questions about their prior relationship—specifically, their prior contractual arrangements pursuant to which Cassatt had hired Thon to assault people—would have established that Cassatt actually knew details about the arrangement between Petitioner and Thon and, therefore, was an accomplice as a matter of law whose testimony would be barred under New York law from corroborating Thon's testimony. Petitioner's trial counsel also argued that the witnesses' invocation of the privilege on this issue would prevent Petitioner from establishing that Thon had a history of assaulting—not murdering—people which would have supported Petitioner's alternative theory that Thon had been hired only to assault Mrs. Visich, not to kill her. Petitioner's counsel further claimed that, because both Cassatt and Thon testified about the nature of their prior relationship during direct examination, Petitioner's questions on cross-examination about their prior relationship were not collateral.
The trial court denied Petitioner's requests, finding that it was unnecessary to preclude or strike the direct testimony of these witnesses given that they would be invoking the privilege only in response to questions that related to collateral matters —specifically, their credibility—and that such responses would not otherwise be probative of any material facts at issue in the case. Instead, the trial court allowed Thon and Cassatt to testify and instructed the jury that they were permitted to consider the witnesses' invocation of the privilege against self-incrimination when determining credibility. See Dkt. No. 15 (Trial Tr.) at 1589-1602, 1652-53; Dkt. No. 16 (Trial Tr.) at 1863-75; Dkt. No. 17 (Trial Tr.) at 2344; Dkt. No. 17 (Trial Tr.) at 2491-92. The trial court ultimately instructed the jury that Thon was an accomplice as a matter of law and, therefore, his testimony had to be corroborated by other evidence. The court, however, determined that whether Cassatt was an accomplice was a question of fact and instructed the jury that they were to decide this issue and, if they determined that Cassatt was in fact an accomplice, then both Thon's and Cassatt's testimony would need to be corroborated by other independent evidence. See Dkt. No. 17 (Trial Tr.) at 2496-2503. In addition to the testimony of Thon and Cassatt, the evidence introduced by the prosecution at Petitioner's trial included the testimony of the police officers who had investigated the crime, as well as telephone records documenting forty-seven calls between Petitioner and Thon from November 2002 to January 2003.
Petitioner was sentenced on January 6, 2004 to concurrent terms of (1) life without the possibility of parole for each of the first-degree murder convictions, (2) twenty-five years to life for each of the second-degree murder convictions, and (3) twenty-five years for the robbery conviction.
Petitioner appealed his convictions to the New York State Appellate Division, Second Department, and raised the following claims:
On December 16, 2008, the Appellate Division affirmed Petitioner's conviction. See People v. Visich. 870 N.Y.S.2d 376 (App.Div.2008). The Appellate Division determined that because Petitioner "was able to cross-examine Thon and Cassatt concerning the crimes at bar, and to argue on summation the inferences to be drawn from their invocation of the privilege against self-incrimination," he "was able to explore each witness's bias and motivation to testify falsely through other evidence" and therefore "it cannot be said that [Petitioner's] ability to test the accuracy of direct testimony of Thon and Cassatt was impaired such as to create a substantial risk of prejudice, or that the corrective response fashioned by the trial court was an improvident exercise of its discretion." Id. at 379. The court also found that "the trial court did not err in denying ... [Petitioner's] ... motion ... to suppress evidence found in his vehicle," given that "the record supports the hearing court's determination to credit the testimony of the police witnesses, which established that [Petitioner] voluntarily consented to the search," that "the duration of the search did not exceed the scope of the consent," and that "there is no evidence that the consent was withdrawn or otherwise terminated during the search." Id. Additionally, the Appellate Division determined that "the trial court properly instructed the jury that the issue of whether Cassatt was an accomplice was a question of fact" and that, "assuming arguendo that the jury found Cassatt to be an accomplice, the testimony of both Cassatt and Thon ... was corroborated by independent evidence connecting [Petitioner] to the crimes." Id. Finally, the court found that Petitioner's "remaining contentions are without merit." Id.
