Opinion
9:21-cv-0736 (DNH/TWD)
05-29-2024
COURTNEY BURTON, Petitioner, v. WOLCOTT, Superintendent Respondent.
COURTNEY BURTON Petitioner, pro se Attica Correctional Facility HON. LETITIA JAMES MARGARET A. CIEPRISZ, ESQ. New York State Attorney General Attorney for Defendants
APPEARANCES: OF COUNSEL:
COURTNEY BURTON
Petitioner, pro se
Attica Correctional Facility
HON. LETITIA JAMES MARGARET A. CIEPRISZ, ESQ.
New York State Attorney General
Attorney for Defendants
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, United States Magistrate Judge
I. INTRODUCTION
Petitioner Courtney Burton (“Petitioner”), an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Dkt. No. 1. Respondent filed a response and the relevant state court records. Dkt. Nos. 13-15. For the reasons set forth below, the Court recommends the petition be denied and dismissed.
II. RELEVANT BACKGROUND
A. Indictment
In an indictment dated April 13, 2017, an Onondaga County Grand Jury charged Petitioner with: three counts of attempted murder in the second degree, in violation of N.Y. PENAL LAW (“P.L.”) § 110/125.25(1); two counts of assault in the first degree, in violation of P.L. § 120.10(1); attempted assault in the first degree, in violation of P.L. § 110/120.10(1); and criminal possession of a weapon in the second degree, in violation of P.L. § 265.03(3). Dkt. No. 15-1 at 192-93. The Grand Jury found, on or about March 11, 2017, Petitioner: (1) “attempted to intentionally cause the death of Freddie Haygood . . . by firing a loaded handgun at close range multiple times and striking the victim in the chest and arm;” (2) “attempted to intentionally cause the death of Antwan Turner . . . by firing a loaded handgun at close range multiple times and striking the victim in the arm;” (3) “attempted to intentionally cause the death of Laquana Roberts . . . by firing a loaded handgun at close range multiple times and striking the victim in the torso;” (4) “intentionally caused serious physical injury to Freddie Haywood, by means of a deadly weapon, . . . by firing a loaded handgun at close range multiple times and striking the victim in the chest and arm;” (5) “intentionally caused serious physical injury to Antwan Turner, by means of a deadly weapon, . . . by firing a loaded handgun at close range multiple times and striking the victim in the arm;” (6) “attempted to intentionally cause serious physical injury to Laquana Roberts, by means of a deadly weapon, . . . by firing a loaded handgun at close range multiple times and striking the victim in the torso;” and (7) “possessed a loaded firearm at a place other than his home or place of business, to wit: a loaded semiautomatic pistol.” Id.
Citations to the parties' submissions will refer to the pagination generated by CM/ECF, the Court's electronic filing system. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
The Grand Jury also charged Tyron Miles with hindering prosecution in the second degree, in violation of P.L. § 205.60, finding Miles “rendered criminal assistance to [Petitioner] who had committed Class B or C felonies.” Dkt. No. 15-1 at 193.
B. Pre-Trial Proceedings
1. Suppression Hearing
On July 20, 2017, Onondaga County Supreme Court (hereinafter, “Onondaga County Court” or “County Court”) conducted a suppression hearing. See generally, Dkt. No. 15-6 at 10115. Petitioner was represented at the hearing by counsel, Elise M. Voutsinas, Esq.
As relevant here, Syracuse Police Department Detective Thomas Hahn, assigned to the Criminal Investigations Division (“CID”), reviewed video footage obtained from the “Lucky 7 Liquor store” and “Money Mansion” after hours establishment in connection with a shooting incident. Id. at 17-18. Using the footage, the Intel Unit disseminated an “Attempt-to-ID bulletin” depicting the shooter and driver of a suspect vehicle. Id. at 19. The shooter was identified as “Courtney Burton” by both Syracuse Police Officer Abraham and Petitioner's parole officer, Brian Maher. Id. at 19-20. On cross-examination, Hahn clarified the parole officer identified Petitioner as the individual depicted in the video footage after he told Maher Hahn believed the suspect was Petitioner. Id. at 36.
Syracuse Police Department Detective Mamoun Abraham testified he received the attempt to identify bulletin via e-mail. Id. at 79-80. Abraham believed one of the two individuals depicted on the still framed photograph was Petitioner, therefore, he contacted Sergeant Ryan and requested to review the video footage. Id. at 80-81. He later reviewed the footage at the CID office and confirmed Petitioner was, in fact, the man depicted in the still framed photograph. Id. at 81-82. He explained he was familiar with Petitioner due to prior interactions, including a search warrant incident, which occurred approximately one year prior, and a traffic stop, which had occurred approximately one week prior to Abraham's receipt of the bulletin. Id. at 83-84. Abraham identified Petitioner at the hearing. Id. at 84.
Syracuse Police Department Detective Matthew Arduini was instructed to interview an individual in holding at the CID, who he later learned to be Petitioner, in connection with the investigation. Id. at 89-91. Over the course of his interview, Arduini stepped out of the room on multiple occasions, but video recording of the room containing Petitioner continued. Id. at 9496. Petitioner engaged in a number of phone conversations, potentially with multiple individuals. Id. at 96-98.
During one conversation, Petitioner asked an individual whether they had worked on Friday, and “[i]n response to that person's answer Mr. Burton said that, ‘I'm going to tell them I was with you then.'” Id. at 96. He also “mentioned the fact that the police had shown him a photograph of Tyron Miles . . . . And when he said that, he said, ‘They showed me a picture of Ty and me,' and quickly changed it to ‘Other people' when he realized he said ‘Me.'” Id. at 9697. In another phone call, Petitioner “mentioned a hat with an ‘A' on it and a gray-hooded sweatshirt. He instructed that person to not let them see it, referring to the police, and asked them to put it on and put an article of clothing over it and get it out of there.” Id. at 97. At “[a]nother point, he begged a female . . . to please get that sweatshirt.” Id. Arduini testified he discussed gunshot residue with Petitioner during the interview, and when he left the room after that exchange, Petitioner told the recipient of his call “to F everything else and get that sweatshirt and throw it in the wash and put -- he said hoodie -- and put bleach on it.” Id.
Following the hearing, Petitioner's attorney submitted a memorandum to the Court arguing various statements, identifications, and other evidence should be suppressed. See Dkt. No. 15-1 at 361-63. Petitioner asserted the People failed to demonstrate probable cause for his arrest, therefore, all evidence obtained as a result thereof must be suppressed. Id. at 361-62. Further, Petitioner argued the photograph identification procedures used were unduly suggestive, and identifications made by various witnesses, including parole officer Maher, should not be allowed at trial. Id. at 363.
2. Change of Counsel
At a hearing on August 31, 2017, Onondaga County Court acknowledged an issue regarding Petitioner's representation and agreed to discuss the matter with Petitioner the following week. Dkt. No. 15-6 at 120-21. Petitioner announced he wished to represent himself, and the Court stated he could return to the subject at his next appearance. Id. at 121.
On September 8, 2017, the Court advised Petitioner it would be willing to arrange a meeting with a different attorney for Petitioner to determine whether he would prefer to proceed with newly assigned counsel or, if Petitioner was not satisfied with the meeting, the Court would conduct a colloquy to determine whether Petitioner could represent himself. Id. at 126-27. Petitioner stated “I really don't want to be represented by no attorneys . . . . I will represent myself.” Id. at 127. He further explained:
My problem is like the caseloads are too heavy. Too many cases. Can't focus on an individual case. Because I find I am doing research and I find a lot of errors in my case and it's like it is not their fault. They are -- they aren't doing it the right way.Id. at 127-28. The Court instructed Petitioner it would assign counsel and arrange for the attorney to meet with Petitioner before his next appearance. Id. at 129.
On September 14, 2017, attorney Paul Carey, Esq., informed the Court he had met with Petitioner and believed Petitioner wished to proceed with Carey's representation. Id. at 133. Petitioner confirmed he wanted the Court to assign Carey. Id. Accordingly, Mr. Carey was assigned to represent Petitioner and Ms. Voutsinas was relieved. Id.
