Opinion
Civil Action 22 Civ. 5804 (GHW) (SLC)
04-15-2024
DAIKWAN GILES, Petitioner, v. AMY LAMANNA, Superintendent of Five Points Correctional Facility, Respondent.
REPORT AND RECOMMENDATION
SARAH L. CAVE UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE GREGORY H. WOODS, United States District Judge:
I. INTRODUCTION
Petitioner Daikwan Giles (“Giles”) filed a counseled petition challenging his 2013 conviction in New York State Court for second degree murder and criminal possession of a weapon and seeking a writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 1 (the “Petition”); see ECF No. 3 at 4). Specifically, Giles argues that his criminal trial did not comport with constitutional due process due to the suppression of an eyewitness's identification, misconduct by the prosecutor, and bias by the trial court. (ECF No. 1 at 5-10).Respondent Amy Lamanna, Superintendent of Five Points Correctional Facility (“Respondent”) where Giles is serving a prison term of 25 years to life, opposes the Petition. (ECF No. 16). For the reasons set forth below, the Court respectfully recommends that all the claims in the Petition be DENIED and the Petition be DISMISSED in its entirety.
Citations are to ECF page numbers unless otherwise indicated.
II. BACKGROUND
The factual background is based on the transcripts of the pretrial and trial proceedings, including witness testimony and exhibits introduced therein. (ECF Nos. 1-1 - 1-4; 15 at 4-309; 17).
1. The Shooting and Investigation
Shortly before 10:00 p.m. on June 12, 2009, City of New York Police Department (“NYPD”) Detectives Frankie Rosado and Victor Mercado-Gomez responded to a report of a shooting of a 15-year-old male (the “Victim”) near East Bedford Park Boulevard and Minerva Place. (ECF Nos. 15 at 11; 17 at 1265). Emergency medical technicians had arrived a few minutes earlier, at 9:47 p.m., to find the Victim not breathing and in cardiac arrest. (ECF No. 17 at 933-37). Also on scene was Police Officer Kaluszewski,who had stopped four individuals he observed running from the scene of the shooting. (ECF Nos. 15 at 11; 17 at 7-8). Detective Rosado spoke to one of the four individuals, Carlos Rodriguez (“Rodriguez”), who stated that he and his friends had run from the scene when the shooting started. (ECF Nos. 15 at 11; 17 at 7). Detective Rosado instructed other officers to take Rodriguez and his friends, Jesus DeSoto (“DeSoto”) and Jeremy Lantigua (“Lantigua”), to the 52d Precinct to be interviewed. (ECF Nos. 15 at 11, 14, 16; 17 at 9). Officers also recovered from the scene six discharged shell casings, which a ballistics expert later identified as having come from a .380 semi-automatic handgun. (ECF No. 17 at 1018-22, 1104).
The record does not reflect Officer Kaluszewski's first name.
At 10:08 p.m., the Victim, who had been shot four times, was pronounced dead at St. Barnabas Hospital. (ECF Nos. 15 at 12; 17 at 1125-29, 1138). The cause of death was a “gunshot wound of the chest with the perforation of the lung, heart[,] and the liver.” (ECF No. 17 at 1136).
When Detective Enrique Garcia arrived on scene at 10:30 p.m., Detective Rosado told him that the Victim had been playing basketball when a Black male approached him, exchanged some words, and began shooting at the Victim and his friends. (ECF No. 15 at 12). Detective Tyrone Walton and other officers canvassed the area of the shooting and spoke with 15 witnesses, whose names and statements Detective Walton recorded in a Form DD5 dated June 13, 2009 (the “DD5”). (ECF No. 1-1 at 18). Among the 15 witnesses listed in the DD5 was Annabelle Mejia (“Mejia”), who told Detective Mercado-Gomez that she “heard shots” and “saw [the] shooter,” who “was a tall dark[-]skinned male with a gray sweater and gray hoody with blue jeans” and “had a heavy beard.” (Id.)
Detectives Mercado-Gomez and Garcia returned to the 52d Precinct, where Rodriguez was receiving emergency medical treatment for bullet grazes to his legs. (ECF Nos. 15 at 12; 17 at 9, 1266). Before being transported from the 52d Precinct to the hospital, Rodriguez gave the following statement to Detective Garcia: “We were all on Minerva a group of us and this black guy approached us and pulled a gun to his side. He said something and just started shooting. He was about 19 years old. The gun was small like a .22.” (ECF No. 15 at 12). Rodriguez's friends and three of the Victim's friends gave similar descriptions of the shooter's age, size, clothing, and actions. (Id. at 13-18; ECF No. 17 at 1038).
In the early morning hours of June 13, 2009, NYPD Detectives Rosado and Walton interviewed Rodriguez in the emergency room of St. Barnabas Hospital, where Rodriguez was being treated for his leg wounds. (ECF Nos. 15 at 10; 17 at 6-7, 1269). When the detectives showed him a photo array, Rodriguez positively identified the fifth photo-Giles-stating, “El estaba tirando tiros,” which translates to, “He was shooting.” (ECF Nos. 15 at 10; 17 at 6-7, 10- 11, 38, 66-68). Rodriguez told the detectives that he had been standing with several friends at the northeast corner of Minerva Place and Creston Avenue when he observed the shooter, who had come from the direction of Grand Concourse, standing across the street with two Black males and one Hispanic male. (ECF Nos. 15 at 10; 17 at 6, 10). He described the shooter as a tall Black male approximately 19 years old, wearing a white shirt and blue jeans. (ECF No. 15 at 10). He saw the shooter first “not arguing, just talking” with the Victim in front of 2860 Creston Avenue, and then approach the southeast corner with a silver automatic pistol in his right hand, “kind of trying to hide the gun behind his leg.” (Id.; ECF No. 17 at 10). The shooter “started saying something,” Rodriguez and his friends ran away, and Rodriguez then heard “6 to 7 shots.” (ECF No. 15 at 10; see ECF No. 17 at 10-11).
Also on June 13, 2009, Detectives Mercado-Gomez and Garcia interviewed Duane Estevez (“Estevez”), who stated that he had been with the Victim when the shooter, whom he had seen in St. James Park the prior week, approached, and shot at them “numerous times.” (ECF No. 17 at 54, 143, 1267). Estevez described the shooter as a Black male, 18 years old, six feet tall, approximately 150 pounds, and wearing a white shirt and baggy pants. (Id. at 143). Detective Garcia showed Estevez a photo array, from which Estevez identified the fifth photo as the shooter. (ECF Nos. 15 at 18; 17 at 143-44, 146, 151, 156). Two other eyewitnesses-Lantigua and DeSoto-were shown the same photo array and identified the fifth photo as “look[ing] like” the shooter but offered that they could identify him “better in person.” (ECF Nos. 15 at 18; see ECF No. 17 at 145-46, 154). The detectives subsequently identified the person in the fifth photo as Giles, who was 17 years old at the time. (ECF Nos. 15 at 18; 17 at 1344).
At trial, Lantigua did not recognize Giles in the courtroom but testified that he was “sure that the person [he] picked . . . at the line-up, was the shooter.” (ECF No. 17 at 1050).
2. The Arrest and Giles' Post-Arrest Statements
Just before 3:00 a.m. on June 13, 2009, Detective Mercado-Gomez and five other detectives located Giles, who was wearing a black t-shirt and blue sweatpants, at his residence on Creston Avenue and transported him in handcuffs to the 52d Precinct. (ECF Nos. 15 at 20, 3435, 117-18, 137-38; 17 at 1272-73, 1278, 1341; but see ECF No. 15 at 68 (stating that arrest occurred at 5:40 a.m. near 3016 Webster Avenue)). On arrival at the 52d Precinct, around 3:10 a.m., Giles was placed in an interview room and uncuffed. (ECF No. 17 at 1281).
At 5:15 a.m., Detectives Mercado-Gomez and Garcia advised Giles of his Miranda rights,following which Giles agreed to speak with them and provide a written statement. (ECF No. 1-3 at 194-95 (the “Statement”); see ECF Nos. 15 at 46, 65-66, 124-29; 17 at 1283-87). In the Statement, Giles said:
Miranda v. Arizona, 384 U.S. 436 (1966).
I was approached by about 6 or 7 male Hispanics from 198 St. about a problem we had three years ago. “Elias” walked up to me and asked “What's good now, what's good now”? Elias reached into his front pants pocket and pulled out a silver gun. I told Elias to shoot it. “No” he stated, “the only [reason] I won't shoot you right now is because you're a snitch.” All the males walked away. This happened at 2:30 in the afternoon. About eight o'clock that night I went and got the gun and went to 198 St. I approached the same group of males and asked about Elias. They all started speaking Spanish and started walking towards [me]. I began to get nervous and pulled out the gun from my back pocket. I just started shooting at the group. I was not shooting at just one person, I just started shooting. I didn't see anyone get hit. I ran away afterwards. I got into a cab to get away. At about ten o'clock I went to the movies with my girl. We saw Pelham 1, 2, 3. I did not have the gun at that time. I threw the gun down the sewer at Creston and 196 St.(ECF No. 1-3 at 194-95). At approximately 5:45 a.m., Giles was placed under arrest. (ECF Nos. 15 at 139, 192; 17 at 1347). Detectives Mercado-Gomez and Garcia searched near the sewer drain at Morris (not Creston) and East 196th Street but did not locate a gun. (ECF No. 17 at 1354-56). At 10:30 a.m., Detective Rosado learned, from the medical examiner, that the Victim had been shot four times. (Id. at 1358-59).
Shortly before noon the same day, Giles was transported to the Bronx Homicide Task Force at 1086 Simpson Street. (ECF No. 17 at 1297-98, 1349). While there, Giles submitted to a videotaped interview by Assistant District Attorney Terry Gensler, at which Detective Mercado-Gomez was also present. (ECF No. 15 at 27 (the “Interview”)). After being informed of his Miranda rights, Giles agreed to answer questions about the shooting, and proceeded to recount the same events he described in the Statement. (ECF No. 15 at 27-29). Giles stated that on the afternoon of June 12, 2009, six or seven Hispanic males approached him and one, “Elias,” with whom Giles “had a prior problem” in which his niece was robbed, said, “what's good now, what's good [] with the problem we have [sic] before.” (Id. at 29). Giles believed Elias and his friends were in the Trinitarios gang. (Id. at 36, 39, 49). When Elias “pulled out a silver pistol,” Giles “told him to shoot it, shoot it[,]” but Elias said, “no, only reason I'll shoot right now [is] because you're a snitch.” (Id. at 29). Giles interpreted Elias to mean that “[t]hey would have shot” him and he “would have died[.]” (Id. at 47). Giles “felt threatened that [Elias] pulled a gun out[,]” so that night he “went [and] got a gun” and walked up to the “same group of kids” he had seen with Elias earlier and asked if they knew Elias. (Id. at 29-30, 37-38). When they said “no” and started walking toward him, Giles “got nervous and started shooting the gun”-which he described as “a 380” and “[a]utomatic”-into the group of about 15 kids. (Id. at 30-31, 44). A friend of Giles', “Boogs,” also fired a gun-a “357 revolver”-six times at the group. (Id. at 40, 43-45). Giles initially declined to say where he obtained the gun, but later said that Boogs gave him the gun, which Giles knew was loaded. (Id. at 31-32, 48). Giles stated that he shot the gun four times, then threw the gun toward a sewer drain near Morris Avenue as he fled to his cousin's house in West Farms. (Id. at 32-33 (“I know I shot four times.”)). Giles then returned home, where his girlfriend was waiting, and together they went to a movie. (Id. at 33-34). At the end of the Interview, Giles was shown the Statement, which he confirmed was “in [his] words” and contained his signature. (Id. at 46-47).
The Court reviewed a video of the Interview, which was seen by the jury and a transcript of which appears in the record. (ECF Nos. 15 at 27-49; 30 at 27).
After the Interview, Giles was presented in a lineup. (ECF Nos. 15 at 129-30, 192; 17 at 1297, 1300). Estevez, Rodriguez, and Lantigua separately viewed the lineup and identified Giles as one of the shooters, but DeSoto was unable to identify anyone. (ECF Nos. 15 at 131-33; 17 at 1044-47, 1076-77). At 6:40 p.m. on June 13, 2009, Giles was permitted to call his mother. (ECF No. 17 at 1346-47).
