Opinion
17-CV-7922 (AT) (RWL)
06-06-2022
CHRISTOPHER DANIELS, Petitioner, v. WILLIAM LEE, Superintendent, Respondent.
TO HON. ANALISA TORRES, JUDGE:
REPORT & RECOMMENDATION
ROBERT W. LEHRBURGER, United States Magistrate Judge
PETITION FOR HABEAS CORPUS
Christopher Daniels, proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction following a jury trial in the Supreme Court of the State of New York, Bronx County. Daniels raises nine arguments by way of two habeas submissions, an initial petition (cited herein as “Habeas Pet.”) and a supplemental petition filed after completion of collateral proceedings (cited herein as “Supp. Hab. Pet.”).
In his initial petition, Daniels claims that: (1) the evidence was legally insufficient to establish support for a first-degree assault conviction and led to a verdict against the weight of the credible evidence; (2) the trial court deprived Daniels of a fair trial by refusing to submit third-degree assault as a lesser included offense; (3) the prosecution denied Daniels a reasonable opportunity to testify before the grand jury; (4) the trial court deprived Daniels of a fair trial by admitting testimony of an uncharged shooting of the complainant's cousin committed when Daniels was present; and (5) Daniels was denied effective assistance of trial counsel.
In his supplemental petition, Daniels claims that: (6) his due process right to a fair and impartial trial was violated when false testimony was adduced at trial and the prosecutor knew it to be false; (7) his appellate counsel failed to provide effective assistance by failing to argue that the trial court committed error by changing the theory of the case; (8) appellate counsel was further ineffective by failing to properly argue that Daniels was not afforded a reasonable opportunity to testify at the Grand Jury; and (9) appellate counsel was further ineffective by failing to brief the meritorious issue that trial counsel failed to ensure that the polling of the jury produced 12 unanimous answers affirming Daniels' guilt.
For the reasons that follow, I recommend that Daniels' petition be DENIED and the action dismissed.
Background
On May 29, 2013, a jury convicted Daniels of first-degree assault under N.Y. Penal Law § 120.10(1), but acquitted him of second-degree attempted murder. Daniels received a fifteen-year jail sentence and five years of post-release supervision. The following facts are drawn from the testimony elicited at trial.
A. Prior Confrontation
On August 16, 2010, Alex Gonzalez threw a celebratory barbecue for Gonzalez's cousin. (Tr. 368-369.) According to Gonzalez, during the event, he witnessed Daniels and others beating up an unknown individual and approached them to request that they “take it to another place. My family is here and I don't want anybody to get hurt.” (Tr. 370.) Daniels responded that “it's not your business.” (Tr. 370.) Gonzalez and his family were about to back away from Daniels “when one of [Daniels'] associates or the person that [Daniels] was with punched [Gonzalez's] cousin. So a brawl broke where [Gonzalez's] cousin got shot, not by [Daniels], by another individual.” (Tr. 371.) Everyone ran away and Gonzalez's cousin was taken to the hospital. (Tr. 371).
“Tr.” refers to the transcript of the trial at which Daniels was convicted, a copy of which can be found at Dkts. 38 at 60 through 38-6 at 81.
B. Daniels' Assault On Gonzalez
Less than a month later, on September 13, 2010, while Gonzalez was attempting to park his car, Daniels approached Gonzalez's driver's-side window, banged on the window, and asked, “Are you good now?” four times. (Tr. 372-73.) Gonzalez asked what Daniels was talking about. (Tr. 373.) Daniels told Gonzalez that “it was none of your business,” in reference to the prior fight at the barbecue. (Tr. 373). Daniels called Gonzalez “a pussy,” and asked, “[O]h, are you going to run away now? What's you going to do?” (Tr. 373.) Daniels and another individual parked in front of Gonzalez's car so that he could not escape. (Tr. 373.)
Gonzalez then opened the door, at which point Daniels began attacking him. (Tr. 373.) Gonzalez testified that “[Daniels] swung at me first” and hit Gonzalez on the left side of his eyebrow, which “got cut.” (Tr. 373-74.) The blow landed so hard that it turned Gonzalez around so he could not see the next blow coming. (Tr. 374.) He felt “tinglings in [his] elbow which later resulted to be a cut.” (Tr. 374.) Gonzalez stood up and went back to Daniels, where the parties continued swinging at each other. (Tr. 374.) Daniels struck Gonzalez multiple times in the chest, at which point Gonzalez stepped back. (Tr. 374-75.) Daniels began laughing, “called [Gonzalez] a pussy again,” and then left the scene. (Tr. 375.) Gonzalez's friend, who was with Gonzalez during the incident, gave Gonzalez his shirt to fashion a tourniquet on his left arm, and took Gonzalez to Montefiore Hospital. (Tr. 375.)
Gonzalez entered the hospital and collapsed in a hallway, where a security guard and nearby doctor began treatment. (Tr. 375.) At the hospital, doctors told Gonzalez that he had been stabbed in the chest. (Tr. 378.) Dr. Prashanth Sreeramoju, the physician who treated Gonzalez at Montefiore Hospital, testified that Gonzalez suffered a “stab wound in the cardiac window … on the left side of the chest where the heart will be,” as well as “a laceration to the left elbow and the eyebrow.” (Tr. 436.) Dr. Sreeramoju added that Gonzalez “was lucky” despite having some air around his lungs and a small amount of blood in his mediastinum, between his lungs. (Tr. 438.) Dr. Sreeramoju concluded that if Gonzalez's injuries were left untreated, a lot of air could have accumulated around the lung, compressing it, which could have resulted in stopped blood flow and death. (Tr. 440.)
C. Grand Jury Proceedings
Daniels was arrested on September 13, 2010 and charged with second-degree attempted murder and related charges. (Baumgartner Aff. at 1.) His first defense attorney served a notice of defendant's intent to testify before a grand jury by September 22, 2010. (Baumgartner Aff. at 1-2.)
“Baumgartner Aff.” refers to the affirmation of Assistant District Attorney Susan E. Baumgartner in opposition to Daniels' motion to dismiss the indictment (Dkt. 35, Ex. 5).
On that day, the case was sent to the grand jury so Daniels could testify, but Daniels' attorney requested to be relieved. (Baumgartner Aff. at 2.) Defendant was appointed new counsel, David Farman, and the case was adjourned until September 28, 2010, for Daniels to consult with his new attorney prior to testifying. (Baumgartner Aff. at 2.)
On September 28, 2010, the Department of Corrections did not produce Daniels, but rescheduled for the following day. (Baumgartner Aff. at 2.) On September 29, 2010, Daniels was produced; he then told Farman that he was planning to retain a different attorney, Manuel A. Sanchez. (Baumgartner Aff. at 2-3.) Both sides agreed to wait until October 5, 2010, to give Farman an opportunity to determine whether Daniels had in fact retained Sanchez. (Baumgartner Aff. at 3.) Sanchez denied he had been retained. (Baumgartner Aff. at 2.)
Daniels was produced on October 5, 2010, but again told Farman that he had retained Sanchez. (Baumgartner Aff. at 3.) Neither Farman nor the Assistant District Attorney (the “ADA”) could reach Sanchez to confirm. (Baumgartner Aff. at 3).
Accordingly, Farman had the case called before Justice Dawson of the Supreme Court of the State of New York, Bronx County, to request additional time for Daniels to consult with Sanchez before testifying. (Calendaring Tr. 2-3.) The ADA responded, “Either [Daniels] does it today or I vote the case.” (Calendaring Tr. 3.) Justice Dawson asked Farman whether he still wanted to waive Daniels' grand jury appearance; Farman stated that “he had to [waive the appearance]” because he needed additional time to consult with Daniels. (Calendaring Tr. 4). Justice Dawson told the ADA to “do whatever it is you have to do.” (Calendaring Tr. 4.)
“Calendaring Tr.” refers to the transcript of the October 5, 2020 pre-trial proceedings in Daniels' criminal case (Dkt. 35, Ex. 1).
The next day, the State went before the grand jury, which returned an indictment against Daniels for second-degree attempted murder, first-degree assault, two counts of second-degree assault, third-degree assault, and fourth-degree criminal possession of a weapon. (Indictment at 1-4.) Daniels did not testify.
“Indictment” refers to the October 6, 2010 grand jury indictment of Daniels (Dkt. 35, Ex. 2).
On November 17, 2010, Daniels was arraigned in Supreme Court, whereupon Sanchez entered his Notice of Appearance. (Decision and Order at 2.) On November 19, 2010, Farman filed a Motion to Dismiss the Indictment pursuant to N.Y. Crim. Proc. Law § 190.50. (Decision and Order at 2.) Additionally, on November 24, 2010, Daniels filed a pro se Motion to Dismiss the Indictment pursuant to N.Y. Crim. Proc. Law § 190.50. (Decision and Order at 2.) Daniels' pro se motion was ruled untimely, while the motion filed by Farman, and adopted by Sanchez, was deemed meritless because “the defendant was afforded a reasonable time to exercise his right to testify before the Grand Jury.” (Decision and Order at 3.)
“Decision and Order” refers to the trial court's April 11, 2011 decision and order on Daniels' motion to dismiss the indictment (Dkt. 35, Ex. 6).
N.Y. Crim. Proc. Law § 190.50 governs a defendant's right to testify before a grand jury.