3. Molineux Ruling
The People moved, pursuant to People v. Molineux and People v. Ventimiglia, to introduce various statements made by Petitioner as evidence of identity, intent, and consciousness of guilt. See generally, Dkt. No. 15-1 at 394-400. As relevant here, the People sought to introduce the following phone calls:
See generally, People v. Ventimiglia, 52 N.Y.2d 350 (1981); People v. Molineux, 168 N.Y. 264 (1901) (explaining the New York procedure for determining whether evidence of prior crimes is probative for the purpose of showing, e.g. - (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan; or (5) identity -and for determining whether that probative value outweighs the prejudicial effect).
3/16/2017: The Defendant engages in a phone conversation from j ail emphasizing to the person that he called to find the people that were shot and talk to them about not identifying Burton as the shooter. Burton goes on to say if “they” don't identify him in the trial they can have all the lawsuit money.
3/17/2017: The Defendant wants his grandma to convince the people who were shot that he didn't do it. Said that he was at home at the time of the incident. Said that his cousin (Ty) said the person who actually shot the victims just jumped into his car, he didn't know the person.Id. at 396-97. The People argued Petitioner's statements should be allowed in their case in chief as they were highly probative of the charged crimes. Id. at 398.
By decision dated October 13, 2017, Onondaga County Court ruled the People would be permitted to play portions of the March 16, 2017, and March 17, 2017, phone calls. Id. at 213 14. The Court noted it would be willing to provide a limiting instruction, upon Petitioner's request, instructing the jury to derive no adverse inference from the fact Petitioner was in custody at the time of the calls. Id. at 214. Next, parole officer Maher would be allowed to “testify as to the nature of his duties, and the frequency/number of contacts that he had with” Petitioner prior to his identification. Id. The Court noted it intended to provide the following limiting instruction:
You have heard that the defendant was previously subject to parole supervision. This evidence was not offered, and must not be considered, for the purpose of proving that the defendant had a propensity or predisposition to commit the crimes charged in this case. It was offered as evidence solely to establish why Officer Brian Mah[e]r is familiar with the defendant and to establish the foundation for his opinion that the defendant is depicted on the video(s) that you have seen. If you find the evidence believable, you may consider it for that limited purpose and for no other reasons.Id. Finally, the Court stated Detective Abraham would be permitted to testify he had “viewed the video(s) in question and is able to identify the defendant as the person depicted therein” however, the probative value of testimony concerning “the nature of' Abraham's “prior interactions with the defendant . . . would be outweighed by its potential for prejudice. It should be sufficient for the detective to testify that he has had ‘interaction(s)' with the defendant, and to describe the length of the interactions and when they took place” prior to his identification. Id.
C. Jury Trial
Petitioner's jury trial before Onondaga County Court commenced on October 16, 2017. See generally, Dkt. No. 15-6 at 148. The Court ruled, if Petitioner elected to testify, the People would be permitted to cross-examine him on the fact of his three prior felony convictions; a jury was selected; and the parties delivered opening statements. See generally, Dkt. No. 15-6 at 149198; Dkt. No. 15-7 at 1-152; Dkt. No. 15-8 at 1-150; Dkt. No. 15-9 at 1-41.
Detective Thomas Hahn testified he was involved in the investigation of a triple shooting which occurred on March 11, 2017, in the parking lot of “Lucky 7s Liquor and Wine store located at 200 Lodi Street” which was also used by the “Flip Money Mansion after hours club . . . .” Dkt. No. 15-9 at 42-43. He explained detectives recovered surveillance footage from both establishments, and CDs containing the video footage were admitted into evidence by stipulation. Id. at 43-44. Hahn identified two individuals depicted in the footage, one wearing a “gray hooded sweatshirt . . . dark-colored baseball hat” with “an ‘A' on it” and “big glasses,” and the other wearing an “orange hooded sweatshirt” and “furry, puffy winter hat . . . .” Id. at 47.
Prior to the shooting, Hahn explained the three victims- Freddie Haygood, Laquana Roberts, and Antwan Turner -were depicted exiting the after hours club and walking to a Nissan vehicle parked along the side of the “Lucky 7” building. Id. at 49-50. The three were then approached by the men in the grey and orange sweatshirts. Id. at 50. Hahn testified the “intelligence department sent out an attempt-to-I.D. bulletin” in an effort to locate “the suspect shooter in the gray and the driver that was in the orange . . . .” Id. at 53.
An investigative report identified footage of the suspect shooter and driver entering a vehicle as they “fled the scene . . . .” Id. at 55. The intelligence department was able to identify distinctive features of the White Ford Taurus, including a New York Giants sticker on the back windshield, and a vertically oriented registration sticker on the front windshield. Id. The vehicle's license plate read “HAB 7396.” Id. at 57.
Hahn later responded to 15 Galloway Drive in Liverpool on March 14, 2017, where the CID captain identified the vehicle. Id. at 56. The vehicle's registered owner, Tyron Miles, resided in Apartment 3, and allowed Hahn to speak with him in the apartment. Id. at 58. Hahn observed “the orange hooded sweatshirt and the furry, puffy winter hat” were located inside of the apartment. Id.
DOCCS parole officer Brian Maher testified he met with Petitioner weekly for approximately 10 weeks both in Maher's office and at Petitioner's residences on Marriman and Huron Streets. Id. at 94-95. He stated the face-to-face meetings would typically last “5 to 10 minutes” and his final meeting with Petitioner prior to the incident occurred on March 1, 2017. Id. at 96. On March 13, 2017, Maher explained he spoke with Detective Hahn and reviewed surveillance video footage from a shooting incident. Id. at 96-97. Maher identified Petitioner in the courtroom and testified he was the individual depicted in the video footage wearing a gray sweatshirt, glasses, and ball cap. Id. at 97-98.
Tyron Miles identified Petitioner as his cousin, the nephew of his father. Id. at 119-20. Miles testified on March 11, 2017, around 2:00 or 3:00 a.m., he drove his white Taurus to the north side, where he picked up Petitioner. Id. at 121. Miles wore an orange sweatshirt, fuzzy hat, and black jeans while Petitioner wore a gray sweatshirt, hat, and blue jeans. Id. at 122. The pair arrived at the after hours club after 3:00, and later departed the establishment with a friend of Petitioner's. Id. at 122-23.
Miles explained he drove Petitioner's friend to Petitioner's house on Marriman Street where the friend's car was parked. Id. at 123. Thereafter, Petitioner and Miles returned to the club and parked outside of the front door. Id. at 124. When Miles and Petitioner left the club the second time, Miles approached the driver's side door of his car and Petitioner headed towards the passenger's side, but then kept walking across the lot. Id. at 125.
Miles recalled he followed Petitioner and told him he planned to leave, Petitioner said he was coming but remained outside another vehicle talking to the people inside. Id. After Miles repeated it was time to go, Petitioner said “I'm coming right now” then Miles heard gunshots and tried to get to his car as fast as he could. Id. at 126. Petitioner entered Miles' vehicle through the passenger's side door and Miles drove him to his residence on Marriman. Id. at 126.
On March 14, 2017, police spoke to Miles at his residence, then brought him downtown to the Police Department. Id. at 128-29. After Miles completed his interview, he went to the downstairs area of the building to be picked up, and received two or three phone calls from Petitioner. Id. at 132-33. Miles testified “the first couple of calls, he was trying to see what I said to the police, and another phone call, when I was finally at home, he wanted me to go and get a phone that he had turned off.” Id. at 133. Petitioner continued to contact Miles which led Miles to believe Petitioner “wanted me to change my statement that I gave to the police.” Id. at 135. The prosecutor played video footage and Miles identified himself and Petitioner exiting the after hours club. Id. at 140-41.
