Opinion
21-CV-7497 (MKV) (VF)
11-21-2023
HUBERT CAREY, Petitioner, v. SUPT. PASSAGE, Respondent.
TO: THE HONORABLE MARY KAY VYSKOCIL, UNITED STATES DISTRICT JUDGE
REPORT & RECOMMENDATION
VALERIE FIGUEREDO UNITED STATES MAGISTRATE JUDGE
On May 3, 2017, Petitioner Hubert Casey was convicted in New York Supreme Court, New York County, of second-degree robbery in violation of New York Penal Law § 60.10(2)(a). On June 16, 2017, the court sentenced Petitioner to a term of imprisonment of eight years, to be followed by five years of post-release supervision. Petitioner appealed his conviction, which was affirmed by the Appellate Division, First Department on May 18, 2021. Petitioner subsequently sought leave to appeal to the New York Court of Appeals, which was denied on July 6, 2021. On September 7, 2021, Petitioner, proceeding pro se, filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See ECF No. 1.
Petitioner asserts four grounds for habeas relief: (1) he was denied a fair trial because the court rejected two of the defense's for-cause challenges to prospective jurors during voir dire; (2) the evidence was legally insufficient to support a conviction for second-degree robbery; (3) “newly discovered evidence” establishes that he was assaulted when he committed the robbery and that the prosecutor and two trial witnesses committed perjury when they denied that the assault occurred; and (4) the trial court erroneously refused to charge the jury on the lesser included offense of petit larceny. See id. at 5-11.
For the reasons set forth below, I respectfully recommend that Petitioner's habeas petition be DENIED.
Citations to testimony from Petitioner's trial are designated by a witness' last name and the page number. Citations to the voir dire are preceded by the date and denoted by “T.” The pagination of the transcript restarts after opening statements on April 28, 2017. Citations to the trial transcript (other than voir dire) are denoted by “T.” Citations to the transcript of Petitioner's sentencing are denoted by “S.” The transcript for all of these proceedings are located at ECF Nos. 16-15, 16-16 and 16-17. Citations to the State Record (ECF Nos. 16-1 through 16-14) are denoted by “SR” followed by the page number. Page citations to Petitioner's habeas petition (ECF No. 1) are to the pagination generated by ECF. All other page citations herein for documents filed on ECF are to the original pagination in those documents.
A. The Underlying Offense
On May 28, 2016, Elite Investigation Security Guard Charisse Philbert was working as a Loss Prevention Officer at the DSW shoe store at 301 West 125th Street in Manhattan. Philbert: 70-71, 79. DSW occupied the second and third floors of the building, and customers were permitted to move between floors of the store with unpurchased merchandise. Philbert: 74-76. Customers were expected to pay for merchandise before passing the last cash register on the way out of the store. Id. DSW had cash registers on both floors, and the last cash register on the lower level was located near the “down” escalator, which led to the ground floor of the building. Philbert: 75-76.
As part of her duties, Philbert was authorized to stop customers from shoplifting when she saw the customer “enter the store, make a selection, [and] conceal the merchandise,” maintained “uninterrupted surveillance of” the customer, and saw the customer “pass all the registers.” Philbert: 72. The store had video cameras “all over” on both floors. Philbert: 77. Philbert split her time between watching live feeds from these cameras from a second-floor office and patrolling the store in plainclothes. Philbert: 77-78.
At around 6:00 p.m. on May 28, 2016, Philbert was watching the live feed from the video cameras when she saw Petitioner walk into the DSW and head to the men's department on the third floor of the store. Philbert: 81, 89-90. Petitioner removed a pair of Timberland shoes from their box and placed them into his backpack. Philbert: 81-83, 89-90. He then walked down the aisle, removed a pair of Clark's shoes from their box, and placed them into his bag as well. Philbert: 82, 90. Petitioner next went to another aisle and placed a pair of Nike sneakers into his bag. Philbert: 82, 90. As Petitioner walked toward the store's exit on the third floor, Philbert, believing that Petitioner was shoplifting, left the second-floor office and radioed her colleague, Xavier Ramirez, so they could stop Petitioner before he left the store. Philbert: 82-83, 90, 119-120.
Petitioner took the escalator down to the second floor of the store and Philbert, who was by the store's exit on the second floor, waited to see whether Petitioner would pay for the shoes before trying to exit the store. Philbert: 83-84, 91. Petitioner did not walk towards the cash registers and instead proceeded to the down escalator, which led to the ground floor and the building's exit. Philbert: 84. At that point, Philbert identified herself and asked Petitioner to return the shoes. Philbert: 84. Petitioner told Philbert that he did not have anything. Philbert: 84. Philbert grabbed Petitioner's backpack and he grabbed it too, leading to a “tussl[e] back and forth” with the bag. Philbert: 84-86. Another shopper, Jada Graham, who was a former security guard herself, noticed the commotion and began watching. Graham: 271-272, 278, 283.
While Philbert and Petitioner were struggling over the backpack, Petitioner bit Philbert on both hands, leading Philbert to scream and release the bag. Philbert: 85-86, 92, 121, 149; Graham: 272-274. Graham called 911. Graham: 274-276, 279, 282. Philbert and Ramirez “ran around in circles” with Petitioner until he fell, dropped his backpack, and the shoes fell out. Philbert: 86. As Petitioner got up, Ramirez confronted him and pushed him back down. Philbert 87. Because Petitioner no longer had the stolen property and loss prevention officers were trained not to use force other than to secure stolen property, Philbert told Ramirez to let Petitioner go. Philbert 87. Neither Philbert nor Graham saw Ramirez punch Petitioner. Philbert: 87, 92, 123, 204-205; Graham: 279, 284.
Petitioner took the escalator to the ground floor and walked out of the building, with Philbert following behind as she also called 911 to report what had happened. Philbert: 87-88, 92-95, 205. Near Eighth Avenue and West 125th Street, Petitioner boarded an MTA bus; Philbert followed him, while speaking to the 911 operator. Philbert: 93-94, 116-118. Petitioner walked off the bus through the rear doors and got away. Philbert: 94-95. Philbert was later transported to Lenox Hill Hospital, where she was treated for bite wounds to her hands. Philbert: 99. At the time of the bite by Petitioner, Philbert experienced a pain level of six to seven out of ten; her hand was throbbing. Philbert: 86. When she looked at her fingers after the bite, Philbert saw “blood and [her] skin peeled back on both hands.” Philbert: 86.
The next day, NYPD Detective Michael Cousin-Hayes went to the store to collect video footage and talk to Philbert. Cousin-Hayes: 236-37. Philbert was not at work that day. Philbert: 106; Cousin-Hayes: 236-37. Philbert later told Detective Cousin-Hayes what had happened and gave Detective Cousin-Hayes a photograph of Petitioner, which was a still image from the store's video footage. Philbert: 101-104, 125, 143-44; Cousin-Hayes: 222.
Days later, Detective Cousin-Hayes matched the photograph from Philbert to a known photograph of Petitioner and created an “I-Card” for Petitioner's arrest. Cousin-Hayes: 223, 227-228. At around 9:00 a.m. on July 12, 2016, Detective Christopher Heredia arrested Petitioner in Lower Manhattan. Heredia: 62-65; Cousin-Hayes: 229.
B. Petitioner's Trial
Jury selection for Petitioner's trial began on April 26, 2017, before Justice Gilbert Hong. 4/26/17 T. 27. One of Petitioner's claims in his petition concerns voir dire and two venire members, Thomas Schiels and Mya Halvert. Defense counsel attempted to strike Schiels and Halvert from the jury for cause. 4/27/17 T. 372; 4/26/17 T. 152-53. Justice Hong denied the for-cause challenges and the defense thereafter struck Schiels and Halvert from the jury using peremptory challenges. 4/27/17/ T. 372-73; 4/26/17 T. 152-53. Neither Schiels nor Halvert sat on Petitioner's jury. Defense counsel also attempted to strike Leslie Paladin for cause, but the challenge was denied. 4/27/17 T. 363, 367-77. Because the defense had exhausted its peremptory challenges, Paladin was seated as a juror. 4/27/17 T. 377.
