Opinion
15 Civ. 2825 (VB)(AEK)
01-12-2021
Marcus Green, Petitioner, v. Letitia James, [1] Respondent.
THE HONORABLE VINCENT L. BRICCETTI, U.S.D.J.
On May 11, 2015, this matter was referred to the Honorable Lisa Margaret Smith, U.S.M.J., by the Honorable Vincent L. Briccetti. ECF No. 6. On October 15, 2020, this matter was reassigned to the undersigned.
REPORT AND RECOMMENDATION
Andrew E. Krause United States Judge
Currently before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by prose Petitioner Marcus Green ("Petitioner"), challenging his judgment of conviction for the crimes of burglary in the first degree, rape in the first degree, unlawful imprisonment in the first degree, and menacing in the second degree. ECF No. 1 ("Petition") ¶ 5; ECF No. 15 (Respondent's Affidavit in Opposition to the Petition ("Resp. Aff")) at 1. The Petition sets forth three purported grounds for habeas relief: (1) during jury deliberations, the trial court "erred in its response to the jury's request for [a] read-back of [the] 'reasonable doubt charge'"; (2) the trial court "violated [Petitioner's] right to due process where it barred defense counsel and the prosecutor from inquiring about the contents of any jury notes and/or participating in what the response to a jury note should be"; and (3) "trial counsel was ineffective during the pronouncement of the verdict" because counsel did not object to "what was apparently a repugnant/inconsistent verdict with respect to rape in the first degree." Petition ¶ 12. In addition, in response to an order from the Court issued after the Petition was filed, see ECF No. 7, Petitioner informed the Court that he wanted to include in his Petition the following grounds for relief raised by his attorney on direct appeal: (1) the verdict was against the weight of the evidence; (2) the trial court improperly decided Petitioner's N.Y. Crim. Proc. Law § 330.30 motion; (3) the photographic lineup arranged by the New Rochelle Police Department was unduly suggestive; and (4) the trial court improperly admitted into evidence certain text messages allegedly transmitted by Petitioner. ECF Nos. 9, 15-9 (Resp. Ex. E, Petitioner's initial appellate brief).
Citations to "Resp. Ex." refer to exhibits submitted to the Court by Respondent, each of which is part of the state court record from Petitioner's criminal case. See ECF No. 15.
For the reasons that follow, I respectfully recommend that the Petition be denied in its entirety.
BACKGROUND
I. The Crime
The relevant facts regarding the underlying crimes for which Petitioner was convicted are set forth below.
At approximately 4:00 a.m. on February 8, 2009, after a night out, M.S. was dropped off by a taxi outside the parking lot to her mother's apartment building in New Rochelle, New York.
Because Petitioner was convicted of a sex offense, the identity of the victim must remain confidential in accordance with Section 50-b of the New York Civil Rights Law. N.Y. Civ. Rts. Law § 50-b.
Transcript of Petitioner's Criminal Trial ("Tr.") at 95-96, 129, 171, 355-56. As M.S. walked through the parking lot, Petitioner approached her with a gun in his left hand that was pointed at her. Tr. at 176-77. Petitioner grabbed M.S. and pressed the gun into her back with his left hand while wrapping his right arm tightly around her neck. Tr. at 178-80. Petitioner forced M.S. into an area between an abandoned white van and a truck parked next to it. Tr. at 178. As Petitioner shoved M.S., she tried to dial 911 on her cell phone, but Petitioner grabbed the phone. Tr. at 187-88, 383. According to M.S., Petitioner ordered her to perform oral sex on him at gunpoint. Tr. at 181-85. Petitioner eventually ordered M.S. to pull her pants down and turn around, at which point he unsuccessfully attempted anal sex. Tr. at 185-87. Petitioner asked who lived upstairs, and M.S. told him that she lived with her mother, son, and disabled aunt. Tr. at 188.
The transcripts of the pretrial hearings, trial, and sentencing from Petitioner's criminal case have all been filed under seal. See ECF No. 21.
M.S. testified at trial to having given two written statements to the New Rochelle Police Department. Tr. at 366-72. She testified that in the first statement, she did not write that Petitioner tried to anally penetrate her, and that in the second statement, she wrote that Petitioner tried to vaginally penetrate her from behind. Id.
Petitioner ordered M.S. to take him upstairs and followed very close behind her, with his hand remaining on the gun in the front pocket of his hooded pullover sweatshirt, while she led him from the parking lot into the building and up the stairs to her mother's apartment on the second floor. Tr. at 189-92. As soon as they entered the apartment, Petitioner asked where the bathroom was, and he directed M.S. there, following right behind her. Tr. at 193-95. On the way to the bathroom, M.S. saw her son sleeping on his bed in the small room off the living room with his back to M.S. Tr. at 195. Petitioner followed M.S. into the bathroom, where the light was on, and closed and locked the door behind him. Tr. at 195-96.
Petitioner had M.S. take her pants off and lie on the floor of the bathroom while he removed his hat and scarf and placed the gun, within his reach, on the floor near the sink. Tr. 195-99. Petitioner, kneeling in front of M.S., pulled a condom from his sweatshirt pocket, pulled down his pants, and put it on. Tr. at 199, 382. He threw the condom wrapper in the trash can. Tr. at 202. Petitioner inserted his penis into M.S.'s vagina, and during that time, M.S. was able to see Petitioner's face. Tr. at 200-01. Petitioner ejaculated and removed his condom, and as he did so, semen leaked onto the bath mat. Tr. at 201. Petitioner took toilet paper and tried to wipe it away, and he flushed the condom and the piece of toilet paper down the toilet. Tr. at 201-02. Petitioner removed the condom wrapper from the trash can and placed it back in his sweatshirt pocket. Tr. at 202, 323.