On June 17, 2009, five days after the shooting, Marcos Nolasco (“Nolasco”), who was being detained on unrelated charges, offered to provide information to Detective Mercado-Gomez about the shooting because the Victim was an “innocent” friend of his and “did not deserve to be killed.” (ECF No. 15 at 22, 206-07; see ECF No. 17 at 1384, 1413). In a written statement he provided to Detective Matthew McCrosson,Nolasco said that he was with the Victim when “Steven,” “Dae Dae,” and “Havoc” walked toward them. (ECF No. 15 at 22, 106, 301). Nolasco stated that when “Dae Dae” got to the corner of Minerva and Creston, “he pulled out a chrome and white 38 revolver and start[ed] shooting.” (Id. at 301). “Steven pulled out a 380 automatic and start[ed] shooting too.” (Id.) Nolasco claimed that “Dae Dae” and “Steven” each shot the Victim in the chest. (Id.) Nolasco said that “Steven” and “Dae Dae” handed the guns to two kids on bikes and fled, and Nolasco called for an ambulance. (Id. at 22, 301). Nolasco described “Steven” as a Black male aged 20-23 years old who lived in a home on Morris Avenue. (Id. at 22). Nolasco also stated that he had known “Dae Dae” for eight years. (Id. at 141, 302).Detective McCrosson showed Nolasco the photo array containing a photo of Giles, whom Nolasco identified as “Dae Dae.” (ECF No. 15 at 142-43). From Nolasco's description of “Steven,” Detective McCrosson identified the second shooter as Steven Odiase (“Odiase”) from a prior arrest photo in the NYPD's database. (Id. at 25, 101-02).
Detective McCrosson's last name is spelled elsewhere in the record as “McCrossen.” (See, e.g., ECF No. 15 at 99).
At trial, Nolasco testified that he had known Giles for “six or seven years.” (ECF No. 17 at 1387-88).
B. Procedural History
1. State Court Proceedings
a. Grand Jury Proceedings
Among the witnesses who testified before the grand jury was Rodriguez. (ECF No. 17 at 1170, 1195). Rodriguez testified that, on the evening of June 12, 2009,
I was on Minerva. I was with my friends and [a] moreno - or could be [a] black guy - came. He was walking on Grand Concourse and Minerva. So when he came, he passed by us and he went a little bit further down on Creston and he was talking to someone there. And after he was done, he went back up to where we were. He said something. I did not hear what he said. And that was when he started to shoot.(Id. at 1171). He had seen the shooter “[a]round three times” before that night, and although they had not spoken, he knew him by the nickname, “Day-Day.” (Id. at 1171-72). Rodriguez demonstrated for the grand jury the way “Day-Day” held the gun straight out toward Rodriguez and his friends. (Id. at 1174-75). Rodriguez heard “six to seven” shots. (Id. at 1175). Rodriguez also testified that, when he was taken to the 52d Precinct the next day, he recognized the fifth individual in the lineup as the shooter. (Id. at 1176-77).
“Moreno” is a Spanish word referring to a person with dark skin. See Cambridge English Dictionary, https://dictionary.cambridge.org/us/dictionary/spanish-english/moreno (last visited Apr. 15, 2024).
b. The Indictment
In an indictment filed on July 6, 2009, Giles and Odiase were charged with second-degree murder, first-degree manslaughter, criminal possession of a weapon in the second degree, attempted second-degree murder. (ECF Nos. 1 at 1; 15 at 1 ¶ 5). See N.Y. Penal L. §§ 125.25(1)(2), 125.20(1), 110, 265.03(1)(b) & (3).
A second indictment charged Giles with second-degree criminal possession of a weapon (the “1595 Indictment”), and a third indictment charged him with third-degree assault (the “3401 Indictment”)). (ECF No. 1-1 at 7 n.1).
c. Pretrial Proceedings
Throughout the proceedings in the trial court, Giles was represented by Mark DeMarco (“DeMarco”). (See, e.g., ECF No. 15 at 50-63, 74-75, 98). DeMarco filed several pretrial motions, including a motion to suppress any identifications and Giles' Statement and Interview. (Id. at 5063). The prosecutor told the trial court that he had produced to DeMarco all “Rosario material,”which included DD5s that the prosecutor said were “unredacted but for the contact information of the civilians.” (ECF No. 17 at 4). When the DD5 containing Mejia's statement was produced to the defense, however, Mejia's name and statement were redacted. (ECF No. 1-1 at 19; see ECF No. 1 at 23 n.9 (noting that it was undisputed “that an unredacted version of [the] ¶ 5 [] was not disclosed to either defendant prior to trial”)).
Pursuant to People v. Rosario, a criminal defendant is entitled to inspect the prior statements of a prosecution witness, prior to cross-examination and whether or not the statements vary from the witness' statements on the stand, “[a]s long as the statement[s] relate[] to the subject matter of the witness' testimony and contain[] nothing that must be kept confidential.” 9 N.Y.2d 286, 289 (1961).
The trial court held a Huntley and Wade/Crews hearing on April 4, 8, and 10, 2013. (ECF No. 15 at 73, 79-242). The trial court denied Giles' motions to suppress (i) Nolasco's out-ofcourt identification of Giles, (ii) the lineup identifications of Giles, and (iii) both Rodriguez's and Estevez's identifications of Giles in the photo array. (ECF No. 17 at 184-88).
“‘A Huntley hearing is a pre-trial proceeding to determine the admissibility of a confession or admission.'” Burkett v. Superintendent, No. 13 Civ. (CS) (JCM), 2016 WL 5956049, at *3 n.13 (S.D.N.Y. Apr. 29, 2016) (“Burkett I”) (quoting Acosta v. Artuz, 575 F.3d 177, 187 n.3 (2d Cir. 2009)), adopted by, 2016 WL 5921085 (S.D.N.Y. Oct. 11, 2016) (“Burkett II”); see Triplett v. Reardon, No. 20 Civ. 1064 (LTS) (SLC), 2023 WL 3045737, at *5 n.6 (S.D.N.Y. Mar. 31, 2023), adopted by, 2023 WL 7103221 (S.D.N.Y. Oct. 27, 2023).
“‘The purpose of a Wade hearing is to determine [before] the trial whether pretrial identification procedures have been so improperly suggestive as to taint an in-court identification.'” Burkett I, 2016 WL 5956049, at *3 n.11 (quoting Lynn v. Bliden, 443 F.3d 238, 248 (2d Cir. 2006), as amended (May 19, 2006)). In United States v. Crews, the Supreme Court held that the six factors set forth in Wade applied to the determination whether an in-court identification was independent of an excluded out-of-court identification and would therefore be admissible. 445 U.S. 463, 473 n.18 (1980); see Monroe v. Smith, No. 16 Civ. 2074 (AJN) (JCF), 2017 WL 933109, at *10 (S.D.N.Y. Mar. 8, 2017) (discussing independent source analysis under Wade and Crews), adopted by, 2017 WL 1740427 (S.D.N.Y. May 3, 2017).
d. Trial
Trial began with jury selection on April 10, 2023 and concluded with the jury's verdict on May 15, 2013. (ECF No. 17 at 189-860, 1797, 1801-09, 1817). During the trial, the jury heard from eleven witnesses and received more than 70 pieces of evidence. (Id. at 926, 929, 939, 954, 1035, 1067, 1092, 1115, 1145, 1154, 1260, 1384, 1624). Before the jury heard opening statements, the trial court instructed them, inter alia, that the attorneys' arguments were “not evidence” and that it was the jury's duty to “ultimately and exclusively find the facts.” (Id. at 84445).
Excerpts of the transcripts of the pretrial and trial proceedings appear at several locations in the record (see ECF Nos. 1-1 at 133-268; 1-2; 1-3 at 4-192; 15 at 74-309), and the complete copy of the transcript appears at ECF No. 17.
i. Rodriguez's Testimony
Rodriguez was the prosecution's ninth witness. Before trial, Rodriguez had received a subpoena to testify, but in a meeting with the prosecutor stated that “he didn't remember anything and he didn't want to come forward.” (ECF No. 17 at 1145-49). On April 26, 2013, NYPD detectives brought Rodriguez to court pursuant to a material witness order (“MWO”). (Id. at 1145-46). The prosecutor alerted the trial court, outside the presence of the jury, to Rodriguez's apparent unwillingness to testify and the possibility that a material witness hearing might be necessary. (Id. at 1149). The trial court addressed Rodriguez:
A material witness order is “a court order (a) adjudging a person a material witness in a pending criminal action and (b) fixing bail to secure his future attendance thereat.” N.Y. Crim. P. L. § 620.10. A material witness who does not post bail is held in custody. Id. § 620.50(3)(b).
THE COURT: Am I correct that you will, in fact, fully cooperate with this Court and testify truthfully as to all events that you recall? . . . One thing that people think [] mistakenly [is] that if they say “I don't remember” they're out of the woods. . . . “I don't remember” will be evaluated by this Court, and if I determine that you're being evasive and not answering truthfully, I will consider holding you in civil contempt. That will require you to be held in custody until such time as you decide to agree to participate in these proceedings and answer statements truthfully. Do you understand that?
[RODRIGUEZ]: Yeah.
THE COURT: Then just be aware that if that's what occurs, you will have a hearing, we'll see what happens, I'll make a determination, but if the determination is that you're evasive and intentionally evasive, there will be consequences. That having been said, we are going to have to see how this goes. I'm not making any predictions at this point. I'm hopeful that you'll understand your obligation to come forward and answer truthfully all questions that are asked of you. Okay? [] RODRIGUEZ: Yeah.
THE COURT: Okay. All right . . . You understand that you're here on a subpoena now, I'm going to relieve the material witness order at this point. In other words,
I'm not going to ask that you be held in custody of the officers, but that's on the understanding that you will respond to the subpoena by remaining in the courthouse, remaining available to us for the balance of this day, and whenever else I tell you to be here. Will you respect the subpoena, sir?
[] RODRIGUEZ: Yes. Yes, sir.(Id. at 1150-51). Rodriguez then stated, however, that he did not know Giles and did not want to testify. (Id. at 1152). The following colloquy occurred:
THE COURT: Nobody cares what you want. Let me be brutally frank with you. Look at me. I don't care if you want to or not. You're going to testify or you're going to jail. Do you understand me?
[] RODRIGUEZ: Yeah.
THE COURT: Those are your two choices, and if you really screw up, you're going to go to jail with a criminal charge, a felony. Do you understand that also?
[] RODRIGUEZ: Yeah.
THE COURT: Okay. So you really only have one choice, one smart choice, and that is to drop the attitude and to come to the court like a normal person, answer questions truthfully to the best of your ability. That's the only smart choice you have. You understand me?
[] RODRIGUEZ: Yeah.
THE COURT: At this time I imagine that the young man understands his obligations and will proceed. If it comes to the point that I think that there is anything happening that warrants further action, I will assign counsel to you, and then we'll take it from there. I hope that won't be necessary....(Id. at 1152-53).
The jury was then brought into the courtroom, and on direct examination, Rodriguez acknowledged that he was appearing pursuant to the MWO and did not “want to be [t]here.” (ECF No. 17 at 1158). Rodriguez testified that he was with the Victim when “[s]omebody . . . start[ed] shooting” at them and that both he and the Victim were shot but denied seeing or knowing who the shooter was. (Id. at 1160-61, 1164). Rodriguez testified that the first time he had ever seen a police lineup was the day after the shooting, but he “just picked somebody” out of the lineup because he “was 14, 15 years old” at that time and “didn't know what [he] was doing.” (Id. at 1165). When presented with the photo array on which he had identified Giles and signed his name, he claimed not to remember having done so. (Id. at 1168).