Detective Abraham testified he was assigned to the department's Gang Violence Task Force and recalled he received an attempt to identify bulletin via his department email regarding an incident on March 11, 2017. Dkt. No. 15-10 at 19-20. Abraham believed one of the individuals contained therein was Petitioner, so he contacted Sergeant Ryan and requested to review the video footage. Id. at 21. He reported to the CID office to review the footage from different angles and determined the individual depicted therein was Petitioner. Id. at 21-22. Abraham explained he was able to identify Petitioner because he “had some prior work-related interactions with him” including a face-to-face conversation the week prior, which lasted “[w]ell over an hour.” Id. at 22-23. He also identified Petitioner in the courtroom. Id. at 22.
Antwan Turner testified he went to an after hours club located near Oak Street and Lodi during the early morning hours on March 11, 2017, where he met with his friend Freddie Haygood and Haygood's girlfriend, “Quana.” Id. at 26-27. He had no recollection of any altercations or fights occurring inside the establishment. Id. at 27. Turner stated he drank “[q]uite a bit” so Haygood offered him a ride home, which he accepted. Id. at 27-28.
Turner exited the club with “Freddie and Quana” and approached their car, a “grayish” Maxima or Altima. Id. at 28. He testified he entered the back seat of the vehicle on the driver's side, but was intoxicated, and did not recall what happened next. Id. at 28-29. Turner remembered receiving treatment for a gunshot wound in his right arm. Id. at 29-30. After he was released from the hospital, he received additional treatment at Upstate Orthopedics. Id. at 30. Despite the continued treatment, Turner testified his arm was “not the same” as he still felt pain and had a limited range of motion. Id. at 31.
Turner identified himself, and “Quana and Fred” on video footage from the morning of the incident leaving the establishment. Id. at 32-33. He explained he ran away from the vehicle after he was shot, but Haygood drove the car up to his side and he re-entered, then the vehicle drove away towards the hospital. Id. at 34. Turner testified he did not know Courtney Burton. Id. at 35.
Freddie Haygood testified on March 11, 2017, he drove his girlfriend Laquana's Nissan Altima to the “Flip Money Mansion” on Oak Street. Id. at 46-47. He identified himself and his girlfriend in a screenshot photograph inside of the establishment, then stated he vaguely remembered exchanging words with the man depicted in another image. Id. at 48-49. Haygood explained another video depicted him entering the driver's seat of his girlfriend's vehicle and being shot. Id. at 50-51.
Haygood testified he was shot in the chest and the arm. Id. at 49. After he was shot, he drove the vehicle to the hospital. Id. at 48. Haygood testified neither he nor anyone he spent the morning with possessed a gun. Id. He did not know the individual who shot him and did not know Courtney Burton. Id. at 51.
Laquana Roberts testified Freddie Haygood was her fiancee and the father of one of her children. Id. at 70-71. On March 11, 2017, she went with Haygood to the Flip Money Mansion. Id. at 71. Roberts recalled Haygood exchanged words with another man at the party, but no physical altercation occurred. Id. at 73-74.
Later the same morning, Roberts exited the club with Haygood and one of his friends. Id. at 74. The three approached her silver vehicle and Roberts sat in the front passenger seat. Id. at 75. She began to look at her phone when the person Haygood exchanged words with inside began speaking to him through the window. Id. at 76. The person outside the window then pointed a gun towards the driver side window and fired approximately four gunshots into the vehicle. Id. at 77.
Roberts recalled she cried and yelled as she experienced pain on her side and saw blood coming from Haygood's chest. Id. at 78. Haygood drove to Upstate hospital, located approximately fifteen minutes away, where staff responded to the vehicle to treat the individuals. Id. at 78. Roberts continued to experience pain in her side for a couple of weeks. Id. at 80. She recalled the shooter wore a hat and glasses and his hair was styled in a ponytail. Id. at 80-81.
Daniel DeMartini testified he worked as a physician assistant in the Upstate Orthopedics trauma department. Id. at 59. He examined Antwan Turner for a gunshot wound to the right elbow, collected x-rays, examined the entrance and exit wounds, and placed the arm into a cast. Id. at 61. DeMartini explained Turner experienced “a comminuted fracture of the mesial epicondyle” meaning the fracture extended to multiple planes in many directions, in lay terms, the elbow was “shattered.” Id. at 64-65. After Turner's cast was removed, he utilized a compressive sleeve and underwent physical therapy. Id. at 66.
Dr. Joan Dolinak testified she worked as a trauma surgeon at Upstate University Hospital. Id. at 139. On March 11, 2017, she received a hospital alert concerning two or three gunshot wound patients. Id. at 142. Freddie Haygood was taken to a trauma resuscitation room in critical condition, where he received breathing tube and a chest tube. Id. Haygood was hypotensive and later hypothermic, so he was moved to an OR where the temperature was raised and additional procedures were performed. Id. at 143-44. Two additional chest tubes were placed and Haygood was placed on a ventilator. Id. at 145.
Dr. Dolinak explained Haygood sustained gunshot wounds to the front and back of the chest and the forearm. Id. at 146. He remained under Dolinak's care for three to four hours, and under the care of the residents Dolinak supervised for the next day. Id. at 151. Haygood was discharged from the hospital approximately one week after his arrival, which Dr. Dolinak opined was “rather quick considering how he came in,” as he was at a substantial risk of death upon his arrival. Id.
Syracuse Police Department Sergeant Sean Ryan testified he was assigned to the CID and was involved in the investigation of a shooting that occurred on March 11, 2017, at the corner of Oak and Lodi. Id. at 89. He reviewed footage from “cops' cameras” located throughout the city and saved the pertinent data. Id. at 90-91. Ryan explained he searched for and found video displaying a white four-door Ford Taurus with a New York Giants football sticker in the back rear window and a vertically positioned registration sticker in the front. Id. at 91.
Using the footage, Sergeant Ryan was able to determine the vehicle's path of travel prior to and after the shooting. See id. at 92-105. He explained the vehicle left and later returned to the area of Lodi and Oak that morning, which was confirmed by the Flip Money Mansion surveillance cameras. Id. at 93-96. The footage captured the vehicle turn left off of Marriman Avenue onto Oswego Street shortly after 6:31. Id. at 98-99. At 6:41, the vehicle returned to the parking lot and a black male wearing a gray sweatshirt and hat exited the passenger's side while a black male in an orange sweatshirt exited the driver's side. Id. at 102. Surveillance footage from a camera located inside the Flip Money Mansion showed the two men from the white Ford Taurus enter the establishment around 6:42. Id. at 103. Later portions of the video footage depicted the vehicle departing the parking lot after the shooting occurred and eventually making a right turn onto Marriman at 7:11. Id. at 105.
Syracuse Police Department Detective Michael Malone testified he was assigned to the CID and had also trained as an evidence technician. Dkt. No. 15-11 at 19-20. On March 14, 2017, he executed a search warrant for a residence at 302 Marriman Ave., the home of Courtney Burton. Id. at 21. Malone collected a dark-colored baseball cap with a letter “A” on it, multiple cellphones, a light gray colored sweatshirt with a Nike logo, and a pair of white high top sneakers. Id. at 28-36. Photographs of the items were admitted. See id.
Detective Matthew Arduini was assigned to interview Petitioner, who he identified in court, on March 14, 2017. Id. at 102-03. The Detective first took him to the bathroom, then read Petitioner his Miranda rights in a video recorded interview room. Id. at 104. Arduini stated the interview began at 3:00 p.m. and continued until 7:35, but Petitioner was left alone in the room for multiple periods throughout. Id. at 107. The People admitted recordings of the interview, which were played for the jury. Id. at 107-12. Upon reviewing video recordings of the interview, Arduini discovered Petitioner was engaged in texting and phone calls after he had left the room. Id. at 117.
