Opinion
17-CV-9773 (ALC) (JLC)
05-29-2019
JONATHAN GONZALEZ-ALVAREZ, Petitioner, v. STEWART ECKERT, Respondent.
To the Honorable Andrew L. Carter, Jr., United States District Judge:
REPORT & RECOMMENDATION
JAMELS L. COTT, United States Magistrate Judge
Pro se petitioner Jonathan Gonzalez-Alvarez seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his conviction of murder in the second degree and gang assault in the first degree. He was sentenced to an indeterminate prison term of 23 years to life for the murder count, to run concurrently with a prison term of 10 years for the gang assault count, followed by five years of postrelease supervision. For the reasons set forth below, the petition should be denied.
I. BACKGROUND
A. Overview of Charges
The following facts are drawn from the record of proceedings before the state trial court. In view of Gonzalez-Alvarez's conviction, the evidence presented at trial is summarized in the light most favorable to the verdict. See, e.g., Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir. 2012) (citation omitted).
The state court record is filed at docket entry 13. The trial transcript (“TR.”) is filed as the main docket entry 13 and exhibits one and two. The sentencing transcript (“TS.”) is filed as part of exhibit two. Pinpoint citations to these filings refer to the pagination that runs throughout the documents, and not to the pagination generated by this District's Electronic Case Filing system.
On October 27, 2009, Gonzalez-Alvarez attended a “karaoke night” held at a restaurant named La Casa del Mofongo in upper Manhattan. TR. at 9-10. He was accompanied by several others, including Luis Almanzar and Erlin Nunez Gonzalez. Id. At some point in the early morning, Gonzalez-Alvarez started an altercation with bouncer Ghislain Epouta. Id. at 578-79. The two traded several blows before other bouncers and wait staff separated them. Id. at 642-43. Epouta eventually exited the restaurant, then stumbled and collapsed to the ground, bleeding from “an open wound from the bottom of his belly all the way to the side.” Id. at 24, 643. Though emergency medical workers attempted to resuscitate him, Epouta died at 3:06 a.m. Id. at 116-17, 853. He had “nine sharp-force injuries” caused by a “sharp-edged object” that hit several “critical” areas of his body. Id. at 113-14, 855. Gonzalez-Alvarez and his two companions were apprehended attempting to leave the scene by taxi. Id. at 207-09.
Almanzar and Gonzalez-Alvarez are referred to as “Number One” and “Number Two” respectively in the transcript, based on a photograph taken of them that morning. TR at 426-27, 766. Gonzalez-Alvarez was wearing a black sweatshirt and dark jeans; Almanzar was wearing a red shirt and red cap. Id. at 46-47. There was no reference of this kind to Nunez Gonzalez.
As a result of these events, a New York County grand jury indicted Gonzalez-Alvarez on charges of second-degree murder and first-degree gang assault. See Indictment No. 5280/2009, Dkt. No. 10-1, Ex. A. On January 12, 2012, Gonzalez-Alvarez proceeded to trial before the Honorable Ruth Pickholz of New York State Supreme Court, New York County and a jury.
Almanzar was indicted on charges of first-degree manslaughter and first-degree gang assault. Nunez Gonzalez was not indicted.
B. The Trial
1. The Prosecution Case
The prosecution offered testimony from 17 witnesses, including several police officers, medical experts, staff, and patrons of the restaurant. Surveillance cameras inside and outside the restaurant captured the incident, and this video evidence was presented as well. The pertinent testimony is summarized below.
a. The Incident at La Casa del Mofongo
Testimony about the events that occurred the morning of October 27, 2009 came from several witnesses in the restaurant: host Jose Peguero, patron Joelissa Garcia, patron Manuel Corporan, waiter Joaquin Gonzalez, and bouncer Danilo Gonzalez. At some point in the early morning, a line formed outside a bathroom. TR. at 617-18. When Peguero went to the door and knocked, Almanzar opened the door. Id. at 619-20. Noticing multiple people in the bathroom, Peguero notified Epouta. Id. at 619. When Epouta knocked on the door, Gonzalez-Alvarez and his companions exited the bathroom. Id.
A little while later, as part of karaoke night, the restaurant held a dance competition. Id. at 318. One of Garcia's friends participated in the competition; when her friend went on the stage, “she removed her blouse,” “pulled her pants down almost completely,” and began to dance. Id. at 321. Gonzalez-Alvarez “especially” became “very excited” and attempted to “touch her.” Id. at 321. When other women went on stage as well, he became “more crazy.” Id. at 322.
Eventually, the karaoke night host called on men to come up to dance. Id. at 323. Gonzalez-Alvarez ascended the stage and said that he “wanted the competition of women to continue.” Id. The karaoke night host then called “security to pull him down.” Id. at 328. When Gonzalez-Alvarez came down, “[he] put his hand in his pocket” and “pull[ed] something out from the pocket” that “looked like [] metal.” Id. at 329.
Epouta and Danilo Gonzalez arrived to diffuse the situation. Id. at 623-24. After Gonzalez told Epouta that he would take care of it, Epouta returned to his station at the side of the entrance door. Id. at 640. As Epouta walked away, Gonzalez-Alvarez remarked, “What do you want?” to him, then conversed with his companions before following Epouta. Id. at 641-42. Epouta was “standing there normally” when Gonzalez-Alvarez threw the first punch. Id. at 579. The two then fought with “closed fists.” Id. at 578-79. After Epouta and Gonzalez-Alvarez started fighting, Almanzar “and then more [people joined in].” Id. at 692.