At the prosecutor's request, the trial court excused the jury, and, outside their presence, informed Rodriguez that that he was “not testifying truthfully,” that he was “intentionally feigning the fact that [he did not] remember certain events[,]” and that an attorney would be appointed to advise him of “the consequences of lying under oath, that being a perjury indictment, as well as the possibility of civil contempt.” (ECF No. 17 at 1168-69). DeMarco questioned whether Rodriguez should remain on the stand while the trial court and counsel discussed the contents of Rodriguez's grand jury testimony. (Id. at 1170). After reading the grand jury testimony summarized above (see § II.B.1.a, supra), the prosecutor argued that Rodriguez had contradicted himself and sought to impeach him with his grand jury testimony, which DeMarco opposed. (ECF No. 17 at 1177-80). The trial court found that Rodriguez's trial testimony was “contradictory and not just inconsistent” with his grand jury testimony and that the prosecutor had “established the basis for impeachment” under N.Y. Criminal Procedure Law § 60.35(1).(ECF No. 17 at 1180). The trial court assigned counsel for Rodriguez, whom he advised: “if your testimony does not change with respect to the material issues that you've testified to that are so completely contradicted by your prior statements, you will be subject to a perjury indictment and an arrest and prosecution for the crime of perjury[,]” as well as “any other action that might be taken regarding contempt.” (Id. at 1180-81). DeMarco did not lodge any objection, but asked the trial court, when the prosecutor questioned Rodriguez and in the final jury instructions, to “give a limiting instruction” that the grand jury testimony could only be considered for impeaching Rodriguez's credibility, not for its truth. (Id. at 1182). The trial court agreed to give such an instruction and reserved the question whether Rodriguez's grand jury testimony “qualifies as a past recollection recorded” such that it could be admitted as direct evidence. (Id. at 1183-84, 1195).
This statute provides that, “[w]hen, upon examination by the party who called him, a witness in a criminal proceeding gives testimony upon a material issue of the case which tends to disprove the position of such party, such party may introduce evidence that such witness has previously made either a written statement signed by him or an oral statement under oath contradictory to such testimony.” N.Y. Crim. Proc. L. § 60.35(1).
After consulting with his appointed counsel, Rodriguez retook the stand and admitted that he had testified truthfully under oath before the grand jury. (ECF No. 17 at 1195-96). The trial court then instructed the jury that the grand jury testimony was being introduced “for the purposes of impeaching the credibility of [Rodriguez] with respect to the testimony that he gave you on this subject regarding his recollections of what he saw or didn't see on the evening in question[,]” and that the grand jury testimony was “offered only for purposes of impeachment.” (Id. at 1196). The prosecutor then reviewed each of Rodriguez's answers in his grand jury testimony, all of which he acknowledged he had given under oath and were “truthful.” (Id. at 1197-1208). Rodriguez added, however, that “if that's what I said back then, 2009, [then] that's what I said, but I really don't remember.” (Id. at 1208).
The prosecutor then moved to admit as direct evidence Rodriguez's grand jury testimony, to which DeMarco objected. (ECF No. 17 at 1213-14). The trial court found that Rodriguez's acknowledgment that, before the grand jury, he had testified truthfully and identified Giles as the shooter represented a change from his trial testimony that justified introduction of his grand jury testimony as direct evidence. (Id. at 1216-21). The trial court instructed the jury:
Ladies and gentlemen, I previously instructed you that the Grand Jury testimony of this witness, which is in evidence, was admitted for impeachment purposes
only. At this time, I'm admitting it for all purposes. Therefore, that testimony may be considered by you, in your discretion, for the truth of the matter asserted in these statements. This will be what we described when I gave you my earlier instruction as an exception to the hearsay rule, admitted for its truth.(Id. at 1225). The prosecutor then read Rodriguez's grand jury testimony into the trial record. (Id. at 1126-40).
On cross-examination by DeMarco, Rodriguez continued to profess that he did not remember what “happened” on June 12, 2009, although he admitted to running away once he heard the shots and recalled certain details about the February 2010 shooting for which he had been convicted. (ECF No. 17 at 1241-58). Rodriguez also testified that he picked someone out of the lineup but was not “a hundred percent sure,” and identified “Day-Day” in the grand jury because he “was nervous.” (Id. at 1252-53).
Giles did not present an affirmative case at trial. (See ECF Nos. 1-4 at 274; 17 at 1499).
ii. Summations
Before the parties began their summations, the trial court reminded the jury that they were “the finders of fact,” and that “whatever the lawyers say on either side, and however they say it, no matter how passionate, it[] [was] simply an argument submitted for [their] consideration.” (ECF No. 17 at 1559). The trial court also reminded the jury that “nothing that a lawyer says at any time is evidence,” and that it was their duty to “decide the case on the evidence as [they] find [it] to have been under the law” as instructed by the trial court. (Id.) The trial court noted that the lawyers' recollection of the evidence might differ “in good faith,” but that it was the jurors' “own recollection, understanding and evaluation of the evidence, however, that must control, regardless of what any lawyer says or will say about the evidence.” (Id. at 1560). Finally, the trial court explained that if an objection to a lawyer's comment were sustained during the summation, “that comment will be stricken from the record,” and that any ruling on an objection was “not an attempt by me to indicate that I have an opinion on what was said or of the facts in this case or whether a defendant is guilty or not guilty.” (Id.)
a) Giles' Summation
During DeMarco's summation, the prosecutor objected twice and moved to reopen the case to introduce additional evidence against Giles, which the trial court denied but agreed to give an additional instruction to the jury. (ECF No. 17 at 1564, 1582, 1586-98).
The instruction was:
Mr. DeMarco made an argument in his closing remarks alleging the People's failure to present evidence of the defendant's membership in the Crips at this trial. You may not conclude that the People withheld evidence of Defendant Giles' membership in the Crips, or that the People's reference to gang membership at various points at this trial was an attempt to prejudice the defendant.(ECF No. 17 at 1598).
b) Prosecutor's Summation
During the prosecutor's summation, defense counsel objected to twenty of the prosecutor's statements, some of which the trial court instructed the jury to disregard, and moved for a mistrial, which the trial court denied. (ECF Nos. 3 at 19; 17 at 1629-43, 1657, 1673, 1674-75, 1677, 1683-95). The Petition challenges five aspects of the prosecutor's summation. (ECF No. 3 at 19-23).
The prosecutor's summation covers 55 pages in the trial transcript. (ECF No. 17 at 1622-43, 1647-82).
First, Giles contends that the prosecutor “testifie[d]” to three facts not in evidence: (i) that the NYPD “didn't have a working video camera” in the room in which Giles was interrogated; (ii) that the prosecutor would not have given Nolasco “a deal, a cooperation agreement” for his prior misdemeanors; and (iii) that Rodriguez was threatened and “expected a benefit” from testifying. (ECF No. 3 at 19-21 (citing ECF No. 17 at 1637, 1663, 1673-74)). The trial court sustained DeMarco's objection to the statement regarding the video camera, DeMarco did not object to the statement regarding a cooperation, and the trial court overruled DeMarco's objection regarding Rodriguez. (ECF No. 17 at 1638, 1663, 1673-74).
Second, the prosecutor recounted a story in which, when he was caught stealing baseball cards as a child, his grandfather, a World War II veteran, warned him, “before you open your mouth, you are the master of your words, after you speak your words have mastered you.” (ECF No. 3 at 21 (citing ECF No. 17 at 1639)). The prosecutor then commented that “the irony of this situation w[h]ere these false statements of fact that are relied upon in arguments is that Mr. Demarco finds himself in the same situation as his client.” (ECF No. 17 at 1639). The trial court overruled DeMarco's objection. (Id.) Giles contends that the prosecutor's statements constituted an “attack[]” on DeMarco. (ECF No. 3 at 21).
Third, the prosecutor commented:
if an act is committed in heaven, the witnesses would be angels, but [i]f an act is committed in hell, the witnesses would be devils. Now, I'm not calling [Nolasco] an angel. I'm not calling [him] a devil. What I'm saying to you is Marcos Nolasco has the same record you would expect of someone who saw what he saw. He has the same exact record with respect to someone who defendant Giles [] would feel comfortable enough in front of[.](ECF No. 17 at 1676-77; see ECF No. 3 at 21). The trial court sustained DeMarco's objection and instructed the jury to “disregard” the prosecutor's statement. (ECF No. 17 at 1677).
Fourth, Giles takes issue with the prosecutor's several references to “the street” and “real crime.” (ECF No. 3 at 21-23). The prosecutor commented that the jury had received “an education in real crime” during the trial, and that “[t]his is how it goes down in the streets in real life.” (ECF No. 17 at 1623). He suggested that “the street killed” the Victim, and “[t]he street has affected” Rodriguez, Nolasco, Giles, and Odiase. (Id. at 1663). The prosecutor added that, “when you run with the pack, you get credit for the kill[,]” and invited the jury “to hold the defendants responsible[.]” (Id. at 1681). The prosecutor also referenced the Victim, whose death he had “been carrying . . . for four years.” (Id. at 1682). As to Detective Mercado-Gomez's hesitation and reliance on notes during his testimony, the prosecutor added that Giles should not “get a free pass on a murder just because the detective who was assigned to catch the case couldn't answer every question put to him at trial.” (Id. at 1626). Giles' counsel did not object to these comments during the prosecutor's summation, (Id. at 1623, 1626, 1663, 1681-82), but Giles now contends that these comments were unduly prejudicial and improperly sought the jury's sympathy for the Victim. (ECF No. 3 at 21-22).
Fifth and finally, the prosecutor described how he had seen “the sun rise from [his] office” and had “been waiting years to give this summation.” (ECF No. 3 at 23 (citing ECF No. 17 at 1623)). Referring to defense counsel's characterizations of him as “a downright horrible person,” the prosecutor invited the jury to “judge [him,]” “hold [him] to a higher standard than the law[,]” and “hold it against [him]” if the jury thought that he had “been rude, disrespectful, improper” to anyone during the trial. (ECF No. 17 at 1629-31). The trial court overruled DeMarco's objections to these comments. (Id. at 1629-30).
iii. Jury Instructions and Verdict
On May 10, 2013, the trial court charged the jury. (ECF No. 17 at 1701-41, 1744-50, 1754-56). The trial court's instructions, as relevant to the Petition, included:
• “[N]othing I have said, no questions I have asked in this case were meant to suggest that I have an opinion about this case. If you have formed an impression that I do have an opinion, you must put it out of your mind and disregard it when you deliberate. It's not my responsibility to judge the evidence here. It's yours.”
• “Throughout these proceedings each defendant is presumed to be innocent. . . The defendant is not required to prove that he is not guilty.”
• “When you judge the facts in this case, you are to consider only the evidence. The evidence in the case includes the testimony of all the witnesses, the physical exhibits that were received in evidence, and a few stipulations[.]”
• “You have heard me ask questions of several witnesses. The fact that the Court asked a question does not mean that the answer is any more or less important than the testimony offered by the witness to other questions. Even if I expressed dissatisfaction with a witness or appear[ed] frustrated or admonished a witness, that does not provide you with any basis for evaluating the testimony in any particular manner. My questions, like those of the lawyers, are not evidence. Anything I have said or done in conducting this trial is not evidence. Any opinion that you attribute to me, that truth - I have no such opinion about the merits of this case - is not evidence.”
• “If you find that any witness has intentionally testified falsely as to any material fact, you may disregard that witness's entire testimony or you may in your discretion disregard so much of it as you find to have been untruthful and accept so much of it as you find to have been truthful and accurate.”
• “[T]hough I initially gave you a limiting instruction about Carlos Rodriguez's Grand Jury testimony, I subsequently determined, based on his testimony acknowledging such Grand Jury account and asserting that he had no current recollection of certain events, to allow his prior Grand Jury testimony to be received for its truth. I, thus, instruct you that with respect to this evidence, Rodriguez's Grand Jury testimony, you may consider it for the truth of the matters asserted and testified to in the Grand Jury.”(Id. at 1702-03, 1705, 1709-10, 1714). Giles did not object to any of the jury instructions or request any additional instructions. (Id. at 1741).
The jury deliberated over parts of three days, during which it sent seven notes. (ECF No. 17 at 1756-1801). On May 15, 2013, the jury returned its verdict, finding Giles and Odiase guilty of second-degree murder and criminal possession of a weapon. (ECF Nos. 1-1 at 7; 17 at 1802-03).