There are multiple spellings of Schiels' last name in the state court record. The spelling of the name used herein is the spelling used in the People's brief on direct appeal to the Appellate Division.
Beginning with Schiels, at the time of Petitioner's trial in 2017, Schiels was a criminal defense attorney who had previously served as a prosecutor in the Manhattan District Attorney's office for 32 years, until 2011. 4/26/17 T. 29-30, 291; 4/27/17 T. 369, 371. Schiels still had an ongoing relationship with the District Attorney's office: he had given presentations to prosecutors at the office on criminal law issues and was scheduled to give an upcoming presentation on jury selection. 4/27/17 T. 363, 368. During voir dire, Schiels stated that he did not know the prosecutor, 4/27/17 T. 341, although the prosecutor stated that he recognized Schiels from training sessions for a charity boxing event hosted by the District Attorney's office. 4/27/17 T. 167. Schiels indicated that he could remain fair and impartial. 4/27/17 T. 341-42.
Defense counsel challenged Schiels for cause, arguing that Schiels' past employment and current relationship with the District Attorney's office rendered him unable to be fair despite his claims to the contrary. 4/27/17 T. 372. The court denied the application. 4/27/17/ T. 372. Although no reason was given at the time the application was denied, earlier that day, the court stated that Schiels had “not indicated in any way he can't be fair.” 4/27/17 T. 167. Ultimately, defense counsel used a peremptory challenge to remove Schiels. 4/27/17/ T. 372-73.
Turning to Halvert, during voir dire, Halvert stated that she thought she recognized Petitioner, explaining that he looked “familiar” to her. 4/26/17 T. 108. Halvert, however, stated that she did not know Petitioner and had not had interactions with him. 4/26/17 T. 108, 139. Defense counsel asked if Halvert's possible recollection of having seen Petitioner made her feel “concerned or nervous in any way,” and she answered that she was only nervous about serving on a jury because she had never done it before. 4/26/17 T. 140. The court asked Petitioner whether he had any recollection of Halvert, and defense counsel confirmed that petitioner did not. 4/26/17 T. 141. Halvert stated that she could be fair and impartial. 4/26/17 T. 139-40.
Defense counsel challenged Halvert for cause, citing her recognition of Petitioner. 4/26/17 T. 150. The court responded that Halvert said only that she might have recognized Petitioner. 4/26/17 T. 150. The court denied defense counsel's for-cause challenge, and counsel used a peremptory challenge to remove Halvert. 4/26/17 T. 152.
On direct appeal, Petitioner challenged the denial of his for-cause challenge as to a seated juror, Paladin. During voir dire, Paladin was asked if she had been a crime victim and stated that she had “a problem” with a man who lived in her apartment building in the 1990s and had obtained an order of protection against him. 4/27/17 T. 310. Paladin assured the court that it no longer concerned her, id., and she unequivocally stated that she could be fair and impartial. 4/27/17 T. 311. Defense counsel did not ask Paladin any questions about the order of protection. 4/27/17 T. 349-56.
After the jurors were excused, defense counsel asked for additional time to question the jurors. Counsel, however, did not indicate that she wanted to ask Paladin additional questions. 4/27/17 T. 363. The court denied the request for additional time. 4/27/17 T. 363. Defense counsel challenged Paladin for cause, based on her having obtained an order of protection. 4/27/17 T. 375. The court denied counsel's for-cause challenge. 4/27/17 T. 376-77. Because the defense had exhausted its peremptory challenges, Paladin was seated as a juror; defense counsel noted that if the court had granted one of her prior challenges for cause, she would have been able to use a peremptory challenge to remove Paladin. 4/27/17 T. 377-78.
Petitioner's trial began on April 28, 2017. T. 388-89. The People's case included testimony, as described above, from Philbert, Graham, and Detective Cousin-Hayes. The defense presented no evidence at trial. T. 294. On May 3, 2017, Petitioner was convicted as charged of second-degree robbery. T. 414. On June 6, 2017, the court sentenced Petitioner, as a second-violent-felony offender, to a determinate prison term of eight years, to be followed by five years of post-release supervision. S. 9, 21.
C. Petitioner's Post-Judgment Motion
In May 2017, prior to sentencing, Petitioner filed a pro se motion to vacate his conviction pursuant to CPL § 440.10, alleging that he was denied a fair trial due to perjury committed by Philbert and the trial prosecutor. SR 3. Nothing in the record suggests that the court addressed this motion prior to sentencing Petitioner. In September 2017, Petitioner filed a pro se state habeas petition pursuant to Article 70 of New York's Civil Practice Law & Rules, raising many of the same claims as in his May CPL § 440.10 motion. SR 16-118. Petitioner incorporated into his petition, and attached as exhibits, the previously-filed CPL § 440.10 motion (SR 103-17), as well as a new motion dated July 5, 2017, under CPL § 440.20 (SR 27-44).
Under Article 440 of the New York Criminal Procedure Law, a defendant who has been convicted in a New York state court may ask the trial court to either vacate the judgement (under Section 440.10) or set aside their sentence (under Section 440.20). A motion under Article 440 allows the defendant to inform the trial court of facts that are not in the trial record. See People v. Williams, 286 A.D.2d 620, 620 (1st Dep't 2001).
In the CPL § 440.20 motion, Petitioner did not challenge his sentence and instead renewed numerous claims from his CPL § 440.10 motion related to the pretrial and trial proceedings. For example, in his CPL § 440.20 motion Petitioner claimed that Philbert had committed perjury at trial when she testified that she did not see Ramirez assault Petitioner, and he also claimed that Graham and the prosecutor also committed perjury at trial in unspecified ways. SR 27-28, 36. The People, in their opposition, noted that Petitioner's habeas filing was substantively a CPL § 440.10 motion, and argued that the claims were record-based and therefore had to be raised on direct appeal, but were otherwise meritless. SR 119-35.
On January 10, 2018, the trial court dismissed Petitioner's state habeas petition and denied the CPL § 440.10 motion and Petitioner's other motions in their entirety. SR 139-44. The court noted that Petitioner's habeas claims were essentially the same as those he raised in his CPL § 440.10 motion and were claims that were more appropriately raised on direct appeal. SR 140-41. The court explained that Petitioner's claim was “all record-based,” and inappropriate for review in a CPL § 440 motion, denying his motion “based on procedural limitations.” SR 14243. A justice of the Appellate Division, First Department, granted Petitioner's application for leave to appeal the dismissal of his state habeas petition and CPL § 440.10 motion, and the appeal by Petitioner of the denial of his CPL § 440.10 motion was consolidated with Petitioner's direct appeal. SR 154.
D. Petitioner's Direct Appeal
Petitioner, through counsel, filed a consolidated appeal in the Appellate Division, First Department, asserting the following claims: (1) the trial court erroneously denied the defense's for-cause challenges to Schiels, Halvert, and Paladin, and improperly denied the opportunity to further question Paladin, depriving Petitioner of his constitutional right to a fair and impartial jury (SR 186-96); (2) the evidence was legally insufficient to prove Petitioner's intent to forcibly steal property and that Philbert suffered physical injury (SR 202-10); and (3) the trial court erred by refusing to charge petit larceny as a lesser-included offense, because the evidence showed that Petitioner did not use force to retain the stolen property (SR 211-14). With regards to his appeal from the denial of his CPL § 440.10 motion, Petitioner raised only one claim: a claim of ineffective assistance of trial counsel.