Petitioner then got up and walked toward the front door of the apartment. Tr. at 202. M.S. asked Petitioner to give her back her phone, which had her number displayed on the screen, and he did so. Tr. at 202-03, 238-39. M.S. asked Petitioner his name, and although he first replied "Mike," he then said that his name was Marcus. Tr. at 204, 206. Petitioner asked M.S. her name, and she told him her first name. Tr. at 204, 206. Petitioner then left the apartment. Tr. at 206.
Starting in the early morning hours of February 8, 2009, shortly after leaving the apartment, Petitioner began an exchange of text messages with M.S. that continued through February 10. Tr. at 238, 259-60, 263-66; see also Resp. Ex. A. M.S. reported the crime to the New Rochelle Police Department on February 9, and the police told her to continue the text message communications with Petitioner. Tr. at 264, 289-90, 578-79.
On March 1, 2009, Petitioner was arrested by the New Rochelle Police Department. Tr. at 580. During his interview at police headquarters, Petitioner admitted that the cell phone number with which M.S. was exchanging messages between February 8 and February 10, 2009 was Petitioner's number. Tr. at 555-56, 596-97, 605, 677-78. Investigators from the Westchester County District Attorney's Office subsequently obtained DNA swabs from Petitioner, and a forensic biologist at the Westchester County Forensic Laboratory determined that a semen stain on the bath mat recovered from M.S.'s bathroom matched Petitioner's DNA profile. Tr. at 754-58, 763-64, 803-20. Specifically, the combination of DNA alleles in one of the recovered samples would be expected to be found in only approximately 1 in 16.6 sextillion individuals. Tr. at 818.
II. Procedural History
In an indictment filed on May 20, 2009, Petitioner was charged with criminal sex act in the first degree, attempted rape in the first degree, burglary in the first degree, rape in the first degree, unlawful imprisonment in the first degree, and menacing in the second degree. Resp. Aff. at 15-16. On April 23, 2010, Petitioner's criminal trial began. Tr. at 1. On May 5, 2010, the jury rendered its verdict, finding Petitioner guilty of burglary in the first degree, rape in the first degree, unlawful imprisonment in the first degree, and menacing in the second degree. Tr. at 1150-53. Petitioner thereafter filed a motion to set aside the verdict pursuant to N.Y. Crim. Proc. Law § 330.30. Resp. Ex. D. On June 17, 2010, Petitioner appeared in court for sentencing; prior to pronouncing Petitioner's sentence, the trial judge denied Petitioner's § 330.30 motion on the record. Sentencing Transcript ("S. Tr.") at 6-8. The judge then sentenced Petitioner to a term of imprisonment of 20 years, plus 5 years of post-release supervision, on the charge of burglary in the first degree; a term of imprisonment of 20 years, plus 10 years of postrelease supervision, on the charge of rape in the first degree; a term of imprisonment of 2-4 years on the charge of unlawful imprisonment in the first degree; and a term of imprisonment of 1 year on the charge of menacing in the second degree; all sentences were to run concurrently. S. Tr. at 31-32. Petitioner was also assessed a mandatory $300 surcharge as well as various other fees, and a permanent order of protection was issued on behalf of M.S. S. Tr. at 33-35.
Although Respondent states that the indictment charged Petitioner with "criminal sex act in the first degree," the New York Penal Law uses the term "criminal sexual act in the first degree." N.Y. Penal Law § 130.50(1).
The jury found Petitioner not guilty of criminal sexual act in the first degree. Tr. at 1150. Prior to summations, the trial judge dismissed the charge of attempted rape in the first degree, which was based on the alleged conduct that occurred in the parking lot as opposed to in the apartment. Tr. at 946-47.
In March 2012, Petitioner, proceeding through counsel, directly appealed his judgment of conviction. Resp. Ex. E. Petitioner's initial brief on appeal raised four arguments: (1) the verdict was against the weight of the evidence; (2) the trial court improperly decided Petitioner's § 330.30 motion; (3) the photographic lineup arranged by the New Rochelle Police Department was unduly suggestive; and (4) the trial court improperly admitted into evidence certain text messages allegedly transmitted by Petitioner. Id. In addition, Petitioner sought, and was granted, permission to file a pro se supplemental brief on direct appeal, and he did so in October 2012. Resp. Exs. G-H; see Resp. Aff. at 20-21. Petitioner raised four arguments in his pro se supplemental brief: (1) the court "deprived [Petitioner] of a fair trial when it erroneously determined that [the victim's] 'text message,' marked as Exhibit 25A, was not in evidence"; (2) "the court violated [Petitioner's] constitutional right to due process of law when the jury requested that the reasonable doubt charge be read back, and the court inexplicably gave instructions which included the elements of each charge"; (3) the court "violated [Petitioner's] rights to due process of law and a fair trial when it forcefully stated, on the record, its preference not to allow trial counsel or the people to ask or be privy to the contents of any jury notes prior to the jury being present [which] adversely affected the mode of the proceedings"; and (4) "trial counsel's cumulative errors during critical stages of the trial and pronouncement of the verdict constitute deficient performance that prejudiced [Petitioner]." Resp. Ex. H at 18-36. The fourth argument, regarding ineffective assistance of counsel, was based on two alleged deficiencies: first, trial counsel's failure to present an affirmative defense that what the victim believed to be a weapon was in fact only a BB gun that was not readily capable of producing death or serious injury; and second, trial counsel's failure to timely object to the jury's allegedly repugnant verdict. Id. at 30-36. Petitioner included a fifth argument in his pro se supplemental brief that he stated was "as an alternative argument to Point One": in the event that the victim's statements to police and one specific text message were not part of Exhibit 25 A and not marked or deemed as evidence, the appellate court "should determine that there was no strategic reasoning for counsel's failure to object and request this [sic] impeachment facts be placed into evidence." Id. at 36-37.