When the verdict as to Odiase was announced, “something of a riot . . . erupted” in the courtroom following which “[a]rrests [were] made” and the jurors were escorted out. (ECF No. 17 at 1804).
e. Odiase's 330.30 Motion
On July 6, 2013, after the jury verdict but before sentencing, Odiase moved to set aside the conviction pursuant to N.Y. Criminal Procedure Law § 330.30. (ECF No. 1-1 at 104-10 (the “330.30 Motion”)). In support, Odiase submitted recorded conversations and the affidavit of his sister, Kalimah Truesdale (“Truesdale”), who attested that Washington Arana, a Minerva Avenue resident, told her that “Jason Havoc and DaDai were the 2 people who shot the [V]ictim.” (Id. at 110). Truesdale further stated that Mejia “went to school with Havoc[,]” and that another woman who was present at the shooting told her that “Nolasco was not there.” (Id.) On October 22, 2013, the trial court denied Odiase's 330.30 Motion on the ground that he could have procured Truesdale's affidavit before trial, and, in any event, her affidavit was “not of such quality or character that it likely would have led to a different outcome[.]” (Id. at 112-13).
f. Sentencing
On July 13, 2013, the trial court sentenced Giles to a prison term of 25 years to life on the second-degree murder count, to run concurrently with a prison term of ten years followed by five years of supervised release on the criminal possession count. (ECF Nos. 1-1 at 7; 15 ¶ 6 (the “Judgment”)).
On the same date, Giles pled guilty to the criminal possession count in the 1595 Indictment, for which he was sentenced to a five-year prison term and five years' post-release supervision, and to the third-degree assault count in the 3401 Indictment, for which he was sentenced to a one-year prison term. (ECF No. 1-1 at 7 n.1).
g. Post-Judgment Motions
i. Odiase's 440.10 Motion
After the Judgment was entered, Odiase hired new counsel and a private investigator, who located “two crucial pieces of information that” Odiase argued “cast doubt” on his conviction. (ECF No. 1-1 at 27 ¶ 18). First, Mejia told the investigator that, on June 12, 2009, she was standing outside her building at 5 Minerva Place between 9:00 p.m. and 10:00 p.m. when she noticed seven males, one Hispanic and six Black, approaching in two separate groups, and the Victim playing basketball across the street. (Id. at 28 ¶ 19; see id. at 76).She heard sudden gunshots from “several directions” and ran into her friend's car, but she “did not see” the shooting. (Id. at 28 ¶ 20; see id. at 78-79, 88). When she “popped her [] head up[,]” she saw the Victim being chased by a man in a hoodie whose face she could not see, and the other seven males running away. (Id. at 28 ¶¶ 20-21; see id. at 81-82). She saw the Hispanic male, whom she recognized from elementary school, holding a black gun as he ran away with the other males. (Id. at 28 ¶ 21). Although Mejia told a detective that she knew one of the shooters and gave him her yearbook containing a picture of the person whom she identified as the Hispanic male, neither the detective nor the District Attorney's office followed up with her. (Id. at 28-29 ¶ 22; see id. at 84-87). The investigator showed Mejia a photo of Odiase, whom she did not recognize as being in the group of seven males, although she added that she had not seen all the faces clearly. (Id. at 29 ¶ 23; see id. at 87-88). Second, Odiase contended that his trial counsel failed to investigate or call a witness to undermine the inference from Giles' statement in the Interview that the second shooter was Odiase, when, in fact, everyone from that neighborhood knew that “Boogz” was someone else. (Id. at 29-30 ¶¶ 25-26; see id. at 93, 96-97, 115-16).
Mejia refused to sign an affidavit, but her statements are summarized in the Odiase 440.10 Motion, which attaches a rough transcription of the interview. (Id. at 27-29, 68-91).
On June 3, 2015, Odiase moved to vacate his conviction under N.Y. Criminal Procedure Law § 440.10 based on this newly discovered evidence, citing the two witnesses “who were not presented at trial and whose affidavits cast doubt upon [Nolasco's] testimony, point to other third party suspects as being the second shooter, and indicate that Brady material was withheld.” (ECF No. 1-1 at 20, 22 (“Odiase's 440.10 Motion”)). Among the evidence Odiase submitted in support were the transcript of the investigator's interview with Mejia, Odiase's affidavit stating that he did not attend school with Mejia or go by the nickname of “Boogz,” and an affidavit from Odiase's father attesting that he had told Odiase's counsel that someone other than Odiase “was known as ‘Boogz' in the neighborhood where the shooting took place.” (Id. at 66-91, 102, 115 ¶ 2). In support of Odiase's 440.10 Motion, Giles provided an affidavit dated May 27, 2016, in which he stated that “Odiase was not involved in” the shooting, was not with Giles “before, during or after the shooting,” and was “innocent” of the crime of murder in the second degree. (ECF No. 15 at 7-8).
Brady v. Maryland, 373 U.S. 83 (1963).
At the request of Odiase's counsel, the Bronx County District Attorney's Conviction Integrity Unit (“CIU”) “did an exhaustive reinvestigation” of the evidence and “found [] potentially exculpatory information that was actually not known to the defense” at the time Odiase's 440.10 Motion was filed, i.e., the unredacted DD5 containing Mejia's “description of the shooter that did not match either defendant.” (ECF No. 1-3 at 217-18). As part of the investigation, on January 12, 2017, the CIU interviewed Nolasco, who stated that: (i) he did not know Alita or Elias; (ii) “Day Day” was looking for the Victim on June 12, 2009; (iii) he did not see “Day Day and Steven shoot the victim,” but only “saw the flares from the guns” and “did not see anybody get hit”; (iv) “he thought that Day Day had a revolver with a white handle, a six-shooter”; and (v) “Steven had a .380 black hand gun, a pistol,” but then “admitted he did not know the caliber of the weapon.” (Id. at 237). On March 10, 2017, the CIU provided Giles' counsel with a copy of the unredacted DD5. (ECF No. 15 at 266).
Odiase's counsel contended that the CIU investigation provided additional support for his contention that “the true identity of the second shooter” was someone other than Odiase. (ECF No. 1-3 at 219). The People then joined in Odiase's 440.10 Motion, which the trial court granted on April 17, 2017, vacating Odiase's conviction and sentence and dismissing the charges against him. (Id. at 215, 218, 220, 222-24).
ii. Giles' 440.10 Motion
On February 8, 2018, Giles moved to vacate his conviction under § 440.10, alleging that prosecution's failure to produce the unredacted DD5 and statements during summation violated his constitutional due process rights. (ECF No. 1-4 at 4-72 (“Giles' 440.10 Motion”)).
On January 11, 2019, the trial court denied Giles' 440.10 Motion. (ECF No. 1 at 19-27 (the 440.10 Decision”)).The trial court observed that the evidence establishing Giles' guilt included the three eyewitnesses' testimony (Nolasco, Lantigua, and Rodriguez), Giles' Statement and Interview, and the ballistic expert's testimony that the six .380 caliber semi-automatic shell casings and deformed bullet retrieved from the corner where the eyewitnesses observed Giles shooting matched the type and caliber of bullet and gun Giles confessed to using. (Id. at 20). The strength of the evidence against Giles contrasted with the “far weaker” evidence against Odiase, whom only Nolasco identified as the second shooter. (Id.) Thus, the trial court rejected Giles' argument that the DD5 violated his constitutional right to exculpatory Brady evidence because the DD5, “while exculpatory with respect to [] Odiase, is not exculpatory with respect to” Giles, who, “by his own admission, [was] the other shooter.” (Id. at 23-24). The trial court also found that Giles did not establish that Mejia's statement in the DD5, which “was both hearsay and unreliable,” “would have been admissible at trial or that if she had been identified and located that she would have provided exculpatory testimony.” (Id. at 24). Even accepting that Mejia's statement was exculpatory by undermining Nolasco's credibility, the trial court found that “it would not result in vacatur of his conviction because the suppressed evidence was not material” given “[t]he combination of three witnesses who identified [Giles] as the shooter, two voluntary recorded confessions, and corroborating forensic evidence” that “constituted overwhelming evidence of [his] guilt.” (Id. at 25-26). Finally, the trial court deemed Giles' claims regarding the prosecutor's conduct at trial as more appropriate for direct appeal and, in any event, meritless. (Id. at 26).
The 440.10 Decision also appears at ECF No. 1-1 at 7-15.
On March 1, 2019, the Appellate Division, First Department (the “First Department”) denied Giles' application for leave to appeal from the 440.10 Decision. (ECF No. 1 at 28).
h. Direct Appeal
On direct appeal from the Judgment, Giles argued that his constitutional due process rights were violated by (i) the prosecutor's misconduct during summation, (ii) the bias of the trial court, and (iii) the impeachment of Rodriguez using his grand jury testimony. (ECF No. 1-4 at 186-249). In a decision dated November 19, 2020, the First Department affirmed the Judgment. People v. Giles, 188 A.D.3d 579 (1st Dep't 2020). (See ECF Nos. 1 at 16-18; 1-1 at 4-6). As to the alleged prosecutorial misconduct, the First Department held that “[t]he challenged portions of the People's summation generally constituted fair comment on the evidence, reasonable inferences to be drawn therefrom, and permissible responses to defense arguments.” Giles, 188 A.D.3d at 579. As to any “improprieties,” the court found “nothing so egregious as to require reversal,” and that “any error was harmless in light of the overwhelming evidence of guilt.” Id. As to the trial court's warnings to Rodriguez, the First Department found that the trial court “identified the conflict in the witness's sworn statements, directed him to tell the truth, and correctly stated the possible legal consequences involved[,]” which did not “compromise[] the court's neutrality.” Id. The First Department added that, because the requirements of N.Y. Criminal Procedure Law § 60.35 were met, the trial court also properly permitted Rodriguez to be impeached with his grand jury testimony. Id. at 579-80. Finally, the First Department held that “any error with respect to the court's conduct or rulings regarding the reluctant witness was harmless,” because Rodriguez “was only one of several eyewitnesses, and, as noted, the evidence of [Giles'] guilt was overwhelming.” Id. at 580.
Giles also challenged his sentence as unduly harsh. (Id. at 246-47).
On February 11, 2021, the New York Court of Appeals denied Giles' application for leave to appeal. People v. Giles, 36 N.Y.3d 1056 (2021). (See ECF No. 1-4 at 332-50).
2. Federal Habeas Corpus Petition
On July 7, 2022, Giles, represented by counsel, filed the Petition, which the Honorable Gregory H. Woods referred for this report and recommendation. (ECF Nos. 1; 6). The Petition asserts the following claims: (1) a Brady violation based on the non-disclosure of Mejia's statement (Ground One - the “Brady Claim”)), (2) violations of due process arising from the prosecutor's introduction of false evidence and statements during summation (Grounds Two and Three - the “Prosecutorial Misconduct Claims”), and (3) violation of due process based on the trial court's statements to Rodriguez (Ground Four - the “Judicial Bias Claim”)). (ECF No. 1 at 510).
Following an order to answer, on December 23, 2022, Respondent filed an answer and opposition to the Petition. (ECF Nos. 15-16). On January 30, 2023, Giles filed a reply. (ECF No. 20). At Giles' request, on July 18, 2023, the Court heard oral argument. (ECF Nos. 22; 30).
III. DISCUSSION
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). “A claim is ‘adjudicated on the merits' if the state court ruled on the substance of the claim rather than on a procedural ground.” Jordan v. Lamanna, 33 F.4th 144, 150 (2d Cir. 2022) (quoting Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001)).Thus, a state court's ruling on the merits of a constitutional claim, rather than a procedural ground, constitutes adjudication on the merits for purposes of AEDPA. See Zarvela v. Artuz, 364 F.3d 415, 417 (2d Cir. 2004) (per curiam) (applying AEDPA review to appellate court's ruling, in the alternative, that petitioner's unpreserved claim was “in any event, without merit”); Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002) (same). “A 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.'” Brown, 283 F.3d at 500 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). “A decision is an ‘unreasonable application' of clearly established [federal] law if a state court ‘identifies the correct governing legal principle from [the Supreme Court's] decision but unreasonably applies that principle to the facts of [a] prisoner's case.'” Id. at 501 (quoting Williams, 529 U.S. at 413). In this context, unreasonableness is an objective standard. See Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000) (quoting Williams, 529 U.S. at 409).