At the time of the fight, several police officers were in the vicinity for a routine patrol. Id. at 22, 201-03. Officer Gustavo Rosado saw Epouta “coming out of the establishment . . . holding his stomach.” Id. at 24. Officer Rosado attempted to provide Epouta medical assistance and called for an ambulance. Id. at 28. Patrons of the restaurant alerted other officers toward where Gonzalez-Alvarez, Almanzar, and Nunez Gonzalez were attempting to exit the scene in a taxi cab. Id. at 207-09. The officers arrested them and put them in the back of a police van. Id. at 32-33. Officer Rosado noticed that Gonzalez-Alvarez moved “aggressively” toward the other two, and relocated him to another police vehicle. Id. All three men were taken to the 34th Precinct. Id. at 248-49.
Inside the restaurant, waiter Joaquin Gonzalez found a folding knife on the ground and put it in the kitchen. Id. at 512-14. Detectives later found the knife under a refrigerator and confiscated it as evidence. Id. at 725-26.
b. Expert Testimony
Four experts testified at the trial. Paramedic Frank Dominguez, who treated Epouta at the scene and in the ambulance, testified that the stab wounds on Epouta's body were in “all the vital areas,” including the center of the chest, the lower back, the abdomen, and the thigh. Id. at 113-15. Criminalist Yu-Ming Zhang testified that she could conclude, with “a reasonable degree of scientific certainty,” that the DNA profile from two stains on Gonzalez-Alvarez's sweatshirt and jeans belonged to Epouta. Id. at 783. Criminalist Diana Ho testified that the knife found by Joaquin Gonzalez contained skin cells from Epouta and at least one other person who could not be identified. Id. at 815-16, 819. And finally medical examiner Dr. Rachel Lange testified that Epouta's wounds were consistent with sharp-force injuries caused by a sharp-edged object. Id. at 855. She testified that the stab wounds were made from left to right and slightly upwards. Id. at 860. The wounds had irregularities similar to those made by the “twisting of a knife within the wound.” Id. at 861. Dr. Lange testified that the wound in the right ventricle of Epouta's heart caused his death. Id. at 888. She opined that the chest wound would have been caused by “significant force” as it went “through cartilage.” Id. at 889.
c. The Prosecutor's Summation
During summation, the prosecutor used video surveillance footage to walk the jury through the events of early that morning. Id. at 963. He showed the jury an image of Gonzalez-Alvarez reaching into his pants pocket and pulling out an object that is “round at one edge and [] tapers up at the other edge,” which he stated was a knife. Id. at 967. He presented the jury with a video of Gonzalez-Alvarez “reach[ing] into his pocket and tak[ing] out an object,” “opening the blade” with his left hand, and “put[ting] it in his hand . . . so he can't be seen.” Id. at 969. The prosecutor offered photos of the fight that purported to show Gonzalez-Alvarez “stabbing Mr. Epouta in the heart,” because his hand was in "the right position” and “the right angle.” Id. at 972. He reminded the jury that “the knife went into an upward trajectory.” Id. Using the video surveillance footage, he argued: “You [can] see him stab him. He stabs him in the heart, stabbing him in the back.” Id. at 974. The prosecutor also demonstrated that Almanzar could not have been involved in the fight because he had his cellphone in his hand, and dealt “a downward punch” to Epouta. Id. at 982-83. He added: “If . . . you just intended to make them have stitches, you're not going to be using this knife and you're also not going to be plunging this knife so deep into the person's body . . .” Id. at 995.
2. The Defense Case
a. Challenges to Witnesses
Gonzalez-Alvarez did not introduce any evidence or call any witnesses after the prosecution rested. Rather, the strategy of Gonzalez-Alvarez's trial counsel, David Segal, was to challenge the prosecution's evidence and argue that the prosecution failed to prove Gonzalez-Alvarez's guilt beyond a reasonable doubt.
Gonzalez-Alvarez's trial counsel extensively cross-examined the witnesses. In questioning Garcia, counsel highlighted that she had several drinks before the fight happened, and that she would have had difficulty seeing the incident on the stage because the restaurant was dimly lit and because of her short stature. Id. at 367-72, 386-88. Counsel also highlighted that, when pressed, Garcia could not remember if she saw metal in Gonzalez-Alvarez's hand, and insinuated that the prosecutor had misled her into thinking she saw something metal. Id. at 401-02. Counsel also repeatedly probed whether any of these witnesses saw anything in Gonzalez-Alvarez's hands or were even close enough to actually witness the fight. Id. at 606, 692-93.
b. Defense Counsel's Summation
In his summation, defense counsel argued: “The theory in the beginning of this case, mind you, in the beginning is that Jonathan Gonzales-Alvarez did it. Now [the prosecutor has] changed it up because he sees . . . that he can't prove that, that Jonathan Gonzales-Alvarez even had a knife. So what's he do now? He's going to come to you in his summation and say, Jonathan Gonzales-Alvarez acted together with Mr. Almanzar.” Id. at 948. He then proceeded to describe each eyewitness's testimony and to point out issues with their credibility. Id. at 949-54. He reminded the jury that no blood was found on the knife, and that though the criminalist found skin cells from Epouta and one other person on the knife, she could not determine the identity of the second person. Id. at 956. He also described how Almanzar “rush[ed] over like a wild man and pound[ed] into the chest of Mr. Epouta.” Id. at 959. Counsel concluded that the prosecution had only “proved there was a fight,” but not that Gonzalez-Alvarez was “the one who killed Mr. Epouta.” Id. at 962-63.
c. Arguments over the Jury Charge
During witness testimony, the prosecutor requested an “acting in concert charge” from the court. Id. at 753. Defense counsel objected because the indictment did not charge Gonzalez-Alvarez with acting in concert. Id. Initially, Justice Pickholz reserved decision (id. at 754, 758), but ultimately concluded that she would charge “acting in concert,” and provided a copy of her proposed charge to counsel. Id. at 922-23. After the prosecution's last witness testified, Justice Pickholz reiterated that she would be giving an acting in concert charge. Id. at 942. At that point, defense counsel moved to dismiss on the ground that the prosecution had not offered evidence that Gonzalez-Alvarez had the state of mind of acting in concert. Id. at 943. Justice Pickholz denied the motion. Id.