This was a challenge to the trial judge's ruling, at the conclusion of a pretrial hearing, denying Petitioner's motion to suppress identification evidence based on the photo array. Pretrial Hearing Transcript at 79-82.
The only arguments raised in Petitioner's pro se supplemental brief that also are raised in the Petition as filed herein are the arguments from Point 2, Point 3, and the portion of Point 4 regarding the allegedly repugnant verdict. Petition ¶ 12.
The Appellate Division, Second Department affirmed Petitioner's conviction on June 19, 2013. People v. Green. 107 A.D.3d 915 (2d Dep't 2013); Resp. Ex. K. Petitioner thereafter filed an application for leave to appeal to the New York Court of Appeals. Resp. Ex. L. The New York Court of Appeals denied leave to appeal on January 28, 2014. People v. Green. 22 N.Y.3d 1088 (2014); Resp. Ex. N.
Pursuant to the prison mailbox rule, see Noble v. Kelly. 246 F.3d 93, 97 (2d Cir. 2001) (habeas petition is deemed filed as of the date it was given to prison officials for mailing), Petitioner filed the instant Petition on March 27, 2015. See Petition at 16. Respondent filed opposition papers on November 6, 2015. ECF No. 15. On August 8, 2016, Petitioner filed his reply papers. ECF No. 26.
Petitioner filed a letter dated September 25, 2020, in which he asked the Court what the time frame was for Respondent to file a response. ECF No. 33. If Petitioner meant a response to his reply papers, Respondent is not required to file a response to Petitioner's reply papers, nor has Respondent requested permission to do so.
DISCUSSION
I. Standard of Review
"Habeas review is an extraordinary remedy." Bousley v. United States. 523 U.S. 614, 621 (1998) (citing Reed v. Farley. 512 U.S. 339, 354 (1994)). To be granted a writ of habeas corpus from a federal district court, a petitioner must fully and carefully comply with the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254. If a petitioner has met these threshold requirements, a federal district court may hear "an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court" only if the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The court must then determine the appropriate standard of review applicable to the petitioner's claim(s) in accordance with 28 U.S.C. § 2254(d).
Generally, a state prisoner has one year from the date his or her conviction becomes final to file a habeas petition in federal court. 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The limitations period is tolled while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending . . . ." 28 U.S.C. § 2244(d)(2). The limitations period may also be equitably tolled if a petitioner can show that "extraordinary circumstances prevented him [or her] from filing his [or her] petition on time," and the petitioner "acted with reasonable diligence throughout the period he [or she] seeks to toll." Smith v. McGinnis. 208 F.3d 13, 17 (2d Cir. 2000).
Under AEDPA, all state court remedies must be exhausted before a federal court may consider a state prisoner's petition for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1)(A); see also Jackson v. Conway. 763 F.3d 115, 133 (2d Cir. 2014). In the interests of comity and expeditious federal review, "[s]tates should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." See Coleman v. Thompson, 501 U.S. 722, 731 (1991): see also Dave v. Attorney Gen, of the State of New York. 696 F.2d 186. 190-91 (2d Cir. 1982).
Even where a timely and exhausted habeas claim is raised, comity and federalism demand that a federal court abstain from review when the last-reasoned state court opinion to address the claim relied upon an "adequate and independent finding of a procedural default" to deny it. Harris v. Reed, 489 U.S. 255, 262 (1989); see also Coleman. 501 U.S. at 730; Ylst v. Nunnemaker. 501 U.S. 797, 803 (1991); Levine v. Comm'r of Corr. Servs.. 44 F.3d 121, 126 (2d Cir. 1995). A state court decision is "independent" when it "fairly appears" to rest primarily on state law. Jimenez v. Walker. 458 F.3d 130, 138 (2d Cir. 2006) (citing Coleman. 501 U.S. at 740). A decision is "adequate" if it is '"firmly established and regularly followed' by the state in question." Garcia v. Lewis. 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia. 498 U.S. 411, 423-24(1991)).
Provided a claim meets all procedural requirements, the federal court must apply AEDPA's deferential standard of review when a state court has decided a claim on the merits. Se Torres v. Berbary. 340 F.3d 63, 68 (2d Cir. 2003). Under AEDPA,
[a]n 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 state court decision is "contrary to" clearly established Supreme Court precedent "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.'" Torres. 340 F.3d at 68 (quoting Williams v. Taylor. 529 U.S. 362, 412-13 (2000)). "[A]n 'unreasonable application' of clearly established' Supreme Court precedent occurs when a state court 'identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Id. (quoting Williams. 529 U.S. at 413). While
it is clear that the question is whether the state court's application of clearly established federal law was objectively unreasonable, the precise method for distinguishing objectively unreasonable decisions from merely erroneous ones is less clear. However, it is well-established in [the Second Circuit] that the objectively unreasonable standard of § 2254(d)(1) means that petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief.Id. at 68-69 (internal quotation marks and citations omitted).