Following the Detective's testimony, the People rested their case. See Dkt. No. 15-12 at 19. Petitioner moved for a trial order of dismissal on all counts, which the trial court denied. Id. at 19-21. Petitioner declined to testify on his own behalf and the defense rested. Id. at 22, 23. After a brief recess, Petitioner's attorney delivered his closing arguments and the People followed. See id. at 26-75. County Court instructed the jury on the law. Id. at 76-134. The jurors began deliberations and reached a verdict. See id. at 135-39; Dkt. No. 15-13 at 1-6.
The jury returned a verdict of guilty as to count one, attempted murder in the second degree, count two, assault in the first degree, count three, attempted murder in the second degree, count four, assault in the first degree, and count seven, criminal possession of a weapon in the second degree. Dkt. No. 15-13 at 7-8. However, the jurors found Petitioner not guilty as to count five, attempted murder in the second degree, and count six, attempted assault in the first degree. Id. at 8.
Petitioner was found not guilty as to the counts charging the attempted murder and attempted assault of Laquana Roberts. Dkt. No. 15-13 at 7-8.
D. Sentencing
Petitioner reappeared before County Court for sentencing on December 1, 2017. See Dkt. No. 15-13 at 14-30. Petitioner declined to challenge his 2011 conviction for criminal possession of a weapon in the second degree and made a statement on his own behalf. See id. at 17-25.
County Court sentenced Petitioner to determinate terms of 25 years' incarceration for each of his convictions for attempted murder in the second degree, to be followed by five years of post-release supervision, and ordered the sentences to run consecutively to each other. Id. at 27-28. With respect to his two convictions of assault in the first degree, Petitioner was sentenced to determinate terms of 25 years' incarceration, followed by five years' post release supervision, to run concurrently with the sentences imposed on counts one and two. Id. at 28. Finally, County Court sentenced Petitioner to a 15 year determinate term, to be followed by five years' post-release supervision, for his conviction of criminal possession of a weapon in the second degree, to run concurrently with the sentences previously imposed. Id.
E. Direct Appeal
Petitioner appealed his judgment of conviction to the Appellate Division, Fourth Department. See generally, People v. Burton, 191 A.D.3d 1311 (4th Dept. 2021), leave denied, 36 N.Y.3d 1095 (2021). Petitioner argued: (1) his convictions for attempted murder were not supported by legally sufficient evidence and were against the weight of the evidence (Dkt. No. 15-1 at 26-33); (2) the trial court erred in denying his request to suppress the recording of his interrogation, which was the result of an unconstitutional arrest (Dkt. No. 15-1 at 33-45); (3) the trial court erred in denying Petitioner's request to suppress parole officer Maher's identification, which was based on an impermissibly suggestive identification procedure (Dkt. No. 15-1 at 4550); (4) the trial court erred in allowing the People to present evidence indicating Petitioner was on parole at time of the incident and had recent interactions with Abraham, a member of the Gang Violence Task Force (Dkt. No. 15-1 at 50-60; see also Dkt. No. 15-1 at 66-67); (5) the trial court erred in allowing the People to present evidence containing various individuals' opinions that Petitioner was the shooter depicted in the video footage and elicit testimony from Miles that Petitioner also contacted Miles' father and requested he change his police statement (Dkt. No. 15-1 at 60-67); (6) he was deprived of the effective assistance of counsel due to defense counsel's failure to object to (a) opinion testimony that Petitioner was the shooter depicted in video footage, (b) Maher and Abraham's identifications of Petitioner, (c) evidence that Petitioner was on parole at the time of the shooting, and (d) Abraham's testimony that he was familiar with Petitioner through his work with a Gang Violence task force (Dkt. No. 15-1 at 68-70); (7) the trial court erred in ruling the grand jury proceedings were not defective (Dkt. No. 15-1 at 70-72); and (8) his sentence was excessive (Dkt. No. 15-1 at 73-75). The People responded: (1) Petitioner's conviction was supported by legally sufficient evidence and the jury's verdict was supported by the weight of the evidence (Dkt. No. 15-1 at 109-16); (2) the trial court properly denied Petitioner's motion to suppress because the police obtained probable cause for his arrest prior to the interrogation (Dkt. No. 15-1 at 116-20); (3) Maher's pre-trial identification was not the result of an unduly suggestive procedure (Dkt. No. 15-1 at 120-24); (4) Petitioner was not prejudiced by Maher and Abraham's statements concerning their familiarity with him (Dkt. No. 15-1 at 124-28); (5) defense counsel provided Petitioner with meaningful assistance (Dkt. No. 15-1 at 128-35); (6) the grand jury proceedings were not defective (Dkt. No. 15-1 at 135-38); and (7) Petitioner's sentence was appropriate (Dkt. No. 15-1 at 138-40).
A copy of the Appellate Division's Memorandum and Order is also contained in the state court records. See Dkt. No. 15-1 at 158-61.
On February 5, 2021, the Appellate Division affirmed Petitioner's convictions. See Burton, 191 A.D.3d at 1312. The Fourth Department concluded the trial court did not err in admitting Petitioner's post-arrest statements finding, prior to his “arrest by members of the Syracuse Police Department and parole units, two people who knew defendant positively identified him as the shooter depicted in the video recording, thereby providing probable cause for his arrest . . . ” and, even assuming, arguendo, Petitioner “was arrested for a parole violation prior to the issuance of a parole warrant, defendant knowingly and voluntarily waived his Miranda rights before speaking with the detective, and his statements were sufficiently attenuated from the improper detention . . . .” Id. at 1314 (internal quotations citations omitted).
The Appellate Division also rejected Petitioner's claims that his convictions were not supported by sufficient evidence and against the weight of the evidence, explaining:
The evidence established, inter alia, that defendant repeatedly fired a loaded handgun at the victims at close range, striking one of the victims in the chest, back, and arm and striking another victim in the arm. Video evidence also showed that prior to the shootings, defendant confronted one of the victims inside a club. After the victim left the club, defendant also left the club and approached the victims' vehicle in the parking lot, where he appeared to re-engage in a verbal altercation with the victims before shooting repeatedly into their vehicle.Id. at 1312. The Fourth Department also denied his ineffective assistance claim, finding Petitioner failed to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged errors. Id. at 1314-15.
The state court next concluded Petitioner failed to preserve his arguments related to the trial court's “Molineux ruling, which permitted the People to elicit testimony that defendant was on parole at the time of the shootings and that he had prior interactions with a police detective who was a member of the Gang Violence Task Force.” Id. at 1315. Further, the court found Petitioner's sentence was “not unduly harsh or severe.” Id.
The Fourth Department agreed with Petitioner's contention that the trial court erred in refusing to suppress parole officer Maher's “identification of him as the shooter depicted in surveillance video of the shootings on the basis that the police-arranged procedure was unduly suggestive.” Id. at 1312. However, the Appellate Division found “the error in admitting the parole officer's in-court identification of defendant is harmless beyond a reasonable doubt . . . .” Id. at 1313. The court explained:
The surveillance video establishes that the shooter wore a gray hooded sweatshirt and a black baseball cap with the letter “A” on it. Other witnesses, including a police detective who had several interactions with defendant prior to the shooting and defendant's
cousin, who was with defendant on the morning of the shootings and appeared with defendant in the surveillance video, identified defendant in court and in the video recording as the person who was wearing the gray hooded sweatshirt and black baseball cap with the letter “A” on the front. In addition, defendant's cousin testified that he saw defendant approach the victims' car and extend his arm toward their vehicle, that he then heard the gunshots, and that he drove defendant to defendant's residence after the shootings. The testimony of defendant's cousin was corroborated by evidence from the city's traffic camera system, which depicted the white Ford Taurus driven by defendant's cousin as it traveled from the parking lot where the victims were shot to the street where defendant lived. The police executed a search warrant at defendant's residence, where they recovered, among other things, a gray hooded sweatshirt and a black baseball cap with the letter “A” on the front. Furthermore, after defendant was arrested, he made phone calls from the interrogation room requesting that other people go to his residence to retrieve a gray sweatshirt and a black hat with an “A” on it or, in the alternative, wash the sweatshirt in the washing machine with bleach. In recorded jailhouse telephone calls, defendant solicited others to contact the victims and promise them money if they did not identify him as the shooter. Defendant also asked others to contact his cousin to convince him to change his story to police. Under these circumstances, the proof of defendant's guilt is overwhelming and there is no reasonable possibility that the jury would have acquitted defendant were it not for the identification by defendant's parole officer . . . .Id. at 1313-14. Finally, the Appellate Division summarily rejected Petitioner's remaining contentions. Id. at 1315.