Internal citations and quotation marks are omitted from case citations unless otherwise indicated.
The Second Circuit recently reiterated the Supreme Court's instruction to district courts that “[a] writ cannot be granted ‘simply because . . . the relevant state-court decision applied clearly established federal law erroneously or incorrectly.'” Jordan, 33 F.4th at 150 (quoting Williams, 529 U.S. at 411). “Rather, whether a decision is ‘contrary to' or an ‘unreasonable application of' clearly established federal law is a ‘substantially higher threshold' than mere incorrectness.” Id. (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). Under AEDPA's “highly deferential” standard of review, Davis v. Ayala, 576 U.S. 257, 269 (2015), “an incorrect application of federal law is not necessarily an unreasonable one.” Adams v. Keyser, No. 16 Civ. 129 (GBD) (AJP), 2018 WL 2089337, at *2 (S.D.N.Y. May 3, 2018) (citing Grayton v. Ercole, 691 F.3d 165, 174 (2d Cir. 2012)). Rather, a district court should grant a writ as an unreasonable application of clearly established Supreme Court precedent only if “the state court's ruling on the claim . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). “In other words, the existence of ‘reasonable arguments on both sides' is ‘all [the state] needs to prevail in [an] AEDPA case.'” Jordan, 33 F.4th at 151 (quoting White v. Woodall, 572 U.S. 415, 427 (2014)); see Fulton v. Superintendent, No. 20 Civ. 21 (GBD) (SLC), 2020 WL 3250594, at *3 (S.D.N.Y. June 16, 2020) (“Fulton I”) (“The question under the AEDPA ‘is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable, which is a substantially higher threshold.'”) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)); Adams, 2018 WL 2089337, at *2 (“If ‘fairminded jurists could disagree on the correctness of the state court's decision[,]' the state court's determination is not objectively unreasonable.”) (quoting Harrington, 562 U.S. at 101).
To the extent that a petitioner challenges a state court's “harmless error” determination, pursuant to the analysis recently pronounced by the Supreme Court in Brown v. Davenport, 596 U.S. 118 (2022) and recently articulated by the Second Circuit in Krivoi v. Chappius, No. 21-2934, 2022 WL 17481816 (2d Cir. 2022) (summary order), a federal habeas court:
review[s] a state-court merits determination of harmless error under a two-part standard. The first of these tests was laid out by the Supreme Court in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Under Brecht, when a state court has found a constitutional violation to be
harmless beyond a reasonable doubt (by applying the harmless error standard from Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)), a habeas petitioner must show that an error had a “substantial and injurious” effect or influence on the jury's verdict. Brecht, 507 U.S. at 622-23. The Supreme Court recently held that, in addition to the Brecht standard, federal courts must apply the AEDPA standard laid out in § 2254(d)(1). Brown[], 142 S.Ct. [at] 1520[]. In other words, [the petitioner] must prevail under the Brecht “substantial and injurious” standard, and he must show that the state court's harmless error determination was an unreasonable application of federal law as determined by the Supreme Court (i.e., that the state court's harmless error determination was an unreasonable application of Chapman).Gumbs v. Stanford, No. 22 Civ. 4659 (VEC) (GWG), 2023 WL 2908653, at *9 (S.D.N.Y. Apr. 12, 2023), adopted by, 2023 WL 5928454 (S.D.N.Y. Sept. 12, 2023).
Finally, under the AEDPA, the factual findings of state courts are “presumed to be correct.” 28 U.S.C. § 2254(e)(1); see Nelson v. Walker, 121 F.3d 828, 833-34 (2d Cir. 1997). To overcome this presumption, a petitioner must present “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
B. Exhaustion
AEDPA also prevents a federal court from considering a petition for a writ of habeas corpus by a prisoner in state custody unless the petitioner has exhausted all state remedies. See 28 U.S.C. § 2254(b)(1)(A); see also Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). To satisfy the exhaustion requirement, the petitioner must have “fairly presented” his claims in federal constitutional terms to the state courts, thereby affording those courts the opportunity to correct the alleged violations of federal rights. Picard v. Connor, 404 U.S. 270, 275 (1971). “To satisfy [Section] 2254's exhaustion requirement, a petitioner must present the substance of ‘the same federal constitutional claim[s] that he now urges upon the federal courts[.]'” Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) (quoting Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (per curiam)). The exhaustion requirement is fulfilled once the federal claims have been presented to “the highest court of the state.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005).
In New York, a “defendant must first appeal . . . to the Appellate Division, and then must seek further review . . . by applying to the Court of Appeals for a certificate granting leave to appeal.” Galdamez, 394 F.3d at 74. “New York procedural rules bar its state courts from hearing either claims that could have been raised on direct appeal but were not, or claims that were initially raised on appeal but were not presented to the Court of Appeals.” Sparks v. Burge, No. 06 Civ. 6965 (KMK) (PED), 2012 WL 4479250, at *4 (S.D.N.Y. Sept. 28, 2012); see N.Y. Crim. Proc. L. § 440.10(2)(c). For claims involving matters “not reflected in, or fully explained by, the record,” People v. Moreno-Grantini, 167 A.D.3d 471, 472 (1st Dep't 2018) (“Moreno-Grantini I”), lv. to appeal denied 33 N.Y.3d 951 (2019), “a petitioner must assert the claim in a [Section] 440.10 motion. If that motion is denied, he must then seek leave to appeal to the Appellate Division in order to exhaust his state court remedies.” Moreno-Gratini v. Sticht, No. 19 Civ. 5964 (GHW) (SN), 2022 WL 1425712, at *7 (S.D.N.Y. Apr. 18, 2022) (“Moreno-Gratini II”), adopted by, 2022 WL 1423298 (S.D.N.Y. May 5, 2022); see N.Y. Crim. Proc. L. § 450.90; see also Cosey v. Lilley, 460 F.Supp.3d 346, 370 (S.D.N.Y. 2020) (noting that no further appellate review is available after Appellate Division denies leave to appeal denial of a Section 440.10 motion), aff'd, 62 F.4th 74 (2d Cir. 2023) (per curiam).
C. Adequate and Independent State Grounds
“A federal habeas court will not review a claim rejected by a state court ‘if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'” Walker v. Martin, 562 U.S. 307, 315 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 55 (2009)); see Rizzo v. Capra, No. 18 Civ. 1185 (GBD) (KNF), 2019 WL 2511349, at *2 (S.D.N.Y. June 18, 2019) (“It is well established that federal habeas courts may not review a claim rejected by a state court ‘if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'”) (quoting Coleman, 501 U.S. at 729). “The state-law ground may be substantive or procedural.” Moreno-Gratini II, 2022 WL 1425712, at *5; see Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (“When the state court's decision rests on an independent procedural bar . . . a federal court must still determine whether that state procedural ground is adequate to support the judgment.”); see Rizzo, 2019 WL 2511349, at *2 (“The independent and adequate state ground doctrine applies whether the state-law ground is ‘a substantive rule dispositive of the case, or a procedural barrier to adjudication of the claim on the merits.'”) (quoting Walker, 562 U.S. at 315). “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) (quoting Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005)); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (per curiam) (explaining that “federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim”).
Only if the state court's decision rests on an “independent procedural bar” that is “‘adequate to support the judgment'” will federal habeas review be barred. Murden, 497 F.3d at 191-92 (quoting Jimenez, 458 F.3d at 138). “A state procedural bar is ‘adequate' if it ‘is firmly established and regularly followed by the state in question' in the ‘specific circumstances presented in a case.'” Moreno-Gratini II, 2022 WL 1425712, at *6 (quoting Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006)); see Rizzo, 2019 WL 2511349, at *2 (“‘To be considered an independent and adequate state ground, the state law must be firmly established and regularly followed in the specific circumstances presented in the case.'”) (quoting Williams v. Artus, 691 F.Supp.2d 515, 524 (S.D.N.Y. 2010)). The exceptions to this rule are where the petitioner establishes either “‘cause for the default and prejudice'” or that he is “‘actually innocent' of the crime for which he was convicted.” Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (quoting Aparicio, 269 F.3d at 90).
In addition, there exist “exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate” to preclude federal habeas corpus review. Lee v. Kemna, 534 U.S. 362, 376 (2002); see Cotto v. Herbert, 331 F.3d 217, 239-40 (2d Cir. 2003) (assessing whether petition fell within “‘the small category of cases in which [the] asserted state grounds are inadequate to block adjudication of the federal claim' or ‘in which the exorbitant application of a generally sound rule renders the state ground inadequate' to bar consideration of the federal constitutional claim”) (quoting Lee, 534 U.S. at 376, 381). To determine whether the procedural bar is an “adequate” independent state ground to bar review, courts analyze: “(1) whether the trial court actually relied on the alleged procedural violation, and ‘whether perfect compliance with the state rule would have changed the trial court's decision'; (2) whether compliance with the rule was required by the governing caselaw under the ‘specific circumstances presented'; and (3) ‘whether petitioner had substantially complied with the rule given the realities of trial, and therefore, whether demanding perfect compliance with the rule would serve a legitimate government interest.'” Chodakowski v. Annucci, No. 19 Civ. 248 (LTS) (KHP), 2020 WL 9065795, at *6 (S.D.N.Y. Apr. 28, 2020) (quoting Cotto, 331 F.3d at 240).
D. Application
1. An Evidentiary Hearing Is Not Required
Giles requests an evidentiary hearing (ECF Nos. 3 at 61; 20 at 15), which the Court may order if the factual record is underdeveloped and a petitioner establishes good cause for the failure to develop the record in state court. See Fulton v. Superintendent, No. 20 Civ. 21 (GBD) (SLC), 2022 WL 20704161, at *28 (S.D.N.Y. Oct. 31, 2022) (“Fulton II”), adopted by, 2023 WL 6318745 (S.D.N.Y. Sept. 28, 2023) (“Fulton III”). Specifically, the AEDPA provides that:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that--
(A) the claim relies on-
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C.A. § 2254 (e)(2) (emphasis added). Thus, an “application for an evidentiary hearing may be granted in only two circumstances: ‘1) where § 2254(e)(2)'s provisions do not apply to the claim because the petitioner did not fail to develop the factual basis of the claim in the state court proceedings, or 2) where the petitioner's claim falls under one of the two exceptions to § 2254(e)(2).'” Ruine v. Walsh, No. 00 Civ. 3798 (RWS), 2005 WL 1668855, at *3 (S.D.N.Y. July 14, 2005) (quoting Millan v. Keane, No. 97 Civ. 3874(JGK), 1999 WL 178790, at *7 (S.D.N.Y. Mar. 31, 1999)). “In all but these extraordinary cases, AEDPA ‘bars evidentiary hearings in federal habeas proceedings initiated by state prisoners.'” Shinn v. Ramirez, 596 U.S. 366, 371 (2022) (quoting McQuiggin v. Perkins, 569 U.S. 383, 395 (2013)). “Even if a petitioner meets the requirements of 28 U.S.C. § 2254(e)(2), whether that petitioner ought to be afforded an evidentiary hearing remains an issue committed to the district court's sound discretion.” Ruine, 2005 WL 1668855, at *3 (citing Nieblas v. Smith, 204 F.3d 29, 32 (2d Cir. 1999)).
Pursuant to Rule 8 of the Rules Governing Habeas Corpus cases under Section 2254 in the United States District Courts, and on review of Respondent's Answer, the transcripts of the state court proceedings, and other documents in the record submitted by both parties, the Court determines that an evidentiary hearing is not required. See Boyd v. Sticht, No. 18 Civ. 6614 (CJS), 2022 WL 2704526, at *7 (W.D.N.Y. July 12, 2022). Here, apart from a single conclusory sentence asking for a hearing in his opening memorandum of law (ECF No. 3 at 61)-which he re-cites on reply (ECF No. 20 at 15)-Giles has not established that the factual record is underdeveloped, let alone that his claims fall under one of the two exceptions to § 2254(e)(2). Accordingly, because Giles has failed to establish good cause, a hearing is not required. See Fulton II, 2022 WL 20704161, at *28-29; Harris v. Burge, No. 04 Civ. 5066 (HB) (FM), 2008 WL 772568, at *12 (S.D.N.Y. Mar. 25, 2008); McGann v. Kelly, 891 F.Supp. 128, 136 (S.D.N.Y. 1995).