Under the second prong of § 2254(d), the factual findings of state courts are presumed to be correct. Nelson v. Walker. 121 F.3d 828, 833 (2d Cir. 1997). The petitioner must rebut this presumption by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
II. Petitioner's Claims for Habeas Relief
A. Read-Back of Reasonable Doubt Charge and Procedure Regarding Jury
Petitioner asserts two grounds for habeas relief based on the trial court's handling of jury notes. First, Petitioner claims that during jury deliberations, the trial court erred in its response to the jury's request for a read-back of the reasonable doubt charge. Petition ¶ 12 (Ground One). During deliberations, the trial judge received a note from the jury which asked, in relevant part, that the court "provide all requirements that prosecution needed to prove beyond a reasonable doubt in order for us to find the Defendant guilty." Tr. at 1088-89. The trial judge read the note to Petitioner and counsel for both sides outside the presence of the jury. Id. With respect to the jury's request, the trial judge stated, "[t]hat's, in my mind, reinstruction on the various counts which I will read to them." Tr. at 1090. Neither defense counsel nor the prosecutor objected to the trial judge's decision to reinstruct the jury on the counts against Petitioner, id, and the trial judge did so, Tr. at 1093-1106. But before beginning the reinstruction, the trial judge stated to the jury, "[m]y assumption is that you wish me to instruct - reinstruct you on each of five counts and I will do that at this time since I can do that." Tr. at 1093. Although Petitioner argued in his pro se supplemental brief on direct appeal that "[t]his was an error, by the court below, since the jury sought to be read back to them the instructions on reasonable doubt," Resp. Ex. H at 23, at no point did the jury inform the court that this response to its request was in any way deficient or inconsistent with the jury's note.
Second, Petitioner claims that the trial judge violated his right to due process because he purportedly barred defense counsel and the prosecutor from inquiring about the contents of any jury notes and/or participating in discussion of what the response to a jury note should be. Petition ¶ 12 (Ground Two). At one point during jury deliberations, and after three notes from the jury had already been received and responded to, the prosecutor asked the trial judge, "[j]ust a policy question in terms of your procedure, when we are both here, if we hear there is a note brought in and assuming [defense counsel] and I are both here, may we ask your staff what the note says?" The trial judge responded:
Well, the short answer to that is I don't really want that to happen. I'm not saying that I won't informally go over the note with you, but procedurally what happens, the note is brought to me, I look at the note and then I tell everybody to assemble the troops. I may discuss with the court reporter what's coming up because if it involves read back, I want her to begin to work on that. I may discuss it with my clerk or I may discuss it with the court officers because there might be something they need to do, but when everybody comes in, I am happy to discuss the note with everybody, but I want everybody here and I prefer there not be what you asked.
Tr. at 1123-24. In every instance in which the jury sent a note to the trial judge with either a question or a request, including those instances which had already occurred prior to the prosecutor raising this procedural question, the judge read the contents of the note to Petitioner and counsel for both sides outside the presence of the jury and then informed everyone of the manner in which he would respond to the note. Tr. at 1088-91, 1110-11, 1115-17, 1126, 1134-35, 1140-44. Petitioner's trial counsel never objected to this procedure at any time during jury deliberations. In his prose supplemental brief on direct appeal, Petitioner argued that the trial judge's procedure for dealing with jury notes violated N.Y. Crim. Proc. Law § 310.30 and constituted a "mode of proceedings" error. Resp. Ex. H at 25-29. However, in making this argument, Petitioner either misconstrued or misrepresented what occurred at trial. The trial judge did not decline to share the contents of jury notes with defense counsel and the prosecution prior to deciding how he would respond to them; he only stated that he did not want the contents of jury notes to be disclosed to defense counsel and the prosecution prior to being disclosed to the trial judge himself.
Section 310.30 of the Criminal Procedure Law states, in relevant part, as follows:
At any time during its deliberation, the jury may request the court for further instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury's consideration of the case. Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper.N.Y. Crim. Proc. Law § 310.30.
Notably, the New York Court of Appeals has held that the failure to provide counsel with "meaningful notice" of the contents of jury notes in accordance with N.Y. Crim. Proc. Law § 310.30 constitutes a "mode of proceedings" error that "presents a 'question of law' within the meaning of CPL 470.05(2), notwithstanding that defense counsel did not object to the court's procedure until after the supplementary charge had been given." People v. O'Rama. 78 N.Y.2d 270, 279 (1991). Petitioner cites O'Rama in his pro se supplemental brief, Resp. Ex. H at 26; see also id. at 28 (citing People v. Lockley. 84 A.D.3d 836 (2d Dep't 2011), which states, "[W]here the court fails to fulfill its 'core responsibility' under CPL 310.30 by depriving the defendant of meaningful notice of the communication or a meaningful opportunity to participate in the formulation of the court's response, the error affects the mode of the proceedings .... Thus, the error need not be preserved, and prejudice manifestly results." 84 A.D.3d at 837 (citations omitted)). But Petitioner's framing of the facts in his pro se supplemental brief on direct appeal is entirely at odds with what actually occurred, and appears to be an unsupportable attempt to overcome defense counsel's supposed failure to object to the trial judge's permissible procedure for handling jury notes.