D. Testimony About Prior Bad Acts
A pre-trial hearing occurred on May 10, 2012, before Justice Gross of the Supreme Court of the State of New York, Bronx County, regarding anticipated “Molineux evidence” of Daniels' prior bad acts. (Pretrial Hearing Tr. 12-18.) At that hearing, the State requested permission to introduce evidence of the prior fight and shooting at the Gonzalez family barbecue. Defense counsel Sanchez objected on the grounds that the evidence was “highly prejudicial.” (Pretrial Hearing Tr. 15.) Justice Gross overruled the objection, granting the State's application to introduce the evidence and noted that the “prejudicial effect of a jury hearing about a fight in which Mr. Daniels was a participant is far outweighed by its direct and probative relevance on the three issues of motive, intent and identity concerning the events of September 13th.” (Pretrial Hearing Tr. 18.)
Molineux evidence refers to evidence of a defendant's prior bad acts or crimes introduced by prosecutors to establish motive, intent, common scheme or plan, knowledge, identity, or absence of mistake or accident. People v. Molineux, 168 N.Y. 264, 293-94 (1901).
“Pretrial Hearing Tr.” refers to the transcript of November 5, 2012 pretrial hearings in Daniels' criminal case (Dkt. 38 at 4-39).
Before the jury was brought in for opening statements, the parties and the court again discussed the anticipated testimony regarding the Molineux evidence. The trial judge asked Sanchez whether he desired a contemporaneous instruction “while the Molineux evidence is being presented to the jury about the use that would be made of that evidence” in addition to an instruction during the jury charge. (Tr. 325.) Sanchez stated that he wanted the contemporaneous instruction; the court then read that instruction to the attorneys, and Sanchez said that it was “fine.” (Tr. 325-26.)
During trial, the court gave the Molineux instruction to the jury prior to Gonzalez's testimony about the fight at the barbecue, stating that Gonzalez's testimony regarding that fight should not be considered for the purpose of proving that Daniels had a propensity or predisposition to commit the crime with which he was charged. (Tr. 369-70.) He added that “this evidence is being offered for [the jury's] consideration on the question of motive, intent, and identity of the person who committed the crime on September 13, 2010.” (Tr. 370.)
The court again gave the Molineux instruction to the jury during the jury charge, stating that the evidence offered regarding the August 16, 2010 conduct “was offered as evidence for [the jury's] consideration on the question of the defendant's motive, intent, and identity.” (Tr. 542.)
E. Trial
The State called three witnesses - Gonzalez testified about the prior confrontation, the crime, and his subsequent hospital visit; Dr. Sreeramoju testified about Gonzalez's injuries; and Detective Jeffrey Caton testified, corroborating Gonzalez's description of the crime scene. (Tr. 368-75, 436-40, 441-45.) After the State rested its case-in-chief, defense counsel moved to dismiss the indictment on the grounds that the State failed to make out a prima facie case for attempted murder, first-degree assault, and second-degree assault. (Tr. 448.) Judge Dawson reserved judgment on dismissal until after the defense presented its case. (Tr. 456-57.) The defense did not call any witnesses and rested its own case-in-chief. (Tr. 459.) At that point, Judge Dawson again reserved judgment on dismissal and gave the case to the jury. (Tr. 460-61.)
On May 29, 2013, the jury convicted Daniels of assault in the first degree. (Tr. 609-10.) At Daniels' sentencing hearing, held on June 20, 2013, Sanchez told the court that Daniels had just informed him that Daniels wished to file a motion to set aside the verdict pursuant to N.Y. Crim. Proc. Law § 330.30: “I just learned of it … He is giving me a 330 motion right in open court.” (Sentencing Tr. 3-4.) Sanchez went on to describe the motion as being based on Daniels' inability to testify before the grand jury; the court responded that such a claim was appropriate under N.Y. Crim. Proc. Law § 190.50 rather than § 330.30 and must be brought within five days of a defendant's arraignment. (Sentencing Tr. 6.) The court asked Sanchez, “That is what you have in front of you, a 190.50 motion?” (Sentencing Tr. 6.) Sanchez responded, “That's one of the batches that's completely without merit. … I'm trying to explain to him.” (Sentencing Tr. 6.) While Sanchez attempted to explain to his client, the court ruled on the motion to set aside the verdict based on defects in the grand jury proceeding by stating that,
“Sentencing Tr.” refers to the transcript of the June 20, 2013 sentencing of Daniels (Dkt. 38-6 at 82-99).
[F]irst of all, all defects are cured that are non jurisdictional by a conviction, number one. Number two, a claim that the defendant was deprived of his right to testify before the grand jury, that motion must be made five days after arraignment on the indictment. I think we are about three years too late for such a motion and that's not a ground that appears in the 330, as a motion, as something that can be used to set aside a jury verdict.(Sentencing Tr. 6-7.)
F. Appeals
On direct appeal to the Appellate Division, First Department, Daniels asserted the following claims: (1) the evidence was legally insufficient and led to a verdict against the weight of the evidence; (2) the court erred by failing to submit third-degree assault as a lesser included offense; (3) the prosecution denied Daniels a reasonable opportunity to testify before the grand jury in accordance with N.Y. Crim. Proc. Law § 190.50; (4) the court erred by admitting testimony about the uncharged shooting of the complainant's cousin; and (5) Daniels was prejudiced by his trial counsel's comments during sentencing that Daniels' pro se N.Y. Crim. Proc. Law § 190.50 motion lacked merit. (Def. Appellate Brief.) The Appellate Division unanimously affirmed Daniels' conviction on December 15, 2015. People v. Daniels, 134 A.D.3d 525, 21 N.Y.S.3d 75 (1st Dep't 2015). Daniels' application for leave to appeal to the New York Court of Appeals was denied on July 7, 2016. People v. Daniels, 27 N.Y.3d 1150, 39 N.Y.S.3d 384 (table) (2016). Daniels did not file a petition for a writ of certiorari with the United States Supreme Court. (Habeas Pet. at 3.)
“Def. Appellate Brief” refers to Daniels' March 13, 2015 brief to the New York Supreme Court, Appellate Division, First Department (Dkt. 35, Ex. 7).
On March 21, 2018, Daniels filed a motion with the state trial court pursuant to NYCPL § 440.10, arguing ineffective assistance of trial counsel and submission of false evidence at trial, which was denied on March 28, 2019. (See Dkt. 35-16.) On June 6, 2019, Daniels sought leave from the Appellate Division, First Department, to appeal the denial of his NYCPL § 440.10 motion. (See Dkt. 35-17.) On August 20, 2019, the Appellate Division denied Daniels' motion for leave to appeal that decision. See People v. Daniels, 2019 Slip Op. 77694(U) (1st Dep't 2019); (see also Dkt 25). On June 23, 2020, Daniels moved in the Appellate Division, First Department, for a writ of error coram nobis alleging that his appellate counsel was ineffective. (Dkt. 54-1.) On December 29, 2020, the Appellate Division denied Daniels' writ of error coram nobis (Dkt. 54-3), and on April 23, 2021, the Court of Appeals of New York denied leave to appeal. People v. Daniels, 36 N.Y.3d 1118, 146 N.Y.S. 3d 194 (2021).
G. The Instant Action
Daniels filed his petition on October 13, 2017. On December 29, 2020, I issued a Report and Recommendation recommending that the petition for habeas relief be denied and the action be dismissed. (Dkt. 39.) By letter dated January 11, 2021, Daniels stated that he had requested that his habeas petition be held in abeyance pending exhaustion of his state claims. (Dkt. 40.) By Order dated January 25, 2021, I withdrew my Report and Recommendation (Dkt. 41) and stated that the Court understood Daniels' letter to be a request to amend his petition to include additional claims pursued collaterally. (Dkt. 42.) The Court granted Defendant's request for a stay until the final decision in Daniels' coram nobis proceedings. (Dkt. 44.)
On September 22, 2021, Daniels filed his supplemental habeas petition to add the claims raised in his NYCPL § 440.10 motion and writ of error coram nobis application. (Dkt. 51.) The Court now considers the claims raised by Daniels in both the initial habeas petition and the supplemental petition.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) limits a federal court's ability to provide habeas corpus relief. 28 U.S.C. § 2254(a). Under AEDPA, a state prisoner's application for a writ of habeas corpus “shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim” either:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
Deciding whether a state court's decision ‘involved' an unreasonable application of federal law or ‘was based on' an unreasonable determination of fact requires the federal habeas court to ‘train its attention on the particular reasons - both legal and factual - why state courts rejected a state prisoner's federal claims' and to give appropriate deference to that decision. Wilson v. Sellers, __ U.S. __, __, 138 S.Ct. 1188, 1191-92 (2018) (citations omitted) (quoting Hittson v. Chatman, 576 U.S. 1028, 1028, 135 S.Ct. 2126, 2126-28 (Mem.) (2015) (Ginsburg, J., concurring in denial of certiorari)).
A state court decision is “contrary to” clearly established precedent when the state court applies a rule that is “diametrically different, opposite in character, or mutually opposed” to the governing law set forth in Supreme Court cases. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 1519 (2000) (internal quotations marks omitted) (quoting Contrary, Webster's Third New International Dictionary (1976)). Additionally, a “court may grant relief under the ‘unreasonable application' clause if the state court correctly identifies the governing legal principle … but unreasonably applies it to the facts of the particular case.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850 (2002) (citing Williams, 529 U.S. at 407-08, 120 S.Ct. 1495 at 1520-21). This inquiry focuses not on whether the state court's application of clearly established federal law was merely incorrect or erroneous but on whether it was objectively unreasonable. See id. “Under § 2254(d), a habeas court must determine what arguments or theories supported, or … could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 786 (2011).