Petitioner sought leave to appeal the Fourth Department's adverse decision to the Court of Appeals. Dkt. No. 15-1 at 162-69. The People opposed the leave application. Id. at 170-73. By Order dated March 29, 2021, the Court of Appeals denied Petitioner's application for leave. See People v. Burton, 36 N.Y.3d 1095 (2021).
A Copy of the Court of Appeals' Order denying leave is also contained in the state court records. See Dkt. No. 15-1 at 174.
III. PETITION
Petitioner challenges his 2017 convictions for attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree, following jury trial in Onondaga County Supreme Court. Dkt. No. 1. Petitioner argues: (1) his arrest was unconstitutional and resulted in him making an involuntary statement (Id. at 5); (2) his convictions for attempted murder are not supported by legally sufficient evidence (Id. at 7); (3) he was deprived of the effective assistance of counsel (Id. at 8); and (4) Maher and Abraham's identifications and testimony were unduly prejudicial (Id. at 10). Respondent contends: (1) Petitioner's claim concerning his arrest and statements to police is barred by Stone v. Powell (Dkt. No. 13 at 20-22); (2) Petitioner's legal sufficiency claim is partially unexhausted and procedurally defaulted and entirely meritless (Dkt. No. 13 at 22-28); (3) Petitioner's ineffective assistance claim is unexhausted and meritless (Dkt. No. 13 at 28-34); (4) the state court reasonably concluded Maher's identification testimony was harmless (Dkt. No. 13 at 34-37); and (5) Petitioner's claims regarding Maher and Abraham's testimony are procedurally barred on independent and adequate state law grounds, and, in any event, are not exhausted or cognizable on habeas review (Dkt. No. 13 at 37-43).
IV. DISCUSSION
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may grant habeas corpus relief with respect to a claim adjudicated on the merits in state court only if, based upon the record before the state court, the state court's decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or” (2) “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 also Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Premo v. Moore, 562 U.S. 115, 120-21 (2011); Schriro v. Landrigan, 550 U.S. 465, 473 (2007). This standard is “highly deferential” and “demands that state-court decisions be given the benefit of the doubt.” Felkner v. Jackson, 562 U.S. 594, 598 (2011) (citing Renico v. Lett, 559 U.S. 766, 773 (2010)) (quotations omitted). “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
A. Petitioner's Arrest and Post-Arrest Statements
Petitioner first argues he is entitled to federal habeas relief due to an “unconstitutional arrest leading to involuntary statement.” Dkt. No. 1 at 5. He avers there “was no warrant for my arrest. And it was never established how and who arrested me, resulting in an involuntary statement.” Id. Respondent contends this claim is barred by Stone v. Powell. Dkt. No. 13 at 2022. The Court agrees.
“[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 482 (1976). Following the Supreme Court's decision in Stone, habeas review of Fourth Amendment claims is permitted only “(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) (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977); McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67, 70 (2d Cir. 1983)).
Here, Petitioner has not claimed an absence of corrective procedures to redress the alleged violations. See generally, Dkt. No. 1. In any event, such an argument would be unpersuasive. “Indeed, the federal courts have approved New York's procedure for litigating Fourth Amendment claims . . . as being facially adequate.” Capellan, 975 F.2d at 70 n. 1 (citing Holmes v. Scully, 706 F.Supp. 195, 201 (E.D.N.Y.1989)) (internal quotations and additional citations omitted).
Furthermore, Petitioner availed himself of the aforementioned New York procedures. In a pre-trial omnibus motion, he moved “for an Order, pursuant to CPL § 710.20(1) and (4) . . . suppressing all evidence derived from” his “unlawful arrest . . . .” Dkt. No. 15-1 at 350. Onondaga County Court subsequently conducted a suppression hearing where the People called five witnesses, who were cross-examined by Petitioner's attorney, and Petitioner testified on his own behalf. See Dkt. No. 15-7 at 10-115. Following the hearing, defense counsel submitted a letter to County Court further arguing “all evidence, including statements . . . gained as a result of that illegal arrest must be suppressed.” Dkt. No. 15-1 at 361-62. The trial court issued its findings in a written Decision/Order. See id. at 196-212. Finally, on direct appeal, Petitioner argued the trial court erred in refusing to suppress his interrogation as the result of an unconstitutional arrest. See id. at 33-45; see also Burton, 191 A.D.3d at 1314. Therefore, Petitioner is unable to demonstrate a lack of corrective procedures to redress the alleged fourth amendment violations.
Nor has Petitioner alleged an unconscionable breakdown in the underlying process occurred. See generally, Dkt. No. 1. Such a breakdown “occurs when ‘the totality of state procedures allegedly did not provide rational conditions for inquiry into federal law.'” Jackson v. Capra, No. 9:19-CV-1542 (DNH/CFH), 2023 WL 8375913, at *13 (N.D.N.Y. Sept. 11, 2023) (citing Capellan, 975 F.2d at 70) (additional citations omitted), report and recommendation adopted, 2023 WL 8371081 (N.D.N.Y. Dec. 4, 2023). “[A] mere disagreement with the outcome of a state court ruling is not the equivalent of an unconscionable breakdown in the state's corrective process.” Capellan, 975 F.2d at 72. Rather, “situations such as the bribing of a trial judge, the government's knowing use of perjured testimony, or the use of torture to extract a guilty plea, all without opportunity to obtain state review,” are circumstances demonstrating such an unconscionable breakdown justifying habeas inquiry. Cappiello v. Hoke, 698 F.Supp. 1042, 1050 (E.D.N.Y.) (citing Allah v. LeFevre, 623 F.Supp. 987, 991 (S.D.N.Y. 1985)), aff'd, 852 F.2d 59 (2d Cir. 1988).
Accordingly, Petitioner's challenges to his arrest and statements to police as a result thereof are barred from federal habeas review. See, e.g., Evans v. Colvin, No. 9:16-CV-1346 (JKS), 2018 WL 3069211, at *6 (N.D.N.Y. June 21, 2018) (the petitioner “claims that the trial court erred in refusing to suppress as the fruit of an unlawful arrest statements he made after he was allegedly arrested in violation of [the law] . . . . However, any challenge to his arrest and the admissibility of his resulting statements is foreclosed by the Supreme Court's decision in Stone v. Powell, 428 U.S. 465 (1976).”); Hillv. Conway, No. 9:04-CV-524 (FJS/RFT), 2008 WL 8095710, at *13 (N.D.N.Y. June 2, 2008) (“Stone bars habeas review of claims that statements made during or after an allegedly unlawful arrest should have been suppressed as fruit of an illegal arrest.”) (citing Cardwell v. Taylor, 461 U.S. 571, 572-73 (1983)) (additional citations omitted), report and recommendation adopted, 2010 WL 3718871 (N.D.N.Y. Sept. 14, 2010).
B. Legal Sufficiency
Petitioner next contends federal habeas relief is warranted because there was “insufficient evidence to support the convictions of attempted murder.” Dkt. No. 1 at 7. He asserts “I was charged and arraigned on second degree attempted murder 3 counts assault in the first degree (3 counts) with 3 shell casings for Evidence at trial, with all three victims driving away, And video before, during, And after the incident was never Authenticated.” Id. Respondent avers the Appellate Division reasonably rejected the portions of Petitioner's claim which were presented on direct appeal and Petitioner's new contention concerning the authentication of surveillance video is unexhausted and procedurally defaulted. Dkt. No. 13 at 22-28.