After the prosecution's summation, defense counsel moved for a mistrial because the prosecutor had not addressed acting in concert. Id. at 999. Defense counsel argued that the prosecutor knew there was no reasonable evidence and “forc[ed] [defense counsel] in summation” to talk about Almanzar, when the prosecutor was not planning on doing so. Id. Defense counsel claimed it was “disingenuous” and constituted “prosecutorial misconduct.” Id. at 1000-01. Justice Pickholz disagreed, finding that it was not cause for a mistrial. Id. at 1001. Defense counsel then asked the court to charge several lesser included offenses. Id. at 1003. Justice Pickholz agreed to charge manslaughter in the first degree and assault in the second degree. Id. at 1011.
However, in the end, Justice Pickholz reversed course and decided to charge neither acting in concert nor any lesser included offenses. She charged only murder in the second degree and gang assault in the first degree. Id. at 1015, 1026-27. After defense counsel objected, Justice Pickholz opined: “I don't think it is prejudice to your client at all by me not charging acting in concert. In fact, acting in concert would give the jury more latitude in finding your client guilty.” Id. at 1016. She concluded that defense counsel was not prejudiced in his summation because “there [was] no way that [he] would have summed up any other way.” Id.
3. Verdict and Sentencing
On January 26, 2012, the jury convicted Gonzalez-Alvarez on both counts. Id. at 1048-49. On February 15, 2012, Justice Pickholz sentenced Gonzalez-Alvarez to an indeterminate prison term of 23 years to life for the murder count, to run concurrently with a prison term of 10 years for the gang assault count, followed by five years of post-release supervision. TS. at 15-16.
C. Post-Conviction Proceedings
1. Direct Appeal
On March 18, 2014, Gonzalez-Alvarez, represented by new counsel, Bruce Austern, appealed his conviction. Gonzalez-Alvarez raised three grounds on appeal: (1) court error when Justice Pickholz reversed her decision to charge the jury with accomplice liability; (2) court error for failure to charge the lesser included offense of manslaughter in the first degree (citing, inter alia, to the Fourteenth Amendment of the U.S. Constitution); and (3) the imposition of an excessive sentence. Petitioner's Brief to the Appellate Division on Direct Appeal (“Brief to App. Div.”) at 2, Dkt. No. 10-1, Ex. B, at 2. On June 30, 2015, the Appellate Division unanimously affirmed Gonzalez-Alvarez's conviction. See People v. Gonzalez-Alvarez, 129 A.D.3d 647 (1st Dep't 2015). In doing so, the Appellate Division ruled:
After summations, the court determined that it would not charge accessorial liability. This was error, because it misled defense counsel as to what the court intended to charge. However, the error was plainly harmless, because there was overwhelming evidence that defendant personally stabbed the victim to death, because defense counsel was not prevented from fully arguing to the jury regarding the key issue of whether defendant himself committed the crime, and because the effect of the court's change of course upon the defense summation was insignificant.Id. at 648.
Gonzalez-Alvarez then applied for leave to appeal to the New York Court of Appeals. See Petitioner's Leave Application to the Court of Appeals, Dkt. No. 10-1, Ex. E. On April 12, 2016, the Court of Appeals denied his application. See People v. Gonzalez-Alvarez, 27 N.Y.3d 997 (2016).
2. Petition for Writ of Error Coram Nobis
On March 30, 2017, Gonzalez-Alvarez, proceeding Pro se, filed a petition for Writ of Error Coram Nobis with the Appellate Division, arguing that he was deprived of his right to effective assistance of appellate counsel. See Petitioner's Petition to the Appellate Division for a Writ of Error Coram Nobis (“Coram Nobis Petition”), Dkt. No. 10-1, Ex. H. Gonzalez-Alvarez contended that appellate counsel was ineffective because he raised arguments “which had no merit or possible chance of success.” Id. at 3-4. Gonzalez-Alvarez asserted that appellate counsel should have argued that the verdict was “against the weight of evidence” or that the “evidence was insufficient to support elements of murder in the second degree.” Id. at 4. On July 25, 2017, the Appellate Division denied Gonzalez-Alvarez's Coram Nobis petition. See Order of the Appellate Division Denying Coram Nobis Petition (“Coram Nobis Denial”), Dkt. No. 10-1, Ex. K.
On August 27, 2017, Gonzalez-Alvarez applied for leave to appeal to the Court of Appeals. See Petitioner's Leave Application to the Court of Appeals from Denial of Coram Nobis Petition (“Coram Nobis Leave”), Dkt. No. 10-1, Ex. L. By order dated October 26, 2017, the Court of Appeals denied Gonzalez-Alvarez's application. See Decision of the Court of Appeals Denying Leave to Appeal from Denial of Coram Nobis Petition, Dkt. No. 10-1, Ex. M.
3. The Instant Habeas Petition
On November 18, 2017, Gonzalez-Alvarez, proceeding Pro se, filed a timely petition in this Court seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 2 (“Habeas Petition”). Gonzalez-Alvarez raises three claims in his petition. First, he contends that he was deprived of his constitutional right to effective assistance of appellate counsel because his counsel failed to advance two meritorious arguments on appeal, and instead raised two arguments that were weaker and without merit. Id. Second, he argues that he was deprived of his constitutional right to due process because the trial court refused to charge the jury with the lesser included offense of manslaughter in the first degree. Id. at 4-5.