2. Exhaustion
The Court finds, and Respondent does not dispute, that Giles exhausted each of his claims for purposes of AEDPA. The Brady Claim was asserted in Giles' 440.10 Motion, which the trial court denied, and the First Department denied leave to appeal. (ECF Nos. 1 at 19-28; 1-4 at 472). Similarly, the Prosecutorial Misconduct Claims were raised on direct appeal and in Giles' 440.10 Motion. (ECF Nos. 1 at 16-28; 1-4 at 4-72). Finally, the Judicial Bias Claim was raised on direct appeal. (ECF Nos. 1 at 16-18; 1-4 at 233-42). Accordingly, each of Giles' claims in the Petition have been exhausted such that the Court may consider them on the merits.
3. Merits of Giles' Claims
a. AEDPA's Deferential Standard Applies
As an initial matter, Giles argues that the Court should apply de novo review, not AEDPA deference, to his claims because the state courts' reasons for rejecting his claims were objectively unreasonable. (ECF No. 3 at 32 (citing 28 U.S.C. § 2254(d)(1) and Wilson v. Sellers, 584 U.S. 122, 125 (2018)); see ECF No. 30 at 3-6, 8, 20, 36-37). Neither citation, however, supports Giles' suggestion that AEDPA's deferential standard is inapplicable. Section 2254(d)(1), quoted supra § III.A, is the AEDPA deferential standard of review that applies to claims such as Giles' that were, as discussed above, “adjudicated on the merits in state-court proceedings.” Cullen v. Pinholster, 563 U.S. 170, 187-88 (2011) (explaining that “unreasonable application” under section 2254(d)(1) is a “high threshold”); see Sellan, 261 F.3d at 314 (reviewing Sixth Amendment claim adjudicated on the merits in state court “under the deferential standards prescribed in 28 U.S.C. § 2254(d)(1)”); Aparicio, 269 F.3d at 93 (explaining that de novo review of federal constitutional claims applies only “[i]f a state court has not adjudicated the claim ‘on the merits'”). And in Wilson, the Supreme Court clarified that, when a state court decision on the merits of a federal constitutional claim “does not come accompanied with [] reasons,” the federal court must “‘look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale” and “then presume that the unexplained decision adopted the same reasoning.” 584 U.S. at 125. The Supreme Court in Wilson said nothing about exempting any claims from AEDPA's deferential standard of review.
Although, in his memorandum of law, Giles argued that de novo review should apply only to his Brady Claim (ECF No. 3 at 32-34), at oral argument, his counsel contended that AEDPA deference did not apply to any of his claims. (ECF No. 30 at 3, 20, 36).
This Court sees no case-nor does Giles point to one-in which the Supreme Court has announced that the type of claims Giles asserts in the Petition are exempt from AEDPA's deferential standard of review. See Jimenez v. Stanford, 560 F.Supp.3d 761, 770 (S.D.N.Y. 2021) (applying AEDPA's deferential standard to Brady claim); Calderon v. Perez, No. 10 Civ. 2562 (GBD) (AJP), 2011 WL 293709, at *15, 45 (S.D.N.Y. Jan. 28, 2011) (applying AEDPA “deference” to judicial bias claim), adopted by 2011 WL 1405029 (S.D.N.Y. Apr. 5, 2011); Ashley v. Burge, No. 05 Civ. 4497 (JGK), 2006 WL 3327589, at *9, 11 (S.D.N.Y. Nov. 3, 2006) (applying AEDPA's “deferential” standard to prosecutorial misconduct claim). While Giles vigorously disagrees with the trial court's reasons for rejecting his claims, as explained further below, the trial court and the First Department identified and reasonably applied the Supreme Court's standards for analyzing each claim, warranting the application of AEDPA deference. (See §§ III.D.3.b-d, infra). Accordingly, the Court declines Giles' request to apply de novo review to his claims and instead applies AEDPA's deferential standard.
b. Brady Claim
As set forth above, the First Department denied Giles' request for leave to appeal the trial court's rejection of his Brady Claim-which he made in his 440.10 Motion-because the DD5 was not exculpatory as to Giles and Mejia's statements were inadmissible, and, even if admissible, were not material given the weight of the evidence of Giles' guilt. (ECF No. 1 at 23-25). Giles contends that this decision was an unreasonable application of and contrary to clearly established law because Mejia's statements “undermined the reliability and credibility of the State's most important witness[,] Nolasco[,]” and prejudiced Giles given “[t]he weaknesses in the prosecution's case[.]” (ECF No. 3 at 32-41; see ECF No. 30 at 3-4 (asserting that Mejia's statement “would have demolished the testimony of the central eyewitness, Marcus Nolasco”)). Respondent concedes that the prosecutor should have disclosed the DD5 to Giles' trial counsel (ECF No. 30 at 25-26), but argues that, under the AEDPA standard of review, “the state courts reasonably concluded [that] the failure to disclose Mejia's statement to the police was not exculpatory as to [Giles],” as to whom there was a “wealth of evidence” of guilt. (ECF No. 16 at 29-38; see ECF No. 30 at 26 (“[I]t was not an unreasonable application of Supreme Court preceden[t], or of the facts, for the state court to reject the Brady claim because Mejia's statement was neither exculpatory to [Giles] nor material to the evidence supporting the guilty verdict.”)).
i. Legal Standard
The Supreme Court held in Brady that “[t]o the extent that [a] prosecutor knows of material evidence favorable to the defendant in a criminal prosecution, the government has a due process obligation . . . to disclose that evidence to the defendant.” Leka v. Portuondo, 257 F.3d 89, 98 (2d Cir. 2001); see Brady, 373 U.S. at 87 (requiring disclosure of evidence that is both favorable to the defendant and “material either to guilt or to punishment”). The prosecutor's due process obligation under Brady “exists whether or not the defense requests exculpatory evidence.” Lewis v. Ct. Comm'r of Corr., 790 F.3d 109, 121 (2d Cir. 2015); see Giglio v. United States, 405 U.S. 150, 154-55 (1972) (holding that Brady applied to impeachment evidence).
The Supreme Court has “distinguished three situations involving the discovery, after trial, of information favorable to the accused that had been known to the prosecution but unknown to the defense.” United States v. Bagley, 473 U.S. 667, 678 (1985) (citing United States v. Agurs, 427 U.S. 97, 103-04 (1976)). At issue in this case is the third situation, “where the defense makes a specific request and the prosecutor fails to disclose responsive evidence.” Id. at 681 (citing Agurs, 427 U.S. at 106). In this situation, evidence qualifies as “material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id. at 682. “A ‘reasonable probability' is a probability sufficient to undermine confidence in the outcome.” Id.
To establish a Brady claim, then, Giles must show that (i) Mejia's statement in the DD5 was “‘favorable'” to him, (ii) the prosecutor knew about and suppressed the statement, and (iii) the failure to disclose it caused prejudiced Giles. Jimenez, 560 F.Supp.3d at 773 (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)); see Rodriguez v. Lee, No. 19 Civ. 8398 (PAE) (SLC), 2022 WL 19410312, at *21 (S.D.N.Y. June 28, 2022), adopted by, 2023 WL 2473334 (S.D.N.Y. Mar. 13, 2023).
ii. The trial court recognized and reasonably applied the correct legal standard.
As noted above, the Court's “review on this claim is limited to assessing the reasonableness of the state court's decision on the evidence before it.” Jimenez, 560 F.Supp.3d at 773 (citing Cullen, 563 U.S. at 181 and Harrington, 562 U.S. at 101). As noted above, Respondent has conceded that the prosecutor erred in failing to disclose Mejia's statement (ECF No. 30 at 25), such that only the first and third elements of a Brady claim are at issue.
As an initial matter, the trial court recognized that Brady supplied the applicable federal constitutional standard, which was applied in each of the cases the trial court cited. (ECF No. 1 at 24-26). The trial court then focused on the two Brady elements that were in dispute: whether Mejia's statement was exculpatory, and whether he was prejudiced. (ECF No. 1 at 2326). Thus, the trial court recognized the correct legal standard.
The trial court cited the following cases: People v. Garrett, 23 N.Y.3d 878, 884-85 (2014) (discussing Brady's three-pronged standard and finding no violation where defendant failed to prove suppression or prejudice); People v. Jimenez, 142 A.D.3d 149, 158 (1st Dep't 2016) (discussing Brady's three-prong standard and finding no violation); People v. Torres, 61 A.D.3d 489, 490 (1st Dep't 2009) (same); People v. Alvarez, 44 A.D.3d 562, 563-64 (1st Dep't 2007) (finding no Brady violation where defendant failed to establish that undisclosed witnesses “would have provided material exculpatory testimony”); People v. Buie, 289 A.D.2d 140, 140-41 (1st Dep't 2001) (same); People v. Watkins, 286 A.D.2d 515 (2d Dep't 2001) (same); People v. Perry, 266 A.D.2d 151, 152-53 (1st Dep't 1999) (same).
As a substantive matter, the trial court's application of Brady was not unreasonable. First, fairminded jurists could disagree as to whether Mejia's statement was evidence “favorable” to Giles. It is undisputed that there was more than one shooter, and that Mejia's statement in the DD5 was identifying the other shooter, not Giles. (ECF No. 30 at 4 (Giles has “never taken a position that Mejia is identifying the person who's described as Mr. Giles”), 26 (“there was never any question that there were two shooters”), 35 (“Mejia has always said she only saw the one shooter”); see ECF No. 1-4 at 11 ¶ 18 (Giles' 440.10 Motion noting “Mejia's identification of the second suspect a day after the shooting”)). Giles disputes the trial court's determination that Mejia's statement in the DD5 was “hearsay and unreliable, and thus inadmissible as to” Giles (ECF No. 1 at 24) to support his argument that the trial court's decision was unreasonable. (ECF No. 3 at 32-33). But the trial court reasonably observed that Mejia's identification was “vague, confusing, unclear as to whether she [was] speaking from personal knowledge, and contradicted by her later statements[,]” all of which cast doubt on the extent to which her statement in the DD5 was “favorable” to Giles under Brady. (ECF No. 1 at 24-25). See Jimenez, 560 F.Supp.3d at 773 (where undisclosed statement was “brief” and contained “scant details,” finding that “fairminded jurists could disagree as to whether” it was “favorable” to defendant); Skinner v. Duncan, No. 01 Civ. 6656 (DAB) (AJP), 2003 WL 21386032, at *20 (S.D.N.Y. June 17, 2003) (finding that Brady claim failed where undisclosed information “would not in any way have exculpated” petitioner).
Second, fairminded jurists could disagree as to whether Mejia's statement in the DD5 was material to the reliability and credibility of Nolasco's identification of Giles as one of the shooters. Mejia's identification of the second shooter as a dark-skinned man wearing a gray hoodie was, in this respect, consistent with Nolasco's. (ECF Nos. 1-1 at 18; 15 at 25, 101-02; 17 at 1388, 1401). But unlike Odiase-for whom Nolasco was the sole identifying witness (ECF No. 16 at 17)-the jury was presented with evidence from two other witnesses who identified Giles as one of the shooters: Lantigua and Rodriguez. (ECF Nos. 15 at 131-33; 17 at 1044-47, 1172-75). To the extent there are inconsistencies between the descriptions of the second shooter by Mejia and Nolasco, there were nevertheless multiple other grounds on which to challenge the credibility and reliability of Nolasco's identifications, which both defendants' counsel emphasized during their summations. (ECF No. 17 at 1564-65, 1600-12). See United States v. Persico, 645 F.3d 85, 111 (2d Cir. 2011) (explaining that “where the undisclosed evidence merely furnishes an additional basis on which to challenge a witness whose credibility has already been shown to be questionable or is subject to extensive attack by reason of other evidence, [it] may properly be viewed as cumulative, and hence not material”); United States v. Pimentel, No. 99 Cr. 1104 (SJ), 2002 WL 1208679, at *5 (E.D.N.Y. May 30, 2002) (“It is well settled that where ample ammunition exists to attack a witness's credibility, evidence that would provide an additional basis for doing so is ordinarily deemed cumulative and hence immaterial.”) Accordingly, the trial court's determination that Mejia's statement was not material to Nolasco's credibility (ECF No. 1 at 2526) was not unreasonable.