It is well established that “[b]efore seeking a federal writ of habeas corpus, a state prisoner must exhaust available state 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) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995)) (additional citations and quotations omitted); see also 28 U.S.C. § 2254(b)(1)(B)(ii)-(iii) (an application for a writ of habeas corpus may not be granted until a petitioner has exhausted all remedies available in state court unless “there is an absence of available State corrective process; or . . . circumstances exist that render such process ineffective to protect the rights of the applicant.”). A petitioner must exhaust his claims both procedurally and substantively.
Procedural exhaustion requires that a petitioner raise all claims in state court prior to raising them in a federal habeas petition. In other words, “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O 'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Substantive exhaustion requires a petitioner to “‘fairly present' 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.” Baldwin, 541 U.S. at 29 (citing Duncan, 513 U.S. at 365).
“In New York, to invoke one complete round of the State's established appellate process, a criminal defendant must first appeal his or her conviction to the Appellate Division and then seek further review by applying to the Court of Appeals for leave to appeal.” Jones v. Annucci, 124 F.Supp.3d 103, 116 (N.D.N.Y. 2015) (citing Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005)). While Petitioner alleged the evidence supporting his convictions was insufficient on direct appeal, his briefs did not contain any arguments concerning the authentication of video evidence. See Dkt. No. 15-1 at 26-33, 163-64. Therefore, his legal sufficiency claim on this basis is unexhausted. See, e.g., Kelsey v. Lewin, No. 9:21-CV-0348 (MAD/ATB), 2023 WL 9316847, at *8 (N.D.N.Y. Mar. 28, 2023) (explaining only the legal sufficiency claims which the petitioner asserted on direct appeal were properly exhausted for federal habeas purposes), report and recommendation adopted, 2024 WL 194006 (N.D.N.Y. Jan. 18, 2024).
Where a petitioner has “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, the federal habeas court should consider the claim to be procedurally defaulted.” Clark v. Perez, 510 F.3d 382, 390 (2d Cir. 2008) (citing Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991)). “Under New York law, all claims that are record-based must be raised in a direct appeal.” O 'Kane v. Kirkpatrick, No. 1:09-CV-5167, 2011 WL 3809945, at *7 (S.D.N.Y. Feb. 15, 2011) (citing 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.”); N.Y. CRIM. PRO. LAW (“CPL”) § 440.10(2)(c)), report and recommendation adopted, 2011 WL 3918158 (S.D.N.Y. Aug. 25, 2011). Accordingly, Petitioner could not return to state court so as to properly exhaust his legal sufficiency claim on this basis. See Jones, 124 F.Supp.3d at 116 (explaining the petitioner's “unexhausted claims are procedurally barred. Because these unexhausted claims are based on the record, he cannot bring a motion to vacate as to these claims” and the petitioner “already filed the direct appeal and leave application to which he is entitled.”) (citing CPL § 440.10(2)(c); Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991)); see also, e.g., Hughes v. Sheahan, 312 F.Supp.3d 306, 344 (N.D.N.Y. 2018) (concluding the petitioner's legal sufficiency claim was procedurally defaulted, explaining “[t]he facts supporting his legal sufficiency claim were necessarily record-based and . . . should have been raised on direct appeal.”).
In sum, “Petitioner was entitled to one (and only one) appeal to the Appellate Division and one request for leave to appeal to the Court of Appeals, both of which he pursued long ago.” Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001) (citations omitted). Therefore, the portion of his legal sufficiency claim concerning the authentication of video evidence is procedurally defaulted.
“That procedural default can only be cured by a showing of cause for the default plus prejudice, or a showing of actual innocence.” Aparicio, 269 F.3d at 91 (citing Coleman v. Johnson, 566 U.S. 650, 748-49 (2012)). Here, Petitioner has not alleged, much less established, either some external factor caused the procedural default of his claims and prejudice resulted, or that he is actually innocent. See generally, Dkt. No. 1. Accordingly, habeas relief cannot be granted with respect to Petitioner's legal sufficiency claim insofar as it concerns the authentication of video evidence. However, the remaining portions of Petitioner's claim which were properly exhausted may be addressed.
Where a federal habeas petitioner claims he has been convicted in a state court on insufficient evidence, “the relevant question is whether, 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, 319 (1979) (citation omitted, emphasis in original). In determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, “federal courts must look to state law for the substantive elements of the criminal offense, . . . but the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law.” Coleman, 566 U.S. at 655 (citing Jackson, 443 U.S. at 324, n. 16) (internal quotations omitted). As the Supreme Court has explained, challenges to the sufficiency of the evidence supporting a conviction:
[F]ace a high bar in federal habeas proceedings because they are subject to two layers of judicial deference. First, on direct appeal, it is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury . . . . And second, on habeas review, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was objectively unreasonable.Id. at 651 (citing Cavazos v. Smith, 565 U.S. 1, 2 (2011) (internal quotations and additional citation omitted)).
Under New York law, “[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.” P.L. § 110.00. “A person is guilty of murder in the second degree when: With intent to cause the death of another person, he causes the death of such person or of a third person . . . .” P.L. § 125.25(1). Here, a rational trier of fact could have found Petitioner, with the intent to cause the death of another person, engaged in conduct which tended to effect the causing of such person or a third person's death.
Viewing the evidence in the light most favorable to the prosecution, Petitioner was involved in a verbal exchange with Haygood inside the after hours club. When Haygood, Turner, and Roberts departed the establishment later the same morning and began to enter Roberts' vehicle, Petitioner approached the three, pulled out a gun, and fired at least three gunshots in close proximity to them. As a result, Turner sustained a wound to the arm which, in lay terms, shattered his elbow, and Haygood sustained wounds to the chest and forearm, the former of which placed him at a substantial risk of death.
In support of his legal sufficiency claim, Petitioner references “3 shell casings for Evidence” and “all three victims driving away,” but has not explained how either demonstrate no rational trier of fact could have found him guilty of attempted murder in the second degree. See Dkt. No. 1 at 7. To the extent he seeks to reiterate the argument he made on direct appeal, that “[h]ad the shooter intended to kill Turner, he would have fired additional shots at him to ensure his demise” and the “absence of evidence” that Haygood “manifested a wound the shooter would have understood to be fatal” contravenes evidence of the requisite intent to kill, such arguments are unpersuasive. See Dkt. No. 15-1 at 28, 31.
Petitioner references the “3” counts of attempted murder in the second degree and assault in the first degree, however, to be sure, Petitioner was only convicted on two counts of each crime.
As the Appellate Division concluded, the requisite intent to kill was sufficiently established by Petitioner's firing of a loaded handgun at the victims at close range. Burton, 191 A.D.3d at 1312 (citing People v Williams, 154 A.D.3d 1290, 1291 (4th Dept. 2017), leave denied, 30 N.Y.3d 1110 (2018)); see also, e.g., Evans v. Bennett, No. 9:98-CV-1706 (LEK/DRH), 2001 WL 36006042, at *4 (N.D.N.Y. Nov. 20, 2001) (“there was sufficient evidence to infer intent from the close range at which [the petitioner] shot [the victim].”). Even accepting Petitioner's apparent contention that the recovery and introduction of only three shell casings suggests only three gunshots were fired, the firing of three gunshots at two individuals would be sufficient evidence to support both attempted murder charges. See, e.g., Rodriguez v. Hoke, No. 86-C-3058, 1987 WL 9679, at *2-3 (E.D.N.Y. Apr. 1, 1987) (concluding a reasonable jury could have determined the petitioner had the requisite intent to sustain one count of attempted murder, despite counsel's argument that “petitioner fired only one bullet, and later abandoned his gun while it still contained three live rounds.”). Moreover, that Haygood was able to drive to the hospital after being shot in the chest and arm does not render the conclusion that Petitioner possessed the requisite intent to kill unsupported. As Respondent avers, Petitioner's knowledge that the victim's injuries were not fatal after he inflicted them is not relevant to whether he intended to cause the victim's death at the time he fired the gunshots.