AEDPA forecloses “‘using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.'” Parker v. Matthews, 567 U.S. 37, 38 (2012) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 779, 130 S.Ct. 1855,1866 (2010)). “A state court's findings are not unreasonable under § 2254(d)(2) simply because a federal habeas court reviewing the claim in the first instance would have reached a different conclusion.” Pine v. Superintendent, Green Haven Correctional Facility, 103 F.Supp.3d 263, 275 (N.D.N.Y. 2015) (citing Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841, 849 (2010)). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 1939 (2007).
Even if a trial-court error meets the standards required by AEDPA, habeas relief is not warranted unless the violation “‘had substantial and injurious effect or influence in determining the jury's verdict.'” Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 1714 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239,1253 (1946)); see also Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 2328 (2007) (confirming continued applicability of Brecht under AEDPA); Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994) (“Habeas relief is not appropriate when there is merely a ‘reasonable possibility' that trial error contributed to the verdict.”) (quoting Brecht, 507 U.S. at 637, 113 S.Ct. at 1721)); Butler v. Graham, No. 07-CV-6586, 2008 WL 2388740, *6 (S.D.N.Y. June 12, 2008) (recognizing and applying “substantial and injurious effect standard” and citing Brecht and Fry).
The petitioner “bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated.” Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). The petitioner also bears “the burden of rebutting the presumption of correctness” of state court fact determinations “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Where a petitioner proceeds pro se (i.e., without legal representation), the Court must construe his submissions liberally and interpret them “‘to raise the strongest arguments that they suggest.'” Kirkland v. Cablevision Systems, 760 F.3d 223, 224-25 (2d Cir. 2014) (per curiam) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). This does not, however, excuse a petitioner “from compliance with relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (internal quotation marks and citation omitted).
Where a state appellate court summarily affirms a decision by the lower court, the federal habeas court “‘look[s] through' the unexplained decision to the last related state-court decision that does provide a relevant rationale” and “then presume[s] that the unexplained decision adopted the same reasoning.” Wilson, __ U.S. at __, 138 S.Ct. at 1192. That presumption may be rebutted “by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court's decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.” Id.
Discussion
In his initial petition, Daniels claims that habeas relief is warranted because: (1) the evidence presented at trial was insufficient to establish the “serious physical injury” element of first-degree assault under N.Y. Penal Law § 120.10(1), and thus the jury verdict contradicted the weight of the credible evidence; (2) the trial court deprived him of a fair trial by refusing to submit third-degree assault as a lesser included offense; (3) the prosecution denied him a reasonable opportunity to testify before the grand jury by refusing to accommodate Daniels' desire to consult with counsel prior to testifying; (4) the trial court deprived him of a fair trial by admitting testimony of the uncharged shooting of Gonzalez's cousin committed when Daniels was present; and (5) Daniels was denied the effective assistance of counsel because his trial counsel described Daniels' post-conviction pro se motion to set aside the verdict as having no merit and otherwise failed to appeal the issue. (Habeas Pet. at 5-8).
In his supplemental petition, Daniels makes four additional claims, namely that: (6) Daniels' due process right to a fair and impartial trial was violated when false testimony was adduced at trial and the prosecutor knew it to be false; (7) appellate counsel failed to provide effective assistance when he failed to argue that the trial court committed error by changing the theory of the case; (8) appellate counsel failed to properly argue that Daniels was not afforded a reasonable opportunity to testify at the Grand Jury; and (9) appellate counsel was ineffective because he failed to brief the issue that trial counsel failed to ensure that the polling of the jury produced 12 unanimous answers affirming Daniels' guilt. (Supp. Pet. at 2-3.)
After thorough consideration, the Court determines that none of Daniels' arguments have merit.
I. Relief Not Warranted Based On Weight And Sufficiency Of The Evidence Claims
Daniels argues that the verdict was against the weight of the evidence and unsupported by sufficient evidence because the prosecution failed to prove serious physical injury as required to establish first-degree assault. (Habeas Pet. 5-6); see generally N.Y. Penal Law § 120.10(1). The Appellate Division, First Department, rejected that claim, finding that Daniels “penetrated the victim's lung and caused a dangerous leakage of air. There was nothing speculative about the People's medical expert's opinion that these injuries created a substantial risk of death. Accordingly, the element of serious physical injury was satisfied.” Daniels, 134 A.D.3d at 525, 21 N.Y.S.3d at 76. Daniels has no constitutional basis to challenge the state court's decision.
The New York Court of Appeals denied without explanation Daniels' leave to appeal the Appellate Division's decision on Daniels' direct appeal. See Daniels, 27 N.Y.3d at 1150, 39 N.Y.S.3d at 384 (table). Consequently, the last reasoned opinion rendered on Daniels' issues came from the Appellate Division, First Department. See Wilson, 138 S.Ct. at 1192 (“federal habeas law ‘looks through' the unexplained decision to the last related state-court decision that does provide a relevant rationale.”)
A. Weight Of The Evidence Claim Not Cognizable On Habeas Review
A “weight of the evidence” claim is not a basis for habeas review. Put simply, “[a] federal habeas court cannot address ‘weight of the evidence' claims because ‘a challenge to a verdict based on the weight of the evidence is different from one based on the sufficiency of the evidence. Specifically, the ‘weight of the evidence' argument is a pure state law claim” not subject to habeas review. Douglas v. Portuondo, 232 F.Supp.2d 106, 116 (S.D.N.Y. 2002) (citations omitted); see also Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) (“A federal habeas court has no power to grant habeas corpus relief because it finds that the state conviction is against the weight of the evidence”), cert. denied, 476 U.S. 1123, 106 S.Ct. 1991 (Mem) (1986); Garbez v. Greiner, No. 01-CV-9865, 2002 WL 1760960, at *8 (S.D.N.Y. July 30, 2002) (“by raising a ‘weight of the evidence' argument, [petitioner] does not present … a federal claim as required by 28 U.S.C. § 2254(a)”). As a result, Daniels' weight of the evidence claim cannot be reviewed by this Court, and habeas relief is not warranted on that ground.
B. Sufficiency Of The Evidence Claim Not Viable
In contrast to Daniels' weight of the evidence claim, the Court may consider Daniels' claim of insufficient evidence. Nonetheless, that claim has no merit.
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.'” Coleman v. Johnson, 566 U.S. 650, 651, 132 S.Ct. 2060, 2062 (2012) (citation omitted). “For a court to conclude, as the Appellate Division did in this case, that a jury verdict is supported by sufficient evidence, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial.” People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 763 (1987). “‘When considering the sufficiency of the evidence of a state conviction, ‘[a] federal court must look to state law to determine the elements of the crime.'” Silva v. Keyser, 271 F.Supp.3d 527, 539 (S.D.N.Y. 2017) (quoting Garrett v. Perlman, 438 F.Supp.2d 467, 471 (S.D.N.Y. 2006)) (in turn quoting Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002)).
Under New York Law, a person is guilty of first-degree assault when, “[w]ith intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.” N.Y. Penal Law § 120.10(1). A dangerous instrument is defined as “any instrument, article or substance … which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury.” N.Y. Penal Law § 10(13). Daniels does not contest that element, but instead focuses on the element of serious physical injury. (Habeas Pet. 5.)
Serious physical injury means “impairment of a person's physical condition which creates a substantial risk of death or which causes death or serious and protracted disfigurement or protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” N.Y. Penal Law § 10(10). When determining whether an injury created “a substantial risk of death,” it is appropriate to consider the potential extent of the injury if left untreated. See e.g., Santone v. Fischer, 689 F.3d 138, 149-50 (2d Cir. 2012) (New York Appellate Division's ruling “that, where an assault victim could have bled to death without treatment, his injuries were life-threatening within the meaning of § 10.00(10) - was in no sense an arbitrary application of New York law”) (collecting cases); People v. Burnett, 100 A.D.3d 1561, 1562-63, 954 N.Y.S.2d 391, 393 (4th Dep't 2012) (multiple stab wounds, “only one of which could have been life threatening if left untreated,” was “legally sufficient to establish that the complainant sustained a serious physical injury”); People v. Almonte, 7 A.D.3d 324, 325, 776 N.Y.S.2d 554, 556 (1st Dep't 2004) (“the court's charge that serious physical injury includes physical injury which, if left untreated, creates a substantial risk of death was a correct statement of the law and was warranted by the evidence”); People v. Riccardi, 199 A.D.2d 432, 432, 605 N.Y.S.2d 112, 113 (2d Dep't 1993) (“The victim's own testimony as well as that of the Emergency Medical Technician and the uncontroverted evidence of the People's medical expert that the wounds, if left untreated, were ‘life-threatening', is sufficient to support the jury's verdict”) (collecting cases).
