Opinion
17 Civ. 9638 (KMK)(JCM)
01-29-2021
OMAR ANDERSON, Petitioner, v. DANIEL MARTUSCELLO, Jr., Superintendent, Coxsackie Correctional Facility, Respondent.
To the Honorable Kenneth M. Karas, United States District Judge:
REPORT AND RECOMMENDATION
Judith C. McCarthy, United States Magistrate Judge.
Petitioner Omar Anderson ("Petitioner"), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on December 18, 2017 ("Petition"). (Docket Nos. 1; 6 at 2). On March 12, 2018, Respondent Daniel Martuscello, Jr. ("Respondent") opposed the Petition, (Docket No. 10), accompanied by a supporting memorandum of law ("Resp't Br."), (Docket No. 10-1), and associated exhibits, (Docket Nos. 10-2-10-13). Petitioner replied on June 15, 2018 ("Pet'r Reply" or "Reply"). (Docket No. 14). For the reasons set forth below, I respectfully recommend that the Petition be denied in its entirety.
A pro se prisoner's papers are deemed filed at the time he or she delivers them to prison authorities for forwarding to the court clerk. Houston v. Lack, 487 U.S. 266, 276 (1988); see also Walker v. Jastremski, 430 F.3d 560 (2d Cir. 2005) (analyzing the Houston "prison mailbox rule"). Petitioner certified that his Petition was delivered to the prison authorities for mailing on December 18, 2017. (See Docket No. 6 at 2). Accordingly, because the timeliness of the Petition is not challenged, the Court adopts Petitioner's dates for this filing and all other filings discussed herein.
All page number citations to the record refer to the ECF page number unless otherwise noted.
I. BACKGROUND
A. The Crimes and Indictment
Petitioner's convictions arise out of an incident that occurred on October 6, 2012 at Super Star Deli ("Deli"), located at 203 Ashburton Avenue, Yonkers, New York 10701. Petitioner and a Deli employee, Jason Lopez ("Lopez"), got into a verbal dispute, which culminated in Petitioner stabbing Lopez in the back with a knife and chasing him into the street. Construing the evidence in the light most favorable to the state, see, e.g., Murden v. Artuz, 497 F.3d 178, 184 (2d Cir. 2007), the following facts were established at trial.
At approximately 6:30 p.m., Petitioner entered the Deli and walked to the deli counter at the back of the store where Lopez was preparing sandwiches. (Trial Tr. at 32, 40). At that time, Muaadh Ali Alsaidi ("Alsaidi"), the store manager, was working at the cash register while Anthony Barnes ("Barnes") was stocking shelves. (Id. at 106, 377). Lopez and Alsaidi knew Petitioner and his cousin, Romaine Anderson ("Romaine"), who lived together across the street from the Deli and were regular customers. (Id. at 33-34, 103, 114-15, 245).
Refers to the transcript of the trial that was held on April 10, 11, 16 and 17, 2014 before the Honorable Barry E. Warhit.
Petitioner asked Lopez for a lime, to which Lopez responded that there were no limes. (Id. at 32). Petitioner, believing that there were limes, called Lopez a "liar" and banged his fist on the glass deli counter. (Id. at 44-45). A verbal altercation ensued wherein the men cursed at each other. (Id. at 103). Petitioner then walked to the front of the store and grabbed a beer bottle by the neck along with a bag of peanuts. (Id. at 104). Alsaidi, fearing that Petitioner would use the beer bottle as a weapon, took the items from Petitioner and asked him to leave. (Id. at 107). Petitioner then pushed Alsaidi backwards into a shelf. (Id.). Alsaidi threw the peanuts at Petitioner. (Id.). Lopez and Barnes came to Alsaidi's aid, (id. at 52), and Lopez physically pushed Petitioner out of the store, (id. at 49). Petitioner stated that "he'[d] be back." (Id.).
Approximately five minutes later, Petitioner returned to the Deli with a baseball bat, approached the cash register, and tapped the safety glass surrounding the register with his bat while yelling at Alsaidi. (Id. at 110, 114). Petitioner then walked to the back of the Deli and swung the bat at Lopez. (Id. at 53-54). Lopez grabbed a baseball bat that he kept for protection and swung back at Petitioner. (Id. at 54). Petitioner hit Lopez several times in the shoulder and neck, causing Lopez to drop his bat. (Id. at 55). Disarmed, Lopez attempted to run, but as he turned, Petitioner stabbed him in the lower back with a serrated bread knife that Petitioner took from the deli counter. (Id. at 55, 63). Lopez ran to the back room of the Deli and barricaded the room's thin wooden door with a large refrigerator. (Id. at 56). From there, Lopez called Officer Richard Meyers ("Meyers") of the Yonkers Police Department ("YPD") on Meyers' personal cell phone and stated that "[s]omeone was trying to hit [him]." (Hearing Tr. at 10, 12). Officer Meyers, who had given the Deli employees his personal cell phone number, told Lopez to "call 911." (Id. at 10; Trial Tr. at 149).