The applicable statute of limitations sets a one-year time period for filing a federal habeas corpus petition. The one-year period begins to run from the date the conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). If the petitioner sought direct appeal in the state court, the conviction becomes final 90 days after the Court of Appeals denied leave to appeal (when time to seek direct review in the United States Supreme Court by writ of certiorari expires). See Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001). However, time is tolled if the petitioner commences a state collateral proceeding such as a Writ of Coram Nobis and includes all appeals until further appellate review is no longer available. Carey v. Saffold, 536 U.S. 214, 220 (2002). Gonzalez-Alvarez's leave application to the Court of Appeals was denied on April 12, 2016. His conviction thus became final on July 12, 2016. He commenced his Coram Nobis proceeding on March 30, 2017, at which point tolling began. His application to appeal the denial of his Coram Nobis petition to the Court of Appeals was denied on October 26, 2017, at which point tolling ended. Accounting for the approximately eight-and-a-half months of untolled time, the one-year time period would thus have ended in early 2018. Gonzalez-Alvarez filed his habeas petition on November 18, 2017. Although the petition was not actually filed with the Court until December 12, 2017, under the “Prison Mailbox Rule,” a petition is considered to be “filed” by a Pro se prisoner on the date it is given to a prison official for mailing. Houston v. Lack, 487 U.S. 266, 276 (1988). Gonzalez-Alvarez's petition does not state the date on which it was given to prison officials for mailing, but it was signed on November 18, 2017. Habeas Petition at 26. I therefore infer that Gonzalez-Alvarez gave his petition to prison officials on that day as well. See, e.g., United States v. Sierra-Naranjo, No. 78-CR-046 (JPO), 2019 WL 1785417, at *1 (S.D.N.Y. Apr. 24, 2019) (“[I]n the absence of contrary evidence, district courts in this circuit have tended to assume that prisoners' papers were given to prison officials on the date of their signing.”) (quoting Hardy v. Conway, 162 Fed.Appx. 61, 62 (2d Cir. 2006)). Accordingly, less than one year elapsed from the date Gonzalez-Alvarez's conviction became final, and Gonzalez-Alvarez's petition is timely (nor does respondent contend otherwise).
Third, he maintains that he is actually innocent. Id. at 7.
On April 20, 2018, respondent filed his opposition papers. Dkt. No. 11 (“Habeas Opposition”). On June 7, 2018, Gonzalez-Alvarez filed a reply in further support of his petition. Dkt. No. 15 (“Habeas Reply”). By order of reference dated July 2, 2018, this matter was referred to me for a report and recommendation. Dkt. No. 16.
When he filed this petition, Gonzalez-Alvarez was being held at Wende Correctional Facility and thus correctly named its superintendent Stewart Eckert as the respondent. See 28 U.S.C. § 2243 (“The writ . . . shall be directed to the person having custody of the person detained.”). On September 10, 2018, Gonzalez-Alvarez was transferred to Elmira Correctional Facility. See Dkt. No. 18. Accordingly, the Superintendent of Elmira Correctional Facility should be substituted as respondent pursuant to Rule 25(c) of the Federal Rules of Civil Procedure. See e.g., Sanchez v. Supertntendent [sic], Five Points Corr. Facility, 16-CV-0428 (KMK) (PED), 2018 WL 3040361, at n.1 (S.D.N.Y. May 23, 2018), adopted by, 2018 WL 3038495 (S.D.N.Y. June 18, 2018).
II. DISCUSSION
A. Legal Standards for Habeas Corpus Relief Under Section 2254
1. The Exhaustion Doctrine
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. See 28 U.S.C. § 2254(b)(1) (“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-(A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.”); § 2254(c) (“An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.”); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.”). The exhaustion requirement is grounded in principles of comity and federalism. O'Sullivan, 526 U.S. at 844 (“Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief.”) (citations omitted).
Exhaustion “requires that the prisoner ‘fairly present' his constitutional claim to the state courts, which he accomplishes ‘by presenting the essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it.'” Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) (quoting Rosa v. McCray, 396 F.3d 210, 217 (2d Cir. 2005)). “While ‘a state prisoner is not required to cite chapter and verse of the Constitution in order to satisfy this requirement,' he must tender his claim ‘in terms that are likely to alert the state courts to the claim's federal nature.'” Jackson, 763 F.3d at 133 (quoting Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011)). A petitioner may sufficiently alert the state court to the nature of his constitutional claim by citing to a specific constitutional provision. See, e.g., Quinones v. Ercole, 310 Fed. App'x 434, 436 (2d Cir. 2009). However, a petitioner may not merely “make a general appeal to a constitutional guarantee as broad as due process to present the ‘substance' of such a claim to a state court.” Gray v. Netherland, 518 U.S. 152, 163 (1996) (holding that a general appeal to a “broad federal due process right” was insufficient to meet the exhaustion requirement without a “more particular analysis” of the specific claim based on the relevant constitutional case law); see also Smith v. Duncan, 411 F.3d 340, 349 (2d Cir. 2005) (“The greatest difficulty arises when in the state court the petitioner has described his claim in very broad terms, such as denial of a ‘fair trial.'”) (quoting Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 193 (2d Cir. 1982)).
In Daye, the Second Circuit provided a four-prong test to determine whether a petitioner fairly presented the constitutional nature of his claim in state court: “(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.” 696 F.2d at 194.
2. Procedural Bar to Claims Deemed Unexhausted
“When a petitioner can no longer ‘present his unexhausted claim of trial error to the state courts,'” a federal court sitting in habeas review “deem[s] the claim procedurally barred.'” Richardson v. Superintendent of Mid-Orange Corr. Facility, 621 F.3d 196, 201 (2d Cir. 2010) (quoting Acosta v. Artuz, 575 F.3d 177, 188 (2d Cir. 2009)); Reyes v. Keane, 118 F.3d 136, 140 (2d Cir. 1997) (“[A] claim is procedurally defaulted for the purposes of federal habeas review where ‘the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'”) (quoting Coleman v. Thompson, 501 U.S. 722, 735 (1991)).