On direct appeal, these two claims were included within the ambit of the Appellate Division, Second Department's ruling that the "remaining arguments in the defendant's pro se supplemental brief are unpreserved for appellate review and, in any event, without merit." People v. Green. 107 A.D.3d 915, 917 (2d Dep't 2013). Respondent thus contends that these claims should be denied as procedurally barred, arguing that the Appellate Division's invocation of "the lack of preservation as a barrier to relief.. . was an independent and adequate state ground for the denial of relief' that precludes this Court's consideration of these claims on habeas review. ECF No. 15 (Respondent's Memorandum of Law) at 4.
Petitioner did not object at trial to the trial court's reinstruction of the jury or the manner in which the trial court handled the process of receiving and reviewing jury notes. The failure to preserve these objections was fatal to Petitioner's direct appeal on these grounds, and also precludes habeas review of these contentions. "The Second Circuit has determined that New York's preservation rule is an independent and adequate state procedural ground ordinarily barring habeas review." Read v. Superintendent Mr. Thompson. No. 13 Civ. 6962 (KMK)(PED), 2016 WL 165716, at *10 (S.D.N.Y. Jan. 13, 2016) (internal quotation marks, brackets, and citation omitted); see also Downs v. Lape. 657 F.3d 97, 104 (2d Cir. 2011) ("[The Second Circuit] ha[s] held repeatedly that the contemporaneous objection rule is a firmly established and regularly followed New York procedural rule."); Johnson v. Miller. 19 Civ. 0516 (AJN)(RWL), 2020 WL 5754794, at *I4 (S.D.N.Y. June 9, 2020) ("Failing to object to improper jury instructions at trial constitutes 'adequate and independent state procedural grounds' and procedurally defaults the claim.") (citing cases). Because the Appellate Division invoked the state procedural ground of failure to preserve as the basis for its denial of these claims on direct appeal, these claims cannot serve as the basis for habeas relief and must be denied in this habeas proceeding as well.
In accordance with Lebron v. Sanders. 557 F.3d 76 (2d Cir. 2009) and Local Rule 7.2 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, copies of this case and other cases, infra, that are unpublished or only available by electronic database shall be simultaneously delivered to pro se Petitioner along with this Report and Recommendation.
Petitioner again cites O'Rama and subsequent New York Court of Appeals case law in his reply brief to argue that preservation of any objection by defense counsel was not required and that the preservation rule is not a basis for denial of habeas relief. See, e.g.. ECF No. 26 at 28 (noting that the failure to follow the proper procedure for handling jury notes allegedly "was another 'mode of proceeding error' and no preservation is required as a matter of law as argued above, and is with merit. The Respondent [is] incorrectly misleading this Court that preservation is warranted in accordance with CPL 470.05[2]Therefore that argument by this Court should be rejected as without merit in the Respondent brief"). As explained above, however, Petitioner's claim is based on either a misunderstanding or a misrepresentation of the facts of what occurred at trial. The record reflects that the trial judge did follow the proper procedure with respect to jury notes. Therefore, there was no "mode of proceedings" error that would obviate the need for a contemporaneous objection to allow for appellate review.
Moreover, the Appellate Division's alternative, merits-based determination does not permit this Court to reach the merits of Petitioner's claims. Federal habeas review of a claim is precluded, even though a state has considered the merits of a claim, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision." Harris. 489 U.S. at 264 n.10; see also Velasquez v. Leonardo. 898 F.2d 7, 9 (2d Cir. 1990) ("[F]ederal 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."). "Once a claim is procedurally defaulted, habeas review is blocked unless the petitioner can show both cause and prejudice or a fundamental miscarriage of justice." Johnson. 2020 WL 5754794, at *I5 (internal quotation marks and citations omitted). Here, Petitioner has failed to allege, let alone establish, cause for this procedural default and prejudice arising therefrom, or that a fundamental miscarriage of justice will occur if this Court fails to consider these claims. See Coleman. 501 U.S. at 750.
In any event, even if the Court were to reach the merits of these claims, the Court would recommend that they be denied as meritless. A review of the trial transcript makes plain that Petitioner's characterization of the facts is misguided. With respect to the requested read-back, the jury note asked that the court "provide all requirements that prosecution needed to prove beyond a reasonable doubt in order for us to find the Defendant guilty." Tr. at 1088-89 (emphasis added). The jury did not ask the court to provide a reinstruction on the reasonable doubt standard. Furthermore, with respect to both that jury note and all of the other jury notes, the trial transcript reflects that the trial judge did, in fact, follow the procedure set forth in N.Y.Crim. Proc. Law § 310.30 for responding to jury notes. It was therefore entirely appropriate for the Appellate Division, Second Department to hold, in the alternative, that these claims were without merit. But even if the state courts erred in denying Petitioner's claim of a violation of N.Y. Crim. Proc. Law § 310.30, "[violations or errors of state law or procedure generally do not constitute grounds for habeas review," and "[a] claim premised on a violation of New York Criminal Procedure Law Section 310.30 does not allege a violation of a federally protected right." Cornado v. Bellnier. No. 10 Civ. 5265 (RA)(HBP), 2012 WL 6644637, at *5 (S.D.N.Y. Sept. 20, 2012) (citations omitted), adopted by 2012 WL 6681692 (S.D.N.Y. Dec. 21, 2012). Petitioner's claims related to the handling of jury notes do not provide a basis for federal habeas relief.
Accordingly, I respectfully recommend that these claims be denied.