Refers to the transcript of the joint Dunaway, Wade and Mapp hearings conduced before the Honorable Barry E. Warhit on April 7, 2014.
Around 6:39 p.m., Meyers and his partner, Officer Sean Hernandez ("Hernandez"), responded to the Deli. (Trial Tr. at 152; Docket No. 14 at 49 ("YPD Radio Transmission Log")). While en route, the officers heard radio transmissions from the police dispatcher stating that a panic alarm was activated at 203 Ashburton Avenue and that the incident may involve an armed Jamaican man. (Trial Tr. at 152, 154; YPD Radio Transmission Log).
Shortly thereafter, Romaine entered the Deli with a baseball bat. (Trial Tr. at 58). Thereafter, Petitioner and Romaine used their bats to break down the door to the room where Lopez was hiding. (Id. at 57). Lopez ran out of the Deli's emergency exit and onto the street. (Id.). Petitioner and Romaine chased after Lopez, pursuing him for approximately two blocks, until Lopez stopped a YPD officer and informed him that he had been stabbed. (Id. at 59).
Meyers and Hernandez arrived at the Deli roughly three minutes after receiving Lopez's call. (Hearing Tr. at 11-12). As they pulled up, Meyers observed two men exiting the Deli holding baseball bats. (Id. at 13, 15). Meyers got out of his car to speak with the men, who fled upon seeing the marked police car. (Id. at 16). Meyers pursued them on foot down an alley adjacent to the Deli, while Hernandez drove to the other side of the alley. (Id. at 16, 57). Meyers caught up to Hernandez, and the officers spotted Petitioner and Romaine outside of 3 Whelan Place, a few hundred feet north of the Deli. (Id. at 57-58). The officers drew their weapons and ordered Petitioner and Romaine to drop their baseball bats before handcuffing the men and directing them to lay on their stomachs. (Trial Tr. at 159). At 6:43 p.m., after the men were taken into custody, the police dispatcher conveyed that there was a stabbing victim at 203 Ashburton Avenue. (See YPD Radio Transmission Log).
Officer Christopher Detz ("Detz") recovered the baseball bats from 3 Whelan Place and drove Petitioner to the Deli for a "show-up" identification procedure, where Officers Keith Ryan ("Ryan") and Jon Dolce ("Dolce") were waiting. (Trial Tr. at 189; Hearing Tr. at 5, 41, 58). Officers Ryan and Dolce spoke to Lopez, who was "bleeding profusely from his lower left back." (Trial Tr. at 189). Lopez was then transported to an ambulance, where Officer Ryan informed him that "several males," who may or may not have been involved in the incident, were going to be brought over for identification. (Id. at 190; Hearing Tr. at 58). Petitioner and Romaine were displayed to Lopez individually for identification. (Hearing Tr. at 49). Lopez positively identified both men as his assailants. (Id. at 50).
B. Pretrial Hearing
On December 17, 2013, the trial court granted Petitioner's request for Dunaway, Wade and Mapp hearings. (Hearing Tr. at 56). A joint suppression hearing was held on April 7, 2017 before the Honorable Barry E. Warhit to ascertain: (1) the lawfulness of Petitioner's detention and subsequent arrest; (2) whether the show-up identification procedure was impermissibly suggestive; and (3) whether the two baseball bats recovered by the YPD were admissible at trial. (Id. at 1-69). The People called Officer Meyers, (id. at 7-31), Officer Detz, (id. at 32-43), and Officer Ryan, (id. at 44-54), to testify. Petitioner did not call any witnesses.
The court issued an oral decision on April 7, 2014 finding that: (1) the People presented credible evidence establishing probable cause for the pursuit and detention of Petitioner and Romaine; specifically, that the People demonstrated that after receiving Lopez's panicked call, Officers Meyers and Hernandez observed two men exiting the Deli with baseball bats, and upon seeing the marked police car, the men fled; (2) the People met their burden of demonstrating that the show-up identification procedure was neither impermissibly suggestive nor conducive to an irreparable mistaken identification since the identification was conducted twenty minutes after the assault, Officer Ryan told Lopez that the men "may or may not" be his assailants, and Lopez immediately and conclusively identified Petitioner; (3) once Lopez identified Petitioner, probable cause existed for Petitioner's arrest; and (4) the baseball bats, which were in plain view of the arresting officers and were seized pursuant to a lawful detention, were admissible at trial. (Id. at 60-61).