Petitioner does not raise this claim in his instant federal habeas petition.
The Appellate Division unanimously affirmed the judgment of conviction and the denial of Petitioner's CPL § 440.10 motion. People v. Carey, 194 A.D.3d 553, 554 (1st Dep't 2021); SR 286-89. Beginning with the claim concerning the for-cause challenges, the Appellate Division concluded that Schiels' connection to the District Attorney's office at the time of trial “was generally adversarial, and his attendance at a District Attorney charity event and the occasional training sessions he conducted for that office were too minimal, in context, to support a finding of implied bias.” 194 A.D. at 554. The Appellate Division further concluded that Halvert's responses reflected no bias against Petitioner or anything that might suggest she could not be fair or impartial. Id.; SR 287. Finally, the Appellate Division held that Petitioner established no basis to challenge Paladin for cause, and any limitation on defense counsel's questioning of Paladin was an appropriate exercise of the trail court's discretion. 194 A.D. at 554.
Turning to Petitioner's legal sufficiency challenge, the Appellate Division concluded that Philbert's bite wounds reasonably could have been viewed by the jury as being “beyond mere petty slaps, shoves, kicks and the like and caused more than slight or trivial pain.” Id. at 554 (citations and internal quotation marks omitted). Regarding Petitioner's challenge to the use-of-force element of second-degree robbery, the court concluded that the evidence at trial established that at least part of the reason Petitioner struggled with Philbert and ultimately bit her was to “overcome [Philbert's] resistance to [his] retention of the stolen goods even if he also intended to escape and retain his own backpack.” Id. (citation omitted).
The Appellate Division also rejected Petitioner's claim that the trial court improperly denied his request for the lesser-included offense of petit larceny, concluding that the charge was unsupported by any “reasonable view of the evidence.” Id. Petitioner, through counsel, filed an application requesting leave to appeal all claims he had raised in the Appellate Division. SR 290301. On July 6, 2021, the New York Court of Appeals denied leave to appeal. People v. Carey, 37 N.Y.3d 971 (2021).
E. Petitioner's Section 2254 Petition
In the instant pro se habeas petition, received by the Court on September 7, 2021, Petitioner argues that: (1) he was denied a fair trial because the trial court denied his two for-cause challenges, to Schiels and Halvert, during voir dire; (2) the evidence was legally insufficient to support a conviction for second-degree robbery because (a) he did not take the stolen shoes out of the store, and (b) the prosecution did not prove that Philbert suffered physical injury; (3) “newly-discovered” evidence establishes that the store security guard (Ramirez) assaulted him when he tried to escape, and the prosecutor and two trial witnesses committed perjury when they denied the assault; and (4) the trial court erred in refusing to charge the jury with the lesser-included offense of petit larceny. See ECF No. 1 (“Petition”) at 5-11.
On February 14, 2022, the Attorney General of the State of New York, as counsel for Superintendent Passage (“Respondent”), filed a memorandum of law in opposition and the state court record. ECF Nos. 16, 22. Respondent counters that Petitioner's jury-selection claim is not cognizable on habeas review because the challenged venire members did not sit on the jury and Petitioner does not contend that the composition of the jury was unfair. ECF No. 22 (“Resp't.'s Mem.”). Respondent further asserts that Petitioner's legal sufficiency claim is partially unexhausted, procedurally defaulted, and meritless. Respondent argues that Petitioner's perjury claim is also procedurally defaulted, as well as meritless. Finally, Respondent argues that Petitioner's claim concerning the failure to charge a lesser-included offense is not cognizable on habeas review and is meritless even under state law. Petitioner did not file a reply brief.
LEGAL STANDARDS FOR HABEAS RELIEF UNDER 28 U.S.C. § 2254
“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97 (2011). A state prisoner seeking habeas relief under § 2254 must show by a preponderance of the evidence that he or she is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
A. Timeliness
AEDPA imposes a one-year statute of limitations on habeas petitions. As relevant here, a state prisoner has one year to file his petition after “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1). A judgment becomes final “upon the completion of direct appellate review in state court and by the United States Supreme Court-either when certiorari proceedings are completed or when the time for seeking direct review by the United States Supreme Court expires, i.e., ninety (90) days after the last decision by the highest state court to which a direct appeal can be taken.” Wynerman v. Colvin, No. 16 Civ. 2886 (RA) (HBP), 2017 WL 3503402, at *2 (S.D.N.Y. June 13, 2017) (citing Clay v. United States, 537 U.S. 522, 531-32 (2003)); accord Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001).
B. Exhaustion
A federal court may not consider a petition for a writ of habeas corpus, even if timely filed, unless the petitioner has exhausted available remedies in the state courts. 28 U.S.C. § 2254(b)(1)(A); see also Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) (“To provide the state with the first opportunity to consider and correct alleged violations of its prisoners' constitutional rights, a state prisoner is required to exhaust all of his available state remedies before a federal court can consider his habeas application.”). In other words, the petitioner “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). In New York, a petitioner invokes “one complete round” of review by appealing an issue to the Appellate Division, then seeking leave to appeal to the New York Court of Appeals. Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005).
To satisfy the exhaustion requirement, a petitioner must “fairly present” each of his habeas claims, in “each appropriate state court (including a state supreme court with powers of discretionary review),” in a manner that “alert[s] that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted); Conway, 763 F.3d at 133 (“While ‘a state prisoner is not required to cite chapter and verse of the Constitution in order to satisfy this requirement,' he must tender his claim ‘in terms that are likely to alert the state courts to the claim's federal nature.'”) (quoting Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011)).
A petitioner can “fairly present” his claims in several ways, including by citing to the applicable provisions of the federal Constitution in his state-court briefs, see Davis v. Strack, 270 F.3d 111, 122-23 (2d Cir. 2001), or by citing “pertinent federal cases employing constitutional analysis,” Rustici v. Phillips, 308 Fed.Appx. 467, 469 (2d Cir. 2009) (citation and internal quotation marks omitted). However, a claim is generally not “fairly presented” to a state court “if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so.” Baldwin, 541 U.S. at 31-32. Moreover, the federal claim must be presented with some specificity: “a general appeal to a constitutional guarantee as broad as due process” is insufficient “to present the ‘substance' of such a claim to a state court.” Gray v. Netherland, 518 U.S. 152, 163 (1996) (citing Anderson v. Harless, 459 U.S. 4, 7 (1982)).
C. Procedural Default
If a habeas petition presents unexhausted claims, the federal court must determine whether the petitioner would be able to return to state court to exhaust those claims. Conway, 763 F.3d at 133. An unexhausted claim for which the petitioner cannot obtain further review in state court is procedurally defaulted and must be dismissed. Id. (“[I]f the state prisoner fails to exhaust his state remedies in a manner in which, were he to return to the state courts with his unexhausted claim, those courts would find the claim barred by the application of a state procedural rule, we must deem the claim procedurally defaulted.”) (internal quotation marks and citations omitted). The exception to this rule is if the petitioner establishes either “cause and actual prejudice or that he is actually innocent.” Bousley v. United States, 523 U.S. 614, 615 (1998) (internal quotation marks and citations omitted); see also Coleman v. Thompson, 501 U.S. 722, 748-50 (1991).
A petitioner can show “cause” for a procedural default when (1) “the factual or legal basis for a claim was not reasonably available,” (2) “some interference by state officials made compliance [with the procedural rule] impracticable,” or (3) “the procedural default is the result of ineffective assistance of counsel.” Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (internal quotation marks and citation omitted). Although the Supreme Court has not given “precise content” to the term “prejudice,” see Wainwright v. Sykes, 433 U.S. 72, 91 (1977), the prejudice must be sufficient “to overcome society's justified interests in the finality of criminal judgments,” United States v. Frady, 456 U.S. 152, 175 (1982). “The petitioner's burden in making a gateway showing of actual innocence is deliberately ‘demanding.'” Hyman v. Brown, 927 F.3d 639, 656 (2d Cir. 2019) (quoting House v. Bell, 547 U.S. 518, 538 (2006)). The standard of innocence in this context “references ‘factual innocence, not mere legal insufficiency.'” Id. at 657 (citing Bousley, 523 U.S. at 623).