B. Ineffective Assistance of Counsel
Petitioner claims that trial counsel was ineffective during the pronouncement of the verdict when counsel did not object to the allegedly repugnant/inconsistent verdict. Petition ¶ 12 (Ground Three). More specifically, Petitioner claims that the
elements of criminal sex act in the first degree of which [Petitioner] was acquitted and rape in the first degree of which [Petitioner] was found guilty, share one of the essential elements: forcible compulsion. Trial counsel did not object to what was apparently a repugnant/inconsistent verdic[t] with respect to rape in the first degree. Instead trial counsel permitted the court to dismiss the jury without making a timely objection.Id.
On direct appeal, the Appellate Division, Second Department held that
[t]here is no merit to the defendant's contention, raised in his pro se supplemental brief, that he was denied the effective assistance of counsel. To the contrary, it is clear from the record that he was afforded meaningful representation at every stage of the proceedings.People v. Green. 107 A.D.3d at 917.
Because the state courts adjudicated this claim on the merits, this Court must resolve whether that determination "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." 28 U.S.C. § 2254(d)(1). When evaluating an ineffective assistance of counsel claim in a habeas petition, a court's review is "doubly deferential" because the court is charged with taking "a highly deferential look at counsel's performance through the deferential lens of § 2254(d)." Cullen v. Pinholster. 563 U.S. 170, 190 (2011) (citations and quotation marks omitted); see also Jackson, 763 F.3d at 152-53. In order to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate both (1) that counsel's performance was "deficient" in that it fell below an "objective standard of reasonableness," and (2) that "the deficient performance prejudiced the defense," Le., a "reasonable probability" exists that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington. 466 U.S. 668, 687-88, 694 (1984). However, "there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697. With respect to the performance component of the inquiry, a reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. With respect to the prejudice component of the inquiry, the defendant must show that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687.
Petitioner points out in his reply brief that the New York standard for judging the effectiveness of counsel is more generous than the federal standard under Strickland. See ECF No. 26 at 33-34. Indeed, the Second Circuit has noted that the "New York Court of Appeals clearly views the New York constitutional standard as more generous toward defendants than Strickland." Rosario v. Ercole. 601 F.3d 118, 124 (2d Cir. 2010) (citing People v. Turner, 5 N.Y.3d 476, 480 (2005) ("Our ineffective assistance cases have departed from the second ('but for') prong of Strickland, adopting a rule somewhat more favorable to defendants." (citing cases)). Nonetheless, the Second Circuit has "recognized that the New York 'meaningful representation' standard is not contraiy to the Strickland standard." Id. (citations omitted). "The only avenue of reprieve available to [Petitioner] then is to establish that the state court unreasonably applied Strickland." Id. at 126. For the reasons stated below, the Court finds that the state court did not unreasonably apply Strickland here.
Here, Petitioner claims that his trial counsel was ineffective for failing to object to a verdict that Petitioner asserts was repugnant. Petitioner argues that his acquittal on the charge of criminal sexual act in the first degree required an acquittal on the charge of rape in the first degree since both share the element of forcible compulsion. As defined in the statute and charged to the jury, "[a] person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct. . . with another person . . . [b]y forcible compulsion." N.Y. Penal Law § 130.50(1); see Tr. at 1053-55. As defined in the statute and charged to the jury, "[a] person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person . . . [b]y forcible compulsion." N.Y. Penal Law § 130.35(1); see Tr. at 1059-61.
"A jury verdict is repugnant when a defendant is convicted of one crime and acquitted of another, and the elements of each are identical." People v. James. 112 A.D.2d 380, 381 (2d Dep't 1985) (citations omitted): see People v. Tucker. 55 N.Y.2d 1, 4 (1981) ("When there is a claim that repugnant jury verdicts have been rendered in response to a multiple-count indictment, a verdict as to a particular count shall be set aside only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury."). The elements of criminal sexual act in the first degree and rape in the first degree are not identical. Although both crimes include the element of forcible compulsion, the principal conduct involved-the first element of each of the crimes-is not identical. As the trial judge instructed the jury with respect to the charge of criminal sexual act in the first degree, "[o]ral sexual conduct means conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus or the mouth and the vulva or vagina. In this case, we are talking about the mouth and the penis." Tr. at 1054. With respect to the charge of rape in the first degree, the trial judge instructed the jury, "sexual intercourse means any penetration however slight of the penis into the vaginal opening. In other words, any penetration of the penis into the vaginal opening regardless of the distance of penetration constitutes an act of sexual intercourse." Tr. at 1059-60. Thus, it was not inconsistent for the jury to find that Petitioner did not engage in the conduct constituting the crime of criminal sexual act in the first degree and to acquit Petitioner of that charge, but to find that Petitioner did engage in the conduct constituting the crime of rape in the first degree and to convict Petitioner of that charge. Because the verdict was not inconsistent, and hence, not repugnant, Petitioner's trial counsel was not ineffective for failing to object to it. See, e.g.. Epps v. Poole. No. 07 CV 3432, 2010 WL 1991517, at *8 (E.D.N.Y. May 14, 2010) ("An objection to the verdict as inconsistent would have been meritless, and trial counsel cannot be faulted for failing to make it."), aff d as amended. 687 F.3d 46 (2d Cir. 2012); Roberts v. Superintendent of Attica Corr. Facility. No. 07-CV-285S, 2008 WL 3833554, at *8 (W.D.N.Y. Aug. 15, 2008) ("It is well settled that counsel's failure to make a meritless argument does not amount to ineffective assistance. Because the guilty verdict on the charge of Attempted Murder in the Second Degree was not inconsistent with the not guilty verdict on the charge of Assault in the First Degree, trial counsel's failure to object to the alleged inconsistency was not ineffective assistance of counsel") (internal quotation marks and internal citation omitted). The state courts' rejection of this claim was therefore neither contrary to, nor an unreasonable application of, Strickland.