C. Trial and Verdict
The Honorable Barry E. Warhit presided over the trial and conducted jury selection on April 9, 2014. (See Id. at 68). The trial commenced on April 10, 2014 with opening statements. (Trial Tr. at 16-28). In support of its case-in-chief, the People called: (1) Lopez, (id. at 28-96); (2) Alsaidi, (id. at 96-142); (3) Officer Meyers, (id. at 146-65); (4) Officer Detz, (id. at 166-83); (5) Officer Ryan, (id. at 183-98); (6) Officer Michael Burlingham, (id. at 198-239); (7) Officer Dolce, (id. at 239-48); (8) Detective John Donaghy, (id. at 254-72); (9) Samantha Chernoguz, (id. at 277-316); and (10) Danielle Friedman, (id. at 317-45). Additionally, the People introduced security footage from the Deli's cameras, which depicted portions of the incident and placed Petitioner at the crime scene holding the knife used to stab Lopez and a baseball bat. (Id. at 367, 396).
The District Attorney's Office did not provide a transcript of the voir dire conducted during Petitioner's trial. The voir dire transcript is not relevant to the instant Petition and thus, need not be reviewed by the Court. See Rules Governing Section 2254 Cases in the United States District Courts, R. 5(c).
Officer Meyers testified to the contents of four statements made by the YPD dispatcher on October 6, 2012 that he heard on the police radio. (Id. at 152-54). Meyers incorrectly testified that two of the statements made by the police dispatcher, specifically: (1) that "there was a stabbing victim at 203 Ashburton Avenue," (id. at 153); and (2) that "[t]here was a suspect with a possible knife and/or gun," (id. at 154), were made before Meyers arrested Petitioner and Romaine, when in fact, the YPD radio transmission log demonstrates that both of these transmissions were made after Petitioner and Romaine were taken into custody. (See YPD Radio Transmission Log).
At trial Meyers testified regarding the contents of the following statements made by the police dispatcher: (1) "there was a panic alarm activated" at 203 Ashburton Avenue; (2) "there was a stabbing victim at 203 Ashburton Avenue;" (3) "[t]here was a suspect with a possible knife and/or gun;" and (4) "they also had baseball bats." (Trial Tr. at 152-54).
Officer Meyers testified twice to the police dispatcher's statement, at issue in the instant Petition, that "there was a stabbing victim at 203 Ashburton Avenue." (Trial Tr. at 153-54 ("Q. What was said? ... A. That there was a stabbing victim at 203 Ashburton Avenue. Q. Did you hear any further radio transmissions about what might be taking place? A. Yes. Q. What did you hear? A. There was, like I just said, there was a stabbing victim there . ..")). The trial judge gave a limiting instruction each time Officer Meyers testified to the statement. (See id).
Based on this incorrect timeline, the trial court admitted these statements not for their truth, but to explain Officer Meyers' actions in arresting Petitioner and Romaine. (Trial Tr. at 152-54). Before Officer Meyers testified to each of the dispatcher's statements, the court gave a variation of the following limiting instruction:
The testimony that you're about to hear is not being offered for the truth of what was in the dispatch, but rather being offered for you to understand why [Officer Meyers] took the action that he may have taken. So it's not being offered for the truth of what's in the dispatch, but only to explain why the officer did what he did. It's up to you to credit anything in this case, including all of that. . . When I say credit, or not credit; that's up to you. You determine credibility and weight.(Id. at 152; see also Id. at 153-54). In total, the trial judge gave this instruction four times. (Id. at 152-54).
The People rested on April 16, 2014, (id. at 345), and Petitioner's trial counsel moved to dismiss the indictment, arguing that the People failed to establish aprima facie case and prove its case beyond a reasonable doubt, (id. at 346). The motion was denied. (Id. at 347). Petitioner's trial counsel called Petitioner to testify on his case-in-chief. (Id. at 349-96). Petitioner testified about the altercation he had with Lopez, which he claimed was prompted by Lopez calling him a "fucking Jamaican," causing him to lose his "logic[al] thinking" and return to the Deli armed with a baseball bat several minutes later. (Id. at 355-56). During cross-examination, Petitioner admitted that he was standing by the deli counter holding a baseball bat in one hand and a knife in the other at the time of the assault. (Id. at 367, 380, 396). Thereafter, the defense rested. (Id. at 397). Both sides delivered summations on April 17, 2014. (Id. at 426-53).