D. Merits
AEDPA “imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Jones v. Murphy, 694 F.3d 225, 234 (2d Cir. 2012) (quoting Hardy v. Cross, 565 U.S. 65, 66 (2011)). Under AEDPA, courts may only grant a habeas petition if the challenged state-court 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” at the time of the state-court decision, or (2) “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).
“Clearly established” federal law means “the holdings, as opposed to the dicta,” of the decisions of the United States Supreme Court “as of the time of the relevant state-court decision,” and does not include opinions of lower federal appellate courts. Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)); see also Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (circuit precedent, even if “merely reflecting]” Supreme Court precedent, does not constitute “clearly established federal law” for purposes of § 2254(d)(1)).
Under the first prong, section 2254(d)(1)'s “‘contrary to' and ‘unreasonable application of clauses have independent meaning.” Carmichael v. Chappius, 848 F.3d 536, 544 (2d Cir. 2017) (citing Williams v. Taylor, 529 U.S. 362, 404-05 (2000)). A state-court decision is “contrary to” clearly established federal law if the state court “arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A state court makes an unreasonable application of clearly established federal law if the state court “correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case.” White v. Woodall, 572 U.S. 415, 426 (2014). Such application of federal law must be “‘objectively unreasonable,' not merely wrong; even ‘clear error' will not suffice.” Id. at 419 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). “The state court decision must be ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.'” Woods v. Etherton, 578 U.S. 113, 117 (2016) (quoting White v. Woodall, 572 U.S. 415, 420 (2014)).
Under the second prong, a state-court decision constitutes an “unreasonable application” of the Supreme Court's precedent if the state court applied the Supreme Court's “precedents to the facts in an objectively unreasonable manner.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citations omitted). A state court's factual determination may not be deemed unreasonable “merely because [a reviewing court] would have reached a different conclusion in the first instance.” Brumfield v. Cain, 576 U.S. 305, 313-14 (2015) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). Instead, § 2254(d)(2) requires a reviewing court to “accord the state trial court substantial deference.” Brumfield, 576 U.S. at 314. This means that if ‘“[Reasonable minds reviewing the record might disagree' about the finding in question, ‘on habeas review that does not suffice to supersede the trial court's . . . determination.'” Id. (alterations in original and citation omitted). For federal habeas review, factual determinations made by a State court are presumed correct, and a petitioner bears the burden of rebutting this presumption ‘by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
E. Pro Se Filings
Courts liberally construe pleadings prepared by pro se litigants and hold them ‘to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). It is appropriate to interpret pro se submissions to raise the strongest arguments that they suggest. Gomez v. Brown, 655 F.Supp.2d 332, 342 (S.D.N.Y. 2009) (explaining that because of the right of self-representation, the court is obligated to make reasonable allowances to protect pro se litigants from ‘inadvertent forfeiture of important rights because of their lack of legal training”) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
DISCUSSION
A. Petitioner's Habeas Petition is Timely
Petitioner's conviction became final on October 4, 2021-90 days after the New York Court of Appeals denied his leave application on July 6, 2021. See Warren v. Garvin, 219 F.3d 111, 112 (2d Cir. 2000). Petitioner signed his petition on August 31, 2021, and it was received by this Court on September 7, 2021, well within AEDPA's one-year statute of limitations. The Petition is therefore timely under 28 U.S.C. § 2244(d)(1).
B. Petitioner's Legal Sufficiency Claim
Petitioner argues that the evidence at trial was legally insufficient to convict him of second-degree robbery for two reasons: he did not take the shoes out of the store and there was no evidence of physical injury to Philbert. See Petition at 5, 12. As to the former, Respondent counters that Petitioner did not raise this challenge on direct appeal in the Appellate Division and thus the claim is unexhausted and procedurally defaulted, and, in any event, meritless. See Resp't.'s Mem. at 18-23. And as to the latter, Respondent argues that the claim is meritless because the evidence presented at trial amply established physical injury to Philbert. See Resp't.'s Mem. at 23-25. For the reasons discussed below, Petitioner's legal sufficiency claim is partially unexhausted. On the merits, the claim fails in its entirety.
1. Petitioner S claim is partially unexhausted and procedurally barred.
To exhaust a claim for habeas review, “the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts.” Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan v. Boerckel, 526 U.S. 838, 845-48 (1999).
On direct appeal Petitioner did not contend, as he does here, that the evidence presented at trial was legally insufficient because he never walked out of the store with the shoes. Instead, Petitioner argued that the evidence was insufficient to prove that Philbert suffered physical injury and to prove that he used force to steal the property. SR 202-10. Petitioner's claim that the evidence was legally insufficient because he did not remove the shoes from the store was never raised on direct appeal to the Appellate Division and therefore that basis for Petitioner's legal sufficiency claim is unexhausted.
Moreover, Petitioner “no longer has remedies available in the courts of the State” to raise this argument, and thus the claim is deemed exhausted but procedurally defaulted. Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991); see also Ward v. Gerbing, No. 19-CV-547 (VB) (PED), 2022 WL 3352080, at *11 (S.D.N.Y. June 28, 2022), report and recommendation adopted, 2022 WL 3354677 (S.D.N.Y. Aug. 12, 2022). Petitioner's claim that the evidence was legally insufficient because it did not show him leaving the store with the shoes is record-based. Stated otherwise, the facts upon which his argument relies are apparent from the witness testimony at trial. Petitioner could have raised his present challenge on direct appeal, relying on the trial transcript. Having failed to do so, Petitioner would be unable to raise the claim now in a CPL § 440.10 motion if he were to return to state court. “Section 440.10(2)(c) of New York's Criminal Procedure Law mandates that the state court deny any 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record.” Foreman v. Garvin, No. 99-CV-9078 (GBD) (AJP), 2000 WL 631397, at *9 (S.D.N.Y. May 16, 2000). As such, Petitioner's claim, to the extent it relies on an argument that he never left the store with the shoes, is deemed exhausted but procedurally barred. See Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997).
Petitioner cannot overcome this procedural bar. Petitioner nowhere claims that he is innocent of the crime of which he was convicted. See Schlup v. Delo, 513 U.S. 298, 314 (1995); Harris v. Reed, 489 U.S. 255, 262 (1989). Additionally, Petitioner does not provide any excuse for his failure to raise this challenge on direct appeal. Nor does Petitioner allege that he was prejudiced from the failure to do so. Accordingly, Petitioner's legal sufficiency claim based on an argument that he did not leave the store with the shoes is unexhausted and procedurally defaulted.
Petitioner also grounds his legal sufficiency challenge on the People's proof of physical injury to Philbert. This basis for Petitioner's claim is exhausted. In his direct appeal to the Appellate Division, Petitioner argued that the evidence was legally insufficient to prove that Philbert suffered physical injury and that he was therefore denied his constitutional right to due process. See SR 202-10. Moreover, Petitioner sought leave from the Court of Appeals based on all claims he had raised in the Appellate Division. SR 290-301. Accordingly, Petitioner fairly presented his federal law claim to the state courts and the claim is therefore exhausted. See, e.g., Herron v. Fields, No. 17-CV-7221 (VEF) (DF), 2021 WL 706334, at *11 (S.D.N.Y. Jan. 7, 2021), report and recommendation adopted, 2021 WL 695111 (S.D.N.Y. Feb. 19, 2021) (concluding that petitioner exhausted his claim by raising it in constitutional terms before the Appellate Division as well as in his application for leave to appeal to the Court of Appeals).
2. Petitioner s legal sufficiency claim is meritless.
Petitioner challenges the legal sufficiency of the evidence presented at trial on two grounds: the People's showing of physical injury and because he never removed the shoes from the store. Petition at 5, 12. For the reasons discussed below, the Appellate Division correctly concluded that the People had proven physical injury beyond a reasonable doubt. Further, even if reviewable, Petitioner's claim that the evidence was legally insufficient because he did not take the shoes out of the store is meritless.
A claim that the evidence presented at trial is legally insufficient is grounded in the Due Process Clause of the Fourteenth Amendment, which prohibits conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged.” In re Winship, 397 U.S. 358, 364 (1970). In challenging the constitutional sufficiency of the evidence underlying a conviction, a petitioner “bears a heavy burden . . . because the government receives the benefit of having all permissible inferences drawn in its favor.” Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002) (internal quotation marks and citations omitted). Where the state courts have decided a habeas petitioner's legal sufficiency claim on the merits, however, a court must review that claim under a “doubly deferential standard of review.” Garbutt v. Conway, 668 F.3d 79, 81-82 (2d Cir. 2012). In evaluating a legal-sufficiency claim, a court does not “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt”; rather, “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, 318-19 (1979) (emphasis in original) (internal quotation marks and citation omitted).
When reviewing a legal sufficiency claim in a habeas petition, “federal courts must look to state law for the substantive elements of the criminal offense.” Young v. Great Meadow Corr. Facility Superintendent, No. 16-CV-01420 (PAE) (BCM), 2019 WL 636952, at *10 (S.D.N.Y. Jan. 18, 2019), report and recommendation adopted, 2019 WL 632753 (S.D.N.Y. Feb. 14, 2019) (quoting Coleman v. Johnson, 566 U.S. 650, 655 (2012)) (internal quotation marks omitted). As is relevant here, under New York law, “[a] person is guilty of robbery in the second degree when he forcibly steals property and when . . . [i]n the course of the commission of the crime or of immediate flight therefrom, he . . . [c]auses physical injury to any person who is not a participant in the crime.” N.Y. Penal Law § 160.10(2)(a). “Physical injury” is defined as “impairment of physical condition or substantial pain.” N.Y. Penal Law § 10.00(9). “[S]ubstantial pain cannot be defined precisely”-it means “more than slight or trivial” pain, but “need not . . . be severe or intense.” People v. Chiddick, 8 N.Y.3d 445, 447 (2007). “[P]etty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives constitute only harassment and not assault, because they do not inflict physical injury.” Id. at 448 (internal citations and quotation marks omitted). Relevant factors to consider in determining whether enough pain was shown to support a finding of substantial pain include “the injury defendant inflicted, viewed objectively,” “the victim's subjective description of what [she] felt,” whether the victim “sought medical treatment for the wound defendant inflicted,” and “the motive of the offender.” Id. at 447-48.
Philbert testified that while she and Petitioner struggled over control of the backpack, Petitioner bit her on both hands, and the bites caused her to scream and release the backpack. Philbert: 85-86, 92, 121, 149. Graham, a witness to the incident, also testified to these facts. Graham: 272-74. Philbert stated that at the time of the bite, she experienced a pain level of six to seven out of ten and her hand was throbbing. Philbert: 86. When she looked at her fingers after the bites, Philbert saw “blood and [her] skin peeled back on both hands.” Philbert: 86. Philbert went to the hospital for her injuries, and her treating nurse, Ms. Bovgirya, testified that Philbert had two human “bite marks” on her fingers and one bite mark to the back of her left hand. Bovgirya: 17. The bite mark on the left hand had minor swelling. Id. Philbert also had an open “flap like” wound to one finger of her right hand. Bovgirya: 10-19, 25, 27. Philbert received a Tetanus shot and an antibiotic. Bovgirya: 13, 25-26; Philbert: 99-100. When asked about the pain she felt at the time of treatment, Philbert described it variably as rating between a three and a six on a ten scale. Bovgirya: 12, 15. Philbert was not prescribed any pain medication at the hospital. Bovgirya: 37. Based on her injuries, Philbert was excused by the hospital from work for three days. Bovgirya: 26; Philbert 101. Philbert experienced pain for a week after she was discharged from the hospital, and the bruising and cuts on her fingers lasted for two weeks. Philbert: 100. Philbert did not return to work for three days. Philbert: 100-01.
This evidence, viewed in the light most favorable to the prosecution, was sufficient to permit a rational trier of fact to have found, beyond a reasonable doubt, that Philbert suffered physical injury sufficient to sustain a second-degree burglary conviction. See Jackson, 443 U.S. at 318-19. In Chiddick, for example, when a civilian victim tried to prevent the defendant from fleeing from the scene of a burglary, the defendant bit his finger. 8 N.Y.3d at 446. The victim's fingernail cracked, and his finger bled. Id. at 447. He went to the hospital and received a Tetanus shot. Id. When the victim was asked at trial if the bite had caused him any pain, he said that the pain level was “[i]n between ‘a little' and ‘a lot.'” Id. at 447. Ultimately, he indicated that the pain he experienced was “moderate.” Id. On those facts, the Court of Appeals held that the evidence established that the victim had experienced substantial pain, and, accordingly, that there was legally sufficient evidence of physical injury. Id. at 448. The court also considered, in part, the defendant's motive “to make [the victim] let go of him.” Id. The court concluded that “it seems unlikely that anything less than substantial pain would have caused [the victim] . . . to release his hold.” Id.
The evidence of Philbert's injuries and pain, from Petitioner's multiple bites to her hands, is very similar to the evidence found sufficient to establish physical injury in Chiddick. As the Appellate Division reasoned, the jury “could have reasonably concluded that the bite wounds [Petitioner] inflicted on a store security guard went beyond mere petty slaps, shoves, kicks and the like and caused more than slight or trivial pain.” Carey, 194 A.D.3d at 554 (internal citations and quotation marks omitted). Further, as in Chiddick, the evidence here also “established that when defendant used force, at least one of his objectives was to overcome [Philbert's] resistance to [Petitioner's] retention of the stolen goods.” Id. To the extent Petitioner argues that physical injury was not proven because a nurse and not a doctor testified about Philbert's injury, see Petition at 12, there is no requirement under state law that the testimony of a physician is required to establish physical injury.
In any case, any such claim would also be unexhausted and procedurally defaulted because Petitioner on direct appeal never argued that due process required a doctor's testimony to establish physical injury.
Next, Petitioner's argument that the People did not establish legally sufficient evidence of second-degree robbery because he never removed the shoes from the store is without merit. See Petition at 5. Under New York law, “[a] person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself . . . he wrongfully takes, obtains or withholds such property from an owner thereof.” N.Y. Penal Law § 155.05(1). “The ‘taking' element of a larceny is satisfied where the defendant ‘exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner's continued rights.'” People v. Zombo, 28 A.D.3d 1233, 1234 (4th Dep't 2006) (quoting People v. Jennings, 69 N.Y.2d 103, 118 (1986)) (other citation omitted). To prove Petitioner's guilt of robbery, the People had to prove that Petitioner intended to either “exert permanent or virtually permanent control over the property,” People v. Medina, 18 N.Y.3d at 105, or to “dispose of [it] in such manner or under such circumstances as to render it unlikely that [the] owner [would] recover [it],” Penal Law § 155.00(3).
Philbert testified that she saw Petitioner remove three pairs of shoes from their respective boxes and place them inside his backpack. Philbert: 81-82, 90. Philbert also testified that she saw Petitioner walk toward the store's exit with the shoes in his backpack, past the cash registers, and then proceed to the escalator that led down the building's exit. Philbert: 84. When Philbert tried to stop Petitioner from leaving the store, Petitioner struggled with her for control of the backpack where he had placed the shoes. Philbert: 85-86. This evidence was legally sufficient to permit a rational factfinder to have found, beyond a reasonable doubt, that Petitioner exercised dominion and control over the shoes in a manner inconsistent with the store's rights. See People v. Hardy, 26 N.Y.3d 245, 250 (2015) (“A shoplifter who exercises dominion and control over the goods wholly inconsistent with the continued rights of the owner can be guilty of larceny even if apprehended before leaving the store.”) (citation and internal quotation marks omitted); People v. Brown, 226 A.D.2d 242, 243 (1st Dep't 1996) (evidence supported defendant's conviction for second-degree robbery, despite defendant's claim that he had dropped all merchandise when employee grabbed his wrists and was protecting himself when he pushed employee); Cf. People v. Smith, 176 A.D.2d 185, 186 (1st Dep't 1991) (taking element of larceny satisfied even where complainant was able to retrieve the jewelry as police were arriving). Additionally, Petitioner's struggle with Philbert for control of the backpack, which contained the shoes, further supported a finding that Petitioner was attempting to exercise dominion and control over the shoes in a manner inconsistent with DSW's rights. See People v. Barksdale, 500 A.D.3d 400, 401 (1st Dep't 2008) (reasoning that evidence that defendant “forcibly” pushed employee “out of the way” as defendant “attempted to leave the store with stolen merchandise” established crime of robbery).
In sum, Petitioner's legal sufficiency claim is partially unexhausted, to the extent it is based on his argument that he never left the store with the shoes. Regardless, Petitioner's legal sufficiency claim is entirely meritless.
C. Petitioner's Jury-Selection Claim
Petitioner claims that he was denied a fair trial because the trial court improperly denied his for-cause challenges to Schiels and Halvert. See Petition at 5. Respondent counters that Petitioner exercised peremptory challenges against these two venire members, they did not sit on the trial jury, and Petitioner does not contend that the seated juror, Paladin, was biased. Respondent thus argues that Petitioner has not presented a cognizable constitutional claim. See Resp't.'s Mem. at 13-18. For the reasons explained below, Petitioner has not stated a cognizable constitutional claim concerning Schiels and Halvert, because neither sat on Petitioner's jury. Further, Petitioner has not raised any claim that he was denied his constitutional right to an impartial jury because the juror who was seated after Petitioner had exhausted his peremptory challenges-Paladin-was biased.
Respondent does not argue that Petitioner's jury-selection claim is unexhausted, but I address the issue for the sake of completeness. In his direct appeal to the Appellate Division, Petitioner argued that the trial court's denial of the for-cause challenges to Schiels and Halvert deprived him of his constitutional right to a fair and impartial jury. See SR 186-196. Petitioner also sought leave from the Court of Appeals based on this federal constitutional claim. SR 290301. Accordingly, for the reasons set forth above, see supra at 20, Petitioner fairly presented this federal constitutional claim to the state courts and the claim is therefore exhausted.
The Sixth Amendment grants a criminal defendant the right to trial “by an impartial jury.” U.S. Const. amend. VI. “The right to an ‘impartial jury' is also grounded on principles of due process.” United States v. Barnes, 604 F.2d 121, 169 (2d Cir. 1979). It includes the “right to take reasonable steps designed to insure that the jury is impartial” and one of the most important devices for doing so is the jury challenge, of which there are two types: “‘for cause,' where actual bias is admitted or presumed” and “‘peremptory,' where bias is suspected or inferred.” Id. “Trial courts have broad discretion in handling for-cause challenges during jury selection.” Mackensy v. Miller, No. 00-CV-9296 (DAB), 2010 WL 101321, at *5 (S.D.N.Y. Jan. 12, 2010) (citing United States v. Torres, 128 F.3d 38, 42-44 (2d Cir. 1997)).
“[P]eremptory challenges are not of constitutional dimension” and their loss does not constitute “a violation of the constitutional right to an impartial jury.” Ross v. Oklahoma, 487 U.S. 81, 88 (1988). In other words, “[s]o long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.” Id. Courts in this District routinely deny habeas petitions where the claim is premised solely on the denial of a for-cause challenge to a juror that was struck from the venire panel or where the claim is based on the exhaustion of peremptory challenges. Brito v. Keyser, No. 19-CV-4197 (VEC) (GWG), 2020 WL 236697, at *8 (S.D.N.Y. Jan. 15, 2020), report and recommendation adopted, 2020 WL 995826 (S.D.N.Y. Mar. 2, 2020) (explaining that denial of for-cause challenge is not a claim cognizable on habeas review) (citing Murray v. New York, No. 13-CV-5212 (ER) (FM), 2019 WL 2502101, at *3 (S.D.N.Y. June 17, 2019); Stanford v. Griffin, No. 16-CV-1160 (JKS), 2018 WL 1756141, at *6 (N.D.N.Y. Apr. 10, 2018); and Toliver v. Sheahan, No. 13-CV-5056 (KPF), 2015 WL 2359085, at *25 (S.D.N.Y. May 18, 2015)); see also White v. Lape, No. 07-CV-11299 (RJH) (KNF), 2010 WL 1508260, at *2 (S.D.N.Y. Apr. 15, 2010) (“Since [the venire person was] not ultimately seated on the jury and petitioner has not shown that the resultant jury was impartial, there has been no deprivation of a constitutional right.”).
Petitioner complains about two venire persons (Schiels and Halvert). Petition at 5. Both were removed from the jury pool by defense counsel, who used peremptory challenges to do so. Neither individual sat on the jury that convicted Petitioner. Petitioner thus has no cognizable claim for federal habeas relief based on the denial of his for-cause challenges to Schiels and Halvert. See Brito, 2020 WL 236697, at *7 (no claim to federal habeas relief where potential juror complained of was not seated on the jury).
A petitioner may bring a habeas claim to challenge the composition of the jury, based on a claim that a seated juror was biased. See Murray v. New York, No. 13-CV-5212 (ER) (FM), 2016 WL 11600770, at *5 (S.D.N.Y. Apr. 4, 2016) (citing Ross, 487 U.S. at 88) (explaining that the Sixth Amendment guarantees the right to a “fair and impartial” jury). Although Paladin was seated on the jury, because Petitioner had exhausted his peremptory challenges, Petitioner is not claiming here that she (or anyone else on the jury) was biased. “Since [Petitioner] has not alleged-and certainly has not shown-that any of the jurors who actually served should have been struck for cause, it is clear that he cannot prevail on his jury selection claim.” Murray, 2016 WL 11600770, at *5 (citing Ross, 487 U.S. at 88).
In sum, Petitioner's jury-selection claim although exhausted is not cognizable on habeas review.
D. Petitioner's Perjury Claim
Petitioner argues that his right to a fair trial was infringed because Philbert, Graham, and the prosecutors at trial and on appeal committed perjury by denying that Ramirez, the security guard who assisted Philbert during the incident, assaulted Petitioner during the incident. See Petition at 7-8. Respondent argues that Petitioner's claims of perjury by Philbert, Graham, and the trial prosecutor are barred from habeas review on an adequate and independent state-law ground-namely, that Petitioner did not raise this record-based claim on direct appeal. Resp't.'s Mem. at 25-29. Respondent also argues that this claim is unexhausted and procedurally defaulted. Id. at 26, 29-30. Lastly, Respondent avers that the claim is meritless. Id. at 26, 30-32.
A review of the trail transcript confirms that the prosecutor did not testify at trial. At trial, Petitioner's counsel indicated to the court that she might call a nurse to testify to a head injury suffered by Petitioner during the altercation at the store. See T. 208. Ultimately, however, Petitioner did not call (or attempt to call) that witness at trial. See T. 294. At trial, Philbert and Graham were asked about the altercation between Ramirez and Petitioner. Both witnesses testified that they saw Ramirez push Petitioner, but that they never saw Ramirez punch Petitioner. Philbert: 92, 122, 124; Graham 279. Defense counsel on cross-examination of Philbert showed Philbert a photograph of Petitioner leaving the store and asked Philbert if she could see a “spot of red on the side of his head.” Philbert: 125. Philbert testified that she did not see the spot. Id. The jury was shown that photograph and was entitled to make its own determination as to what the photograph showed.
To the extent Petitioner claims that the appellate prosecutor also committed perjury, see Petition at 7-8, Petitioner appears to be relying on the factual rendition of the incident in the People's brief to the Appellate Division. There, the prosecutor, citing the testimony of Philbert and Graham, wrote that neither witness “saw Ramirez punch [Petitioner]”. See SR 244. A review of Philbert's and Graham's trial testimony confirms the accuracy of the description provided by the prosecutor on appeal. Compare SR 244 with Philbert 122, 124; Graham: 279.
On direct appeal, Petitioner never contended that Philbert, Graham, or the prosecutors committed perjury. Petitioner thus failed to present this basis for habeas relief to the state court. Accordingly, Petitioner's claim is unexhausted. See Sanabria v. Martuscello, No. 15-CV-1534 (CS) (LMS), 2019 WL 4942118, at *11 (S.D.N.Y. Oct. 8, 2019) (claim unexhausted where petitioner did not raise it on direct appeal). Further, because the facts supporting the claim are record-based, Petitioner could have raised the claim on direct appeal. His failure to do so means that the claim is also procedurally defaulted. See Reyes, 118 F.3d at 139.
1. Petitioner's claim is procedurally barred from review on an adequate and independent state-law ground.
The Supreme Court has held that the “adequate and independent state ground doctrine applies on federal habeas” review, such that “an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show ‘cause' for the default and ‘prejudice attributable therefore,' or demonstrate that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.'” Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted); accord Coleman v. Thompson, 501 U.S. 722, 735 (1991). “A federal claimant's procedural default precludes federal habeas review . . . only if the last state court rendering a judgment in the case rests its judgment on the procedural default.” Harris, 489 U.S. at 262. To preclude federal habeas review under the “adequate and independent” doctrine, the last reviewing state court's judgment must “clearly and expressly state . . . that its judgment rest[ed] on a state procedural bar.” Vacco, 126 F.3d at 415 (quoting Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996)).
“Even where the state court has ruled on the merits of a federal claim ‘in the alternative,' federal habeas review is foreclosed where the state court has also expressly relied on the petitioner's procedural default.” Murden v. Artuz, 497 F.3d 178, 191 (2d Cir. 2007) (citing Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005)); see also Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990); Harris, 489 U.S. at 264 n.10. Therefore, ‘“as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision,' the adequate and independent doctrine ‘curtails reconsideration of the federal issue on federal habeas.'” Roman v. Filion, No. 04-CV-8022 (KMW) (AJP), 2005 WL 1383167, at *22 (S.D.N.Y. June 10, 2005) (quoting Harris, 489 U.S. at 264 n.10)); see also McTiernan v. Tedford, No. 21-CV-1543 (JPC) (JLC), 2023 WL 3407600, at *5 (S.D.N.Y. May 12, 2023) (quoting Garvey v. Duncan, 485 F.3d 709, 713 (2d Cir. 2007)).
To be “adequate,” a state-law ground must be “firmly established and regularly followed by the state.” Richardson v. Greene, 497 F.3d 212, 218 (2d Cir. 2007) (internal citations and quotation marks omitted). A state-law basis is adequate if “the case law interpreting [the state law] . . . displays consistent application in a context similar to [the instant case].” Id. at 220 (citation omitted). To qualify as an independent state-law ground foreclosing federal habeas review, the state court's reliance on the state procedural rule must be “clear from the face of the opinion.” Coleman, 501 U.S. at 735 (citation omitted); see, e.g., Carrion v. Smith, 549 F.3d 583, 587 n.1 (2d Cir. 2008); Messiah v. Duncan, 435 F.3d 186, 195 (2d Cir. 2006).
Petitioner claims that Philbert and Graham committed perjury when they denied in their trial testimony that Ramirez assaulted Petitioner during the incident at the DSW store. See Petition at 7-8. At trial, both Philbert and Graham were asked about the altercation between Ramirez and Petitioner. Both witnesses stated that they saw Ramirez push Petitioner, but that they never saw Ramirez punch Petitioner. Philbert: 92, 122, 124; Graham 279. Petitioner also asserts that the prosecutors committed perjury when they denied the existence of any injuries to Petitioner. See Petition at 7-8.
Petitioner raised the same claim regarding Philbert, Graham, and the trial prosecutor in his CPL § 440.10 motion. SR 3, 27-28, 36. In denying Petitioner's CPL § 440.10 motion, the court implicitly invoked CPL § 440.10(2)(b)-the state procedural rule prohibiting a court addressing a CPL § 440 motion from addressing record-based claims that could be raised on direct appeal. The court explained that Petitioner's claim was “all record-based,” and inappropriate for 440 review, denying his motion “based on procedural limitations.” SR 142-43. Petitioner did not subsequently raise the claim on direct appeal to the Appellate Division. As such, the motion court was the last state court to consider Petitioner's claim.
New York courts have consistently held that a petitioner may not raise a claim in a collateral attack on a judgment of conviction, when a petitioner's direct appeal from that judgment is pending and there are sufficient facts in the record to allow adequate review of the claim on direct appeal. See Avent v. Napoli, No. 08-CV-932 (VB) (LMS), 2013 WL 1788626, at *12 (S.D.N.Y. Feb. 7, 2013), report and recommendation adopted, 2013 WL 1787568 (S.D.N.Y. Apr. 26, 2013). Further, courts in this District have held that a state court's denial of a claim under CPL § 440.10(2)(b), because the claim was record-based and should have been brought on direct appeal, is an “adequate and independent” state procedural ground barring federal habeas review. See, e.g., Williams v. Connolly, No. 10-CV-3075 (KMK) (GAY), 2013 WL 5692682, at *6 (S.D.N.Y. Sept. 30, 2013) (concluding that petitioner's allegations were procedurally barred from consideration because § 440 court implicitly invoked CPL § 440.10(2)(b) when it denied petitioner's claims as record-based and stated they could be raised on appeal); Johnson v. Sabourin, No. 03-CV-0791, 2005 WL 2663039, at *3-5 (S.D.N.Y. Oct. 14, 2005) (§ 440 court's denial of ineffective-assistance claims under CPL § 440.10(2)(b) because claim was recordbased was adequate and independent state-law ground barring federal habeas review); Hemphill v. Senkowski, No. 02-CV-7093, 2004 WL 943567, at *8 (S.D.N.Y. May 3, 2004) (§ 440 court's denial of petitioner's claim pursuant to C.P.L. § 440.10(2)(b) was an adequate and independent state-law ground barring habeas review).
After the state court denied Plaintiff's claim in his CPL § 440.10 motion, Petitioner had an opportunity to raise the claim on direct appeal. His claim was record-based, and the motion court issued its decision before Petitioner's direct appeal to the Appellate Division was briefed. Petitioner, however, failed to raise the claim on direct appeal despite having the ability to do so. In short, the denial of Petitioner's claim pursuant to CPL § 440.10(2)(b) was a procedural default providing an independent and adequate procedural bar to federal habeas review.
In order to overcome that procedural default, Petitioner must show “cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750 (citations omitted). The record demonstrates that Petitioner was aware of the basis for his claim during trial and therefore could have raised it with the trial court or, later, on direct appeal. Petitioner failed to do so and has proffered no justifiable basis for that failure. Petitioner also has not demonstrated that a failure to consider the claim would result in a miscarriage of justice. Petitioner is therefore unable to overcome the procedural default.
2. Petitioner's claim is meritless.
Procedural issues aside, Petitioner's perjury claim is meritless. “A witness commits perjury if he gives false testimony concerning a material matter with the willful intent to provide false testimony, as distinguished from incorrect testimony resulting from confusion, mistake, or faulty memory.” United States v. Monteleone, 257 F.3d 210, 219 (2d Cir. 2001) (citing United States v. Dunningan, 507 U.S. 87, 94 (1993)); cf. N.Y. Penal Law § 210.00(5) (defining “swears falsely” as occurring “when [a person] intentionally makes a false statement which he does not believe to be true . . . while giving testimony”). “Simple inaccuracies or inconsistencies in testimony do not rise to the level of perjury.” Monteleone, 257 F.3d at 219.
Petitioner bears “the burden of demonstrating, by a preponderance of the evidence that the witness committed perjury.” Carrino v. Lee, No. 21-CV-5909 (VB) (PED), 2023 WL 4304799, at *18 (S.D.N.Y. Jan. 31, 2023), report and recommendation adopted, 2023 WL 4296182 (S.D.N.Y. June 30, 2023) (citation and internal quotation marks omitted). “If the evidence is false or the testimony is perjured, then the introduction of perjured testimony at a criminal trial violates due process where the prosecution knew or should have known of the perjury and where there is any reasonable likelihood that the perjured testimony could have affected the judgment of the jury.” Id. (citation and internal quotation marks omitted).
Petitioner has not shown that Philbert or Graham testified falsely when they testified that they never saw Ramirez punch Petitioner. Philbert testified that she never saw Ramirez punch Petitioner. Philbert: 122, 124. She further testified that she saw Ramirez push Petitioner “back on the floor” after she told Ramirez to let him go. Philbert: 92. Likewise, Graham testified that she witnessed Ramirez “push [Petitioner] to get the bag from him, but he never punched him.” Graham: 279. Petitioner has not identified any inconsistencies in either Philbert's or Graham's testimony. Moreover, Petitioner has set forth no affirmative evidence to support his allegations of an assault by Ramirez. The fact that Graham and Philbert did not characterize the altercation between Ramirez and Petitioner as an “assault” does not amount to perjury. And to the extent Petitioner points to the potential testimony of a nurse who treated him for a head injury after the robbery, see Petition at 7, no such testimony was introduced at trial. Again, while defense counsel noted in a colloquy with the court that she might have a witness who would testify to Petitioner's head injuries, see T. 208, she did not ultimately introduce such evidence at trial or even attempt to do so, see T. 294. Lastly, because Petitioner has proffered no evidence to suggest that Philbert's or Graham's testimony was false, Petitioner also has not shown that the prosecutors knowingly introduced false testimony.
In sum, Petitioner's claim is procedurally barred and meritless.
E. Petitioner's Challenge to the Trial Court's Refusal to Instruct the Jury on the Lesser-Included Offense of Petit Larceny
Finally, Petitioner asserts that the trial court erred by failing to charge the jury on the lesser-included offense of petit larceny. See Petition at 5, 11. Respondent asserts that such a claim is not cognizable on habeas review, and that even if it were, the trial court's refusal to submit the lesser-included offense requested by Petitioner's counsel at trial was correct under state law. See Resp't.'s Mem. at 32-34. Respondent is correct.
Petitioner does not specify which lesser-included offense he contends should have been charged to the jury. See Petition at 5. On direct appeal, his appellate attorney argued that the trial court should have charged the jury with petit larceny, as a lesser-included offense to second-degree robbery. See SR 211-14. I therefore construe Petitioner to be arguing now that the trial court erred in not providing a charge on petit larceny as a lesser-included offense.
“The Supreme Court has held that due process requires a trial court to submit jury instructions regarding lesser-included offenses in capital cases.” Jones v. Hoffman, 86 F.3d 46, 48 (2d Cir. 1996) (citing Beck v. Alabama, 447 U.S. 625, 637-38 (1980)). However, as it pertains to non-capital cases, the Supreme Court has not yet decided “whether the Due Process Clause” requires the trial court to charge a lesser-included offense. Beck, 447 U.S. at 638 n.14; accord Knapp v. Leonardo, 46 F.3d 170, 179 (2d Cir. 1995) (“Neither the Supreme Court nor this circuit has decided whether the failure to instruct a jury on lesser included offenses in noncapital cases is a constitutional issue that may be considered on a habeas petition.”), cert. denied, 515 U.S. 1136 (1995).
It thus remains an open question whether in a non-capital case, like Petitioner's, the trial court's refusal to charge the jury on a lesser-included offense violates a defendant's Fourteenth Amendment Due Process rights. See Vasquez v. Granham, No. 07-CV-7575 (DLC), 2008 WL 4500702, at *3 (S.D.N.Y. Oct. 7, 2008); White v. Fischer, No. 04-CV-5358 (GBD)(FM), 2008 WL 4210478, at *9 (S.D.N.Y. Sept. 12, 2008). Accordingly, because “there is no clearly established Supreme Court law requiring that a jury be instructed on lesser included offenses” in cases such as this, where the Petitioner was charged with non-capital offenses, Petitioner's claim cannot be the basis for habeas relief. Brito, 2020 WL 236697, at *8 (citing Young v. Great Meadow Corr. Facility Superintendent, No. 16-CV-1420, 2019 WL 636952, at *9 (S.D.N.Y. Jan. 18 2019), report and recommendation adopted, 2019 WL 632753 (S.D.N.Y. Feb. 14, 2019); Colbert v. Schneiderman, No. 15-CV-5961, 2016 WL 8711559, at *9 (S.D.N.Y. Mar. 18), report and recommendation adopted, 2016 WL 4440690 (S.D.N.Y. Aug. 23, 2016); and Valentin v. Miller, No. 14-CV-7441, 2015 WL 5970488, at *3 (E.D.N.Y. Oct. 13, 2015)); see also Vasquez, 2008 WL 4500702, at *3 (denying habeas relief where claim was failure to charge a lesser-included offense in non-capital case); Brown v. Perlman, No. 07-CV-8672 (RMB) (AJP), 2008 WL 2009220, at *18 (S.D.N.Y. May 8, 2008), report and recommendation adopted, 2008 WL 2545066 (S.D.N.Y. June 23, 2008) (same); Lisojo v. Rock, No. 09-CV-7928 (CM) (AJP), 2010 WL 1223086, at *29 (S.D.N.Y. Mar. 31, 2010), report and recommendation adopted, 2010 WL 1783553 (S.D.N.Y. Apr. 29, 2010) (same).
Regardless, even if cognizable, Petitioner's claim is meritless. As the Appellate Division concluded on direct appeal, the trial court properly declined to charge the lesser-included offense of petit larceny because such a charge was unsupported by any “reasonable view of the evidence.” Carey, 194 A.D.3d at 554. “[T]here is no reasonable view of the evidence to support a finding that [Petitioner] committed the lesser offense but not the greater, as is required under New York Law to warrant submission of a lesser included offense,” because no reasonable view of the evidence suggests that Petitioner did not use force to overcome Philbert's resistance to his retention of the stolen merchandise. Durden v. Greene, 492 F.Supp.2d 414, 423 (S.D.N.Y. 2007) (citation and internal quotation marks omitted). In sum, Petitioner's claim is not a basis for habeas relief but, even if reviewed on the merits, the claim fails.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Petition be DENIED.
SO ORDERED.