Third, fairminded jurists could disagree about whether the failure to disclose Mejia's statement was prejudicial to Giles. Even if Mejia's statement undermined Nolasco's credibility, the remaining evidence of Giles' guilt was overwhelming. First and foremost, that evidence included Giles' own Statement and Interview-which he does not challenge in the Petition-in which he confessed to shooting at the Victim with a .380 pistol. (ECF Nos. 1-3 at 194-95; 15 at 27-49; see ECF No. 30 at 9). The jury also heard the ballistics expert's testimony, which corroborated Giles' statements that he fired a .380-caliber gun. (ECF No. 17 at 1018-22, 1104). And, as noted above, the jury also heard testimony from two witnesses (apart from Nolasco) who identified Giles as one of the shooters. (ECF Nos. 15 at 131-33; 17 at 1044-47, 1172-75). The trial court therefore reasonably concluded that there was not “a reasonable probability that, had the evidence been disclosed . . ., the result of the proceeding would have been different.” Bagley, 473 U.S. at 682; see United States v. Fruchter, 137 Fed.Appx. 390, 393 (2d Cir. 2005) (summary order) (holding that, “even if the contents of the [undisclosed evidence] could be considered exculpatory, there is no reasonable possibility that its disclosure would have changed the outcome of the trial”); Skinner, 2003 WL 21386032, at *24-25 (finding Brady claim insufficient where there was “no reasonable probability that the result of [petitioner's] trial would have been different” based on undisclosed evidence).
Giles' other arguments do not undermine the Court's conclusion that the trial court reasonably applied Brady. To the extent that Giles argues Mejia's statement was material-such that he was prejudiced by its non-disclosure-because his confessions in the Statement and the Interview were unreliable (ECF Nos. 3 at 34; 30 at 8-9), Giles makes no claim in the Petition that his own statements were improperly admitted. (ECF No. 30 at 8-9 (“[W]e don't have a standalone [claim] saying that [Giles' confession] was inadmissible.”)). As noted above, Giles' Statement and Interview were not the only evidence of his guilt remaining even if the jury knew that Mejia's identification of the second shooter contradicted Nolasco's testimony.
Ultimately, because there are at least three aspects of the trial court's decision rejecting Giles' Brady Claim about which fairminded jurists could disagree, “AEDPA thus requires this Court to defer to the state court's decision on this claim.” Jimenez, 560 F.Supp.3d at 774. The Court therefore respectfully recommends that Giles' Brady Claim be DENIED.
c. Prosecutorial Misconduct Claims
Giles contends that the prosecutor's statements during Detective Mercado-Gomez's testimony and summation constitute misconduct rising to the level of a due process violation. (ECF No. 3 at 41-45, 53-60). Respondent counters that the state courts' rejection of these claims was not unreasonable, and, in any event, any error was harmless. (ECF No. 16 at 39-66).
i. Legal Standard
For prosecutorial misconduct to constitute a due process violation, a petitioner must show more than that “the prosecutors' remarks were undesirable or even universally condemned.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). Rather, a prosecutor's remarks that do not directly infringe a constitutionally protected right do not violate due process unless “the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair.” Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) (quoting Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986)); see Donnelly v. DeChristoforo, 416 U.S. 637, 643-45 (1974) (explaining that, for trial error to violate due process, “it must be established not merely that the [error] is undesirable, erroneous, or even universally condemned, but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment”); Ashley, 2006 WL 3327589, at *11 (discussing Darden, Donnelly, and Floyd).
In analyzing a prosecutorial misconduct claim, the Court must “review [the] comments by a prosecutor narrowly to determine whether they ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Bessaha v. Rock, No. 09 Civ. 3581 (JFB), 2012 WL 1458195, at *15 (E.D.N.Y. Apr. 27, 2012) (quoting Darden, 477 U.S. at 181); see Washington v. Griffin, No. 17 Civ. 3849 (LGS) (SLC), 2019 WL 7598584, at *14 (S.D.N.Y. Dec. 23, 2019) (quoting Darden and Donnelly), adopted by 2020 WL 264421 (S.D.N.Y. Jan. 17, 2020). A petitioner must show that he “suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict.” Bessaha, 2012 WL 1458195, at *15 (quoting Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994)). In determining whether such prejudice occurred, factors courts have considered include: “(1) the severity of the prosecutor's conduct; (2) what steps, if any, the trial court may have taken to remedy any prejudice; and (3) whether the conviction was certain absent the prejudicial conduct.” Bentley, 41 F.3d at 824; see Washington, 2019 WL 7598584, at *14 (citing Floyd, 907 F.2d at 355). “In addition, in determining whether a prosecutor's conduct was unconstitutional, a court ‘must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's [remarks] . . . if the prosecutor's remarks were ‘invited' and did no more than respond substantially in order to ‘right the scale,' such comments would not warrant reversing a conviction.” Everett v. Fischer, No. 00 Civ. 6300 (NG), 2002 WL 1447487, at *2 (E.D.N.Y. July 3, 2002) (quoting United States v. Young, 470 U.S. 1, 13, 14 (1985)). Finally, “[w]hen analyzing the severity of alleged misconduct, the court examines the prosecutor's statements in the context of the entire trial.” Miller v. Barkley, No. 03 Civ. 8580 (DLC), 2006 WL 298214, at *2 (S.D.N.Y. Feb. 8, 2006).
Similarly, a conviction resulting from a prosecutor's “knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Agurs, 427 U.S.at 103. Even if the false evidence is unsolicited, a due process violation occurs if a prosecutor “allows it to go uncorrected when it appears.” Napue v. People of State of Ill., 360 U.S. 264, 269 (1959). This precedent imposes a “strict standard of materiality,” Agurs, 427 U.S. at 104, such that “if it is established that the government knowingly permitted the introduction of false testimony reversal is virtually automatic.” Shih Wei Su v. Filion, 335 F.3d 119, 126 (2d Cir. 2003) (quoting United States v. Wallach, 935 F.2d 445, 456 (2d Cir. 1991)). The question for the Court is “whether the jury's verdict ‘might' be altered” by the false testimony. Wallach, 935 F.2d at 456.
ii. Application
As noted above, Giles challenges five aspects of the prosecutor's summation, arguing that the prosecutor effectively introduced facts not in evidence, unfairly attacked DeMarco, solicited undue sympathy for the Victim, and improperly invoked the prosecutor's integrity to sway the jury against Giles. (ECF No. 3 at 41-45, 53-60; see ECF No. 30 at 12). The First Department rejected these arguments, holding that “[t]he challenged portions of the People's summation generally constituted fair comment on the evidence, reasonable inferences to be drawn therefrom, and permissible responses to defense arguments.” Giles, 188 A.D.3d at 579. (ECF No. 1 at 16; see id. at 28 (denying leave to appeal 440.10 Decision, which denied Prosecutorial Misconduct Claims)). Respondent argues that the First Department's decision was not an unreasonable application of clearly established Supreme Court precedent because, through the instructions to the jury, the trial court defused any potential prejudice, and that, when viewed in context of the entire trial, none of the prosecutor's comments were so prejudicial as to deprive Giles of a fair trial. (ECF No. 16 at 39-55). Respondent adds that, given the overwhelming evidence of Giles' guilt, any error did not have a “‘substantial and injurious effect on the verdict,'” such that the First Department applied the harmless error rule “‘in an objectively [ Reasonable manner.'” (Id. at 56 (quoting Brecht, 507 U.S. at 637 and Davis, 576 U.S. at 269)).
Considering the first Bentley factor, the Court finds that the prosecutor's statements, viewed in the context of the entire trial, did not “rise to a constitutionally infirm level of severity.” Washington, 2019 WL 7598584, at *14. The prosecutor's comment regarding the absence of a video camera in the room where Giles gave the Statement was a proper response to DeMarco's suggestion that the police had used improper interrogation techniques, and, in any event, the trial court sustained DeMarco's objection and struck the comment. (ECF No. 17 at 1638; see Id. at 1577-78 (DeMarco arguing that the prosecution failed to explain “why interviews are not videotaped”)). See United States v. Tocco, 135 F.3d 116, 130 (2d Cir. 1998) (noting that “where the defense summation makes arguments and allegations against the government, the prosecutor may respond to them in rebuttal”). Similarly, the prosecutor's statement that he would not offer a misdemeanor plea deal to Nolasco-to which DeMarco did not object-was a reasonable response to DeMarco's attacks on Nolasco's credibility. (ECF No. 17 at 1663). See Vassar v. Artus, No. 9:08 Civ. 41 (DNH), 2016 WL 3632712, at *9-10 (N.D.N.Y. June 29, 2016) (finding that prosecutor's comment that defense wanted jury “to believe [the victim] made it all up” was a legitimate response to defense attacks on victim's credibility); Brown v. Artus, No. 04 Civ. 3601 (DLC) (KNF), 2008 WL 9428119, at *13 (S.D.N.Y. Dec. 24, 2008) (finding that prosecutor's argument in response to defense summation did not constitute unconstitutional misconduct), adopted by, 2009 WL 1473428 (S.D.N.Y. May. 27, 2009); Trueluck v. Phillips, No. 03 Civ. 904 (JCF), 2003 WL 22390113, at *4 (S.D.N.Y. Oct. 20, 2003) (finding that prosecutor's response to defense attack on credibility of key witness did not violate due process); see also United States v. Perez, 144 F.3d 204, 210 (2d Cir. 1998) (“Prosecutors have greater leeway in commenting on the credibility of their witnesses when the defense has attacked that credibility.”).
The other statements during the prosecutor's summation that Giles contends were objectionable-including the suggestion that DeMarco made false statements, the mention of “angels” and “devils” (which the trial court struck), the references to “the street” and “real crime,” and the request to “hold [the prosecutor] to a higher standard than the law” (ECF No. 17 at 1623, 1626, 1629-31, 1639, 1663, 1676-77, 1681-82)-were all within the “broad latitude” afforded to summations, particularly in a case involving a lengthy, complicated trial arising from the murder of a teenaged boy. United States v. Smith, 778 F.2d 925, 929 (2d Cir. 1986) (“[W]e have repeatedly held that final arguments of counsel may be vigorous and robust if based on the evidence in the record.”). As the Second Circuit has recognized, “a prosecutor is not precluded from vigorous advocacy, or the use of colorful adjectives, in summation.” United States v. Jaswal, 47 F.3d 539, 544 (2d Cir. 1995) (per curiam). Accordingly, the Court finds that the prosecutor's remarks-both in isolation and in the context of the entire trial record-“were not sufficiently severe to warrant habeas relief when considered in light of other facts.” Bessaha, 2012 WL 1458195, at *16 (collecting cases in which prosecutors' use of harsh language during summation were deemed legitimate and not prejudicial); see Donnelly, 416 U.S. at 647-48 (finding that prosecutor's “long and expectably hortatory closing argument” did not constitute the sort of “egregious misconduct . . . to amount to a denial of constitutional due process”).
Considering the second and third Bentley factors together, the First Department's rejection of Giles' Prosecutorial Misconduct Claims was not contrary to or an unreasonable application of clearly established federal law. See Washington, 2019 WL 7598584, at *14 (combining analysis of second and third factors). In addition to directing the jury to disregard the prosecutor's statements about the video camera and the “angels” and “devils” (ECF No. 17 at 1638, 1677), the trial court instructed the jury multiple times-including right before summations-that counsel's statements were not evidence and that statements to which the trial court sustained an objection must be disregarded. (See, e.g., ECF No. 17 at 844-45, 170506). Thus, even if one or more of the prosecutor's statements were improper, the trial court's instructions-with which the jury is presumed to have complied-minimized any potential prejudice to Giles. See Bessaha, 2012 WL 1458195, at *17 (finding that “the trial court minimized any prejudice” from prosecutor's summation “in its instructions to the jury”); Trueluck, 2003 WL 22390113, at *5 (finding that “any possible misconception” arising from prosecutor's summation “was corrected by the court's subsequent charge”). And, as the First Department found and as the Court summarizes above, “the overwhelming evidence” supported the guilty verdict, Giles, 188 A.D.3d at 579, such that Giles “would have been convicted with or without [the prosecutor's] comments” during summation. Thompson v. Cunningham, No. 08 Civ. 10458 (VB), 2013 WL 3742490, at *13 (S.D.N.Y. June 28, 2013); see Washington, 2019 WL 7598584, at *14 (rejecting prosecutorial misconduct claim where “the weight of the evidence supported the guilty verdict”).
See Richardson v. Marsh, 481 U.S. 200, 211 (1987) (discussing “[t]he rule that juries are presumed to follow their instructions”); see also Weeks v. Angelone, 528 U.S. 225, 234 (2000) (“A jury is presumed to follow its instructions.”); United States v. Snype, 441 F.3d 119, 129 (2d Cir. 2006) (“[T]he law recognizes a strong presumption that juries follow limiting instructions.”)
To the extent that Giles contends that the prosecutor introduced false evidence during summation or during questioning of witnesses in violation of due process under Napue (ECF Nos. 3 at 41-45; 30 at 15), he similarly fails to establish a basis for habeas corpus relief. Giles focuses on Detective Mercado-Gomez's answering “no” to the prosecutor's question whether the police “kn[e]w the second shooter.” (ECF No. 3 at 43; see ECF No. 17 at 1299).Giles contends that Mejia's description of the second shooter, which Detective Walton recorded in the DD5, shows that the prosecutor suborned false testimony from Detective Mercado-Gomez. (ECF No. 3 at 43). But the prosecutor's question was not whether the police knew there was a second shooter, but whether they knew who the second shooter was, which they did not determine-albeit incorrectly-until Detective McCrosson, using Nolasco's description of “Steven,” identified Odiase from a prior arrest photo in the NYPD database. (ECF No. 15 at 25, 101-02). Because Giles has not established that Detective Mercado-Gomez's testimony was false, he cannot establish that his conviction was “obtained through the use” of or failure to correct false testimony. Napue, 360 U.S. at 268.
The prosecutor questioned Detective Mercado-Gomez as follows:
Q. In [the Interview], at some point in time, [Giles] mentions the person Boogs, a second shooter. In your interviews with the other witnesses to the crime, did you or any member of your team know the second shooter?
A. No.
Q. In the first statement Mr. Giles made to you, did he tell you there was a second shooter?
A. Not that I'm aware of, no.(ECF No. 17 at 1299).
Because Giles has failed to establish that the First Department's denial of his Prosecutorial Misconduct Claims was either contrary to or an unreasonable application of clearly established federal law, these claims do not provide a basis for habeas corpus relief. The Court therefore respectfully recommends that Giles' Prosecutorial Misconduct Claims be DENIED.
d. Judicial Bias Claim
In the Judicial Bias Claim, Giles contends that the trial court exhibited “actual bias” when it “threatened” Rodriguez that he could be charged with perjury for contradicting his Grand Jury testimony at trial. (ECF No. 3 at 46; see ECF No. 30 at 17-19 (arguing that the trial court “demonstrate[ed] that he is going to be part of the prosecution's effort to create evidence against Mr. Giles”); id. at 22 (arguing that the trial court was not a “neutral and detached judge”)). The First Department rejected the Judicial Bias Claim, finding no error:
when, without objection and outside the jury's presence, the [trial] court warned an uncooperative witness [Rodriguez] that he could be prosecuted for perjury. The court identified the conflict in the witness's sworn statements, directed him to tell the truth, and correctly stated the possible legal consequences involved (see Penal Law § 210.20 [inconsistent sworn statements as perjury]). We do not find that this action compromised the court's neutrality.Giles, 188 A.D.3d at 579 (citing People v. Jamison, 47 N.Y.2d 882, 883 (1979) and People v. Moulton, 43 N.Y.2d 944, 945 (1978)). Respondent observes that Giles has “not identified any federal case-much less established Supreme Court precedent-holding that a trial judge may not warn a witness of the risks of committing perjury under these circumstances, where there is good reason to believe that the witness intends to lie on the stand, or, in fact, has already done so.” (ECF No. 16 at 63). Given that Rodriguez “persisted in denying that he knew the shooter,” and the overwhelming evidence of Giles' guilt, Respondent adds that any error was harmless, such that the First Department properly rejected the Judicial Bias Claim. (Id. at 64-65).
i. Legal Standard
“Due process guarantees ‘an absence of actual bias' on the part of a judge.” Williams v. Penn., 579 U.S. 1, 8 (2016) (quoting In re Murchison, 349 U.S. 133, 136 (1955)). In assessing a claim of judicial bias, courts ask “not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, ‘the average judge in his [or her] position is ‘likely' to be neutral, or whether there is an unconstitutional potential for bias.'” Id. (quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 881 (2009)).
Even though “prejudicial intervention by a trial judge could so fundamentally impair the fairness of a criminal trial as to violate the Due Process Clause,” Daye v. Att'y Gen. of State of N.Y., 712 F.2d 1566, 1570 (2d Cir. 1983), “a federal [habeas] court will not lightly intervene when such a claim [of judicial bias] is asserted.” Gayle v. Scully, 779 F.2d 802, 806 (2d Cir. 1985); see Calderon, 2011 WL 293709, at *41 (collecting cases). The “facet of federalism” dictates that “federal courts have authority under their supervisory powers to oversee the administration of criminal justice within federal courts and lack such authority with respect to state courts. The only commands that federal courts can enforce in state courts are those of the Constitution.” Daye, 712 F.2d at 1571; accord Gayle, 779 F.2d at 813.
The Second Circuit holds habeas corpus petitioners to a high burden to show a deprivation of due process resulting from the intervention of a state trial judge:
A trial judge's intervention in the conduct of a criminal trial would have to reach a significant extent and be adverse to the defendant to a substantial degree before the risk of either impaired functioning of the jury or lack of the appearance of a neutral judge conducting a fair trial exceeded constitutional limits.Daye, 712 F.2d at 1572; see Calderon, 2011 WL 293709, at *41 (collecting cases); Reid v. Phillips, No. 04 Civ. 1338 (NRB), 2004 WL 1920218, at *4 (S.D.N.Y. Aug. 26, 2004) (“A criminal defendant faces a high hurdle to establish a judge's partiality based on comments made at trial.”) (citing Francolino v. Kuhlman, 365 F.3d 137, 143 (2d Cir. 2004)). Judicial statements or rulings that are “disapproving of, or even hostile to, counsel, the parties[] or their cases do not support a claim of bias or partiality unless they reveal ‘such a high degree of favoritism or antagonism as to make fair judgment impossible.'” Francolino, 365 F.3d at 143 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). A court evaluating a judicial bias claim in the habeas context must evaluate whether the trial judge's interference:
“creates a risk that the jury will be deflected from a conscientious discharge of their responsibility to find the facts, apply the law, and reach a fair verdict. The jurors may believe that they should shade their judgment to accommodate the judge's view of the defendant's guilt, perhaps deferring to his [or her] view in a close case. Second, even if the jurors are not swayed from an independent discharge of their solemn responsibilities, [the habeas court evaluates whether] the judge's [action] creates a risk that the trial will not be perceived by the defendant or the public as a fair adjudication of guilt or innocence, presided over by a neutral magistrate obliged to deal evenhandedly between the contending forces of the prosecution and the defense.”Gayle, 779 F.2d at 806 (quoting Daye, 712 F.2d at 1571-72). “The court's role is not to determine whether the trial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid.” United States v Amiel, 95 F.3d 135, 146 (2d Cir. 1996). Rather, “[t]he test is whether the jury was so impressed with the judge's partiality to the prosecution that it became a factor in determining the defendant's guilt, or whether it appear[ed] clear to the jury that the court believed the accuse[d] is guilty.” Id.; see Perez v. Hollinz, No. 02 Civ. 6120 (GBD) (JCF), 2004 WL 307271, at *11 (S.D.N.Y. Feb. 5, 2004) (“[J]udicial intervention is prejudicial only to the extent ‘that the jurors have been impressed with the trial judge's partiality to one side to the point that this became a factor in the determination of the jury.'”) (quoting United States v. Messina, 131 F.3d 36, 39 (2d Cir. 1997)), adopted by, Order, Perez v. Hollinz, No. 02 Civ. 6120 (GBD) (JCF) (S.D.N.Y. May 18, 2004), ECF No. 21. Ultimately, the question is whether the trial court's conduct “was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.” Amiel, 95 F.3d at 146; see Calderon, 2011 WL 293709, at *42 (collecting cases).
ii. Application
In presenting his Judicial Bias Claim, Giles does not dispute several key points: (i) that providing material false testimony is a felony under New York law, see N.Y. Penal L. § 210.15; (ii) that perjury is provable by the fact that a person made two statements under oath that are irreconcilably inconsistent with each other, see N.Y. Penal L. § 210.20; and (iii) that Rodriguez's trial testimony that he did not see the shooter was irreconcilably inconsistent with his grand jury testimony-the truth of which Giles also does not dispute (ECF No. 30 at 22)-identifying Giles as one of the shooters. (Compare ECF No. 17 at 1171-72 with ECF No. 17 at 1160-68). That neither defense attorney objected to any of the trial court's admonishments of Rodriguez (see ECF No. 30 at 29)-almost all of which occurred outside the presence of the jury-suggests that objective observers in the courtroom did not perceive the trial court's conduct as compromising the defendants' due process right to a fair trial or improperly influencing the verdict. See Reid, 2004 WL 1920218, at *4 (finding that trial court's remarks, “most of which were outside the presence of the jury and therefore could not have influenced the verdict, [did] not come close to meeting either the bias or the prejudice element of th[e] standard.”).
As Respondent correctly points out, Giles points to no Supreme Court precedent holding that due process required the trial court to proceed in a different manner when dealing with a recalcitrant witness such as Rodriguez. (ECF No. 16 at 63). Further, the trial court instructed the jury that:
nothing I have said, no questions I have asked in this case were meant to suggest that I have an opinion about this case. If you have formed an impression that I do have an opinion, you must put it out of your mind and disregard it when you deliberate. It's not my responsibility to judge the evidence here. It's yours. You and you alone . . . are responsible for deciding whether the defendant that you're considering is guilty or not guilty.(ECF No. 17 at 1702). This instruction, combined with the other instructions noted above explaining what evidence the jury was to consider, was sufficient “to mitigate any prejudice that may have occurred” due to the trial court's handling of Rodriguez's testimony. Calderon, 2011 WL 293709, at *44; see Celleri v. Marshall, No. 07 Civ. 4114 (JFB), 2009 WL 1269754, at *15 (E.D.N.Y. May 6, 2009) (finding that “the jury instructions of this case [were] sufficiently curative of whatever potential effect the allegedly biased statements at issue may have had on petitioner's trial”); Martinez v. Kelly, No. 01 Civ. 11570 (DAB) (JCF), 2005 WL 1863854, at *6-7 (S.D.N.Y. Aug. 4, 2005) (finding that jury instructions, among other circumstances, mitigated any potential prejudice from trial court's allegedly biased statements); Paccione v. New York, 353 F.Supp.2d 358, 368-69 (E.D.N.Y. 2005) (finding that jury instructions mitigated any potential prejudice from trial court's statements adverse to defense counsel).
Viewing the entirety of the trial record, the First Department's decision that the trial court did not deprive Giles of a fair trial is not an unreasonable application of, or contrary to, Supreme Court precedent regarding judicial bias. The Court therefore respectfully recommends that Giles' Judicial Bias Claim be DENIED.
IV. CONCLUSION
For the reasons set forth above, the Court respectfully recommends that all the claims in the Petition be DENIED and the Petition be DISMISSED in its entirety.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Woods.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).