The jury was charged on April 17, 2014, (id. at 454-80), and deliberated for several hours before returning a verdict finding Petitioner guilty of Second Degree Assault and Second Degree Attempted Assault, (id. at 520-21). On July 15, 2014, the trial court sentenced Petitioner to 4 years in state prison followed by 2 years of post-release supervision for the assault charge and 3 years in state prison for the attempted assault charge. (July 15, 2014 Trial Tr. at 20). The sentences were ordered to run concurrently. (Id.).
Petitioner's sentence stemming from the instant convictions has fully expired. (See July 15, 2014 Trial Tr. at 20). "The federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are 'in custody in violation of the Constitution or laws or treaties of the United States.'" Maleng v. Cook, 490 U.S. 488, 490 (1989) (quoting 28 U.S.C. § 2241(c)(3)). The Supreme Court has interpreted this provision "as requiring that the habeas petitioner be 'in custody' under the conviction or sentence under attack at the time his petition is filed." Id. at 490-91. Where, as is the case here, petitioner filed his petition while "in custody," and his sentence expired while the petition was pending, petitioner's claims remain cognizable by the district court, since petitioner is entitled to relief from the "collateral consequences" of the conviction, e.g., the inability to vote, engage in certain business, hold public office or serve as a juror. See Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968). Of note, Petitioner is currently incarcerated for another assault conviction that was pending at the time of the instant convictions. See New York State Dep't of Corr. and Cmty. Supervision, http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ3/WINQ130 (last visited Jan. 29, 2021).
D. N.Y.C.P.L. § 440.10 Motion
On August 3, 2016, Petitioner moved to vacate the conviction against him pursuant to N. Y.C.P.L. § 440.10 ("440.10 Motion"), arguing that the verdict was based on misinformation presented by the People at trial with respect to the timing of the police dispatcher's statement that "there was a stabbing victim at 203 Ashburton Avenue." (Docket No. 10-4, Resp't Ex. 3). Petitioner argued that the prosecution, "innocent[ly] or intentional[ly]" "misled" the trial court into admitting the statement, by alleging that the statement was offered to explain Officer Meyers' actions, despite the fact that Petitioner was already detained when the statement was made. (440.10 Motion at 6-7). The People opposed Petitioner's 440.10 Motion on August 23, 2016, (Docket No. 10-5, Resp't Ex. 4), and Petitioner replied, (Docket No. 10-6, Resp't Ex. 5). The court denied the motion on October 31, 2016, finding that Petitioner failed to establish that the statement prejudiced his trial. (Docket No. 10-7, Resp't Ex. 6 at 8, 10).
On November 23, 2016, Petitioner moved for leave to appeal the denial of his 440.10 Motion to the New York Supreme Court Appellate Division for the Second Department ("Appellate Division"), (Docket No. 10-8, Resp't Ex. 7), which the People opposed, (Docket No. 10-9, Resp't Ex. 8). The Appellate Division denied Petitioner's request on March 9, 2017. (Docket No. 10-10, Resp't Ex. 9).
E. Direct Appeal
Petitioner filed a direct appeal on February 19, 2016, ("Pet'r Direct Appeal") arguing that the trial court erred by admitting the police dispatcher's hearsay statement about the stabbing victim, and alternatively, "even if the [statement] d[id] not technically constitute hearsay," it violated his "New York State and federal constitutional right to confrontation." (Docket No. 10- 2, Resp't Ex. 1 at 37-40). Petitioner also claimed that the jury verdict was against the weight of the evidence and was based on legally insufficient evidence. (Id. at 41-46). The People opposed Petitioner's appeal. (Docket No. 10-3, Resp't Ex. 2).
On March 1, 2017, the Appellate Division denied Petitioner's appeal in its entirety, finding that "the trial court did not err in admitting testimony from a police officer about the contents of radio transmissions, as they were admitted to give the jury a complete picture of why police officers were at the scene and to avoid speculation," and regardless, "[t]he trial court's clear limiting instructions to the jury effectively eliminated any risk of prejudice to the defendant." People v. Anderson, 148 A.D.3d 714, 715 (2nd Dep't 2017).
Petitioner sought leave to appeal to the New York State Court of Appeals ("Court of Appeals") on March 15, 2017, reasserting his arguments that the admission of the police dispatcher's hearsay statement regarding a stabbing victim was plain error and deprived him of his state and federal confrontation rights. (Docket No. 10-11, Resp't Ex. 10). The People opposed Petitioner's application, (Docket No. 10-12, Resp't Ex. 11), and the Court of Appeals denied leave on May 10, 2017, (Docket No. 10-13, Resp't Ex. 12).