Legally sufficient evidence of a serious physical injury can be established “by the victim's testimony, corroborated by medical testimony,” which is exactly what the State presented at trial. People v. McDuffie, 293 A.D.2d 287, 287, 740 N.Y.S.2d 48, 48 (1st Dep't 2002). To begin, the State elicited testimony from Gonzalez, the victim, that Daniels swung at him many times, inflicting blows and cuts on Gonzalez's left eyebrow, left elbow, and chest. (Tr. 373-375.) Gonzalez bled profusely and went to a hospital, whereupon he collapsed. (Tr. 375.) Doctors later told Gonzalez that he had been stabbed in the chest, and he remained in the hospital for three days. (Tr. 378, 420.) Gonzalez did not see Daniels with a sharp instrument in his hand, but testified that nobody else had struck him that day and that the only other people at the scene were several feet from him. (Tr. 405-06.) Gonzalez was certain that it was Daniels who stabbed and cut him. (Tr. 396.)
The State also provided corroborating medical testimony of Gonzalez's injuries. In particular, the State elicited medical testimony from Gonzalez's treating physician, Dr. Sreeramoju, who stated that Gonzalez suffered a punctured lung, a laceration above his left eye, a laceration on his left elbow, and a stab wound to his chest that required stiches, staples, and a stay in the ICU. (Tr. 436-40.) Dr. Sreeramoju explained that one of the chest wounds was a “stab wound in the cardiac window,” meaning “the left side of the chest where the heart [is].” (Tr. 436.) Such wounds require close monitoring in the intensive care unit because, even if a victim “looks fine … he can deteriorate quite fast if … not monitored well.” (Tr. 437.) These wounds are “usually dangerous,” Dr. Sreeramoju explained, because they can cause blood to leak into the sac around the heart, which can “make the heart stop beating [and] be life threatening.” (Tr. 437.)
In Gonzalez's case, the wound caused a “small amount of blood” to leak into his mediastinum (the space between the lungs) and air to leak into the area “around his lungs on the left side.” (Tr. 438.) “[I]f it becomes severe,” Dr. Sreeramoju told the jury, air around the lungs “can stop the blood flowing to the heart” and kill the patient. (Tr. 438.)
Although Gonzalez's injuries “did not progress[,] so he did well,” when asked what the extent of Gonzalez's injuries would have been if left untreated, Dr. Sreeramoju testified that a lot of air could have accumulated around the lung, compressing it and having a negative effect on the heart, stopping the flow of blood and killing Gonzalez. (Tr. 439-440.)
The evidence was thus legally sufficient for the state court to conclude that Daniels' attack caused Gonzalez to sustain serious physical injury, creating a substantial risk of death. See, e.g., Almonte v. Lape, No. 05-CV-1995, 2006 WL 839073, at *10 (S.D.N.Y. March 30, 2006) (physician's testimony that victim “suffered a stab wound that was one inch wide and penetrated his chest cavity, causing blood and air to flow into his chest” and “that somebody with [the victim]'s injuries could die if the wound was left untreated” satisfied serious injury element), R. & R. adopted, 2007 WL 586631 (S.D.N.Y. Feb. 22, 2007); People v. Rodriguez, 2 A.D.3d 284, 285, 769 N.Y.S.2d 257, 257 (1st Dep't 2003) (“The element of serious physical injury (Penal Law § 10.00[10]) was established by evidence that the victim suffered a severe and potentially life-threatening stab wound to his chest that penetrated the muscle and caused blood to accumulate between his chest wall and lung, which had to be drained.”); People v. Gordon, 257 A.D.2d 533, 533-34, 685 N.Y.S.2d 28, 28-29 (1st Dep't 1999) (stab wound to abdomen that caused copious bleeding and required monitoring “for a couple of days” entitled jury to infer that the victim faced a substantial risk of death in the absence of “speedy medical intervention”); People v. Ross, 125 A.D.2d 422, 422, 509 N.Y.S.2d 142, 142-43 (2d Dep't 1986) (surgeon's testimony that three stab wounds created a substantial risk of death if not treated promptly or adequately supported jury's finding that the wounds “constituted serious physical injury”); see also Burnett, 100 A.D.3d at 1562-63, 954 N.Y.S.2d at 393; Riccardi, 199 A.D.2d at 432, 605 N.Y.S.2d at 113. As a result, the state court's finding that the conviction was supported by sufficient evidence was not “objectively unreasonable” and does not provide grounds for habeas relief. See Coleman, 566 U.S. at 651, 132 S.Ct. at 2062.
II. Trial Court Did Not Err In Declining To Submit Lesser Included Offense
Daniels argues that he was deprived of his constitutional right to a fair trial because the trial court declined to submit third-degree assault as a lesser included offense of the first- and second-degree assault charges brought against him. According to Daniels, there “was a reasonable view of the evidence that Daniels did not harm the complainant with a deadly weapon or a dangerous instrument.” (Habeas Pet. at 6). The Appellate Division, First Department, denied this claim on the merits and held that the trial court
properly declined to submit third-degree assault as a lesser included offense. There was no reasonable view of the evidence, viewed most favorably to defendant, that he only struck the victim with his fists, while the stab wounds were inflicted by an unidentified man at the scene. The victim's integrated and unimpeached testimony was that the unidentified man stood 10 to 15 feet away during the attack, and never participated.Daniels, 134 A.D.3d at 525-26, 21 N.Y.S.3d at 76 (internal citation omitted).
The Appellate Division's decision is not contrary to, nor does it involve an unreasonable application of, federal law. Neither the Supreme Court nor the Second Circuit has announced a rule mandating that in non-capital cases, even where the evidence warrants a lesser-included charge, due process requires a trial court to submit the lesser-included offense. See Marquez v. Artuz, No. 08-CV-10847, 2011 WL 7445518, at *4 (S.D.N.Y. Oct. 17, 2011) (denying habeas petition and observing that the Supreme Court has “‘expressly reserved the question of whether due process requires a lesser included offense instruction in the non-capital context'”) (quoting Caban v. Mitchell, 897 F.Supp. 759, 762 (S.D.N.Y. 1995)) (in turn citing Beck v. Alabama, 447 U.S. 625, 638 n.14, 100 S.Ct. 2382, 2391 n.14 (1980) (“[w]e need not and do not decide whether the Due Process Clause would require the giving of such instructions in a noncapital case”)); Lindsay v. Fischer, No. 02-CV-1668, 2004 WL 112884, at *7 (S.D.N.Y. Jan. 23, 2004) (reasoning that such a holding would “involve the announcement of a new rule”) (quoting Jones v. Hoffman, 86 F.3d 46, 48 (2d Cir. 1996)). Since there is no controlling precedent governing a trial court's duty to charge a lesser-included offense in non-capital cases, the trial court's refusal to submit third-degree assault as a lesser-included offense does not raise a federal constitutional claim reviewable on a petition for a writ of habeas corpus.
Other Circuits appear to be split on this issue. See Caban v. Mitchell, 897 F.Supp. 759, 762-63 (S.D.N.Y. 1995) (citing cases from First, Sixth, Seventh, and Eighth Circuits finding due process violation and cases from Fifth, Ninth, Tenth, and Eleventh Circuits finding no such violation).
In any event, Daniels' claim fails for precisely the reason articulated by the trial court and the Appellate Division: no reasonable view of the evidence leads to the conclusion that Daniels punched the victim but an unidentified man stabbed him. As the Appellate Division noted, the victim gave unimpeached testimony that the unidentified man stood several yards away during the attack and did not participate. Accordingly, habeas relief is not warranted on this claim. See Martinez v. Breslin, No. 07-CV-8671, 2009 WL 2244633, at *8 (S.D.N.Y. July 28, 2009) (denying habeas petition where a reasonable view of the evidence would not permit the jury to find that defendant had committed third-degree assault but not first-degree manslaughter); Caban, 897 F.Supp. at 765 (denying habeas petition where no reasonable view of the evidence supported conclusion that assault occurred without a weapon).
III. Daniels Was Not Denied A Reasonable Opportunity To Testify At Grand Jury
Daniels contends that his Fourteenth Amendment right was violated because the prosecutor refused to accommodate Daniels' desire to consult with his chosen attorney, Sanchez, prior to presentation of the case to the grand jury, thus denying Daniels the opportunity to present a defense before the grand jury. (Habeas Pet. at 6-7.) The Appellate Division, First Department, denied the claim and found that the “record establishes that the People afforded [Daniels] a reasonable opportunity to testify by, among other things, repeatedly adjourning the grand jury presentation over a period of several weeks in order to accommodate him.” Daniels, 134 A.D.3d at 526, 21 N.Y.S.3d at 76. The state court committed no constitutional error.
The Supreme Court has held that the due process clause “does not require the States to observe the Fifth Amendment's provision for presentment or indictment by a grand jury.” Alexander v. Louisiana, 405 U.S. 625, 633, 92 S.Ct. 1221, 1226-27 (1972). It thus “is well established that defendants have no constitutional right to appear before a grand jury.” United States v. Ruiz, 894 F.2d 501, 505 (2d Cir. 1990).
Some authority nonetheless supports the proposition that a state violates due process if it arbitrarily deprives a defendant of a state-created right. See, e.g., Chandler v. Moscicki, 253 F.Supp.2d 478, 489 (W.D.N.Y. 2003) (“where a state creates a right, such as a right to testify before a grand jury, that right cannot be forfeited in an arbitrary or fundamentally unfair manner”).
