PAUL E. DAVISON, Magistrate Judge.
On March 18, 2009, Forrest Thomas ("Petitioner") was convicted, upon a jury verdict in Dutchess County Supreme Court (Marlow, J.) of two counts of Assault in the First Degree (N.Y. Penal Law § 120.10(1), (2)). Petitioner was sentenced to concurrent terms of twenty-five years with five years post release supervision on each count.
Presently before this Court is Petitioner's pro se petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. This petition is before me pursuant to an Order of Reference dated October 23, 2014. Dkt. 13.
For the reasons set forth below, I respectfully recommend that the Court
On February 24, 2008, Louis Eleazard called Jamie Rivera-Ortiz, who he knew as "Jimmy," to do some work on his car. They agreed to meet, and Rivera-Ortiz parked his truck in front of the Progresso Mini Market in Poughkeepsie, New York. Eleazard approached Rivera-Ortiz's vehicle and spoke to him for about ten minutes through the driver's side window. Eleazard observed taxi driver Carl ("Stichy") Rodney drive up and park behind Rivera-Ortiz's truck. As Rodney entered the store, Eleazard saw another man walk out of the store, cross the street and drop a blue bag in the snow on the corner, and then turn back and walk towards Rivera-Ortiz's truck. As that man approached Eleazard and Rivera-Ortiz, he said, "What did you say to me?" Eleazard asked Rivera-Ortiz if the man was talking to him, and Rivera-Ortiz stated that he did not know him. The man then opened a folding knife and slashed Rivera-Ortiz across the face, causing a large gash extending from above the ear down to the corner of the mouth.
Eleazard called 911 and then attended to Rivera-Ortiz's wound with paper towels he obtained from the Mini Market. Police and an ambulance arrived after five minutes.
Detective David Fernandez investigated the slashing. He interviewed Eleazard at the police station on the evening of the crime, obtaining a general description of the attacker. Detective Fernandez entered the parameters of that description into the police department's computer system and generated 143 photographs of people in the police database who fit that description. Mr. Eleazard then reviewed the photographs but did not make any identification.
The following day, February 25, 2008, a communications operator told Detective Fernandez that the police had received a telephone call identifying a suspect with the street name Ching. The dispatcher provided two photographs of Petitioner, who was known to use that street name. Detective Fernandez then generated a six picture photo array including Petitioner's photograph. Eleazard returned to the police station, whereupon detectives showed him the photo array. Mr. Eleazard immediately identified Petitioner's photograph as the man who had attacked Rivera-Ortiz.
On February 28, 2008, Detective Fernandez met with Rodney — the taxi driver — who described the perpetrator who had emerged from the store as a big black muscular male. Detective Fernandez showed Rodney a different six picture photo array, which also included Petitioner's photograph. Mr. Rodney selected Petitioner's photograph in less than a minute.
On March 11, 2008, Detective Fernandez interviewed Juan Gomez, who had been working in the Mini Mart at the time of the slashing. Gomez was shown a third six picture photo array and identified Petitioner as having been in the store just prior to the slashing.
Petitioner's pre-trial Omnibus Motion sought, inter alia, suppression of identification evidence. Dkt. 15-5. A pretrial hearing was held before Dutchess County Court Judge Hayes on October 31, 2008. Dkt. 15-10. In a written Decision and Order dated November 21, 2008, the court denied Petitioner's motion to suppress identification testimony of Louis Eleazard, Carl Rodney and Juan Gomez, finding that "the photographs in the arrays were sufficiently similar in appearance so that no characteristic would influence the viewers toward choosing the defendant" and that "the witnesses were given adequate and appropriate instructions ... as to the identification procedure." Dkt. 15-11, p. 5.
Petitioner's jury trial commenced on January 5, 2009, before Justice George D. Marlow. Messrs. Eleazard and Rodney both testified, each identifying Petitioner as the assailant.
Petitioner appealed his conviction and raised the following issues: (1) Petitioner's guilt was not established beyond a reasonable doubt and the verdict was not supported by the weight of the evidence; (2) any in-court identification of Petitioner should have been precluded as unduly suggestive photographic identification procedures; and (3) Petitioner was denied his state and federal constitutional right to effective assistance of counsel. Dkt. 20-6.