The merits of a procedurally defaulted claim may not be reviewed by a federal court “unless the prisoner can demonstrate . . . that failure to consider the claim[] will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 495-96 (1986). A fundamental miscarriage of justice is “an extraordinary case where a constitutional violation has probably resulted in the conviction of one who is actually innocent[.]” Murray, 477 U.S. at 496. “‘[A]ctual innocence' means factual innocence, not mere legal insufficiency.” Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998) (other internal quotation marks omitted)); see also Sawyer v. Whitley, 505 U.S. 333, 339 (1992).
“Federal law as of yet does not recognize freestanding actual innocence claims.” Bryant v. Thomas, 725 Fed.Appx. 72, 73 (2d Cir. 2018); see also McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). An actual innocence claim is thus “not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Rivas v. Fischer, 687 F.3d 514, 540 (2d Cir. 2012) (quoting Schlup v. Delo, 513 U.S. 298, 315 (1995)). “In other words, a credible showing of actual innocence may allow a prisoner to pursue his constitutional claims (here, ineffective assistance of counsel) on the merits notwithstanding the existence of a procedural bar to relief.” McQuiggin, 569 U.S. at 392.
“Prisoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'” House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup, 513 U.S. at 327). “‘[T]o be credible' a gateway claim requires ‘new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial. . .'” House, 547 U.S. at 537 (quoting Schlup, 513 U.S. at 324); see also Bryant, 725 Fed.Appx. at 73; Rivas, 687 F.3d at 541.
3. Standard of Review Under AEDPA
The AEDPA “imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Jones v. Murphy, 694 F.3d 225, 234 (2d Cir. 2012) (quoting Hardy v. Cross, 565 U.S. 65, 66 (2011)). Under the AEDPA, federal courts may only grant a habeas petition if the challenged state court decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” at the time of the state court decision or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).
Under the first prong, the “Supreme Court has instructed that section 2254(d)(1)'s ‘contrary to' and ‘unreasonable application of' clauses have independent meaning.” Carmichael v. Chappius, 848 F.3d 536, 544 (2d Cir. 2017) (citing Williams v. Taylor, 529 U.S. 362, 404-05 (2000)). “A state court decision is ‘contrary to . . . clearly established Federal law, as determined by the Supreme Court' when ‘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.'” Id. at 544 (quoting Williams, 529 U.S. at 412-13); see also Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (circuit precedent, even if “merely reflect[ing]” Supreme Court precedent, does not constitute “clearly established federal law” for purposes of § 2254(d)(1)).
A state court makes an unreasonable application of federal law if it “correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case.” White v. Woodall, 572 U.S. 415, 426 (2014). Such application of federal law must be “‘objectively unreasonable,' not merely wrong; even ‘clear error' will not suffice.” Id. at 419 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). “The state court decision must be ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016) (quoting White, 572 U.S. at 420). The standard “is difficult to meet,” and it was intended to be. Metrish v. Lancaster, 569 U.S. 351, 357-58 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)).
Under the second prong, a state court's determination of fact “may not [be] characterize[d] . . . as unreasonable ‘merely because [a reviewing court] would have reached a different conclusion in the first instance.'” Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). Instead, § 2254(d)(2) requires a reviewing court to “accord the state trial court substantial deference. If ‘[r]easonable minds reviewing the record might disagree' about the finding in question, ‘on habeas review that does not suffice to supersede the trial court's . . . determination.'” Id.
4. Pro Se Status
A petitioner bears the burden to establish, by a preponderance of the evidence, that his constitutional rights have been violated. See, e.g., Cardoza v. Rock, 731 F.3d 169, 178 (2d Cir. 2013). However, the submissions of a pro se petitioner are held to less stringent standards than formal pleadings drafted by lawyers. See, e.g., Davis v. Walsh, 08-CV-4659 (PKC), 2015 WL 1809048, at *1 n.1 (E.D.N.Y. Apr. 21, 2015) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Courts must liberally construe a “Pro se petition ‘to raise the strongest arguments' it suggests.” Id. (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 472 (2d Cir. 2006)). Pro se status, however, “does not exempt a party from compliance with relevant rules of procedural and substantive law.” Triestman, 470 F.3d at 477 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
B. Analysis
1. Ineffective Assistance of Counsel
Gonzalez-Alvarez's first claim is that he was deprived of his constitutional right to effective assistance of appellate counsel on direct appeal, because counsel failed to advance the following arguments: (1) the evidence was legally insufficient; and (2) the verdict was against the weight of evidence. He contends that appellate counsel instead advanced two weaker arguments: (1) Gonzalez-Alvarez was prejudiced by the court's failure to instruct the jury on accomplice liability after announcing that it would; and (2) his sentence was excessive. Habeas Petition at 4, 19-20.
Gonzalez-Alvarez's “ineffective assistance of appellate counsel” claim is deemed exhausted, not procedurally barred, but without merit.
a. Gonzalez-Alvarez's Ineffective Assistance of Appellate Counsel Claim is Deemed Exhausted and Not Procedurally Barred
The ineffective assistance claim is exhausted and not procedurally barred because Gonzalez-Alvarez presented it at every relevant level in state court and the claim was denied on its merits rather than because of a state procedural rule. Gonzalez-Alvarez raised an ineffective assistance of appellate counsel claim in his Coram Nobis petition and in his leave application to the Court of Appeals. Coram Nobis Petition at 1; Coram Nobis Leave at 5-6. His claim of ineffective assistance of counsel is thus exhausted, and it is not subject to any state procedural bars (nor does respondent contend otherwise). Therefore, the merits of the ineffective assistance of counsel claim should be analyzed under the AEDPA standard of review.