Under New York law, the prosecution is obligated to provide a defendant “a reasonable time to exercise his right to appear” before a grand jury. N.Y. Crim. Proc. Law § 190.50(5)(a) (“When a criminal charge against a person is being or is about to be or has been submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his own behalf if, prior to the filing of any indictment … he serves upon the district attorney of the county a written notice making such request”). Daniels was not arbitrarily deprived of that right.
The State repeatedly deferred presentation to the grand jury to accommodate Daniels' requests. Upon withdrawal of his initial attorney, the prosecution gave Daniels almost a week to consult with new counsel, Farman. (Baumgartner Aff. at 2.) The prosecution agreed to a second adjournment for another week when Daniels indicated that he planned to retain a different attorney, Sanchez, in place of Farman. (Baumgartner Aff. at 2-3.) Yet Sanchez denied that he had been retained. (Baumgartner Aff. at 2.) And, when on his third appearance, Daniels said that he had retained Sanchez, neither Farman nor the ADA could reach Sanchez to confirm. (Baumgartner Aff. at 3.) Under these circumstances, the Appellate Division was well within reason when it determined that the prosecution had afforded Daniels a reasonable opportunity to testify before the grand jury. See People v. Watkins, 40 A.D.3d 290, 290, 837 N.Y.S.2d 7, 8 (1st Dep't 2007) (in light of defense counsel's lack of diligence, “prosecutor's considerable and repeated efforts to contact defense counsel … [and] postponing the grand jury presentation on two occasions, more than met the People's statutory obligation to provide defendant with a reasonable and meaningful opportunity to testify before the grand jury”).
Regardless, Daniels' conviction establishes that “any cognizable deprivation of the state-created right to testify before the grand jury was harmless.” Webb v. LaClair, No. 10-CV-7603, 2014 WL 4953559, at *6 (S.D.N.Y. Sept. 30, 2014); see also Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) (“‘[T]he petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury's verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.'”) (quoting United States v. Mechanik, 475 U.S. 66, 70, 106 S.Ct. 938, 942 (1986)). Additionally, Daniels presents no explanation as to how his testifying at the grand jury proceedings would have led to a different result. Saldana v. State of New York, 850 F.2d 117, 118-19 (2d Cir. 1988) (reversing district court, dismissing habeas petition, and holding State's failure to allow defendant to testify in front of grand jury, even after defendant had requested to appear on multiple occasions, was harmless error because “there is no reason to believe that [petitioner's] appearance and testimony before the grand jury could have resulted in any different action by the grand jury”).
Daniels was not arbitrarily deprived of his right to testify in front of the grand jury, and his claim to the contrary has no merit.
IV. Admitting Testimony Of Prior Confrontation Did Not Unfairly Prejudice Jury
Daniels argues that he was deprived of his constitutional right to a fair trial when the trial court permitted Gonzalez to testify about the fight that occurred on August 16, 2010, about one month before Daniels' assault of Gonzalez. (Habeas Pet. at 7.) This claim has no merit.
When a habeas petition is premised on an evidentiary ruling being erroneous, a petitioner must “demonstrate that the state court's erroneous conclusions about New York evidence law were so egregious as to implicate the Fourteenth Amendment's guarantee of due process.” Evans v. Fischer, 712 F.3d 125, 133 (2d Cir. 2013). Where the petitioner argues that the evidentiary ruling violated his right to due process, the question is whether the claimed error “‘deprived [him] of a fundamentally fair trial.'” Zarvela v. Artuz, 364 F.3d 415, 418 (2d Cir. 2004) (emphasis in original) (quoting Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988)). To have done so, the erroneously admitted evidence, in light of the entire record before the jury, must have been “‘sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'” Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992)), abrogated on other grounds, Perry v. New Hampshire, 565 U.S. 228, 132 S.Ct. 716 (2012); see also Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (holding that erroneously admitted evidence must be “crucial, critical, highly significant” to form the basis for habeas relief) (internal quotation marks and citation omitted).
In sum, to succeed on his claim, Daniels must establish (1) that the trial court's evidentiary rulings were erroneous as a matter of state law, (2) that admission of the evidence deprived him of a fundamentally fair trial under the “sufficiently material” standard, and (3) that the state court's ruling constituted an objectively unreasonable application of that standard. See Kanani v. Phillips, No. 03-CV-2534, 2004 WL 2296128, at *15-16 (S.D.N.Y. Oct. 13, 2004), R. & R. adopted, 2005 WL 2431416 (S.D.N.Y. Oct. 3, 2005). Daniels cannot do so. His claim founders on the very first element and necessarily the second and third as well.
In New York, the State is prohibited from introducing evidence of a defendant's prior crimes if the prejudicial value exceeds the probative value. See People v. Molineux, 168 N.Y. 264, 294-297 (1901). Whether the probative value of the evidence outweighs the prejudicial value to the defendant is a case-specific determination. See People v. Morris, 21 N.Y.3d 588, 597, 976 N.Y.S.2d 682, 688 (2013). Where the same defendant and victim were involved, the evidence is admissible to show a defendant's motive, intent, and identity. See People v. Dorm, 12 N.Y.3d 16, 18-19, 874 N.Y.S. 866, 868 (2009); accord People v. Leeson, 12 N.Y.3d 823, 826-27, 880 N.Y.S.2d 895, 898 (2009).
Gonzalez and Daniels both were involved in the prior incident. To recap the relevant events, Gonzalez testified that, at the prior altercation, he and a cousin intervened when Daniels and other individuals were “beating up” someone near Gonzalez's family cookout. (Tr. 368-70). After Daniels told Gonzalez to go away, and that the fight was “not [his] business,” Gonzalez's cousin was shot by another individual who was with Daniels. (Tr. 370-71). Daniels' trial counsel objected to the testimony coming in at a pre-trial hearing and was overruled. (Pretrial Hearing Tr. 15-18.) Prior to that testimony, the trial court gave an instruction to the jury stating that Gonzalez's testimony should not considered for the purpose of proving that the defendant had a propensity or predisposition to commit the crime with which he was charged. (Tr. 369-70.) The court added that “this evidence is being offered for [the jury's] consideration on the question of motive, intent and identity of the person who committed the crime on September 13, 2010.” (Tr. 370.)
The trial court's evidentiary ruling was not erroneous as a matter of law and as a consequence did not deprive Daniels of a fair trial or render the state court's ruling an unreasonable application of law. The incident at the barbecue was probative as to identity and motive. Prior to assaulting Gonzalez, Daniels said “it was none of your business,” apparently alluding to the prior altercation, where Daniels allegedly told Gonzalez that the fight he tried to break up was “not your business.” (Compare Tr. at 372-373, with Tr. at 370-371.) Gonzalez's testimony thus had probative value of Daniels' motive in assaulting Gonzalez. As the Appellate Division reasonably determined, the “evidence helped to explain why Daniels suddenly attacked the victim a month later, and bears on the victim's ability to identify Daniels as his attacker as well. Accordingly, this evidence ‘was relevant for … purpose[s] other than defendant's criminal propensity.'” Daniels, 134 A.D.3d at 526, 21 N.Y.S.3d at 76 (quoting Leeson, 12 N.Y.3d at 826-27, 880 N.Y.S.2d at 898).
While allowing the testimony, the trial court took reasonable measures to address undue prejudice, using the well-recognized practice of issuing limiting instructions. See, e.g., United States v. LaFlam, 369 F.3d 153, 157 (2d Cir. 2004) (holding that limiting instruction to the jury “reduced any potential prejudice that introduction of the uncharged other act evidence might have caused”); United States v. Araujo, 79 F.3d 7, 8 (2d Cir. 1996) (district court did not abuse its discretion in “admitting [other acts evidence], particularly in light of the instruction to the jury limiting its consideration of the evidence”); United States v. Pitre, 960 F.2d 1112, 1120 (2d Cir. 1992) (district judge “gave proper limiting instructions to the jury regarding the evidence of prior narcotics transactions”).
Specifically, the trial court permitted Gonzalez to testify about the incident for proper purposes as mentioned in the court's instruction to the jury: “this evidence is being offered for your consideration on the question of motive, intent and identity of the person who committed the crime on September 13, 2010.” (Tr. at 370). Absent evidence to the contrary, courts must presume that juries understand and abide by limiting instructions such as those given here. Zafiro v. United States, 506 U.S. 534, 540-41, 113 S.Ct. 933, 939 (1993) (emphasizing that risk of prejudice “can be cured with proper instructions, and juries are presumed to follow their instructions”) (internal quotation marks and citation omitted). Daniels has presented no such contrary evidence, and the record reveals none. The Appellate Division thus reasonably concluded that “any prejudice was minimized by the court's thorough instructions, both during the testimony of the complaining witness and in the court's charge to the jury.” Daniels, 134 A.D.3d at 526, 21 N.Y.S.3d at 76.
Ultimately, the trial court, by issuing limiting instructions, explained the purpose of the testimony regarding the cookout shooting and restricted the prosecution from delving into the facts of the shooting. (Tr. 370). The prosecution followed the trial court's instruction by eliciting testimony only to show how Gonzalez identified Daniels a month later and to provide context about why Daniels said what he did prior to assaulting Gonzalez. The trial court's ruling was not erroneous and was entirely reasonable, as was the appellate court's affirmance. Habeas relief is not warranted.