F. Federal Habeas Corpus Proceedings
Petitioner filed the instant Petition on December 18, 2017. (See Docket No. 6 at 2). Respondent opposed the Petition on March 12, 2018, (Docket No. 10), and Petitioner replied on June 15, 2018, (Pet'r Reply).
II. APPLICABLE LAW
"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. PJchter, 562 U.S. 86, 97 (2011). "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." Visich v. Walsh, No. 10 Civ. 4160 (ER)(PED), 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013). The procedural and substantive standards are summarized below.
If Petitioner does not nave access to cases cited herein that are available only by electronic database, then he may request copies from Respondent's counsel. See Local Civ. R. 7.2 ("Upon request, counsel shall provide the pro se litigant with copies of such unpublished cases and other authorities as are cited in a decision of the Court and were not previously cited by any party.").
A. Exhaustion as a Procedural Bar
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:
(b)(1) 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-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(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.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 quotations 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).
A petitioner may fairly present his claim even without citing to the U.S. Constitution, by, inter alia: "(a) [relying] on pertinent federal cases employing constitutional analysis, (b) [relying] on state cases employing constitutional analysis in like fact situations, (c) [asserting] ... [a] claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) [alleging] ... a pattern of facts that is well within the mainstream of constitutional litigation." 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[.]").
B. Adequate and Independent State Grounds as a Procedural Bar
"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 state4aw 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 v. Thompson, 501 U.S. 722, 729 (1991)). 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); accord 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)). Typically, 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).
To avoid a procedural default based on an independent and adequate state ground, 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)). "The cause requirement is met if some objective factor, external to Petitioner's defense, interfered with his ability to comply with the state's procedural rule," e.g., where '"the factual or legal basis for a claim was not reasonably available to counsel' at the time of trial." Gutierrez v. Smith, 702 F.3d 103, 111 (2d Cir. 2012) (quoting Strickler v. Greene, 527 U.S. 263, 283 n.24 (1999)). A petitioner may establish prejudice by showing that he was "substantially] disadvantage[d]" by the alleged trial errors, and that his "entire trial" was "infect[ed] . . . with error of constitutional dimensions." Id. at 112. Demonstrating a fundamental miscarriage of justice requires a showing that the petitioner "is actually innocent of the crime for which he has been convicted," Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002), through "new reliable evidence," Schlup v. Delo, 513 U.S. 298, 324(1995).
C. AEDPA Standard of Review
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:
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—
(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)(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.").
If a state court adjudicates a federal claim on the merits, the Court must apply AEDPA deference to that state court ruling. 28 U.S.C. § 2254(d)(1)-(2). In the context of AEDPA deference, the phrase "clearly established Federal law" means "the holdings, as opposed to the dicta, of [the Supreme Court of the United States'] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 365 (2000). "A state court decision is contrary to such clearly established federal law if it 'applies a rule that contradicts the governing law set forth in the Supreme Court's cases' or 'if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent.'" Lewis v. Conn. Comm 'r o/Corr., 790 F.3d 109, 121 (2d Cir. 2015) (quoting Boyette v. Lefevre, 246 F.3d 76, 90 (2d Cir. 2001)). 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 'fairminded 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 'fairminded 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).
If, by contrast, a state court does not adjudicate a federal claim on the merits, "AEDPA deference is not required. . . . [and] conclusions of law and mixed findings of fact and conclusions of law are reviewed de novo." DeBerry v. Portuondo, 403 F.3d 57, 66-67 (2d Cir. 2005).
III. DISCUSSION
The instant Petition and Petitioner's Reply argue that: (1) the trial court wrongfully admitted the dispatcher's statement regarding a stabbing victim at 203 Ashburton Avenue, which constituted "inadmissible hearsay;" and (2) admitting the statement violated Petitioner's Sixth Amendment confrontation right. (Petition ¶ 12(a); Pet'r Reply at 9-15).