With respect to both crimes, the jury was instructed that forcible compulsion "means to intentionally compel either by the use of physical force or by a threat, express or implied, which places a person in fear of immediate death or physical injury to him or herself or in fear that she will immediately be kidnapped." Tr. at 1054 (criminal sexual act in the first degree); see Tr. at 1060 (virtually identical instruction with respect to rape in the first degree).
Accordingly, I respectfully recommend that this claim be denied.
C. The Claims Raised by Petitioner on Direct Appeal
As noted at the outset, the Petition as filed includes only the three grounds for relief addressed in Sections II. A and II.B above. In its May 11, 2015 Order to Answer, the Court instructed that Petitioner had until June 11, 2015, to "file an affirmation stating whether he intends to raise the grounds raised by his appellate attorney on his direct appeal." ECF No. 7. In a letter dated May 27, 2015, Petitioner stated, "[t]he answer to that is 'yes' I want to raise my appellate attorney issues .... But I have one question with that answer? Do the courts look at my issues from my supplemental brief that I did pro-se with my attorney issues or I have to pick one? If that's the case I would like to stay with my issues from my pro-se supplemental brief." ECF No. 8. On June 3, 2015, the Court issued a memo endorsement to Petitioner's letter, which states as follows:
Petitioner may include in his petition under 28 U.S.C. § 2254 both the grounds raised by Petitioner's appellate attorney on his direct appeal and the grounds raised by Petitioner in the pro se supplemental brief that he filed on his direct appeal. However, the Court makes no determination at this point in time as to whether these grounds for habeas relief are timely raised, fully exhausted, and not procedurally defaulted.ECF No. 9 (emphasis added).
The Court acknowledges that there is ambiguity in both Petitioner's letter and the Court's memo endorsement regarding the grounds raised by Petitioner in his pro se supplemental brief on direct appeal. As noted above, see footnote 10, supra, not all of the arguments made in Petitioner's pro se supplemental brief were included as grounds for habeas relief in the Petition as filed. It appears from both Petitioner's letter and the Court's memo endorsement that Petitioner wished to raise all of the arguments raised in his pro se supplemental brief and was granted permission to do so. However, as explained further below, the claims made in Petitioner's pro se supplemental brief that were not included in the Petition as filed are untimely for the same reasons as the claims raised in Petitioner's counseled appellate brief that were not included in the Petition as filed.
The grounds for relief raised by Petitioner's appellate attorney on his direct appeal and the remaining claims in Petitioner's pro se supplemental brief, which were not included in the Petition as filed, are untimely, and therefore must be dismissed. Ordinarily, a habeas petitioner has one year from the date on which his or her state court conviction becomes final in which to file a habeas petition. See 28 U.S.C. § 2244(d)(1)(A). In this case, the New York Court of Appeals denied Petitioner's application for leave to file a further direct appeal on January 28, 2014. People v. Green. 22 N.Y.3d 1088 (2014); Resp. Ex. N. A petitioner's conviction usually becomes final 90 days later, when the time for petitioning the U.S. Supreme Court for a writ of certiorari expires, McKinney v. Artuz. 326 F.3d 87, 96 (2d Cir. 2003); in this case that deadline was April 28, 2014. Thus, Petitioner had until April 28, 2015, to file his Petition. While the Petition was timely filed on March 27, 2015, it was not until May 27, 2015, almost one month after the statute of limitations had run, and only at the prompting of the Court, that Petitioner stated that he wished to include the grounds raised in his counseled appellate brief.
The one-year statute of limitations applicable to habeas petitions may be tolled in one of two circumstances. First, the limitations period is subject to statutory tolling during the time in which a properly filed application for state post-conviction or other collateral review is pending. See 28 U.S.C. § 2244(d)(2). Second, the limitations period is subject to equitable tolling where a petitioner can show that (1) extraordinary circumstances prevented him or her from filing his or her petition on time, and (2) the petitioner acted with reasonable diligence throughout the period he or she seeks to toll. Baldayaque v. United States. 338 F.3d 145, 150 (2d Cir. 2003) (quoting Hizbullahankhamon v. Walker. 255 F.3d 65, 75 (2d Cir. 2001)). Neither type of tolling applies in this case to extend the limitations period applicable to the claims raised by Petitioner's appellate attorney on direct appeal or the additional claims raised in Petitioner's pro se supplemental brief that were not included in the Petition as filed. Petitioner did not file any application for state post-conviction or other collateral review of his conviction. Nor did Petitioner make any argument in his reply papers, ECF No. 26, that he was entitled to equitable tolling with respect to the additional claims that he wished to have considered as part of his Petition.
Aside from a claim of tolling, a petitioner may avoid application of the one-year statute of limitations through a claim of actual innocence. As one district court explained:
A claim of actual innocence may provide an "equitable exception" to AEDPA's statute of limitations. See McOuiggin v. Perkins. 133 S.Ct. 1924, 1928, 1931 (2013). To invoke this exception (creating a "gateway" to habeas review despite expiration of the statute of limitations), a petitioner must make the same showing of actual innocence that is required to overcome a procedural bar to habeas review, as articulated in Schlup v. Delo. 513 U.S. 298 (1995), and applied in House v. Bell. 547 U.S. 518 (2006). See McOuiggin. 133 S.Ct. at 1928.Crewe v. Capra. 15 Civ. 5868 (CS)(PED), 2017 WL 9534746, at *3-4 (S.D.N.Y. Mar. 13, 2017), adopted by. 2017 WL 2712796 (S.D.N.Y. June 23, 2017). In this case, Petitioner has not presented any claim of actual innocence that would entitle him to this equitable exception to AEDPA's statute of limitations.
Petitioner does raise in his reply brief, ECF No. 26, the remaining claims from his pro se supplemental brief on direct appeal that were not included in the Petition as filed. Yet even if these additional claims could somehow be deemed timely, raising the claims for the first time in reply would not suffice to raise them in this habeas proceeding. See, e.g.. Williams v. Levally. No. 12 Civ. 8164 (KMK)(LMS), 2017 WL 4685103, at *4 (S.D.N.Y. Oct. 17, 2017) ("This argument, however was not raised in either Petitioner's original habeas petition or the Amended Petition. . . . Nor does Petitioner attempt to show that he exhausted this claim in state court.. . . Rather, Petitioner is reiterating an argument raised for the first time in his reply to Respondent's opposition to the Amended Petition. . . . Therefore, as the [Report and Recommendation] correctly notes, ... the Court need not address this claim").
Finally, even if the Court were to treat Petitioner's May 27, 2015, letter as an application to amend his Petition to include the additional, untimely claims, see 28 U.S.C. § 2242 (allowing habeas petitions to be amended "as provided in the rules of procedure applicable to civil actions"), such motion would be denied. "An amendment to a pleading relates back to the date of the original pleading when ... the amendment asserts a claim . . . that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading." Fed.R.Civ.P. 15(c)(1)(B). However, an amended habeas petition does not qualify for relation back just because the original petition and the amended pleading arose from the same trial and conviction. Mayle v. Felix. 545 U.S. 644, 650 (2005). In Mayle. the Supreme Court held that an amended habeas petition cannot escape AEDPA's one-year statute of limitations when it asserts a new ground for relief supported by facts that differ in both time and type from those in the original pleading. Id.; see also Kirk v. Burge. 646 F.Supp.2d 534, 551 (S.D.N.Y. 2009); Reiter v. United States. 371 F.Supp.2d 417, 423 (S.D.N.Y. 2005).
Here, the claims raised by Petitioner's counsel on direct appeal-(1) the verdict was against the weight of the evidence; (2) the trial court improperly decided Petitioner's N.Y. Crim. Proc. Law § 330.30 motion; (3) the photographic lineup arranged by the New Rochelle Police Department was unduly suggestive; and (4) the trial court improperly admitted into evidence certain text messages allegedly transmitted by Petitioner-are based on facts that are different in both time and type from the facts supporting the claims in the Petition as filed. Similarly, the claims raised in Petitioner's pro se supplemental brief that were not raised in the Petition-(1) the court deprived Petitioner of a fair trial when it erroneously determined that the victim's text messages, marked as Exhibit 25A, were not in evidence; (2) trial counsel was ineffective when he failed to present an affirmative defense that what the victim believed to be a weapon was a BB gun that was not readily capable of producing death or serious injury; and (3) in the alternative, in the event that the victim's statements to police and one specific text message were not part of Exhibit 25 A and not marked or deemed as evidence, then trial counsel was ineffective for failing "to object and request this [sic] impeachment facts be placed into evidence"-are also based on facts that are different in both time and type from the facts supporting Petitioner's original claims. The claims in the Petition as filed center around jury notes and the responses thereto, and an alleged failure to object to an aspect of the jury verdict. In contrast, these untimely claims involve evidentiary arguments and questioning of the presentation of defenses. Accordingly, the Court cannot deem the Petition to be amended to include these additional, untimely claims as they do not relate back to the claims included in the Petition as filed. See Kirk. 646 F.Supp.2d at 551 (denying relation back where facts supporting ineffective assistance of counsel claims differed in both time and type from facts supporting original claims); Jenkins v. Greene. 646 F.Supp.2d 615, 621 (S.D.N.Y. 2009) (same), aff'd. 630 F.3d 298 (2d Cir. 2010); Jorge v. Phillips. No. 05 Civ. 6091 (LAP)(MHD), 2008 WL 344718, at *3 (S.D.N.Y. Jan. 31, 2008) (same).
I therefore respectfully recommend that these claims be dismissed as untimely.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Petition be denied in its entirety. As the Petition presents no questions of substance for appellate review, I respectfully recommend that a certificate of probable cause should not issue. See Rodriguez v. Scully. 905 F.2d 24 (2d Cir. 1990) (per curiam); Alexander v. Harris. 595 F.2d 87, 9091 (2d Cir. 1979). I further respectfully recommend that the Court certify pursuant to 28 U.S.C. § 1915(a) that an appeal from this order would not be taken in good faith. See Coppedge v. United States. 369 U.S. 438 (1962).
Because I recommend that the Petition be denied in its entirety, I also recommend that Petitioner's request for an evidentiary hearing on the issues of ineffective assistance of counsel and deprivation of Petitioner's right to a fair trial due to cumulative mode of proceedings errors, see ECF No. 26 (Reply Memorandum of Law) at 42, be denied as well.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made by mail). 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 responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Vincent L. Briccetti, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Briccetti, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn. 474 U.S. 140 (1985); Smith v. Campbell. 782 F.3d 93, 102 (2d Cir. 2015).