V. Relief Not Warranted On Claims Of Ineffective Assistance Of Counsel
Daniels argues that he was deprived of effective assistance of trial counsel because his attorney characterized as meritless Daniels' pro se motion to vacate the verdict based on having been denied the right to testify before the grand jury, and also failed to appeal the issue.
To succeed on a claim of ineffective assistance of counsel, a petitioner must show both that counsel's performance was objectively deficient and that counsel's deficient performance prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). The petitioner “must show that counsel's representation fell below an objective standard of reasonableness.” Id., 466 U.S. at 688, 104 S.Ct. at 2064. “Judicial scrutiny of counsel's performance must be highly deferential,” and federal courts strongly presume that counsel has “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id., 466 U.S. at 689-90, 104 S.Ct. at 2065-66. To establish prejudice, a petitioner must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id., 466 U.S. at 694, 104 S.Ct. at 2068. In determining whether prejudice exists, the court considers “‘the totality of the evidence before the judge or jury'” and counsel's alleged errors “in the aggregate.” Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. at 2069).
In addition, a defendant must do more than show that he would have satisfied the Strickland criteria if his claim were being analyzed in the first instance, because “it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. Rather, he must show that the [state court] applied Strickland to the facts of his case in an objectively unreasonable manner.” Bell, 535 U.S. at 698-99, 122 S.Ct. at 1852 (internal citation omitted). The result is that “[t]he standards created by Strickland and [AEDPA, 28 U.S.C. § 2254(d),] are both highly deferential and when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105, 131 S.Ct. at 788 (internal quotation marks and citations omitted).
A habeas claim premised on ineffective assistance of counsel is thus “cabined … by double layers of deference.” Boyland v. Artus, 734 Fed.Appx. 18, 19 (2d Cir. 2018). The first layer requires more than merely erroneous application of law - it requires that such erroneous application is unreasonable. See Id. at 19-20. The second layer consists of the deference given to counsel in presuming that they rendered effective assistance. See id. at 20. Under that doubly deferential standard, the Court cannot conclude that the state court unreasonably applied Strickland.
A. Daniels' Attorney's Description Of Daniels' Pro Se Motion As Having No Merit Is Not Grounds For Habeas Relief
At Daniels' sentencing hearing, Sanchez told the court that Daniels had just informed him that Daniels wished to file a motion to set aside the verdict pursuant to N.Y. Crim. Proc. Law § 330.30 on the grounds that Daniels was unable to testify before the grand jury. (Sentencing Tr. 3-4.) The court responded that such a claim was appropriate under N.Y. Crim. Proc. Law § 190.50 rather than § 330.30, and that, in any event, such a motion would be untimely because the time to make it had long passed. (Sentencing Tr. 6-7.) Sanchez responded that the motion was “completely without merit,” and the court ruled against the motion immediately. (Sentencing Tr. 6-8.) Based on these events, Daniels argues that Sanchez provided ineffective assistance of counsel. (Habeas Pet. at 7-8.)
Daniels, however, does not come close to satisfying the Strickland standards. N.Y. Crim. Proc. Law § 190.50(5)(a) sets a strict requirement for when a defendant may serve upon the district attorney a request to appear before the grand jury: “prior to the filing of any indictment or any direction to file a prosecutor's information in the matter.” A motion challenging the indictment may be raised “not more than five days after the defendant has been arraigned upon the indictment.” N.Y. Crim. Proc. Law § 190.50(5)(c). The indictment against Daniels was filed on October 6, 2010. (Indictment at 1, 4.) Daniels' pro se motion made after conviction was over three years late and therefore indisputably untimely.
Daniels' counsel actually did present a timely N.Y. Crim. Proc. Law § 190.50 motion (drafted by Daniels' first attorney and adopted by Sanchez) following the grand jury proceedings, which was deemed meritless by the trial court because “the defendant was afforded a reasonable time to exercise his right to testify before the Grand Jury.” (Decision and Order at 3.) There thus was nothing ineffective about counsel's concession that a meritless motion had no merit. See United States v. Nersesian, 824 F.2d 1294, 1322 (2d Cir. 1987) (“for purposes of effective assistance, not every possible motion need be filed, but rather, only those having solid foundation. Counsel certainly is not required to engage in the filing of futile or frivolous motions”) (citations omitted); accord Williams v. Bennett, No. 99-CV-1119, 2003 WL 21143070, at *9 (E.D.N.Y. Jan. 3, 2003) (“Trial counsel was not obligated to adopt [petitioner's] futile pro se motion, and his decision not to do so provides no basis for petitioner's [habeas] claim”).
Second, and for similar reasons, Daniels cannot demonstrate prejudice. The record clearly shows that, regardless of Sanchez's characterization, the court was not going to entertain Daniels' pro se motion to set aside the jury verdict, presented at sentencing, based on an alleged defect in the long-ago completed grand jury process. (See Sentencing Tr. 5-7). Daniels thus cannot show a “reasonable probability that, but for [Sanchez's comment], the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Accordingly, the Strickland standards are not satisfied, and the Appellate Division's ruling was not an unreasonable determination of the facts or application of federal law.
B. Daniels' Trial Counsel Did Not Fail To Appeal A Motion Regarding Daniels' Right To Testify Before The Grand Jury
Daniels also argues that Sanchez was ineffective for failing to appeal the trial court's denial of the N.Y. Crim. Proc. Law § 190.50 motion regarding Daniels' right to testify before the grand jury. (Habeas Pet. at 7-8). The Habeas Petition is not entirely clear which motion or motions Daniels claims were not the subject of appeal. The direct appeal of his conviction was in part based on N.Y. Crim. Proc. Law § 190.50 and his being denied the ability to testify before the grand jury. (Def. Appellate Brief at 38-43). Daniels thus has no basis to claim ineffective assistance with respect to appeal of the issue following trial.
Alternatively, Daniels' claim might also be construed as arguing that Sanchez should have filed for an interlocutory appeal of the trial court's initial denial of the § 190.50 motion. But that claim is both procedurally defaulted as the argument was not raised on direct appeal and is, in any event, meritless. On direct appeal, Daniels did not argue that an interlocutory appeal should have been pursued; he only argued that Sanchez's statement to the trial court regarding the merits of Daniels' motion rendered Sanchez ineffective. (See Def. Appellate Brief at 48-52). Because Daniels never directly appealed this issue to the Appellate Division, Daniels' claim is neither exhausted nor preserved. See O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731 (1999) (stating that a prisoner must exhaust his remedies in state court before a federal court may grant habeas relief to a state prisoner); Reyes v. Keane, 118 F.3d 136, 140 (2d Cir. 1997) (“a claim is procedurally defaulted for the purposes of federal habeas review where the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred”) (internal quotation marks and citation omitted).
Even if Daniels' claim were not defaulted, it has no merit. Under New York law, “no appeal lies from an order arising out of a criminal proceeding absent specific statutory authorization.” People v. Juarez, 31 N.Y.3d 1186, 1187, 82 N.Y.S. 336, 337 (2018) (internal quotation marks and citation omitted). The specific circumstances under which defendants may appeal to intermediate appellate courts are enumerated by N.Y. Crim. Proc. Law § 450.10 (identifying appeals that may be taken by a defendant as of right), N.Y. Crim. Proc. Law § 450.15 (identifying appeals that may be taken by a defendant by permission), and N.Y. Crim. Proc. Law § 450.70 (identifying appeals that may be taken directly to the Court of Appeals). Under N.Y. Crim. Proc. Law § 450.10, appeals as of right include only certain judgments, certain sentences, an order pursuant to N.Y. Crim. Proc. Law § 440.40 setting aside a sentence other than one for death, and an order denying a motion for forensic DNA testing. Appeals that may be taken upon permission pursuant to N.Y. Crim. Proc. Law § 450.70 pertain only to judgments and sentences. And N.Y. Crim. Proc. Law § 450.70 addresses only death sentences. None of those provisions authorize interlocutory appeal of the trial court's decision denying Daniels' N.Y. Crim. Proc. Law § 190.50 motion. The trial court's decision denying petitioner's motion could not be appealed until the conclusion of Daniels' trial and a judgment issued; as such, Daniels' trial counsel did not err by failing to file an interlocutory appeal.
VI. The Claims Raised In Daniels' NYCPL § 440.10 Motion
Daniels' supplemental petition does not include any facts to support these grounds for relief, nor did he submit a memorandum of law addressing the arguments raised in his supplemental petition. The supplemental petition does attach, however, the papers filed in state court in support of Daniels' motion to vacate his conviction under NYCPL § 440.10. Accordingly, the Court interprets Daniels' additional arguments to include all the arguments asserted in his NYCPL § 440.10 motion.
In his supplemental petition, Daniels raises two claims that he had raised in in his motion to vacate the judgment pursuant to NYCPL § 440.10: (1) he was denied his Sixth Amendment Constitutional right to effective assistance of counsel because trial counsel did not impeach Gonzalez; and (2) he was deprived of his constitutional right to a fair trial because his conviction was based on false testimony that the prosecutor knew to be false prior to the entry of the judgment. (Supp. Pet. at 2, 16-23.) Both arguments turn on the same premise: that at the Grand Jury, Gonzalez testified that he was assaulted by more than one person, but at trial, testified that only Daniels assaulted him. Neither argument, however, stands up to scrutiny.