The Appellate Division “upon due deliberation” denied the petition. This denial constitutes an adjudication “on the merits” for purposes of 28 U.S.C. § 2254. See Johnson v. Williams, 568 U.S. 289, 301 (2013) (“When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits.”). see also Jimenez v. Walker, 458 F.3d 130, 146 (2d Cir. 2006) (decision deemed adjudicated on merits because “no plain statement to the contrary”).
b. Gonzalez-Alvarez's Ineffective Assistance Claim Is Without Merit
To prevail on a claim of ineffective assistance of counsel, Gonzalez-Alvarez must satisfy the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). To do so, he must “(1) show that his counsel's representation ‘fell below an objective standard of reasonableness' and (2) ‘affirmatively prove prejudice.'” United States v. Rosa, 666 Fed.Appx. 42, 44 (2d Cir. 2016) (quoting Strickland, 466 U.S. at 687-88).
Under Strickland's first prong, the reviewing court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. In evaluating counsel's effectiveness, courts must assess the case from the viewpoint of the attorney at the time of the challenged conduct or omission. See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 371-72 (1993). Rather than strictly scrutinizing an attorney's every decision, courts must focus on whether counsel's behavior was so unreasonable as to represent a “breakdown in the adversarial process that our system counts on to produce just results.” Strickland, 466 U.S. at 696. “[T]he record must demonstrate that ‘counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (quoting Strickland, 466 U.S. at 687). “[I]t is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made.” Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000) (quoting Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)) (citing Jones v. Barnes, 463 U.S. 745, 754 (1983)); see also Chrysler v. Guiney, 806 F.3d 104, 118 (2d Cir. 2015).
If a court finds that counsel was deficient, under Strickland's second prong, the petitioner then must establish that he was prejudiced as a result. Strickland, 466 U.S. at 692. To establish prejudice, he “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. Finally, “there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697.
In the context of the AEDPA, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard.” Harrington v. Richter, 562 U.S. 86, 101 (2011). Given that the “standards created by Strickland and § 2254(d) are both highly deferential, . . . when the two apply in tandem, review is doubly so.” Id. at 105 (quotation marks omitted).
i. Appellate counsel's representation was not unreasonable
On direct appeal, appellate counsel first argued that Justice Pickholz erred when she instructed trial counsel that she would charge accomplice liability and then did not do so, and thus Gonzalez-Alvarez was denied effective assistance of trial counsel in summation, the right to present a persuasive and relevant summation, and due process of law. Brief to App. Div. at 13. In his habeas petition, Gonzalez-Alvarez claims that “the court's post-summation decision not to charge accomplice liability was actually beneficial to the defense.... It was thus no surprise that the appellate court later reached the same conclusion and rejected the claim.” Habeas Petition at 20. However, Gonzalez-Alvarez misunderstands appellate counsel's argument and misstates the Appellate Division's decision. Appellate counsel's argument was not that the trial judge should have charged accomplice liability, but that the judge “pulled the rug out from under the defense” when she changed her mind about whether to charge accomplice liability. Brief to App. Div. at 14. Appellate counsel explicitly argued that “[t]he issue on this appeal is not whether accomplice liability was appropriate here . . . a court must decide the jury instructions prior to summations, and any later change must be minor or with the consent of the defense.” Id. at 24. Because Gonzalez-Alvarez's trial counsel spent time rebutting an accomplice liability charge that was ultimately not presented to the jury, they were “left completely unable to rely on the defense summation.” Id. at 14. Appellate counsel cited to several cases attempting to support his argument that the court's ruling “denied the appellant the opportunity to argue in summation and encouraged the jury's verdict of guilt,” which should result in a reversal of the charges. Id. at 14-17. Notably, the Appellate Division found this argument to be persuasive, ruling that “[t]his [the change of plan] was error, because it misled defense counsel as to what the court intended to charge.” People v. Gonzalez-Alvarez, 129 A.D.3d at 648. Yet the Appellate Division ultimately found the error was “plainly harmless, because there was overwhelming evidence that defendant personally stabbed the victim to death” and the effect of the change “was insignificant.” Id.
On direct appeal, appellate counsel further argued that Gonzalez-Alvarez's sentence was excessive. Gonzalez-Alvarez contends that this argument was meritless and “counsel failed to advance any extraordinary circumstances that would have even warr[a]nted a lesser sentence . . .” Habeas Petition at 20. However, appellate counsel argued persuasively that Gonzalez-Alvarez had no criminal history and asked the Court to use its “discretion in the interest of justice,” to reduce the sentence, citing to multiple relevant cases. Brief to App. Div. at 3235. Appellate counsel's decision to pursue these arguments was not objectively unreasonable, and Gonzalez-Alvarez's claim fails under the first prong of Strickland.
Moreover, despite his criticism of appellate counsel, Gonzalez-Alvarez relies heavily on appellate counsel's arguments and employs similar language and structure in his Pro se petition. Compare Brief to App. Div. at 25-32, with Habeas Petition at 21-25.
ii. Gonzalez-Alvarez was not prejudiced
Gonzalez-Alvarez further argues that if appellate counsel had advanced other claims instead, “a reasonable probability existed that the appellate court may not have been convinced that the jury was justified in their finding of Petitioner's guilt of murder beyond a reasonable doubt.” Habeas Petition at 19. Gonzalez-Alvarez contends that appellate counsel should have presented two other arguments: (1) the evidence was legally insufficient; and (2) the verdict was against the weight of evidence. Id. at 4, 19-20. To succeed on an insufficiency of evidence claim, defendants must demonstrate there is not a “valid line of reasoning and permissible inferences that could lead a rational person to conclude that every element of the charged crime has been proven beyond a reasonable doubt.” People v. Lamont, 25 N.Y.3d 315, 318 (2015) (quoting People v. Delamota, 18 N.Y.3d 107, 113 (2011)) (internal citations omitted). For a weight of the evidence claim, New York courts must “acquit a defendant if the court is not convinced that the jury was justified in finding that guilt was proven beyond a reasonable doubt.” People v. Delamota, 18 N.Y.3d at 116-17.