In sum, Petitioner has not met the high bar of demonstrating the Appellate Division's rejection of his legal sufficiency claim was unreasonable. Therefore, no habeas relief is warranted.
C. Ineffective Assistance of Counsel
Petitioner next asserts he is entitled to habeas relief due to “ineffective assistance of counsel,” specifically, he avers “due to ineffectiveness of first Attorney Ellise Voutsinas, Esq. I was assigned another attorney 30 days before trial, which was not enough time for a strategy.” Dkt. No. 1 at 8. Respondent contends this claim is unexhausted and, in any event, meritless. Dkt. No. 13 at 28-34.
“Where a petitioner raises an ineffective assistance of trial counsel claim, each factual claim made in support must be fairly presented to a state court before a federal habeas court can consider it.” Williams v. Duncan, No. 9:03-CV-0568 (LEK/RFT), 2007 WL 2177075, at *4 (N.D.N.Y. July 27, 2007) (citing Panezo v. Portuondo, 2003 WL 23198781, at * 10 (E.D.N.Y. Nov. 6, 2003); Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991)). Here, Petitioner has not presented to a New York court his contention that Ms. Voutsinas did not provide effective assistance. Instead, Petitioner's ineffective assistance claim on direct appeal solely concerned Mr. Carey's failure to make various objections. See Dkt. No. 15-1 at 68-70. Therefore, any claim based on Ms. Voutsinas' representation of Petitioner is unexhausted. See Williams, 2007 WL 2177075, at *4 (explaining the petitioner's “particular theories in support of his ineffective assistance claim” which were never raised on direct appeal or in a state post-conviction motion were unexhausted).
As explained above in connection with Petitioner's unexhausted argument concerning the authentication of video evidence, New York law requires record-based claims be raised on direct appeal, therefore, a Petitioner's failure to include such a claim would render any subsequent federal habeas argument procedurally defaulted. Yet, in the instant petition, it is not clear whether Petitioner's ineffective assistance argument concerning Voutsinas' representation is based on the trial court record. See Mosley v. Rich, No. 9:18-CV-00428 (JKS), 2020 WL 3128530, at *12 (N.D.N.Y. June 12, 2020) (explaining, if the petitioner's unexhausted claims were based on the trial court record, the claims could have been raised on direct appeal, therefore, he could not bring a motion to vacate such claims; however, if the claims were based on evidence outside of the trial record, “they could still be brought in a motion to vacate judgment under CPL § 440.10 because there is no time limit or number cap on § 440.10 motions.”). Indeed, Petitioner has offered no explanation as to how his first attorney's representation of him was deficient or how such deficient performance prejudiced his defense. See generally, Strickland v. Washington, 466 U.S. 668, 687 (1984).
However, this failure by Petitioner to articulate a basis for his ineffective assistance claim renders the question of procedural default immaterial. “It is well-settled in this Circuit that vague and conclusory allegations that are unsupported by specific factual averments are insufficient to state a viable claim for habeas relief.” Shamsuddin v. Smith, 578 F.Supp.3d 328, 343-44 (N.D.N.Y. 2022) (citation omitted); see also, e.g., Gross v. Graham, No. 9:14-CV-0768 (JKS), 2016 WL 11621787, at *7 (N.D.N.Y. Aug. 26, 2016) (same), aff'd, 802 Fed.Appx. 16 (2d Cir. 2020); Lankfordv. McCarthy, No. 9:21-CV-0022 (BKS/DJS), 2024 WL 2053414, at *8 (N.D.N.Y. Feb. 15, 2024) (same), report and recommendation adopted, 2024 WL 1694018 (N.D.N.Y. Apr. 19, 2024). “As such, a claim of ineffective assistance must contain specific factual contentions regarding how counsel was ineffective.” Kimbrough v. Bradt, 949 F.Supp.2d 341, 355 (N.D.N.Y. 2013) (collecting cases); see also Shamsuddin, 578 F.Supp.3d at 344.
Where, as here, a petitioner has not provided specific allegations in support of his ineffective assistance claim, dismissal is warranted. See, e.g., Griffin v. Coveny, No. 9:19-CV-1495 (JKS), 2021 WL 3884217, at *12 (N.D.N.Y. Aug. 31, 2021) (dismissing the petitioner's ineffective assistance of counsel claim, pursuant to 28 U.S.C. § 2254(b)(2), despite the potential that the claim could be based on matters outside of the record and thus could be raised in a coram nobis motion, due to the petitioner's failure to support his claim with specific factual contentions regarding how counsel was ineffective). Therefore, the undersigned recommends this claim be dismissed as plainly meritless.
D. Maher and Abraham's Testimony
Finally, Petitioner contends habeas relief is warranted due to the “unduly suggestive identification, And prejudice testimony by parole officer and detective.” Dkt. No. 1 at 10. He argues the “parole officer was told Courtney Burton was depicted in video and testified to what he was told. Parole officer and detective stated I was incarcerated and on parole multiple times. I also filed a complaint and a federal 1983 against detective Abraham from a incident that occurred May 18, 2016, And he still was able to Testify.” Id. Respondent avers the Appellate Division's conclusion that Maher's identification of Petitioner constituted harmless error was not unreasonable, Petitioner's claim concerning Maher and Abraham's testimony that he was incarcerated and on parole is barred from habeas review on independent and adequate state law grounds, and any claim based on Petitioner's civil lawsuit against Abraham is unexhausted, procedurally defaulted, and meritless. Dkt. No. 13 at 34-43.
1. Parole Officer Maher's Identification of Petitioner
Petitioner first argues, as he did on direct appeal, that the trial court erred in refusing to suppress parole officer Maher's identification of him as the shooter depicted in the surveillance footage. Dkt. No. 1 at 10. The Appellate Division agreed the identification procedure was unduly suggestive, however, it found the admission of Maher's in court identification “harmless beyond a reasonable doubt . . . .” Burton, 191 A.D.3d at 1313.
Where, as here, a state court makes a harmless error determination, “a state prisoner should not receive federal habeas relief based on trial error unless he can show the error had a ‘substantial and injurious effect or influence' on the verdict.” Brown v. Davenport, 596 U.S. 118, 133 (2022) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)) (additional quotations omitted); see also Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (explaining, the relevant inquiry is “whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.”). Additionally, “when a state court determines that a constitutional violation is harmless, a federal court may not award habeas relief under § 2254 unless the harmlessness determination itself was unreasonable.” Fry v. Pliler, 551 U.S. 112, 119 (2007) (emphasis in original) (citing Mitchell v. Esparza, 540 U.S. 12 (2003)); see also, e.g., Swift v. Superintendent, No. 9:18-CV-1204 (GTS/TWD), 2022 WL 814033, at *17 (N.D.N.Y. Feb. 17, 2022) (“Where, as in this case, a state court makes a harmless error determination on direct appeal, the Court ‘owe[s] the harmlessness determination itself deference under the [AEDPA].'”) (citing Orlando v. Nassau Cty. Dist. Attorney 's Off., 915 F.3d 113, 127 (2d Cir. 2019)) (additional quotations omitted), report and recommendation adopted, 2022 WL 813923 (N.D.N.Y. Mar. 17, 2022).
See also United States v. Kaplan, 490 F.3d 110, 123 (2d Cir. 2007) (explaining, in assessing whether an error was harmless, the Court considers “‘(1) the overall strength of the prosecution's case; (2) the prosecutor's conduct with respect to the improperly admitted evidence; (3) the importance of the wrongly admitted testimony; and (4) whether such evidence was cumulative of other properly admitted evidence.'”) (citing Zappulla v. New York, 391 F.3d 462, 468 (2d Cir. 2004).