A. The NYCPL § 440.10 Claims Are Not Eligible For Habeas Review
As an initial matter, both of Daniels' claims raised in his motion to vacate are procedurally barred for habeas review. Daniels raised both claims for the first time in his motion to vacate his conviction pursuant to NYCPL § 440.10(1)(c) and (h), not in his 2015 direct appeal. The motion court explained that it must deny the motion because the claims were “procedurally barred, since they are completely record-based, and thus reviewable on appeal, and not the proper subject for a motion pursuant to CPL § 440.” (Dkt. 35-16 at 2); Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir. 2003) (“The purpose of this rule is to prevent Section 440.10 from being employed as a substitute for direct appeal when the defendant was in a position to raise an issue on appeal ... or could readily have raised it on appeal but failed to do so”) (internal quotations and brackets omitted). Because Daniels failed to raise the claims on direct appeal, they are procedurally defaulted and cannot serve as a basis for habeas relief.
The court's denial of Daniels' motion under NYCPL § 440.10(2)(c) for failing to raise his arguments on direct appeal constitutes an independent and adequate state procedural ground barring review of the claims in federal habeas proceeding. Clark v. Perez, 510 F.3d 382, 393 (2d Cir. 2008) (finding section 440.10(2)(c) an “adequate state procedural bar to [Petitioner's] federal habeas petition”); Sweet, 353 F.3d at 140 (petitioner's claim was procedurally defaulted for the purposes of federal habeas review because appellate counsel “unjustifiably failed to argue th[e] ineffective assistance claim on direct appeal despite a sufficient record, and consequently waived the claim under § 440.10(2)(c)”); Oliveri v. New York, No. 07-CV-8262, 2010 WL 5620926, at *6 (S.D.N.Y. Dec. 29, 2010), R. & R. adopted,, 2011 WL 197240 (S.D.N.Y. Jan. 20, 2011) (petitioner's failure to raise record-based claim on direct appeal constituted an independent state bar to habeas relief).
A habeas petitioner may, however, avoid procedural default by “showing cause for the default and prejudice, or that failure to consider the claim will result in miscarriage of justice, i.e., the petitioner is actually innocent.” Pennington v. Bennett, 372 Fed.Appx. 144, 146 (2d Cir. 2010) (quoting Sweet, 353 F.3d at 141); see also Durden v. Greene, 492 F.Supp.2d 414, 424 (S.D.N.Y. 2007). “[T]he cause standard requires the petitioner to show that “some objective factor external to the defense impeded counsel's efforts” to raise the claim in state court.” McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 1470 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986)). In order for a petitioner to demonstrate prejudice, he must show “more than that errors created a possibility of prejudice, but instead that they worked to his actual and substantial disadvantage.” Quail v. Farrell, 550 F.Supp.2d 470, 474-75 (S.D.N.Y. 2008). For a court to excuse a procedural default due to a fundamental miscarriage of justice a petitioner must show “through new reliable evidence” that “it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Id. at 475.
Daniels has not met either exception that could overcome his procedural default. He has not put forth any objective external factor that impeded attorney Sanchez's efforts; nor has he put forth any evidence of actual innocence. In any event, both arguments fail on the merits as discussed next.
B. Daniels' Claim Regarding Trial Counsel's Failure To Impeach Gonzalez Is Meritless
Daniels contends that, at the Grand Jury, Gonzalez testified that he was assaulted by more than one person, but at trial, testified that only Daniels assaulted him. (Supp. Pet. at 22.) Daniels argues that the statements are inconsistent and that impeaching Gonzalez would have (1) provided evidence that Gonzalez was assaulted by more than one person, which, in turn, would have led the court to retain for the jury's evaluation the charge of accomplice liability, and (2) “prevented [the Government] from changing the theory of the case.” (Supp. Pet at 22-23.) By failing to impeach Gonzalez on this subject, Daniels asserts, Sanchez provided ineffective counsel. (Supp. Pet. at 21.)
Even if Daniels could overcome the procedural bar described above (which he cannot), he cannot satisfy the requirements of Strickland. Daniels presents no evidence that Sanchez's conduct “fell below an objective standard of reasonableness.” Strickland, 466, U.S. at 688, 104 S.Ct. at 2064. To the contrary, as the 440-motion court reasonably determined, Sanchez effectively defended Daniels because he:
filed pre-trial motions and was successful in obtaining a hearing pursuant to People v. Rodriguez, 79 N.Y.2d 445 (1992). At trial, he delivered an opening statement and cross-examined each of the People's witnesses. In response to defense counsel's questioning, the complainant admitted that he never saw defendant with a knife, and had fought him with fists. As further evidence of counsels' effectiveness, the jury actually acquitted defendant of the most serious charge, Attempted Murder in the Second Degree. In addition, because the complainant was consistent in his assertions that the defendant was the individual who stabbed him, it is unlikely counsel could have impeached him with his grand jury testimony.(Dkt. 35-16 at 4.)
While “failure to impeach key witnesses may, in some circumstances, rise to the level of ineffective assistance,” Rodriguez v. Portuondo, No. 01-CV-0547, 2006 WL 2168314, at *10 (S.D.N.Y. Aug. 1, 2006), that is not so in this instance. Whether Sanchez's failure to impeach Gonzalez violates the Sixth Amendment “depends upon the extent to which the impeachment evidence would have affected the outcome of the case.” Id. As set forth above, however, impeachment of Gonzalez to support the theory of accomplice liability would not have changed the outcome of the case; Daniels' criminal liability would be the same whether he was charged as a principal or an accomplice.
The fact that Sanchez did not impeach Gonzalez on whether he was assaulted by one or two assailants thus could not have prejudiced Daniels' case. As the trial judge observed, “I don't see any evidence to charge accomplice liability here but legally it doesn't matter because the liability of the defendant is based on his actions. Whether those actions are acting in concert with another person or alone, there is no legal difference between acting in concert, accomplice liability and principial liability.” (Tr. at 503-04.) See People v. Fair, 269 A.D.2d 91, 95, 711 N.Y.S.2d 196, 199 (3d Dep't 2000) (trial court did not err in charging the jury solely on the theory that defendant acted as a principal notwithstanding the indictment's allegation that defendant had acted in concert with another because there is no legal distinction between principal and accessorial liability); People v. Rivera, 84 N.Y.2d 766, 771, 622 N.Y.S.2d 671, 674 (1995) (“The key to understanding accessorial liability is that whether one is the actual perpetrator of the offense or an accomplice is, with respect to criminal liability for the offense, irrelevant”) (quoting Mckinney's Cons. Laws of NY, Book 39, Penal Law § 20.00, at 54); People v. Guidice, 83 N.Y.2d 630, 631, 612 N.Y.S.2d 350, 353 (1994) (the prosecution is not “required to specify in an indictment whether a defendant is being charged as a principal or as an accomplice. For charging purposes, the distinction between principal and accomplice is academic”).
The State court's determination that Sanchez's not having impeached Gonzalez on the one-or-two-assailant issue was neither unreasonable nor a misapplication of clearly established federal law.
C. Daniels' Claim That False Testimony Was Adduced At Trial Is Meritless
Daniels' second argument stemming from the issues raised in his 440 motion fares no better. Daniels argues that he was deprived of his constitutional right to a fair trial because his conviction was based on false testimony that the prosecutor knew to be false prior to the entry of the judgment. (Supp. Pet. at 2.) That argument is simply the Gonzalez-impeachment argument in another guise, i.e., that the prosecutor knew, prior to entry of judgment, that material evidence adduced at trial was false because during the grand jury proceedings, Gonzalez testified that “defendant and [an]other assaulted him,” but at trial testified that “defendant was the only one that assaulted him.” (Supp. Pet at 16.) That argument failed with the 440-motion court, which held that, even if the claim were not procedurally barred, it would be denied because there was “no indication that [m]aterial evidence adduced at trial resulting in the judgement was false and was, prior to the entry of the judgment known by the prosecutor or by the court to be false.” (Dkt. 35-16 at 3 (quoting NYCPL § 440.10(1)(c).) That determination was not an unreasonable determination of the facts or application of law.
“If the prosecution intentionally obtains a conviction through perjured testimony, due process is violated.” Heron v. Coughlin, 146 Fed.Appx. 516, 517 (2d Cir. 2005) (citing Hysler v. Florida, 315, U.S. 411, 413, 62 S.Ct. 688, 690 (1942)). To obtain habeas relief based on the claim that his conviction was secured through the prosecutor's use of perjured testimony, Daniels must establish that “(1) there was false testimony, (2) the Government knew or should have known that the testimony was false, and (3) there was a reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Helmsley, 985 F.2d 1202, 1205-06 (2d Cir. 1993) (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397 (1976); see also Arias v. Sabourin, No. 01-CV-9986, 2006 WL 236584, at *6 (S.D.N.Y. Jan. 28, 2006).