A. Hearsay Claim
First, Petitioner challenges the propriety of the state court's decision to admit the dispatcher's statement at trial. (Petition¶12(a)). Respondent argues that the decision to admit the statement concerned a state evidentiary issue and is not subject to federal habeas review. (Resp't Br. at 17-18). Generally, it is "not the province of a federal habeas court to re-examine state-court determinations on state law questions," Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), even if the state court erroneously applied state-law, see Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983). Thus, to prevail on his hearsay claim, Petitioner carries the "heavy burden" of showing that the alleged evidentiary error "deprived h[im] of a fundamentally fair trial." Id. (emphasis in original); see also Roldan v. Artuz, 78 F.Supp.2d 260, 267 (S.D.N.Y. 2000). To rise to the level of infringing on an accused's right to a fair trial, a trial error must have had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). For example, the wrongfully admitted evidence must have been "sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it." Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992). When assessing the impact of an alleged error, the court considers "the nature of the [alleged] violation and the context in which it occurred, taking into account... the strength of the government's case, the degree to which the statement was material to a critical issue, the extent to which the statement was cumulative, and the degree to which the government emphasized the erroneously admitted evidence in its presentation of the case." United States v. Reifler, 446 F.3d 65, 88 (2d Cir. 2006) (internal citations omitted). "The strength of the prosecution's case is probably the single most critical factor." United States v. Castano, 999 F.2d 615, 618 (2d Cir. 1993).
Assuming, arguendo, that the trial court erred in admitting the dispatcher's statement, the conviction would stand nonetheless since without it there is still sufficient evidence to support Petitioner's conviction beyond a reasonable doubt. See Id. The People adduced overwhelming evidence of Petitioner's guilt at trial. The majority of the incident was caught on the Deli's security cameras, which were played for the jury. (See, e.g., Trial Tr. at 36-50). Petitioner admitted to being the individual in the security footage holding the knife recovered from the crime scene, which was spotted with Lopez's blood. (Id. at 289-90, 295, 367, 380, 396). Additionally, Petitioner testified at trial that he became engaged in a verbal dispute with Lopez over whether the Deli carried limes, (id. at 352), and subsequent to that dispute, he grabbed a beer bottle to use as a weapon (which he contended was for self-defense), (id. at 354), then exited the Deli and returned several minutes later with a baseball bat, (id. at 356). Thereafter, Petitioner testified that he "picked [a serrated bread] knife up," from the deli counter and walked "back and forth through the store" with the knife and baseball bat in hand, then, while "in autopilot," used his baseball bat to "bang on the door" to the room that Lopez had barricaded shut until the door broke. (Id. at 359). Petitioner stated that he did not leave the Deli until he "heard the cops come," (id.), and that he and Romaine chased Lopez out of the Deli while armed with baseball bats, (id. at 394). Furthermore, Petitioner was seen by police exiting the Deli with a baseball bat about three minutes after Lopez called Officer Meyers reporting the attack. (Hearing Tr. at 12). When Petitioner saw the marked police car, he fled. (Id. at 16). Approximately twenty minutes after the attack, Lopez identified Petitioner as his assailant. (Id. at 50). Although "[t]he identification of strangers is proverbially untrustworthy," United States v. Wade, 388 U.S. 218, 228 (1967), Petitioner was not a stranger to Lopez. Petitioner was a regular customer at the Deli and lived across the street. (Trial Tr. at 33-34).
For purposes of this Report and Recommendation, the Court does not need to rule on whether the admission of the dispatcher's statement at trial was a proper application of New York's rule of evidence.
In sum, apart from the dispatcher's statement, the prosecution presented highly probative physical and testimonial evidence of Petitioner's guilt. The Deli's security footage and Petitioner's own admissions directly implicated him in the stabbing. Even if the dispatcher's statement was admitted in error, the statement neither provided the basis for Petitioner's conviction, nor did it remove reasonable doubt that would have existed in the absence of the statement. See Johnson, 955 F.2d at 181. Accordingly, the allegedly wrongful admission of the dispatcher's statement did not deprive Petitioner of a fundamentally fair trial. Thus, Petitioner is not entitled to habeas relief with respect to his hearsay claim.
B. Sixth Amendment Confrontation Clause Claim
Next, Petitioner contends that admitting the dispatcher's statement violated his right to confrontation, guaranteed by the Sixth Amendment, because the dispatcher "did not testified [sic] at trial and petitioner did not have the opportunity for cross-examination and the jury did not have the chance to look at [him] and judge his demeanor . . ." (Pet'r Reply at 7). Respondent argues that Petitioner's Six Amendment Confrontation Clause ("Sixth Amendment" or "Confrontation Clause") claim is both procedurally barred and fails on the merits. (Resp't Br. at 5-18).