Here, the People presented a myriad of evidence other than Maher's testimony supporting the conclusion that Petitioner was the shooter depicted in the surveillance video footage. Tyron Miles, Petitioner's cousin, identified himself and Petitioner as the individuals depicted in the videos both inside and outside of the Flip Money Mansion. See Dkt. No. 15-9 at 119-20, 140-41. His testimony was corroborated by other evidence, including footage of his vehicle traveling to the street where Petitioner's residence was located after the shooting. See Dkt. No. 15-10 at 10305. Detective Abraham, who was familiar with Petitioner from prior interactions, also identified him as the individual depicted in the video. See id. at 19-22. Additionally, clothing items recovered from Petitioner's home and his phone communications during and after his police interview further supported the identification of him as the shooter. See Dkt. No. 15-11 at 21, 28-36, 117; Dkt. No. 15-9 at 132-35. Therefore, it cannot be said that Maher's testimony to the same effect provided the basis for Petitioner's conviction or that reasonable doubt would have existed on the record without it.
In sum, Maher's testimony identifying Petitioner as the shooter depicted in the surveillance video footage did not have a substantial and injurious effect on the jury's verdict and the Appellate Division's harmless error determination was not unreasonable. Accordingly, Petitioner is not entitled to habeas relief on this basis.
2. Molineux Ruling
Plaintiff next avers he is entitled to habeas relief because Parole Officer Maher and Syracuse Police Detective Abraham testified Petitioner “was incarcerated and on parole multiple times . . . .” Dkt. No. 1 at 10. On direct appeal, the Fourth Department held Petitioner “failed to preserve” his challenge to the trial court's “Molineux ruling, which permitted the People to elicit testimony that defendant was on parole at the time of the shootings and that he had prior interactions with a police detective who was a member of the Gang Violence Task Force.” Burton, 191 A.D.3d at 1315.
The Court notes, contrary to Petitioner's contention, Detective Abraham did not testify Petitioner was incarcerated or on parole. Instead, as Petitioner argued on direct appeal, the Detective testified he was familiar with Petitioner due to prior encounters with him and that he had served as a member of the police department's Gang Violence Task Force. See Dkt. No. 1510 at 19-24.
“A federal habeas court will not review a claim rejected by a state court ‘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.'” Walker v. Martin, 562 U.S. 307, 315 (2011) (citing Beardv. Kindler, 558 U.S. 53, 55 (2009); Coleman, 501 U.S. at 729). “This rule applies whether the state law ground is substantive or procedural.” Coleman, 501 U.S. at 729 (citations omitted). Therefore, federal habeas review of Petitioner's legal sufficiency challenge will be barred if the Fourth Department's reliance on New York's preservation rule to deny his claim on direct appeal was “independent of the federal question and adequate to support the judgment.” Kindler, 558 U.S. at 55 (citing Coleman, 501 U.S. at 729) (internal quotations omitted).
The Second Circuit has held New York's preservation rule “is a state law ground . . . independent of any federal question . . . .” Garvey v. Duncan, 485 F.3d 709, 720 (2d Cir. 2007). Therefore, the Appellate Division's application of the preservation rule was independent of the federal question presented here, i.e., whether Onondaga County Court'sMolineux ruling deprived Petitioner of a fair trial. “To qualify as an ‘adequate' procedural ground, a state rule must be firmly established and regularly followed.” Walker, 562 U.S. at 316 (citing Kindler, 558 U.S. at 60-61) (additional quotations omitted). Courts in this circuit have consistently found New York's preservation rule to be “firmly established and regularly followed.” See Downs v. Lape, 657 F.3d 97, 104 (2d Cir. 2011) (collecting cases).
Accordingly, the Appellate Division's denial of Petitioner's claim concerning Onondaga County Court's Molineux ruling based on his failure to properly preserve it, as required by New York law, constitutes an independent and adequate state law ground precluding federal habeas review. As with his procedurally defaulted claim concerning the authentication of video evidence above, Petitioner has not made the requisite showing of cause and prejudice or actual innocence so as to overcome the procedural bar. See, e.g., Humphrey v. Fisher, No. 9:07-CV-1200 (TJM/DRH), 2010 WL 7417094, at *4 (N.D.N.Y. July 23, 2010) (explaining, “[i]f the last- reasoned state court opinion decided the claim on an independent and adequate state law ground, the claim would be procedurally barred, and the petitioner can only overcome the procedural bar by showing cause and prejudice, or a fundamental miscarriage of justice.”), report and recommendation adopted, 2011 WL 4055407 (N.D.N.Y. Sept. 12, 2011). Therefore, Petitioner's challenge to the trial court's Molineux ruling must be dismissed.
In any event, a Molineux claim is not cognizable on federal habeas review. See, e.g., Griffin, 2021 WL 3884217, at *8 (“To the extent that [the petitioner] contends that the trial court's ruling was contrary to Molineux, such claim presents solely an issue of state law that is not cognizable on federal habeas review.”) (citing Mercedes v. McGuire, No. 2:08-CV-0299, 2010 WL 1936227, at *8 (E.D.N.Y. May 12, 2010); Allaway v. McGinnis, 301 F.Supp.2d 297, 300 (S.D.N.Y. 2004)); McKinnon v. Superintendent, Great Meadow Corr. Facility, 422 Fed.Appx. 69, 72-73 (2d Cir. 2011) (Summary Order) (explaining “[u]nder Supreme Court jurisprudence, a state court's evidentiary rulings, even if erroneous under state law, do not present constitutional issues cognizable under federal habeas review.”) (citing Hawkins v. Costello, 460 F.3d 238, 244 (2d Cir. 2006); Crane v. Kentucky, 476 U.S. 683, 689 (1986)). Alternatively, to the extent Petitioner would argue the state court's evidentiary ruling deprived him of due process under the Fourteenth Amendment, he is unable to demonstrate he was deprived of a fundamentally fair trial. Even assuming, arguendo, the testimony was not properly admitted in violation of New York law, the witness' testimony “viewed objectively in light of the entire record before the jury, was” not “sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.” Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985).
3. Petitioner's Civil Lawsuit Involving Detective Abraham
Finally, Petitioner appears to contest the fact that Abraham was allowed to testify, as Plaintiff filed a civil lawsuit which named Abraham as a defendant. Dkt. No. 1 at 10. Petitioner is not entitled to habeas relief on this basis.
As an initial matter, as Respondent correctly points out, see Dkt. No. 13 at 43, Petitioner has not raised this claim in state court. See generally, Dkt. No. 15-1 at 1-76. Therefore, as with Petitioner's claims concerning the authentication of video evidence and Ms. Voutsinas' representation of him, this claim is unexhausted. See Sections (IV)(B)-(C), supra.
More significantly, however, Petitioner's claim is completely meritless. Under 28 U.S.C. § 2254(b)(2), “[a]n 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.” This is particularly true where the claim is plainly meritless. See Rhines v. Weber, 544 U.S. 269, 277 (2005).
Here, Petitioner's suggestion Abraham should not have been “able to testify” is plainly meritless. The basis of Plaintiff's argument is the complaint he filed, which named Abraham as a defendant, in a federal civil action. However, that action was commenced when Petitioner filed his complaint on February 6, 2018, see Burton v. Abraham, No. 5:18-CV-0150 (ATB), Dkt. No. 1, over one year after Petitioner's jury trial. In any event, as Respondent further avers, a witness's potential bias is, at most, an appropriate subject for cross-examination. Accordingly, dismissal of Plaintiff's claim is warranted.
V. CONCLUSION
WHEREFORE, it is hereby
RECOMMENDED that the petition, Dkt. No. 1, be DENIED and DISMISSED in its entirety; and it is further
RECOMMENDED that no Certificate of Appealability (“COA”) shall issue because reasonable jurists would not find it debatable that Petitioner has failed to offer a substantial showing that he was denied a constitutional right. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); and it is further
ORDERED that the Clerk shall serve a copy of this Report-Recommendation and Order on Petitioner, along with copies of unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
ORDERED that the Clerk serve a copy of the Report-Recommendation on the parties. Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Report-Recommendation & Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation & Order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).
IT IS SO ORDERED.