Daniels cannot satisfy any of the required elements. The first two elements are not satisfied because Daniels fails to show that Gonzalez's testimony was in fact perjurious and thus also cannot show that the Government knew or should have known that any testimony was false. “[A] witness perjures himself by adducing false testimony concerning a material matter with the willful intent to provide false testimony.” Rajaratnam v. United States, No. 09-CR-1184, 2017 WL 887027, at *6 (S.D.N.Y. Mar. 3, 2017), aff'd, 736 Fed.Appx. 279 (2d Cir. 2018) (internal quotation marks omitted). Mere inaccuracies or inconsistencies do not rise to the level of perjury. See United States v. Monteleone, 257 F.3d 210, 219 (2d Cir. 2001); United States v. Sanchez, 969 F.2d 1409, 1414-15 (2d Cir. 1992); Jamison v. Griffin, No. 15-CV-6716, 2016 WL 1698350, at *39 (S.D.N.Y. Apr. 27, 2016), R. & R. adopted, 2016 WL 4030929 (S.D.N.Y. July 27, 2016) (collecting cases). As the 440-motion court correctly explained in the context of Gonzalez's testimony: “[s]ome variance between the complainant's testimony in the grand jury and at trial does not indicate the testimony was false.” (Dkt. 35-16 at 3.)
As noted above, during the grand jury proceedings, when asked to describe the events of September 13, 2010, Gonzalez referred to both Daniels and “another guy” being involved and testified that “they [hit] me a couple of times.” (Supp. Pet. at 29-30 (portion of Grand Jury transcript).) Gonzalez also specifically testified that Daniels punched and hit him. (Id.) At trial, Gonzalez testified that the “other male was pretty much standing there,” but he was certain that Daniels was the individual that stabbed and cut him on September 13, 2010. (Tr. at 376, 396.) To the extent there may be a discrepancy between Gonzalez testifying before the Grand Jury that both Daniels and another guy hit him a couple times and then testifying at trial that the other guy was “pretty much standing there” hardly amounts to perjury, particularly as there is no inconsistency with respect to who stabbed and cut Gonzalez.
Even if Daniels could prove there was in fact false testimony, he cannot show there is any reasonable likelihood that the allegedly false testimony could have affected the judgment of the jury. As already explained, whether or not Daniels acted alone or as an accomplice is irrelevant to his guilt or lack of guilt. And, in any event, there was nothing in the record to suggest that anyone other than Daniels was the assailant who cut and stabbed Gonzalez; nor was there evidence of anyone other than Daniels having a motive to attack Daniels. See Smith v. Hulihan, No. 11-CV-2948, 2011 WL 4058764, at *22 (S.D.N.Y. Sept. 13, 2011), R. & R. adopted, 2012 WL 4928904 (S.D.N.Y. Oct. 17, 2012) (holding petitioner failed to show any reasonable likelihood the alleged false testimony concerning whether an undercover field tested drugs could have affected the judgment of the jury because the other trial evidence established that the substance contained cocaine); Campbell v. Greene, 440 F.Supp.2d 125, 148 (N.D.N.Y. 2006) (“in light of the substantial evidence presented at trial that established Campbell's guilt of the charged crimes, there is no possibility that the jury would have acquitted Campbell as to either charge even in the absence of the testimony that petitioner now claims is perjurious.”)
In short, both of the claims that Daniels made in his 440 motion and resurrects here are procedurally defaulted and lacking in merit.
VII. The Claims Raised In The Writ Of Error Coram Nobis Fail As Well
Daniels raises three claims in his supplemental petition previously presented in his writ of error coram nobis. He asserts that he was deprived of his Sixth Amendment right to effective assistance of appellate counsel because counsel failed to argue (1) that the trial court committed error by changing the theory of the case; (2) Daniels was not afforded a reasonable opportunity to testify before the Grand Jury; and (3) the jury was not properly polled after announcing the verdict. These claims are without merit.
A. Standard Of Review For Ineffective Appellate Counsel
On April 23, 2021, the New York Court of Appeals denied Daniels' leave to appeal the Appellate Division's denial of his write of error coram nobis. That decision constituted an adjudication on the merits for the purpose of habeas review. See Morrison v. Ercole, No. 07-CV-3576, 2009 WL 161040, at *7 (S.D.N.Y. Jan. 16, 2009) (summary denial of petitioner's writ of error coram nobis constituted an adjudication on the merits). As with his other habeas claims, Daniels thus must demonstrate that the State court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A claim of ineffective assistance of appellate counsel, as with trial counsel, is evaluated under the Strickland standard. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (“Although the Strickland test was formulated in the context of evaluating a claim of ineffective assistance of trial counsel, the same test is used with respect to appellate counsel”); Crespo v. Fischer, No. 06-CV-2577, 2006 WL 3486805, at *3 (S.D.N.Y. Nov. 27, 2006) (same).
B. Appellate Counsel Did Not Provide Ineffective Assistance By Not Arguing That The Trial Court Changed The Theory Of The Case
Once again, Daniels' argument stems from the trial court's not having charged the jury on accomplice liability. Daniels argues that appellate counsel provided ineffective assistance by failing to argue that the trial court erred by changing the theory of the case from what was indicted by the Grand Jury. The indictment charged that Daniels committed second-degree attempted murder, first, second and third-degree assault while acting in concert with another, and criminal possession of a weapon in the fourth degree. (See Indictment at 1-4.) At the charge conference following the close of evidence, however, the court declined Sanchez's request to submit the accomplice charge because the evidence clearly showed that Daniels acted as the principal and not in concert with another. (See Tr. at 477-487.) Daniels asserts that dropping the accomplice charge prejudiced his defense. (See Supp. Pet. at 85.)
That argument fails for reasons similar to those that render meritless Daniels' 440-motion arguments; namely, there is no relevant distinction between principal and accomplice liability. See People v. Rivera, 84 N.Y.2d at 769, 622 N.Y.S.2d at 672 (“Whether a defendant is charged as a principal or as an accomplice to a crime has no bearing on the theory of the prosecution”); People v. Hirji, 185 A.D.3d 1053, 1055, 128 N.Y.S.3d 570, 573 (2nd Dep't 2020) (there is no “requirement that the jury charge mirror the exact language of the indictment regarding principal and accessorial liability, because there is no legal distinction between liability as a principal or criminal culpability as an accomplice”) (internal quotation marks omitted). It thus is entirely “proper [for a court] to amend an indictment by deleting references to a codefendant and to a defendant's acting-in-concert to commit a crime and trying a defendant solely as a principal for the same crime.” People v. Watrous, 270 A.D.2d 651, 653-54, 704 N.Y.S.2d 707, 710 (3rd Dep't 2000) (citing cases). And, because dropping accomplice liability was not error and did not change the theory of the case, appellate counsel cannot be considered ineffective for not raising the issue on appeal.
“In attempting to demonstrate that appellate counsel's failure to raise a state claim constitutes deficient performance, it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made.” Mayo, 13 F.3d at 533; see also Sabir v. United States, No. 05-CR.-673, 2020 WL 6131419, at *3 (S.D.N.Y. Oct. 16, 2020) (same). Here, appellate counsel omitted a frivolous argument, and Daniels has failed to advance any other evidence to demonstrate that the State court's decision denying his claim was unreasonable or deficient in any way. Accordingly, habeas relief is not warranted on this ground.
C. Appellate Counsel Did Not Err In Not Arguing The Non-Existent Grand Jury Issue
Daniels asserts appellate counsel was ineffective because counsel failed to properly argue that Daniels was not afforded a reasonable opportunity to testify before the Grand Jury. (Supp. Pet. at 85.) As explained in detail above, Daniels was not denied a reasonable opportunity to testify before the Grandy Jury, and he has not presented any explanation as to how his testifying before the Grand Jury would have led to a different result. Accordingly, neither prong of Strickland is met.
D. All Twelve Members Of The Jury Were Polled
Lastly, Daniels argues appellate counsel was ineffective because he did not argue that trial attorney Sanchez was ineffective when Sanchez failed to ensure that the polling of the jury produced 12 unanimous answers. (Supp. Pet. at 87.) Daniels states that defense counsel requested the jury to be polled in accordance with NYCPL § 310.80 but that the record reflects that only eleven of the twelve jurors answered in agreement with the verdict announced by the jury foreman. (Supp. Pet. at 88.) To support that contention, Daniels cites to Exhibit C of his memorandum of law in support of the writ of error coram nobis - a portion of which is uncertified pages 610-613 of the trial transcript. Page 610 and 611 reflect jurors one through ten being polled and answering in the affirmative, but page 611 ends mid-sentence during the polling of juror eleven. Page 612 of Daniels' Exhibit C begins mid-sentence and is not a continuation of juror eleven's poll. Therefore, Daniels argues only eleven jurors were in fact polled.
The prosecution, however, has submitted a certified copy of the trial transcript of the jury polling. (Dkt. 54-2 at 61-95.) Page 612 of the certified copy of the transcript contains the ending of juror number 11's polling, which is then followed by the polling of juror number 12 who answers in the affirmative. (See Dkt. 54-2 at 93.) Because all twelve jurors were in fact polled, there was no polling issue for appellate counsel to raise. Daniels' claim to the contrary is baseless.
Conclusion
For the foregoing reasons, the petition for writ of habeas corpus is without merit. Petitioner's arguments, to the extent not addressed above, have been considered by the Court and found to be without merit. Accordingly, I recommend that the petition be DENIED and the action dismissed.
Procedure For Filing Objections And Preserving Right To Appeal
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Criminal Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Analisa Torres, 500 Pearl Street, New York, New York 10007, and to Chambers of the undersigned, 500 Pearl Street, New York, New York 10007. FAILURE TO FILE TIMELY OBJECTIONS WILL RESULT IN WAIVER OF OBJECTIONS AND PRECLUDE APPELLATE REVIEW.