On May 20, 2010, Petitioner filed this Petition seeking a writ of habeas corpus. See Pet.; Pet'r's Mem. Respondent does not dispute that the Petition was timely filed. See 28 U.S.C. § 2244(d) (setting forth limitation period for habeas petitions). Petitioner raises the following claims in his Petition for habeas review:
A federal habeas corpus petition is subject to AEDPA's strict, one-year statute of limitations. See 28 U.S.C. § 2244(d). The statute provides four different potential starting points for the limitations period, and specifies that the latest of these shall apply. See id. § 2244(d)(1). Under the statute, the limitations period is tolled only during the pendency of a properly filed application for State post-conviction relief, or other collateral review, with respect to the judgment to be challenged by the petition. See id. § 2244(d)(2). The statute reads as follows:
Id. § 2244(d).
The one-year limitation period is subject to equitable tolling, which is warranted when a petitioner has shown `"(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida. 130 S.Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408,418 (2005)). In the Second Circuit, equitable tolling is confined to "rare and exceptional circumstance [s]," Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000) (per curiam) (internal quotation marks omitted), which have "prevented [the petitioner] from filing his petition on time," Valverde v. Stinson. 224 F.3d 129, 134 (2d Cir.2000) (internal quotation marks and emphasis omitted). The applicant for equitable tolling must "demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances." Id.
To exhaust a federal claim, the petitioner must have "fairly present[ed] his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim," and thus "giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks omitted). "Because non-constitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state courts on notice that they are to decide federal constitutional claims." Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir.1984) (internal citation omitted) (citing Smith v. Phillips. 455 U.S. 209, 221 (1982)). Such notice requires that the petitioner "apprise the highest state court of both the factual and legal premises of the federal claims ultimately asserted in the habeas petition." Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir.2005). A claim may be "fairly presented" to the state courts, therefore, even if the petitioner has not cited "chapter and verse of the Constitution," in one of several ways:
Dave v. Attorney Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir.1982). A habeas petitioner who fails to meet a state's requirements to exhaust a claim will be barred from asserting that claim in federal court. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
However, "[f]or exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred." Reyes v. Keane, 118 F.3d 136, 139 (2d Cir.1997) (internal quotation marks omitted). "In such a case, a petitioner no longer has remedies available in the courts of the State within the meaning of 28 U.S.C. § 2254(b)." Grey v. Hoke, 933 F.2d 117, 120 (2d Cir.1991) (internal quotation marks omitted). Such a procedurally barred claim may be deemed exhausted by a federal habeas court. See, e.g., Reyes, 118 F.3d at 139. However, absent a showing of either "cause for the procedural default and prejudice attributable thereto," Harris v. Reed, 489 U.S. 255, 262 (1989), or "actual innocence," Schlup v. Delo, 513 U.S. 298 (1995), the petitioner's claim will remain unreviewable by a federal court.
Even where an exhausted and timely habeas claim is raised, comity and federalism demand that a federal court abstain from its review when the last-reasoned state court opinion to address the claim relied upon "an adequate and independent finding of a procedural default" to deny it. Harris, 489 U.S. at 262; see also Coleman v. Thompson, 501 U.S. 722, 730 (1991); Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir.1995).
A state court decision will be "independent" when it "fairly appears" to rest primarily on state law. Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir.2006) (citing Coleman, 501 U.S. at 740). A decision will be "adequate" if it is `"firmly established and regularly followed' by the state in question." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir.1999) (quoting Ford v. Georgia. 498 U.S. 411, 423-24 (1991)).
Before a federal court can determine whether a petitioner is entitled to federal habeas relief, the court must determine the proper standard of review under AEDPA for each of the petitioner's claims. 28 U.S.C. § 2254(d)(1)-(2). This statute "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners," and imposed a more exacting standard of review. Williams v. Taylor. 529 U.S. 362, 402 (2000). For petitions filed after AEDPA became effective, federal courts must apply the following standard to cases in which the state court adjudicated on the merits of the claim:
§ 2254(d)(1)-(2). The deferential AEDPA standard of review will be triggered when the state court has both adjudicated the federal claim "on the merits," and reduced its disposition to judgment. Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir.2001). Where the state court "did not reach the merits" of the federal claim, however, "federal habeas review is not subject to the deferential standard that applies under AEDPA .... Instead, the claim is reviewed de novo." Cone v. Bell, 556 U.S. 449, 472 (2009); see § 2254(d).