On March 6, 2013, the Appellate Division, Second Department, affirmed the judgment of conviction. People v. Thomas, 104 A.D.2d 710 (2d Dept. 2013). On August 15, 2013, the New York Court of Appeals denied leave. People v. Thomas, 21 N.Y.3d 1046 (2013).
On May 1, 2014, Petitioner timely filed the instant petition. Dkt. 1. The pro se petition incorporates Petitioner's counseled Appellate Division brief without elaboration. Dkt. 1-1, pp. 7 et seq. Accordingly, Petitioner seeks habeas review of the following claims: (1) there was insufficient evidence to prove Petitioner's guilt beyond a reasonable doubt; (2) the judge erred by allowing out of court identification evidence at trial; and (3) Petitioner received ineffective assistance of counsel.
On February 22, 2017, more than two years after Respondent answered the petition, Petitioner requested a stay and leave to amend his petition so he could exhaust the following claims in state court: "Ineffective Assistance of Trial Counsel, Confrontation Clause, Brady/Eculpatory [sic] Material issue. Prosecutorial Misconduct and Actual Innocence Claim." Dkts. 27, 29. Finding that Petitioner failed to show good cause for failing to exhaust these claims years earlier, I denied the motion. Dkt. 29.
"Habeas review is an extraordinary remedy." Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). Before a federal district court may review the merits of a state 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. If there has been procedural compliance with these statutes, the court must then determine the appropriate standard of review applicable to the Petitioner's claim(s) in accordance with § 2254(d). The procedural and substantive standards applicable to habeas review, which were substantially modified by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") are summarized below.
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 limitation 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 circumstances stood in his way' and prevented timely filing." Holland v. Florida, 130 S.Ct. 2549, 2262 (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 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." Valverde, 224 F.3d at 134.
A federal court may not grant habeas relief unless the Petitioner has first exhausted his claims in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see 28 U.S.C. § 2254(b)(1) ("[a]n 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 — (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(I) there is an absence of available corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant"); id. § 2254© (the Petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented"). The exhaustion requirement promotes interests in comity and federalism by demanding that state courts have the first opportunity to decide a Petitioner's claims. Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
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 and citations 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) (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) (internal citation omitted). 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:
Daye 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 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). 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.
Finally, notwithstanding the procedure described above, a federal court may yet exercise its discretion to review and deny a mixed petition containing both exhausted and unexhausted claims, if those unexhausted claims are "plainly meritless." Rhines v. Weber, 544 U.S. 269, 277 (2005); see 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."); Padilla v. Keane, 331 F.Supp.2d 209, 216 (S.D.N.Y. 2004) (interests in judicial economy warrant the dismissal of meritless, unexhausted claims).
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 Colman, 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 corpus 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).
Under the first prong, a state court decision is contrary to federal law only if it "arrives at a conclusion opposite to that reached by the [the Supreme Court] on a question of law or if [it] decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision involves an "unreasonable application" of Supreme Court precedent if the state court "identifies the correct governing legal rule from the Supreme Court cases but unreasonably applies it to the facts of the particular state prisoner's case," or if it "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." Id. at 407.
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).
The instant petition seeks habeas review of the following claims: (1) there was insufficient evidence to prove Petitioner's guilt beyond a reasonable doubt and the verdict was not supported by the weight of the evidence presented; (2) the trial judge erred by allowing out of court identification evidence at trial based on unduly suggestive identification procedures; and (3) Petitioner received ineffective assistance of counsel.
In the first ground of the instant habeas petition, Petitioner asserts both that the evidence was insufficient to support his conviction and that the verdict was not supported by the weight of the evidence presented. Dkt. 1-1, ECF pp. 39-50. Respondent contends that Petitioner's "sufficiency of the evidence" claim should be rejected on substantive grounds and Petitioner's argument relating to the "weight of the evidence" claim should be rejected on procedural grounds. Dkt. 22, ECF p. 53.
The Second Department denied both claims on the merits:
People v. Thomas, 104 A.D.3d 710, 711 (2d Dep't. 2013) (citations omitted).