Respondent's brief misstates the weight of evidence standard. See Habeas Opposition at 24. The Court of Appeals has recently reiterated that the standard advanced by respondent is no longer governing law. See People v. Sanchez, 32 N.Y.3d 1021, 1023 (2018).
Even if appellate counsel had made either insufficiency of evidence or weight of the evidence arguments on direct appeal, the result would not have been different. In his brief, appellate counsel did raise evidentiary concerns, although not under the specific heading of “sufficiency of the evidence” or “against the weight of evidence.” Gonzalez-Alvarez in his petition contends the evidence in the case was “circumstantial.... no one actually [saw] the petitioner stab Epouta. No weapon was found on the Petitioner and no one had seen the Petitioner with a weapon.... [A]t least one other person (Almanzar) had [the] opportunity to stab Epouta....” Habeas Petition at 16. On direct appeal, appellate counsel made similar points, arguing that “[n]o one saw appellant with a knife, [the] videotape . . . did not show a knife or stabbing,” “[n]o one testified that appellant had a knife, . . . no one testified that appellant stabbed Epouta,” “no defendant or codefendant was found to have DNA on the knife,” and “the stab wound . . . was consistent with a stabbing in the video from . . . Luis Almanzar.” Brief to App. Div. 3, 6-8. Even though appellate counsel did not label these arguments as “insufficiency of evidence” and “weight of the evidence” claims, he presented the purported lack of evidence to the Appellate Division.
The Appellate Division also addressed the evidentiary concerns raised by appellate counsel on direct appeal (and now by Gonzalez-Alvarez in his habeas petition), finding that “there was overwhelming evidence that defendant personally stabbed the victim to death. . .” People v. Gonzalez-Alvarez, 129 A.D.3d at 647-48 (emphasis added). Thus, Gonzalez-Alvarez has not affirmatively proved prejudice under the second prong of Strickland, and his ineffective assistance of appellate counsel claim is without merit.
2. Due Process Violation for Failure to Charge Lesser Included Offense of Manslaughter
Gonzalez-Alvarez's second claim is that he was deprived of his constitutional right to due process because the trial court refused to charge the lesser-included offense of manslaughter “despite a reasonable view of the evidence that petitioner had fought with victim but did not intend to kill him. U.S. Const. Amend. XIV.” Habeas Petition at 21. Gonzalez-Alvarez's second claim is deemed exhausted and not procedurally barred, but not a cognizable habeas claim.
a. Gonzalez-Alvarez's Lesser-Included Offense Claim is Deemed Exhausted and Not Procedurally Barred
Respondent argues that Gonzalez-Alvarez's lesser-included offense claim is unexhausted because he “never raised it as a constitutional issue in state court.” Habeas Opposition at 26. Respondent contends that Gonzalez-Alvarez never argued the federal constitutional violation at trial, and his brief to the Appellate Division “referred only fleetingly to the Fourteenth Amendment, with a bare citation in a point heading.” Id. at 27.
Respondent's arguments understate Gonzalez-Alvarez's characterization of this claim in federal constitutional terms. In his direct appeal to the Appellate Division, the brief not only refers to the Fourteenth Amendment in the very heading of an argument, but also states within the body of the argument: “Accordingly, this Court should reverse the conviction and order a new trial based on this violation of appellant's rights to due process and a fair trial. U.S. Const. Amend. XIV; N.Y. Const. Art. I, § 6.” Brief to App. Div. at 25-26. A petitioner may sufficiently alert the state court to the nature of his constitutional claim by citing to a specific constitutional provision. See, e.g., Quinones, 310 Fed. App'x at 436.
Furthermore, Gonzalez-Alvarez directly cites to “federal cases employing constitutional analysis,” which is one of the factors set forth by the Second Circuit to determine whether a defendant “fairly present[ed]” the constitutional nature of his claim to state court. Daye, 696 F.2d at 194. In his brief to the Appellate Division, Gonzalez-Alvarez cites to two U.S. Supreme Court decisions. Brief to App. Div. at 26-27 (citing Hopper v. Evans, 456 U.S. 605, 611 (1982); Beck v. Alabama, 447 U.S. 625, 637-38 (1980)). Both cases address the constitutionality of a court's decision not to present lesser-included offenses in murder cases to a jury. The brief also employs a similar line of reasoning to the one used by the Supreme Court in Beck regarding the fairness of not charging a lesser-included offense: “It was unfair for the jurors to be able to avoid the difficult decision as to intent by not being instructed about manslaughter. Instead, they were forced to choose to find guilt of murder or not, which may have been a troubling finding if they thought appellant had participated in a fight which had resulted in death.” Id. at 30; see Beck, 447 U.S. at 634 (“Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.”) (emphasis in original). Gonzalez-Alvarez thus adequately presented the constitutional nature of his claims to the Appellate Division, and his claim is exhausted.
Respondent further argues that Gonzalez-Alvarez's leave application to the Court of Appeals only referred to the lesser-included offense claim “perfunctorily” by stating that the claim was fully discussed in his brief to the Appellate Division. Respondent maintains that Gonzalez-Alvarez thus “never presented the claim regarding the manslaughter charge as a matter of constitutional due process [to the Court of Appeals].” Habeas Opposition at 27-28. Respondent contends that Gonzalez-Alvarez is therefore procedurally barred from bringing this claim in his habeas petition, because “it is too late for petitioner to raise this federal constitutional claim before state courts.” Id. at 28.