Under the second prong of AEDPA, the factual findings of state courts are presumed to be correct. 28 U.S.C. § 2254(e) (1); see Nelson v. Walker, 121 F.3d 828, 833 (2d Cir.1997). The petitioner must rebut this presumption by "clear and convincing evidence." § 2254(e)(1).
Petitioner argues that the state courts' determination that Cassatt and Thon invoked the Fifth Amendment privilege against self-incrimination in response to questions that concerned only "collateral impeachment issues" was "incorrect" and that this decision "denied Petitioner his federally guaranteed Sixth Amendment confrontation rights and right to reasonable cross-examination."
As noted above, in ruling on this claim on direct appeal, the Appellate Division determined that, because Petitioner "was able to cross-examine Thon and Cassatt concerning the crimes at bar," "to argue on summation the inferences to be drawn from their invocation of the privilege against self-incrimination," and "to explore each witness's bias and motivation to testify falsely through other evidence," Petitioner's "ability to test the accuracy of direct testimony of Thon and Cassatt" was not "impaired such as to create a substantial risk of prejudice" and "the corrective response fashioned by the trial court" was not "an improvident exercise of its discretion." Visich, 870 N.Y.S.2d at 379. Respondent argues that the Appellate Division's decision was neither contrary to, nor constituted an unreasonable application of, clearly established federal law. See Resp't's Mem. at 3, 5-6, 9. Respondent does not dispute that Petitioner presented this claim to the state's highest court in his letter requesting leave to appeal. Because the state court adjudicated Claim 1 on the merits, the Court will assess the merits of this claim using the deferential AEDPA standard of review. See 28 U.S.C. § 2254(d)(1)-(2).
The Confrontation Clause of the Sixth Amendment guarantees the right of a criminal defendant "to be confronted with the witnesses against him." U.S. Const. amend. VI. This right of confrontation embodies the right of the defendant to "a meaningful opportunity to present a complete defense." Crane v. Kentucky. 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)) (internal quotation marks omitted). This right also "means more than being allowed to confront the witness physically." Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 315 (1974)) (internal quotation marks omitted). Specifically, it "includes the right to conduct reasonable cross-examination." Olden v. Kentucky. 488 U.S. 227, 231 (1988) (citing Davis. 415 U.S. at 315-16). "Although the Sixth Amendment guarantees `an opportunity for effective cross-examination,' it does not guarantee `cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" United States v. Brooks, 82 F.3d 50, 54-55 (2d Cir.) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)), cert. denied, 519 U.S. 907 (1996). Indeed, the right to reasonable cross-examination "may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Michigan v. Lucas. 500 U.S. 145, 149 (1991) (quoting Rock v. Arkansas. 483 U.S. 44, 55 (1987)) (internal quotation marks omitted); see also. e.g., Hawkins v. Costello. 460 F.3d 238, 243 (2d Cir.2006). Specifically, "a witness' testimony may, in some cases, be used against a defendant, even though the witness invokes his privilege against self-incrimination during cross-examination." United States v. Cardillo, 316 F.2d 606, 611 (2d Cir.), cert. denied, 375 U.S. 822 (1963).
Bagby v. Kuhlman, 932 F.2d 131, 135 (2d Cir.) (internal citations omitted), cert. denied, 502 U.S. 926 (1991); see also United States v. Treacy, 639 F.3d 32, 45 (2d Cir.2011); Cardillo, 316 F.2d at 611. "[A] distinction must be drawn between cases in which the assertion of the privilege merely precludes inquiry into collateral matters which bear only on the credibility of the witness and those cases in which the assertion of the privilege prevents inquiry into matters about which the witness testified on direct examination." Cardillo, 316 F.2d at 611. Moreover, the key "question is whether the defendant's inability to examine the witness precludes defendant from testing the truth of the witness's direct testimony or whether the `answers solicited might have established untruthfulness with respect to specific events of the crime charged.'" Dunbar v. Harris, 612 F.2d 690, 693 (2d Cir.1979) (internal citation omitted) (quoting Cardillo, 316 F.2d at 613); see also Avincola v. Stinson, 60 F.Supp.2d 133, 155 (S.D.N.Y.) ("The Sixth Amendment is violated ... only where assertion of the witness's privilege `undermines the defendant's opportunity to test the truth of the witness' direct testimony.'") (quoting Bagby, 932 F.2d at 135) (Report and Recommendation), adopted by 60 F.Supp.2d 133 (S.D.N.Y.1999). As noted above, the Sixth Amendment is only "violated when a witness asserts the privilege with respect to a non-collateral matter and the defendant is deprived of a meaningful opportunity to test the truth of the witness' direct testimony." Bagby, 932 F.2d at 135.
Petitioner does not dispute that he had a full opportunity to cross-examine Cassatt and Thon about each of their roles in the plot to murder Mrs. Visich. Additionally, Petitioner elicited testimony from Cassatt, Thon, and Detective Youngman that served to test the truthfulness of the direct testimony provided by Cassatt and Thon about their prior relationship and about Cassatt's role in Mrs. Visich's murder, specifically including: (1) Thon's admission that he expected to obtain the remainder of the fee that Petitioner owed him from Cassatt after the murder; (2) Thon's admission that he telephoned Cassatt several times in the days following the murder to inquire about the fee; (3) Cassatt's admission that Thon called him several times in the days following the murder; (4) Cassatt's admission that he failed to tell the police about his having referred Petitioner to Thon; and (5) Detective Youngman's testimony that Thon told Youngman that Thon "had beaten and scared people at the behest of Cassatt," had been "enlisted [by Cassatt] to go to Chicago and ... scare somebody for $1800," and "had done strong-arm work for Cassatt in the past."
Respondent argues in opposition that Petitioner's Brady claim is without merit because the statement set forth in the pre-sentence report was not itself evidence but rather reflects the drafting probation officer's "understanding and interpretation of the evidence" and therefore was "simply ... an assumption made by an uninvolved third party whose job was to summarize the evidence in a report to assist the court in meting out an appropriate sentence for petitioner." Resp't's Mem. at 10; see also id. at 911. According to Respondent, the Appellate Division's rejection of Petitioner's Brady claim on the merits was neither contrary to, nor involved an unreasonable application of, clearly established federal law. See id. at 11; see also Visich, 870 N.Y.S.2d at 379 (noting that Petitioner's "remaining contentions," including his Brady claim, "are without merit"). Respondent does not dispute that Petitioner presented this claim to the Court of Appeals in his request for leave to appeal. Because the state court adjudicated Claim 2 on the merits, the Court will assess the merits of this claim using the deferential AEDPA standard of review. See 28 U.S.C. § 2254(d)(1)-(2).
Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting Bagley, 473 U.S. at 678). Thus, "[t]here are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene. 527 U.S. 263, 281-82 (1999).
In this case, Petitioner has failed even to establish that any alleged Brady material actually existed at the time of his prosecution or was withheld by the state. Petitioner claims that the existence of exculpatory evidence is established merely by a statement in a pre-sentence report that was drafted by a probation officer who was characterizing the prosecution's summary of the evidence against Petitioner. Petitioner has no personal knowledge regarding the potential source or specific nature of the alleged Brady material underlying this statement. Without more, Petitioner's unsupported assertion that the prosecution failed to disclose exculpatory or impeaching information at the time of trial regarding Petitioner's initial request for a referral from Cassatt is insufficient to warrant habeas relief. See Beard v. Unger, No. 06-CV-0405 (MAT), 2009 WL 5042696, at *7 (W.D.N.Y. Dec. 15, 2009) ("As a matter of law, mere speculation by a defendant that the government has not fulfilled its obligations under Brady ... is not enough to establish that the government has, in fact, failed to honor its discovery obligations.") (internal citation omitted) (quoting United States v. Upton, 856 F.Supp. 727, 746 (E.D.N.Y.1994)) (internal quotation marks omitted); Martinez v. Phillips, No. 04 Civ. 8617(RPP), 2009 WL 1108515, at *26 (S.D.N.Y. Apr. 24, 2009) ("[I]t is [petitioner's] burden to prove that the government failed to disclose evidence favorable to [petitioner]. Conclusory allegations that the government `suppressed' or `concealed' evidence do not entitle [petitioner] to relief") (quoting Harris v. United States, 9 F.Supp.2d 246, 275 (S.D.N.Y.1998)); McKinney v. Burge, No. 9:04-CV-1150 (GTS/DEP), 2009 WL 666396, at *23 (N.D.N.Y. Mar. 10, 2009) (collecting cases rejecting speculative Brady claims). Because Petitioner's Brady and related prosecutorial misconduct claims are speculative and therefore lack merit, Claim 2 must be denied.
In opposition, Respondent argues that the question of whether Petitioner's consent was voluntary is merely "academic," given the state court's determination that "the evidence was lawfully seized pursuant to a valid search warrant." Resp't's Mem. at 12. Moreover, Respondent argues that Petitioner's claim is without merit because (1) his consent was voluntary, (2) the search performed was within the scope of his consent, and (3) "[t]his issue was fully and fairly litigated at the pretrial suppression hearing," which was "proper in all respects." Id. at 12; see also id. at 14-22. Accordingly, Respondent argues that "the state court's denial of this claim on the merits was correct and fully comports with federal law" and, therefore, "the petition should be denied." Id. at 14; see also id. at 22.
While "[i]t is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is `per se unreasonable ... subject only to a few specifically established ... exceptions [,]' .... [i]t is equally well settled that one of [those] ... exceptions ... is a search that is conducted pursuant to consent." Schneckloth, 412 U.S. at 219. In order to be valid, consent must have been "voluntarily given" and not the product of duress or coercion when considered based on the totality of the circumstances. See id. at 223-234. One factor to be considered in making this determination is the "setting in which the consent is obtained," United States v. Moreno. No. 08-CR-605 (CPS), 2009 WL 454548, at *7 (E.D.N.Y. Feb. 24, 2009), including whether the person was in police custody and whether the police advised the person of his right to refuse consent. See Brewster v. People of State of N.Y., No. 08-CV-4653 (JFB), 2010 WL 92884, at *56 (E.D.N.Y. Jan. 6, 2010). While "a consent to search that is obtained from a person in custody does require very careful scrutiny," the "absence of Miranda warnings does not make consent to a search invalid per se." United States v. Memoli, 333 F.Supp.2d 233, 237 (S.D.N.Y.2004) (citing United States v. Moreno, 897 F.2d 26, 33 (2d Cir.1990); United States v. Puglisi, 790 F.2d 240, 240, 24344 (2d Cir.1986); United States v. Faruolo, 506 F.2d 490, 495 (2d Cir.1974)).
Fourth Amendment claims may only be reviewed by a habeas court if one of two narrow exceptions applies: "(a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir.1992). Petitioner does not—nor could he—contend that New York failed to provide corrective procedures to redress his alleged Fourth Amendment claim. Indeed, as the Second Circuit has noted, "the federal courts have approved New York's procedure for litigating Fourth Amendment claims, embodied in N.Y.Crim. Proc. Law § 710.10 et seq., as being facially adequate." Id. at 70 n. 1 (internal citation omitted) (internal quotation marks omitted). Additionally, Petitioner does not suggest that an unconscionable breakdown of the state process occurred. Indeed, the trial court conducted an eight-day pretrial suppression hearing, and the Appellate Division affirmed the trial court's determinations based on that hearing.
For the reasons set forth above, I conclude—and respectfully recommend that Your Honor should conclude—that the Petition should be
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days, plus an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. See also Fed.R.Civ.P. 6(a), (b), (d). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Hon. Edgardo Ramos, at the Hon. Charles L. Brieant, Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered.
Requests for extensions of time to file objections must be made to Judge Ramos.
Not Reported in F.Supp.2d, 2013 WL 3388953
Additionally, the Court notes that Exhibit 3 to Respondent's Memorandum of Law, by itself, comprises several documents. Accordingly, when the Court cites to specific pages in this Exhibit, the page number that the Court provides refers to the page number within the relevant constituent document, rather than that page's placement within Exhibit 3 in its entirety.