Petitioner first argues that the trial court improperly denied his motion to set aside the verdict as against the weight of the evidence. Respondent contends that Petitioner's "weight of the argument" claim is related to a New York state law concept that is not cognizable on habeas review.
A "weight of the evidence" claim is based on state law. McKinnon v. Superintendent, Great Meadow Corr. Facility, 422 F. App'x 69, 75 (2d Cir. 2011) ("[T]he argument that a verdict is against the weight of the evidence states a claim under state law, which is not cognizable on habeas corpus, and as a matter of federal constitutional law a jury's verdict may only be overturned if the evidence is insufficient to permit any rational juror to find guilt beyond a reasonable doubt."); Smith v. Lee, No. 11 Civ. 0530, 2014 U.S. Dist. LEXIS 46516, at *31-33 (E.D.N.Y. Mar. 31, 2014) ("It is well settled that a `weight of the evidence' claim is distinct from a `insufficiency of the evidence' claim and is a state claim based on N.Y. C.P.L. § 470.15(5) that is not reviewable in a federal habeas proceeding.").
Accordingly, I respectfully recommend that Petitioner's "weight of the evidence" claim be denied.
Petitioner further argues that the evidence was insufficient to support his conviction beyond a reasonable doubt. Respondent contends that the Appellate Division's decision rejecting this claim on the merits should receive deference.
The Due Process Clause of the Fourteenth Amendment requires convictions to be based on "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged." Einaugler v. Supreme Court of the State of N.Y., 109 F.3d 836, 839 (2d Cir. 1997) (quoting In re Winship, 397 U.S. 358, 364 (1970)). Yet when asserting a legal insufficiency of the evidence claim to a federal habeas court, the petitioner must overcome a "twice-deferential" standard established by AEDPA. Santone v. Fischer, 689 F.3d 138, 148 (2d Cir. 2012) (quoting Parker v. Matthews, 132 S.Ct. 2148, 2152 (2012)). First, a state court must uphold a jury's guilty verdict so long as "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." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). Thereafter, the federal court may only overturn the state court's decision rejecting petitioner's challenge if the decision was "objectively unreasonable." Parker, 132 S. Ct. at 2152 (quoting Cavazos v. Smith, 132 S.Ct. 2, 4 (2011)). The evidence in the record must be reviewed as a whole, Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (citing U.S. v. Khan, 553 F.3d 507, 513 (2d Cir. 1995)), and "[t]he government's proof need not `exclude every reasonable hypothesis, other than that of guilt' to support a conviction," U.S. v. Carson, 702 F.2d 351, 362 (2d Cir. 1983) (quoting Holland v. U.S., 348 U.S. 121, 139-40 (1954)). Thus, the petitioner "bears a very heavy burden" to prevail under a claim of legally insufficient evidence. Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993) (quoting U.S. v. Rivalta, 892 F.2d 223, 227 (2d Cir. 1989)).
Petitioner's sufficiency challenge centers on his claim that he was misidentified, and emphasizes discrepancies in the descriptions provided by Eleazard and the other eyewitnesses. But the jury rejected Petitioner's misidentification defense, and "issue[s] of the reliability and credibility of [] eyewitness testimony [are] properly left for the jury to determine." Perkins v. Comm'r of Corr. Services, 218 Fed. App'x. 24, 25 (2d Cir. 2007). As a matter of legal sufficiency, "the testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction." United States v. Danzey, 594 F.2d 905, 916 (2d Cir. 1979). Here, both Eleazard and Rodney identified Petitioner as the perpetrator at trial, and Juan Gomez also placed Petitioner in the grocery store immediately before the attack. On this record, there is no basis for habeas relief on the ground that Petitioner was insufficiently identified as the attacker.
Petitioner also points to the testimony of his alibi witness, and to the lack of corroborating DNA from the discarded blue bag or video evidence from the grocery store. But on habeas review the court is not free to "second guess" the jury's rejection of alibi testimony, Taylor v. Curry, 708 F.2d 886, 892 (2d Cir. 1983), and "any lack of corroboration goes only to the weight of the evidence, not to its sufficiency," United States v. Gonzalez, 110 F.3d 936, 941 (2d Cir. 1997).