First, Respondent argues that Petitioner's Sixth Amendment claim is unexhausted. Respondent avers that Petitioner's instant claim is "based upon the [state Supreme Court's] October 30, 2016 determination of Petitioner's C.P.L. 440.10 motion," and that "[Petitioner does not challenge the determination of his direct appeal" on habeas review. (Resp't Br. at 9, 12). Respondent further argues that "[t]he [Petition] incorrectly purports that [Petitioner's 440.10 Motion] included a claim of denial of the' Sixth Amendment Right, the right to be confronted with witnesses against him,' which it did not, " and therefore, Petitioner's Sixth Amendment claim is unexhausted. (Id. at 10 (quoting Petition ¶ 12(d)). Petitioner contends that he properly exhausted his claim by expressly alleging a violation of his Sixth Amendment Confrontation Clause right on direct appeal and in his application for leave to the Court of Appeals. (Pet'r Reply at 6-8).
Notwithstanding Respondent's contention, Petitioner does not argue that he raised a Sixth Amendment claim on collateral review. (See Resp't Br. at 10). The quoted language Respondent highlights to the Court is Petitioner's articulation of his present claim for habeas relief. (Id.; see also Petition U 12(a)).
Respondent correctly notes that the Petition references only Petitioner's 440.10 Motion, which is also the sole exhibit attached thereto, and did not advance a Confrontation Clause claim. (See Petition). However, in his Reply, Petitioner argues that he raised the Confrontation Clause argument in his direct appeal, and has therefore exhausted his claim. (See Pet'r Reply at 6-8). A strict review of the Petition indicates that Petitioner's claim is unexhausted. However, pro se filings are to be construed liberally and "must be . . . interpreted 'to raise the strongest arguments that they suggest.'" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006))(emphasis in original) (collecting cases); accord Brown v. Laclaire, No. 07 Civ. 5906(KMW), 2009 WL 804131, at *2 (S.D.N.Y.Mar. 26, 2009) (applying the liberal standard of construction to a pro se petitioner's habeas petition). Furthermore, "the mandate to read the papers of pro se litigants generously makes it appropriate to consider [Petitioner's] additional materials" such as his Reply, in addressing Petitioner's exhaustion argument. See, e.g., Gadson v. Goord, No. 96 Civ. 7544(SS), 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov. 17, 1997). Accordingly, the Court interprets Petitioner as challenging the Appellate Division's determination of his Sixth Amendment claim on direct appeal and finds that Petitioner "fairly presented" the "federal constitutional claim that he now urges upon the federal courts," to "an appropriate state court," Turner, 262 F.3d at 123, by raising it to the Appellate Division and the Court of Appeals, (Pet'r Direct Appeal at 39-40; Docket No. 10-11 at 3).
Second, Respondent argues that to the extent Petitioner's Sixth Amendment claim is exhausted, it is procedurally barred because the Appellate Division found that it was unpreserved for appeal. (Id.). Petitioner argued on direct appeal that the dispatcher's statement was inadmissible hearsay and alternatively, that it violated his state and federal rights to confrontation. (Pet'r Direct Appeal at 39). The Appellate Division ruled on the merits of Petitioner's hearsay claim, but found Petitioner's confrontation argument unpreserved for appellate review "and, in any event, without merit." Anderson, 148 A.D.3d at 715.
The Appellate Division found that "the trial court did not err in admitting testimony from a police officer about die contents of radio transmissions, as they were admitted to give the jury a complete picture of why police officers were at the scene and to avoid speculation. The trial court's clear limiting instructions to the jury effectively eliminated any risk of prejudice to the defendant. The defendant's remaining contentions concerning the radio transmission are unpreserved for appellate review and, in any event, without merit." Anderson, 148 A.D.3d at 715 (internal citations omitted).
Federal habeas review is generally foreclosed "if the decision of the state court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Garvey v. Duncan, 485 F.3d 709, 713 (2d Cir. 2007). Where, as here, a state court finds "that a claim is 'not preserved for appellate review' and then rule[s] 'in any event' on the merits," the state court has relied on an independent and adequate state-law ground, barring federal habeas review. Grant v. Bradt, No. 10 CIV. 394 (RJS), 2012 WL 3764548, at *3 (S.D.N.Y. Aug. 30, 2012) (quoting Fama v. Comm 'r o/Corr. Servs., 235 F.3d 804, 810 n.4 (2d Cir. 2000)). Petitioner may only overcome the procedural bar by showing cause and prejudice or a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750.
Petitioner neither explained his failure to preserve his Sixth Amendment claim nor demonstrated that the trial court's admission of the police dispatcher's statement and accompanying limiting instruction "infect[ed] [his] entire trial with error of constitutional dimensions" such that cause and prejudice is established. See Gutierrez, 702 F.3d at 111. Nor has Petitioner proffered "new reliable evidence" demonstrating actual innocence. See Schlup, 513 U.S. at 324. Accordingly, Petitioner's Sixth Amendment claim is procedurally barred.
Third, Respondent avers that even if Petitioner's Sixth Amendment claim is not procedurally barred, the claim is meritless since the Appellate Division's decision regarding Petitioner's constitutional claim was neither contrary to, nor an unreasonable application of, federal law. (Resp't Br. at 12-18). The Court agrees with Respondent.
"The Sixth Amendment to the United States Constitution guarantees a criminal defendant 'the right... to be confronted with the witnesses against him.'" DeJesus v. Perez, 813 Fed.Appx. 631, 633 (2d Cir. 2020) (quoting U.S. CONST, amend. VI). In Crawford v. Washington, the Supreme Court established that the Confrontation Clause bars the use of "testimonial" out-of-court statements offered against a defendant, 541 U.S. 36, 62 (2004), "in lieu of in-court testimony subject to cross-examination," Bowman v. Racette, No. 12CV4153-LTS-SN, 2015 WL 1787130, at *22 (S.D.N.Y. Apr. 20, 2015). Testimonial statements are defined as pretrial "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Crawford, 541 U.S. at 52. This circuit defines testimonial statements as "knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings." United States v. Saget, 377 F.3d 223, 228 (2d Cir. 2004). Testimonial statements are often made when the declarant is acting as a witness or testifying, see Davis v. Washington, 547 U.S. 813, 828 (2006), and at minimum, include "prior testimony at a preliminary hearing, before a grand jury, or at a former trial," and statements made during police interrogations, Crawford, 541 U.S. at 68.
The Constitution "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Id. at 59 n.9; accord Tennessee v. Street, 471 U.S. 409, 414(1985).
Introducing the dispatcher's statement at trial did not run afoul of the Confrontation Clause. The dispatcher's statement was not offered for its truth, but to explain why Officer Meyers arrested Petitioner. (Trial Tr. at 152-54). Crawford itself provides that the Confrontation Clause "does not extend to evidence offered for purposes other than to establish the truth of the matter asserted." United States v. Stewart, 433 F.3d 273, 291 (2d Cir. 2006). Thus, the dispatcher's statement did not implicate Petitioner's Sixth Amendment rights. See id.
Additionally, the dispatcher's statement was not testimonial. Petitioner argues that the statement was testimonial because it was not made during an ongoing emergency, which Petitioner contends distinguishes the instant case from the Supreme Court's decision in Davis v. Washington. (Pet'r Reply at 10-12). He further contends that the statement was testimonial since "Officer Meyer's [sic] testimony was accusatory [] and was made to support the scenario produced by the prosecution at trial to avoid a finding of [a] confrontation clause violation," and that "the statement made [by the police dispatcher] was sufficiently formal to qualify as a testimonial statement." (Id. at 11). Petitioner's arguments fail. The dispatcher's statement was clearly nontestimonial. The dispatcher was neither acting as a witness nor was he testifying when he made the statement. See Davis, 547 U.S. at 828. Moreover, the dispatcher was not responding to structured questioning in an investigative environment, nor did he expect that his statement would be used in a future proceeding. See Saget, 377 F.3d at 228.
Finally, even if Petitioner's Confrontation Clause right was violated, "[s]uch an error is reviewed for harmlessness" on habeas review. McBee v. Burge, 395 Fed.Appx. 762, 763 (2d Cir. 2010). Thus, to be entitled to relief, Petitioner must demonstrate that the alleged error had a "substantial and injurious effect or influence in determining the jury's verdict." Id. (quoting Brecht, 507 U.S. at 637). As discussed previously, and in light of the overwhelming strength of the prosecution's case, Petitioner failed to meet the heavy burden of demonstrating that his trial was "substantially] and injuriously]" impacted by admission of the dispatcher's statement, a necessary prerequisite to demonstrate that the statement was not harmless.
In conclusion, Petitioner's Confrontation Clause claim is procedurally barred and alternatively, fails on the merits. Moreover, the allegedly wrongful admission of the dispatcher's statement did not deprive Petitioner of a fundamentally fair trial. For these reasons, the Court respectfully recommends the dismissal of the Petition in its entirety.
IV. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend that the Petition be denied. 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, 483-484(2000).
The Clerk of Court is requested to mail a copy of this Report and Recommendation to the pro se Petitioner.
V. NOTICE
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 Kenneth M. Karas 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 Kenneth M. Karas 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).