The Second Circuit has observed that the factual basis for any claim must be presented at all relevant state courts-“both the Appellate Division and the Court of Appeals.” Ramirez v. Attorney Gen. of State of New York, 280 F.3d 87, 96 (2d Cir. 2001). But the Second Circuit has also found that a letter application can “sufficiently incorporate[] by reference the pertinent portions of the Appellate Division brief.” Id.; see also Morgan v. Bennett, 204 F.3d 360, 371 (2d Cir. 2000) (petitioner's request that court consider all issues in brief to Appellate Division sufficiently specific to alert Court of Appeals of constitutional claim). Gonzalez-Alvarez's reference in his leave application to the appropriate section in his direct appeal adequately alerted the Court of Appeals to the constitutional due process claim. His lesser-included offense claim is thus not procedurally barred.
b. Refusal to Submit a Lesser-Included Charge in a Non Capital Case is Not a Cognizable Habeas Claim
Under 28 U.S.C. § 2254(d)(1), Gonzalez-Alvarez must show that the state court's interpretation of a constitutional issue was either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” If the Supreme Court, however, has not expressly decided a constitutional issue, lower courts are barred “from announcing new rules of constitutional interpretation in habeas corpus cases.” Rasmussen v. Kupec, 54 Fed.Appx. 518, 519 (2d Cir. 2003) (citing Teague v. Lane, 489 U.S. 288, 315 (1989)). In Beck, the Supreme Court specifically reserved decision on the constitutional question presented here: “[W]e have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process. . .,” and “[w]e need not and do not decide whether the Due Process Clause would require the giving of such instructions in a noncapital case.” 447 U.S. at 638, n.14. The Supreme Court held only that a “sentence of death” may not be constitutionally imposed “when [a] jury was not permitted to consider a verdict of guilt of a lesser included non capital offense.” Id. at 627. The Supreme Court found a “significant constitutional difference between the death penalty and lesser punishments.” Id. at 637.
As the Second Circuit observed in Rasmussen, “[b]oth the Supreme Court and our court have expressly refrained from deciding whether the Constitution requires lesser-included-offense instructions in non-capital cases.” 54 Fed.Appx. at 519 (citing Beck, 447 U.S. at 638, n.14; Jones v. Hoffman, 86 F.3d 46, 48 (2d Cir. 1996)).
Recent decisions have confirmed that Beck and its progeny remain good law. See e.g., Sancho v. Smith, 16-CV-0868 (BMC), 2016 WL 1171592, at *6 (E.D.N.Y. Mar. 24, 2016); Lopez v. Graham, 11-CV-07729 (PAC) (MHD), 2014 WL 2940855, at *7 (S.D.N.Y. June 30, 2014). Accordingly, under these cases, Gonzalez-Alvarez's lesser-included offense argument is not cognizable. The Court will therefore not consider the merits of the claim.
Even if the Court were to consider the merits of this claim, the result would be a denial. The Second Circuit has found that “‘a finding that the petitioner was erroneously deprived of a jury instruction to which he was entitled under state law is the first step in the determination whether that error violated the petitioner's federal due process rights.'” Jackson v. Edwards, 404 F.3d 612, 621 (2d Cir. 2005) (quoting Davis v. Strack, 270 F.3d 111, 124 (2d Cir. 2001)). In this case, the Appellate Division found that the trial “court properly declined to submit manslaughter in the first degree as a lesser included offense.” People v. Gonzalez-Alvarez, 129 A.D.3d at 648. “That finding by a mid-level state appellate court, in application of New York law, commands our presumptive deference.” Lopez, 2014 WL 2940855, at *9 (internal citations omitted). The Court finds no basis to challenge the Appellate Division's interpretation of state law. Gonzalez-Alvarez's lesser-included-offense claim thus has no merit.
3. Actual Innocence
Gonzalez-Alvarez's third claim is that “[he] is actually innocent.” Habeas Petition at 7. He does not discuss or support this argument in his petition or his reply papers. Moreover, Gonzalez-Alvarez did not bring this claim in his direct appeal or in his leave application to the Court of Appeals.
“Federal law as of yet does not recognize freestanding actual innocence claims.” Bryant, 725 Fed.Appx. at 73. A claim of actual innocence can only act as a “gateway” through which a petitioner's other procedurally barred constitutional claims can be heard. Rivas, 687 F.3d at 540. As discussed in previous sections, neither of Gonzalez-Alvarez's other claims are procedurally barred, so his actual innocence claim does not serve to bypass procedural defaults. In any case, Gonzalez-Alvarez did not present “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence- that was not presented at trial.” House, 547 U.S. at 537 (quoting Schlup, 513 U.S. at 324). His claim of actual innocence is thus unavailing.
III. CONCLUSION
For the foregoing reasons, I recommend that Gonzalez-Alvarez's petition for a writ of habeas corpus be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections (plus three days because the Report is being mailed to Petitioner). See Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Andrew L. Carter, Jr. and the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Carter.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010). If Gonzalez-Alvarez does not have access to cases cited herein that are reported on LexisNexis or Westlaw, he should request copies from counsel for the Respondent. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009); Local Civil Rule 7.2, Local Rules of the United States District Courts for the Southern and Eastern Districts of New York. Dated: May 29, 2019
A copy of this Report and Recommendation has been mailed to the following:
Jonathan Gonzalez-Alvarez
DIN No. 12-A-1213
Elmira Correctional Facility
P.O. Box 500
Elmira, NY 14902-0500