Viewing the evidence in the light most favorable to the prosecution, it is clear that a rational trier of fact could find Petitioner guilty of assault beyond a reasonable doubt. Therefore, the state court's rejection of Petitioner's sufficiency of the evidence claim was not contrary to federal law or an unreasonable interpretation of the facts, and Petitioner's "sufficiency of the evidence" claim should be denied.
Petitioner argues that identification testimony at trial should have been precluded because the photo arrays used to secure out-of-court identifications were unduly suggestive and because certain comments Detective Fernandez made to Eleazard improperly prompted him to make an identification. Respondent asserts that the Appellate Division's rejection of this claim is entitled to deference, and that the claim is, in any event, without merit.
Due process protects criminal defendants from suggestive police identification procedures. Simmons v. U.S., 390 U.S. 377, 384 (1968). "[G]iven the vagaries of human memory and the inherent suggestibility of many identification procedures," "intervening photographic and lineup identifications—both of which are conceded to be suppressible fruits of the Fourth Amendment violation—[may] affect the reliability of the in-court identification and render it inadmissible as well." Young v. Conway, 698 F.3d 69, 77 (2d Cir. 2009) (quoting U.S. v. Crews, 445 U.S. 463, 472-73 (1980)). Whether a pre-trial identification procedure tainted an in-court identification is a mixed question of law and fact, which "translate[s] to `mixed constitutional questions (i.e., application of constitutional law to fact)'" on federal habeas review. Overton v. Newton, 295 F.3d 270, 277 (2d Cir. 2002) (quoting Williams, 529 U.S. at 400)).
When a pre-trial photographic identification precedes an identification at trial, a court may set aside a conviction after considering it "on its own facts" only where "the photographic identification procedure was impermissibly suggestive to give rise to a very substantial likelihood of irreparable misidentification." Simmons, 390 U.S. at 384; see also U.S. v. Concepcion, 983 F.2d 369, 377 (2d Cir. 1992). "[I]n determining whether a witness's pre-trial identification has reliability independent of unduly suggestive identification procedures," Young, 698 F.3d at 78 n.6 (emphasis omitted), a court must consider the "totality of the circumstances," including "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation," Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
Where the state adjudicated the claim on the merits and rendered a judgment, the deferential AEDPA standard of review is triggered. Therefore, the habeas court's review is limited to whether the state's decision "was contrary to, or involved an unreasonable application of," Supreme Court precedent, or in the alternative, if the decision 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)-(2); see, e.g., Dunlap v. Burge, 583 F.3d 160, 164-65 (2d Cir. 2009).
Here, the state court's rejection of Petitioner's improper identification claim was fully consistent with Supreme Court precedent and was based on a reasonable determination of the facts. At the trial level, the court conducted a pretrial Wade hearing at which lead Detective Fernandez testified as the only witness. At the conclusion of the hearing, the presiding judge entered a written decision concluding, among other things, that "the photographs in the arrays were sufficiently similar in appearance so that no characteristic would influence the viewers toward choosing the defendant" and that "the witnesses were given adequate and appropriate instructions ... as to the identification procedure." Dkt. 15-11, p. 5. On direct appeal, the Appellate Division agreed:
People v. Thomas, 104 A.D.3d 710, 711 (2013). The state court's legal analysis is fully consistent with the constitutional principles outlined above, and the state court's factual determination that the identification procedures were not unduly suggestive is presumed to be correct.
Moreover, a review of the record belies Petitioner's claims of undue suggestiveness. Eyewitnesses Eleazard, Rodney, and Gomez were each presented with arrays of six photographs depicting African-American males with similar features. This Court has reviewed the photo arrays and can discern no basis for a claim that any one of them unfairly singled out Petitioner.
After viewing the evidence in the light most favorable to the prosecution, I find that the state court's rejection of Petitioner's sufficiency of the evidence claim was not contrary to federal law or an unreasonable interpretation of the facts. Accordingly, I conclude, and respectfully recommend, that this claim should be denied.
Petitioner's third and final habeas claim asserts that he was deprived of effective assistance of counsel in violation of his Sixth Amendment rights. The Appellate Division determined that this was a "mixed" ineffectiveness claim which could not be fully evaluated on direct appeal:
Thomas, 104 A.D.3d at 711 (citations omitted). Despite this prompting, Petitioner did not initiate 440.10 proceedings before filing his habeas petition. Respondent therefore argues that Petitioner's ineffectiveness claim is, in part, unexhausted.
I agree that that portion of Petitioner's ineffectiveness claim which is based on a February 25, 2008 felony deposition which is not a part of the record is unexhausted.
In order to establish his claim of ineffective assistance of trial counsel, Petitioner must demonstrate: (1) that his attorney's performance "fell below an objective standard of reasonableness" and (2) that there is a "reasonable probability" that, but for counsel's error, "the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard." Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001). In considering whether counsel's performance was deficient under Strickland's first prong, decisions by trial counsel that "fall squarely within the ambit of trial strategy ... if reasonably made," cannot give rise to a claim of ineffectiveness. United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987). Moreover, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 690). The second prong focuses on prejudice to the petitioner. A habeas petitioner bears the burden of establishing both deficient performance and prejudice. See Greiner, 417 F.3d at 319. However, "there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697.
The main thrust of Petitioner's argument here is that his trial attorney failed to cross-examine eyewitness Eleazard concerning a description of the slasher that Eleazard included in a sworn deposition he provided on February 25, 2008, the day after he witnessed the attack. According to Petitioner, Eleazard's February 25 deposition described the perpetrator as "a dark-skinned black male, 6 foot, about 210 pounds." Dkt. 1-1, p. 57. If elicited at trial, the argument goes, this description would have impeached Eleazard's trial testimony to the effect that he had described the attacker as "five feet nine inches tall." Dkt. 1-1, p. 24.
As a general matter, "[d]ecisions whether to engage in cross-examination, and if so to what extent and in what manner, are ... strategic in nature." Nersesian, 824 F.2d at 1321. A competent defense attorney might reason that the jury would dismiss a 3-inch discrepancy concerning Petitioner's height as de minimis, and would be justified in not exploring the issue on that basis. See Orr v. Strack, 1999 U.S. Dist. LEXIS 18918 at *4-5 (S.D.N.Y. 1999). Here, however, the record indicates that Petitioner is six feet tall, Dkt. 18-2, ECF p. 34, so cross-examining Eleazard by eliciting the details of the February 25 account would have entailed disclosing to the jury that Eleazard had given a description which more closely resembled Petitioner one day after he witnessed the crime. The tactical basis for avoiding that line of cross-examination is clear.
The other prong of Petitioner's ineffective assistance claim focuses on defense counsel's failure to persuade the trial court to grant a mistrial after certain testimony was stricken from the record. Although it was exhausted on direct appeal, this argument is plainly without merit, because defense counsel sought the mistrials. "Petitioner is not entitled to claim ineffective assistance of counsel merely because he lost the motion." Cruz v. Colvin, No. 17 Civ. 3757, 2019 U.S. Dist. LEXIS 137393 at *48 (E.D.N.Y. Aug. 14, 2019) (quoting United States v. Stevens, 2002 U.S. Dist. LEXIS 17897 (E.D. Pa. Sept. 19, 2002)); see also Mathurin v. United States, Nos. 01 Civ. 1374, S1 96 Cr. 129 (LAP), 2007 U.S. Dist. LEXIS 66055 at *31 (S.D.N.Y. Sept. 5, 2007) ("[defendant's] ineffective assistance claim is nothing more than the complaint of a defendant who is disappointed with the denial of his suppression motion").
Accordingly, Petitioner's ineffective assistance claim is entirely meritless and should be denied pursuant to 28 U.S.C. § 2254(b)(2).
For the reasons set forth above, I conclude — and respectfully recommend that Your Honor should conclude — that the instant petition for a writ of habeas corpus should 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).
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. Kenneth M. Karas, 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. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008).
Requests for extensions of time to file objections must be made to Judge Karas.
A copy of this Report and Recommendation has been mailed to:
