Johnson v. Miller

Full title: TIMOTHY JOHNSON, Petitioner, v. CHRISTOPHER MILLER, Superintendent of…

Court: United States District Court, S.D. New York

Date published: Jun 9, 2020

19 Civ. 0516 (AJN) (RWL) (S.D.N.Y. Jun. 9, 2020)

Opinion

19 Civ. 0516 (AJN) (RWL)

06-09-2020

TIMOTHY JOHNSON, Petitioner, v. CHRISTOPHER MILLER, Superintendent of Green Meadows Correctional Facility,

ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.

REPORT AND RECOMMENDATION TO THE HON. ALISON J. NATHAN: HABEAS PETITION

ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.

Timothy Johnson (“Johnson” or “Petitioner”), proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction following a jury trial in New York State Supreme Court, Bronx County. Johnson argues that: (1) the evidence used to convict him was legally insufficient because it was based solely on an unreliable eyewitness, and that (2) he was denied his constitutional right to a fair trial because the trial court (i) improperly permitted the prosecution to impeach its own witness, (ii) issued improper limiting instructions to the jury, and (iii) permitted the prosecution to improperly bolster its case during summation. For the reasons that follow, I recommend that Johnson's Petition be DENIED and the action dismissed.

Background

The jury convicted Johnson of first-degree manslaughter for the death of Kamal Doughty (“Doughty”), and two counts of second-degree criminal possession of a weapon in connection with Doughty's death. People v. Johnson, Indictment No. 900-2010 (N.Y. Sup. Ct. Bronx Cty. 2013). The jury acquitted Johnson of second-degree murder. The Court will briefly recount the factual background of the underlying crime, as well as the procedural background of the trial and subsequent appeals.

A. The Crime

On February 6, 2010, at approximately 4:30 a.m., New York Police Department (“NYPD”) officers found Doughty shot six times on the front steps of 1233 Union Avenue in Bronx County, New York. (Tr. at 283-84, 305.)¹ The officers were responding to an anonymous 911 phone call placed by Richard Davis (“Davis”) at 4:27 a.m., during which he said that someone had been shot. (Id. at 89-90, 283). Doughty was transported to Lincoln Hospital, where he died at approximately 5:04 a.m. (Id. at 285.) Doughty's death was ruled a homicide by the hospital's coroner. (Id. at 53.)

1 “Tr.” refers to the transcript of Johnson's trial, which took place from April 8 to April 30, 2013, when the jury returned its verdict. (Dkt. 12-5-12-19.)

The police knocked on doors in the neighborhood to see whether anyone had witnessed the shooting. (Id. at 93.) When the police knocked on his door, Davis told them that he had been asleep and did not know what had happened. (Id.) Two days later, on February 8, 2010, police once again knocked on his door. (Id.) Davis decided to speak to the police because he did not want his children to be at risk. (Id. at 93-94.) Davis explained at trial that he had called 911 anonymously and earlier denied knowledge because he was nervous that his neighbors would see him talking to police and he did not want to get involved. (Id. at 90-91, 93.)

Davis gave two statements to the police in which he said, in sum and substance, that he had seen Johnson threaten to kill Doughty, load a handgun, shoot Doughty, and then flee the murder scene. (Id. at 93-94; 174-76.) As read at trial to refresh Davis' memory, the first statement that Davis gave to the police states:

12:25 p.m., February 8, 830 Washington Avenue interview. On Saturday morning, early around 3:00 or 4:00 in the morning, I seen Light² talking to one of his workers saying K is disrespecting him and I'm going to kill him. I'm tired of him disrespecting me, I'm gonna kill him. Joe gave Light the gun in the car in front of the store at East 1-6-9 and Union. Light got out of the car and came to my building, 1235 Union Avenue, talking to his workers about how he was going to kill this dude. He reached into his pocket, pulled out a black handgun and racked the slide three or four times and then popped the magazine out and there was bullets all over the hallway. Light put the bullets back into the magazine and he racked the gun. He walked up to me and said you don't know anything, didn't see nothing, go in your house and he left. I went to my window and saw Light shooting K. Light ran to 1-6-8. I pulled up my phone and called 911 while I was looking out the window. I saw Light jump into Joe's car, the gray rental. As written for me by Detective Roberts as I directed. Signed Richard Davis, signed Detective Roberts.

(Id. at 175-76.) As also read at trial to refresh Davis' memory, the second statement that Davis gave to the police reads:

1:45 p.m., February 8, 2010, 830 Washington Ave.

On Saturday morning, early around 3:00 or 4:00 in the morning, I was in a corner store at Union, East 169th Street with Light and Dollar a/k/a Mark.³Light says I'm sick of this motherfucker disrespecting me. I'm gonna kill this motherfucker. Light calls Joe on the cell phone, 15 minutes later Joe comes with the car, a gray four-door. Light gets into the car. Me and Mark walked towards my building. Light followed on foot walking fast. I go to my building, 1235 Union Avenue and Light is saying I'm gonna kill this motherfucker. I'm tired of this shit disrespecting me. Light pulls out the gun, which is a black handgun. He starts to rack the slide and bullets are flying out onto the floor in the hallway. Light then picked up the bullets and loaded them in the magazine, he racked the gun, he said mind your business. I know how this thing go, go back in your house. You didn't see nothing, you didn't see nothing. He left, I went into my house and I -- and heard some shots. I run to the window and I saw Light shooting K. I picked up my phone and called

911. Light ran to 1-6-8 and jumped in the gray car. They drove right down the block, Union. Joe was driving. Light was wearing a black hoody, a black Champion hat with red trim all around, white sneakers, dungarees, blue and black jacket. I know Light for two years and I see him everyday. I saw Joe everyday for two years . . . .

(Id. at 174-75.) The day after giving those statements, Davis packed up his children and belongings and applied for emergency housing because he felt unsafe remaining in his home. (Id. at 95.)

2 In Davis' testimony, he sometimes refers to Johnson by the nickname “Light” and to Doughty by the nickname “Pillsbury” or “K”. (Tr. at 73, 75.)

3 “Mark” refers to Mark Roaches, another person who sold drugs for Johnson, referenced further below.

At trial, Davis testified for three days. On the first day of his testimony, he testified to having witnessed Johnson and Doughty arguing in a neighborhood bodega immediately prior to the murder, that Johnson threatened to kill Doughty, that he saw Johnson possessing a loaded handgun, and that Johnson shot Doughty. (Id. at 81-82, 86, 88-89.) What follows is the sequence of events that Davis testified to during direct examination.⁴

4 As explained in greater detail below, Davis' testimony shifted over the course of the trial. On April 11, 2013, Davis testified under direct examination that Johnson shot Doughty and provided details related to Doughty's murder. Later, on April 15, under cross-examination, Davis recanted much of his earlier testimony. On April 17, Davis continued to recant certain aspects of his initial testimony. Ultimately, the jury credited Davis' initial incriminating testimony over his later contradictory testimony.

On February 6, 2010, between 4 a.m. and 5 a.m., Davis witnessed Johnson shoot and kill Doughty in front of 1233 Union Avenue in the Bronx. (Id. at 82-83, 88-89.) Davis witnessed the murder from his first-floor apartment window at 1235 Union Street. (Id. at 82-83, 89.)

Immediately prior to the shooting, Davis went to a neighborhood bodega. (Id. at 78-79.) Johnson, Doughty and two other individuals - Mark (“Roaches”) and an unidentified female neighbor - were all at the bodega when Davis arrived. (Id. at 79-80.) Johnson was a drug dealer who sold crack cocaine. (Id. at 73.) Both Roaches and Davis sold “dime bags” of crack for Johnson.⁵ (Id. at 74-75, 80.) Davis also frequently purchased crack cocaine from Johnson for his own use. (Id. at 73-74.) Doughty was a rival dealer who sold “nickel bags” of crack that were less expensive than the dime bags that Johnson sold. (Id. at 75-76.)

5 A “dime bag, ” according to Davis, was a bag containing crack cocaine that sold for $10 dollars. (Tr. at 74-75.).

At the bodega, Johnson and Doughty were arguing loudly. (Id. at 81-82). Johnson accused Doughty of encroaching on Johnson's sales territory, saying that Doughty was “disrespecting [his] block” and that Doughty “ain't suppose[d] to be on my block selling no drugs when I am here.” (Id. at 81.) Davis purchased the items he needed and then left the bodega to go home. (Id.) He was trailed by Johnson and Roaches. Davis also saw Doughty and the female neighbor walk to the building next door. (Id. at 83.) Davis had used crack earlier that day but was no longer feeling its effects. (Id. at 78-79.)

Johnson and Roaches followed Davis into Davis' apartment building. (Id. at 82-84.) Inside the building, Johnson told Davis, in reference to Doughty, that “I am going to kill this motherfucker because he disrespected me, I told him don't come on my block and he is still on my block selling them nickels.” (Id. at 86.) Davis asked Johnson whether he was really serious about killing Doughty. (Id.)

Davis then went to his first-floor apartment to check on his children. (Id. at 86.) After checking on his children, Davis returned to the apartment hallway and saw Johnson pull out a gun and bullets falling to the ground. (Id.) Davis again asked Johnson if he was serious about killing Doughty and Johnson responded that “I am tired of him disrespecting me.” (Id.) Johnson then told Roaches to “shut it down, ” which Davis understood to mean that Roaches should “take the drugs, go upstairs, no more selling.” (Id. at 86-87.) Johnson then told Davis that he was going to “to kill this mother, MF” in reference to Doughty. (Id. at 88.) Davis once again asked Johnson whether he was serious, to which Johnson replied by pointing his gun at Davis, signaling that Davis should go inside and mind his own business. (Id.) Davis thought Johnson was intoxicated at that time. (Id.)

Davis went back to his apartment, locked the door, and took his children to the back of the apartment to protect them if Johnson started shooting in the hallway. (Id.) Davis heard Johnson leave the apartment building. (Id.) Davis walked towards the front of his apartment and heard a gunshot. (Id.) Davis ducked, and looked out the window where he saw Johnson “shooting Pillsbury, just shooting him.” (Id.) Davis heard Doughty “yelling no, he was yelling no. Then he was falling down the stairs right there. And Light he got closer to him and started shooting him two or three more times.” (Id. at 89.) Davis was “a hundred percent” certain that he saw Johnson shoot Doughty. (Id. at 112.) Davis then anonymously called 911 to report the shooting. (Id. at 90.)

B. The Trial Court Proceedings

On March 11, 2010, a grand jury indicted Johnson on charges of second-degree murder, first-degree manslaughter, and two counts of second-degree criminal possession of a weapon. (Dkt. 12, Declaration of Joshua P. Weiss (“Weiss Decl.”) ¶ 4.) Trial began on April 8, 2013 before the Honorable Troy K. Webber, J.S.C. On August 2, 2013, the court rendered judgment convicting Johnson of first-degree manslaughter and two counts of second-degree criminal possession of a weapon. Johnson was sentenced, as a second violent felony offender, to an aggregate term of 20 years of imprisonment. (Dkt. 12-19 at 8-9.).

1. Davis' Testimony

The prosecution called Davis to testify against Johnson at trial. Davis' testimony was integral to the prosecution's case; he was the only direct evidence that Johnson murdered Doughty. His testimony spanned three days. During his first day on direct examination, Davis was largely composed. As described above, Davis offered testimony on direct describing his relationship with Johnson, the events leading up to Doughty's murder, and witnessing Johnson shoot Doughty. (Tr. at 73-90.)

During the second day on cross-examination, however, Davis became increasingly upset and agitated, culminating in his attempting to leave the courthouse and contradicting much of the incriminating testimony that he gave on the first day. (Id. at 113-14, 126, 138-39, 144, 146-47, 155-58, 171.) Davis refused to appear again on the third day, requiring that he be arrested to force him to return to testify. (Id. at 184-85, 211-12).

From the very first question of cross-examination, Davis stated that he felt that the defense counsel's behavior leading up to the trial was not “right” and he “didn't appreciate it.” (Id. at 113-14.) Davis also did not like defense counsel's use of the term “crack head.” (Id. at 126.) Davis' temper worsened as the defense counsel asked Davis why, as a welfare recipient, Davis never disclosed the money he made selling drugs. (Id. at 138-39.) Defense counsel also asked questions about prior crimes that Davis committed, to which Davis told the judge that he did not “know where this dude is trying to go with this B.S. I'm not a thief, I do not steal.” (Id. at 144.) Davis also said to the defense counsel that he was “trying to make it like I'm a bad dude…” (Id. at 147.)

Davis made statements to indicate that he was restless throughout his second day of testimony and wanted to leave the courtroom. Davis said, “You know what, if you are finished with me, I'm leaving this… I'm outta here” and started putting on his coat. (Id. at 146-47.) Judge Webber told Davis to calm down and stop putting on his coat. (Id. at 146.) Davis then stated to defense counsel, “Go ahead. This is a wrap. What? Go ahead.” (Id. at 147.) Later that day, outside the presence of the jury, Davis stated that he “didn't come here to be here all day” and that he was “not coming back.” (Id. at 157-58.) Davis also stated, “I don't want to be here” and had to be told again to sit down when he attempted to leave the courtroom. (Id. at 171.) Davis stated, “I am about sick of this, man” and then repeated “this is too much” seven times. (Id.)

As for his substantive testimony, Davis contradicted his initial testimony regarding the events prior to the murder. When asked during cross-examination about the time he was in the bodega, he answered: “I can't regulate time, I don't know. I was a [sic] still stimulated at the time, I can't remember.”⁶ (Id. at 150.) When pressed for an estimate, Davis replied, “I tell you my mathematics is not right, I really don't know.” (Id.) Davis also made several statements that he had not left his home during the early morning hours of February 6, 2010. For example, Davis stated that defense counsel was “dead wrong” to suggest that he left his children home alone at twelve or one o'clock in the morning. (Id. at 150-51.) When asked whether it was true that the owner of the bodega would close the store at around between twelve and one o'clock in the morning, Davis answered: “What I'm doing out my house at that time of night? I got four babies in my house . . . . I don't go out that time of night. Where you get that from?” (Id. at 150.) Davis later admitted, however, to being in the bodega the morning of February 6, 2010 to purchase household items and that he left because Johnson and Doughty were arguing. (Id. at 167-68.)

6 Davis later testified, as he had originally, that he was not feeling the effects of crack cocaine when Doughty was murdered. (Tr. at 163-64.)

Davis also contradicted other details about the murder from his direct examination. For example, in his statement to the police on February 8, 2010, Davis said that a man named “Joe” had given a gun to Johnson in a car in front of the bodega. (Id. at 174-76.) When asked about this at trial, however, Davis stated, “I wasn't even at the store . . . I didn't see Joe and I was in my house.” (Id. at 155.) Davis also denied that he had told the police that after the murder he saw Johnson running to East 168th Street and getting into Joe's car, stating, “You see how I'm squinching [sic] my eyes now to see? . . . . I can't see that far.” (Id. at 155-56.) Davis further denied ever giving any statements to the police, saying that he couldn't write or read and that he never signed the statements. (Id. at 152-54.) Shifting yet again, Davis later admitted that he had spoken to the police on February 8, 2010 and had given statements, but only because of police pressure, stating that the police were “banging on [his] door everyday threatening [him] to say something about Light.” (Id. at 164-66.)

Davis also contradicted testimony regarding the shooting itself. On cross-examination, Davis stated that he “somewhat” remembered Doughty's shooting. (Id. at 170.) When asked whether Johnson was the shooter, Davis replied, “I think they said he was the shooter.” (Id.) When asked, “Who is they?” Davis answered, “The police and them.” (Id.) The prosecutor asked, “When did they say that?” to which Davis answered, “When they sweating me, kept banging on my damn door.” (Id.) When asked whether Davis meant that the police had pressured him into giving his statement, Davis responded: “Listen, I tell you it's like a scale, me, my kids, my home, losing my kids. What would you do?” (Id.) When asked why he had not said this earlier, Davis stated, “Because I'm sick of y'all with this BS, man, ” and stated that he did not want to be in court. (Id.)

Davis also contradicted his prior testimony on the timing of the relevant events. Davis initially testified that he had witnessed Johnson shoot Doughty after going to the bodega between four and five o'clock in the morning. However, on cross-examination, when asked if Davis had “any idea what time Pillsbury was killed?”, he replied, “I don't know. I don't even know.” (Id. at 151.) When pressed for an approximation of the murder time, Davis replied, “wait a minute. That was at night . . . . Somewhere. 8:30, 9:00, somewhere around there . . . at night, about nine o'clock.” (Id.)

Outside the presence of the jury, Davis further contradicted his initial testimony regarding Johnson being the murderer.⁷ Davis stated that Johnson “might not be the man that shot him.” (Id. at 176.) Davis also stated, “It might have been another light skinned guy that's the same as him . . . . I might of made a mistake.” (Id.) When the prosecutor asked why Davis was saying all of this, Davis replied, “I might of did it. I don't know, I was high off crack.” (Id. at 176-77.) When asked again why he was saying all of this, Davis replied that he “fe[lt] bad” because “they looked out for [him].” (Id.) Davis also stated that “these people looked out for me and my kids . . . the whole time I been in the Bronx.” (Id. at 179-80.) The prosecutor asked whether Davis felt bad testifying against Johnson to which Davis responded, “It aint just Light, it could have been any of them. It could have been any of the crew . . . that helped me through the hard times.” (Id. at 180.) The prosecutor then asked whether Johnson shot Doughty, and Davis replied, “I'm not sure. I'mma leave it as that, I'm not sure. I want to go home.” (Id.)

7 The statement Davis had given to the police on February 8, 2010 was read back to Davis outside the presence of the jury in an attempt to refresh Davis' memory. (Tr. at 176.) Everything that Davis says in this paragraph was stated outside the presence of the jury. (Id. at 171-82.)

Davis refused to return to testify the next day and had to be arrested and brought in pursuant to a material witness order. (Id. at 184-85, 211-12). When re-direct examination resumed, Davis once again testified that he was unsure of the time of the shooting but that it occurred at nine or ten at night on February 5, 2010. (Id. at 213-14.) He also reiterated his earlier testimony that Johnson may not have been the shooter. (Id. at 214.) With the trial court's permission, the prosecutor impeached Davis by prior inconsistent statement with Davis' grand jury testimony. (Id. at 233-40.) After the prosecution read back his grand jury testimony, Davis stated that he recalled his earlier testimony that he had witnessed Johnson shoot Doughty on February 6, 2010. (Id. at 238.)

On re-cross examination, Davis acknowledged that he had said outside the presence of the jury that Johnson may not have been the man who shot Doughty. (Id. at 241-42.) On further re-direct examination, Davis admitted to being angry at the prosecutor on the second day of testimony for making him stay in court for so long when he wanted to leave. (Id. at 244.) He did not leave because the judge told him he would be “locked up” if he did leave, and Davis was upset about that. (Id.) Davis also said he was uncomfortable testifying because his “whole crew was there, they just come to see what I looked like again. So they gonna do what they gonna do to me whatever.” (Id. at 245.)

Several pieces of independent evidence corroborated Davis' initial testimony from his direct examination. The jury heard Davis' 911 call in which Davis stated that someone had been shot. (Id. at 89-90.) Davis' testimony that Doughty was on the stoop of a neighboring building was corroborated by police officer Angad Beharry, who testified that he found Doughty slumped on the steps of 1233 Union Avenue.⁸ (Id. at 89-90, 283-84.) Bullets were recovered on that stoop, indicating that the shooting had occurred there. (Id. at 316-17.) In addition, cell phone records showed that eight phone calls were made from Johnson's cell phone between 4:00 a.m. and 4:30 a.m. on February 6, 2010, and calls continued until 8:15 a.m. (Id. at 202-05.⁹) Each phone call was facilitated by the same cell phone tower, which was located around the block of Doughty's shooting, thus placing Johnson within the vicinity of the shooting. (Id.) Lastly, Doughty had on his person $692 cash, 107 Ziplock bags of crack, and five Ziplock bags of cocaine when he was killed. (Id. at 288-89.) This substantiated Davis' testimony that Doughty's murder was motivated by a drug rivalry and territorial dispute and not a robbery gone awry.

8 In his 911 call, Davis gave the address “1234 Union Avenue.” (Tr. at 90.) Davis lived at 1235 Union Avenue and was apparently unaware that buildings were numbered with odd numbered buildings on one side of the street and even numbered addresses on the other side. Therefore, he thought that the building neighboring his own building would have been “1234 Union Avenue.” (Id. at 88-90.)

9 Strohm was a corporate representative and official record keeper from Sprint Mobile, who testified regarding Johnson's cellphone records.

2. The Grand Jury Testimony

Davis' testimony to the grand jury played an important role at trial. The prosecutor used this testimony to impeach Davis by prior inconsistent statement; the trial court issued limiting instructions regarding the testimony; the prosecutor referenced the testimony in summation; and the jury requested readback of testimony, part of which included the impeachment of Davis with his grand jury testimony.

a. The Impeachment of Davis by Prior Inconsistent Statement

On the third and final day of Davis' trial testimony, after Davis had contradicted his earlier statements, the prosecutor impeached Davis during re-direct examination by using his prior grand jury testimony. As read at trial, his grand jury testimony reads:

QUESTION: I am going to direct your attention to February 6, 2010, sometime around or right before 4:27 a.m. in the vicinity of 1233 Union Avenue here in Bronx County, were you present on that date, time and location?

ANSWER: Yes. . . . .

QUESTION: Can you just tell us very briefly to the members of the grand jury what, if anything, happened?

ANSWER: On that date Pillsbury was shot. Light shot Pillsbury about four or five times. . . . .

QUESTION: What did you hear?

ANSWER: Pow, pow, pow, pow.

QUESTION: And this is where?

ANSWER: I am checking to see if my daughter is okay, the bedroom is right there, the bedroom. By this time I got right here and it was three shots fired. I am going to ---

QUESTION: Let the record reflect that the witness is indicated a distance of approximately four feet.

ANSWER: My window is here and I peeked through the shades, he is standing, pow, pow, and he is already on the ground.

QUESTION: Okay.

ANSWER: I ducked. My ten year old got up and said daddy who is that. I seen Light. I seen ---

QUESTION: Mr. Davis get back.

ANSWER: I heard and I grabbed the phone that I got from somebody, I hurry and call 911, get the police 1235 Union, 1235, someone just got shot. I thought he wanted to come back in the house and kill me and my kids. . . . .

[QUESTION:] When you first entered the house you heard shots, where in your house-I am sorry-your apartment?

ANSWER: In my bedroom.

QUESTION: And then did you go to the window?

[ANSWER]: Yes.

[QUESTION:] And where does that window look out to?

ANSWER: Right there to 1233 steps. Stoop. . . . .

[QUESTION:] Does it look out to the front of the building?

ANSWER: Yes, the front.

QUESTION: And could you see he was at 1233, which is the building immediately next door to you?

ANSWER: Yes . . . .

QUESTION: And when you looked out of the building window, that's when you went out over to 1233, towards 1233 and who did you see out there?

ANSWER: I seen K and Light was out there.

[QUESTION:] And when you saw Light did he have anything in his hands?

ANSWER: Hands?

QUESTION: What did he have in his hand?

ANSWER: He had the same gun in his hand.

QUESTION: And what was he doing and what was he doing with that gun?

ANSWER: Like this with the gun.

QUESTION: Did you see him fire that gun?

ANSWER: He shot it two times when I was looking out the window.

(Tr. at 235-38.) While being read the grand jury testimony, Davis stated multiple times that he remembered his prior testimony. (Id. at 236, 238.)

b. The Court's Limiting Instructions

On two separate occasions, the trial judge issued limiting instructions to the jury regarding the grand jury testimony that the prosecution used to impeach Davis. First, the trial judge informed the jury immediately after the prosecution impeached Davis with his prior inconsistent testimony that:

[W]hat was read to you was prior testimony taken of . . . Mr. Davis. As stated that testimony was under oath. The People elicited that testimony as an inconsistency between the testimony here by Mr. Davis and the testimony previously given. You are to evaluate and make a determination as to credibility. And how you will evaluate the statements, the alleged inconsistencies by the witness.

(Id. at 240.) Later, as part of his final charge, Judge Webber instructed the jury that “[t]he content of a prior inconsistent statement is not proof of what happened. You may use the evidence of a prior inconsistent statement only to evaluate the truthfulness or accuracy of the witness' testimony here at trial.” (Id. at 412.)

c. The Prosecution's Summation

During summation, the prosecutor twice mentioned Davis' grand jury testimony. When discussing Davis' memory of the shooting, the prosecutor said:

Richard Davis was tremendous with detail and specifics. The time of the killing, for example - - he got confused later on, but there was three different times on direct he was very clear that it was the early morning hours. In the grand jury he was crystal clear about that as well. It was only after he got upset that there was a problem with it. And I think it was very apparent that that was the cause of is little meltdown, for lack of a better word. He got angry and upset.

(Tr. at 385.) Defense counsel made no objection. Later, when again stressing Davis' exactitude on the details of the murder, the prosecutor stated:

He admitted in the grand jury Light was the killer, no confusion whatsoever about the time, number of shots. Repeatedly in the grand jury he talked about Light being the shooter. He was very specific about that. In the grand jury [he] was under oath. He was with an ADA that he liked and that he said he felt very comfortable with, and he had no pressure whatsoever to do anything other than tell the truth. So even if this is true about oh, the cops made me do it, the cops made me do it, which of course it isn't. how do you explain . . . .

(Id. at 395-96.) Defense counsel objected after the final sentence above. (Id. at 396.) When asked by the trial court judge why he objected, defense counsel answered that he felt that the prosecutor had “testified” by saying the police had not forced Davis to testify.¹⁰(Id. at 400-01.)

10 Immediately after the prosecutor finished summation, the trial court judge and defense counsel had the following exchange:

THE COURT: Mr. Dudley, you kept objecting. This is Mr. Caliendo's argument as to the facts. I mean, this is his argument. I don't understand why you kept objecting.

MR. DUDLEY: You allowed him to testify. He didn't argue. He said Richard Davis said and then he says that isn't true. I never heard a prosecutor just testify like that repeatedly, rather than saying “I submit to you” or “I argue to you” that - - especially in this case when he didn't even bring the detective here to say it wasn't true.

THE COURT: That's not the point.

MR. DUDLEY: Yes, it is.

THE COURT: That's now what you were objecting to.

MR. DUDLEY: Yes, it was. He said that the police made him do it but that isn't true. I mean he's testifying it's not true.

THE COURT: I disagree. It was what he was stating was based upon Davis' testimony. But again, I told the jury that it was argument. I reaffirmed that it was argument. I will tell them again that it was argument.

(Tr. at 400-01.)

d. The Jury's Request for Evidence

Jury deliberations ran for eight days beginning on April 22, 2013 and ending on April 30, 2013. (Id. at 426, 494.) During deliberations, the jury requested to be reminded of various pieces of evidence introduced at trial. On the first day of deliberations, the jury requested that the court provide it with Davis' 911 call, crime scene photographs, and video surveillance, and to be read back the first and second day of Davis' testimony at trial. (Id. at 426-27.) As deliberations continued, the jury requested to be read back the statements that Davis had given to police on February 8, 2010, and Davis' testimony on the second and third day of testifying on the events that had occurred “from the bodega, until the 911 call.” (Id. at 441, 448.) The jury also asked to be reminded of certain legal definitions and submitted a list of discrete questions to be answered by the evidence. (Id. at 443, 466.)

C. The Appeals

On August 5, 2016, Johnson appealed his conviction to the Appellate Division, First Department. In a counseled brief, Johnson argued that: (1) Davis' testimony should be disregarded in its entirety since Davis presented a course of events that cannot be believed in toto; (2) the verdict was against the weight of the evidence where the sole identification witness was a drug addict with health and memory issues who presented inconsistent testimony and ultimately recanted his statement that Johnson was the shooter; and (3) Johnson was denied a fair trial because the trial court improperly permitted the prosecutor to impeach Davis with his grand jury testimony, failed to give the proper limiting instruction, and permitted the prosecutor to improperly bolster Davis' grand jury testimony during summation. (See Dkt. 12-1, “Appellant Brief”.)

The First Department unanimously affirmed the trial court's decision on March 7, 2017, holding that “the verdict was supported by legally sufficient evidence and was not against the weight of the evidence;” that the “[trial] court providently permitted the People to impeach the witness . . . because his trial testimony . . . was affirmatively damaging to the People's case;” that “when viewed in context, the prosecutor's summation comments did not treat the grand jury testimony as evidence in chief;” and that Johnson's “challenge to the content of the court's instructions regarding the grand jury trial [was] unpreserved, ” and, in any event “provide no basis for reversal.” People v. Johnson, 148 A.D.3d 444, 444 (1st Dep't 2017). The Court further held that although Davis' testimony was “undisputedly self-contradictory, ” the jury “had a rational basis upon which to credit” Davis' initial testimony. Id.

Following the First Department's decision, Johnson sought leave to appeal to the New York Court of Appeals. (See Dkt. 12-3.) The Court of Appeals denied leave on October 24, 2017 in a summary order. People v. Johnson, 30 N.Y.3d 980 (2017).

On January 17, 2019, Johnson filed the instant petition for writ of habeas corpus. (Dkt. 2, “Petition.”) The Government filed its opposition on May 21, 2019. (Dkt. 12, “Opposition Brief.”) On August 16, 2019, Johnson filed a reply. (Dkt. 19, “Reply.”)

Standard of Review for Habeas Relief

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides a remedy for a state prisoner whose continued custody is in violation of federal law. 28 U.S.C. § 2254. Under AEDPA, an application for a writ of habeas corpus on behalf of a state prisoner “shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim” either: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). “Deciding whether a state court's decision ‘involved' an unreasonable application of federal law or ‘was based on' an unreasonable determination of fact requires the federal habeas court to ‘train its attention on the particular reasons - both legal and factual - why state courts rejected a state prisoner's federal claims,' and to give appropriate deference to that decision.” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (internal citations omitted) (quoting Hittson v. Chatman, 135 S.Ct. 2126, 2126 (2015) (Ginsburg, J., concurring in denial of certiorari)).

A state court decision is “contrary to” clearly established precedent when the state court applies a rule that is “diametrically different, opposite in character, or mutually opposed” to the governing law set forth in Supreme Court cases. Williams v. Taylor, 529 U.S. 362, 405 (2000) (internal quotations omitted) (quoting Contrary, Webster's Third New International Dictionary (1976)). By contrast, “[a] court may grant relief under the ‘unreasonable application' clause if the state court correctly identifies the governing legal principle . . . but unreasonably applies it to the facts of the particular case.” Bell v. Cone, 535 U.S. 685, 694 (2002) (quoting Williams, 529 U.S. at 407-08). This inquiry focuses not on whether the state court's application of clearly established federal law is merely incorrect or erroneous, but on whether it is objectively unreasonable. Id. “Under § 2254(d), a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fair-minded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington v. Richter, 562 U.S. 86, 102 (2011).

Succeeding on a habeas petition is far from easy. AEDPA forecloses “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Parker v. Matthews, 567 U.S. 37, 38 (2012) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 779 (2010)). “A state court's findings are not unreasonable under Section 2254(d)(2) simply because a federal habeas court reviewing the claim in the first instance would have reached a different conclusion.” Pine v. Superintendent, Green Haven Correctional Facility, 103 F.Supp.3d 263, 275 (N.D.N.Y. 2015) (citing Wood v. Allen, 558 U.S. 290, 301 (2010)). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

Determining whether the state court's conviction was unreasonable requires asking whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Gutierrez v. Smith, 702 F.3d 103, 113 (2d Cir. 2012) (emphasis in original) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Unsurprisingly, the “burden on petitioner is ‘very heavy' because all inferences are to be drawn in the prosecution's favor, and ‘a conviction may be based upon circumstantial evidence and inferences based upon the evidence.'” Gonzalez, 702 F.3d at 218 (internal citations and quotations omitted).

Even if a trial court error meets the standards required by AEDPA, habeas relief is not warranted unless the violation “had substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see also Fry v. Pliler, 551 U.S. 112, 121 (2007) (confirming continued applicability of Brecht under AEDPA); Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994) (“Habeas relief is not appropriate when there is merely a ‘reasonable possibility' that trial error contributed to the verdict.”) (quoting Brecht, 507 U.S. at 635); Butler v. Graham, No. 07 Civ. 6586, 2008 WL 2388740, at *6 (S.D.N.Y. June 12, 2008) (recognizing and applying “substantial and injurious effect standard” and citing Brecht and Fry).

The petitioner “bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated.” Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). The petitioner also bears “the burden of rebutting the presumption of correctness” of state court fact determinations “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Where a petitioner is proceeding pro se, the Court must construe his submissions liberally and interpret them “to raise the strongest arguments that they suggest.” Kirkland v. Cablevision System, 760 F.3d 223, 224-25 (2d Cir. 2014) (per curiam) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). This does not, however, excuse a petitioner “from compliance with relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotation marks and citation omitted).

Discussion

Johnson argues that habeas relief is warranted because (1) the evidence used to convict him, based as it was on Davis' unreliable eyewitness testimony, was legally insufficient; and (2) he was denied his constitutional right to a fair trial because the trial court (i) improperly permitted the prosecution to impeach its own witness, (ii) issued improper limiting instructions to the jury, and (iii) permitted the prosecution to improperly bolster its case during summation. In opposition, the Government argues that none of Davis' arguments have merit but first briefly asserts three threshold issues as to why the

Court should not entertain the Petition: (1) Johnson's Petition is merely conclusory and unsupported by record facts; (2) Johnson's first claim presents only a state, not a federal, issue and (3) Johnson failed to exhaust his state judicial remedies. For the reasons explained below, the Court finds that the Petition is properly before the Court but that Johnson's claims have no merit.

A. The Government's Threshold Arguments to Dismiss the Petition are Unpersuasive

None of the Government's threshold arguments stand up to scrutiny. There is a threshold flaw, however, not addressed by the Government, that bars one aspect of Johnson's Petition related to his fair-trial claim.

1. Conclusory Allegations

The Government argues that Johnson's claims should be denied because they are conclusory allegations “devoid of factual support.” (Opposition Brief at 10.) A habeas petition may be denied if it offers merely conclusory allegations that are unsupported by specific facts. See U.S. ex rel. Homchak v. People of State of N.Y., 323 F.2d 449, 450-51 (2d Cir. 1963) (affirming the lower court's denial of habeas petition consisting of “wholly conclusory allegations”); Bingham v. Duncan, 01 Civ. 1371, 2003 WL 21360084 at *4 (S.D.N.Y. June 12, 2003) (rejecting “petitioner's conclusory allegations” regarding trial counsel's failure to do investigative work in considering whether further action by counsel would have yielded a different result); Hidalgo-Felix v. I.N.S., No. 00 Civ. 3838, 2002 WL 1728580, at *1 (S.D.N.Y. 2002) (denying habeas relief because petitioner provided “no legal or factual basis in the record from which to conclude that any constitutional violations underlie his conclusory allegations”). Here, however, both grounds that Johnson alleges afford him habeas relief are sufficiently stated.

Johnson's first claim for relief is that “a review of the record on direct appeal establishes the evidence was legally insufficient to support the conviction as it was based solely on the unreliable testimony of a single eye-witness.” (Petition ¶ 12.) Standing alone, that may be a merely conclusory allegation. But Johnson asserts specific record facts in support of this claim, particularly on reply.¹¹ For instance, he asserts that Davis was a heroin and crack cocaine addict with memory issues and whose testimony was “internally inconsistent, and replete with contradiction.” (Reply at 7, 12.) Johnson specifically points out - with citations to the record - some of Davis' contradictions elicited after his first day of testimony, including: Davis' denial of having given the police officers statements on February 8, 2010; Davis' admission that Johnson may not have been the man who shot Doughty; and Davis' confusion regarding the timing of the shooting. (Reply at 7-8.) Johnson explains that there was a lack of other physical or forensic evidence directly linking Johnson to the murder, and that this was a “single eyewitness identification case” where the sole witness' testimony was “irreconcilable.” (Reply at 8.)

11 Johnson's claims also were set forth with sufficient detail in his First Department brief, which is part of the underlying record for the instant Petition. (See Dkt. 12-1.)

Johnson's second claim for habeas relief is also sufficiently specific. He claims he was denied a fair trial for three reasons: the prosecution improperly impeached their own witness; the trial court failed to give proper limiting instructions to the jury regarding the prosecution's impeachment of their own witness; and the prosecution improperly bolstered their summation with Davis' grand jury testimony. (Petition ¶ 12.) Although the Petition does not go into detail, it elaborates on each assertion with enough specificity to put the Government on fair notice of the basis for each claim.

First, Johnson specifies that the impeachment was improper because the prosecution was allowed to impeach their own witness even though it did not tend to disprove the prosecution's case and the prosecution knew that their witness would contradict himself. (Id.) Second, Johnson supports his allegation that improper limiting instructions were given by connecting it specifically to the prosecution's reading of Davis' grand jury testimony: “the trial court failed to give clear and proper limiting instructions to the jury when the people were permitted to read their witness [Davis] grand jury testimony to the jury and the error was not harmless.” (Id.) And Johnson expands on his allegation that the prosecutor's summation was improper with reference to the same grand jury testimony. That is, the prosecution acted improperly “by referring to the witness' grand jury testimony as it were evidence in chief and arguing facts not in evidence.” (Id.)

The Court also must bear in mind Johnson's pro se status. Reading his pleadings liberally and construing them to raise “the strongest arguments they suggest, ” the Court finds that Johnson has sufficiently plead his claims. Kirkland, 760 F.3d at 224-25.

2. Federal Issue

The Government argues that Johnson's first claim for relief does not implicate any federal issue and therefore is not properly before this Court. As the Government puts it, Johnson “impermissibly endeavors to re-litigate in this Court whether the jury's verdict, convicting him exclusively on New York State penal offenses, is based upon legally insufficient evidence without presenting any federal issues.” (Opposition Brief at 13.) The Court disagrees.

A federal court may entertain a habeas petition if the petitioner is being held “in custody in violation of the Constitution or laws or treaties of the United States.” Lehman v. Lycoming County Children's Services Agency, 458 U.S. 502, 508 (1982) (quoting 28 U.S.C.A. § 2254); Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995). Johnson's first claim for habeas relief meets that requirement as it directly implicates the Constitution even if not invoking it by name.¹²

12 Moreover, Johnson's Reply explicitly argues that his conviction was based on legally insufficient evidence thereby violating his Fourteenth Amendment Due Process Clause rights. (Reply at 6.)

Johnson argues that habeas relief is warranted because his conviction was not supported by sufficient evidence. (Petition at 4-5.) Under the Due Process Clause of the Constitution, a defendant cannot be convicted unless found guilty by a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970) (“[W]e explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”); United States v. Pauling, 924 F.3d 649, 655 (2d Cir. 2019) (“Due process requires that essential elements of a crime be proven beyond a reasonable doubt to ensure that ‘no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof'.”). Indeed, courts regularly entertain habeas petitions with claims for relief predicated on the argument that the petitioner's conviction was based on insufficient evidence precisely because such claims implicate due process rights. See, e.g., Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994) (considering an insufficient evidence claim for habeas relief as implicating the due process clause since the prosecution must prove a defendant's guilt beyond a reasonable doubt); Nunez v. Conway, 923 F.Supp.2d 557, 564-65 (S.D.N.Y. 2013) (same). Accordingly, Johnson's first claim for relief contains the requisite federal element.

3. Exhaustion of State Remedies

As a final gateway argument, the Government argues that Johnson's second claim - that he was denied a fair trial - must be dismissed, not because the claim does not have a federal issue, but instead because Johnson did not present the claim to the state courts as having a federal constitutional element and therefore did not exhaust state judicial remedies. (Opposition Brief at 17-19.) The Court again disagrees.

Habeas petitioners must first exhaust their claims in state court. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir. 2005). Exhaustion entails both a substantive and procedural requirement. Procedurally, a petitioner must “give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan, 526 U.S. at 845. A “complete round” requires presenting the federal claim to the highest court of the state, which in this case is the New York Court of Appeals. Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000). Substantively, a habeas petitioner must have “fairly presented” his or her claim to the state courts as having a federal constitutional element. O'Sullivan, 526 U.S. at 848.

Fair-trial claims can pose a challenge to habeas courts because presenting a claim to the state courts in “very broad terms, such as denial of a ‘fair trial, '” without any citation to the U.S. Constitution, creates a “great[ ] difficulty” in determining whether the claim was fairly presented. Daye v. Attorney General of State of New York, 696 F.2d 186, 193 (2d Cir. 1982). Here, however, that difficulty is readily overcome.

One way to asses that a claim has been fairly presented in the absence of express reference to constitutional rights is “if the courts of the state in question have themselves previously treated that fact pattern as appropriate for constitutional analysis.” Id. at 194. Habeas courts “consider that a defendant who cites state precedent that employs pertinent constitutional analysis has adequately put the state courts on notice of the constitutional thrust of his claim.” Id.; see also DiSimone v. Phillips, 461 F.3d 181, 190 (2d Cir. 2006) (“[A] petitioner who does not cite chapter and verse of the Constitution may nonetheless fairly present to the state courts the constitutional nature of his claim by demonstrating any one of four factors: (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; or (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.”).

Under this rubric, Johnson fairly presented his claim that he did not receive a fair trial to the New York appellate courts. In his First Department brief, Johnson cited to People v. Mattocks, 100 A.D.3d 930 (2nd Dep't 2012) in support of his argument that improper impeachment, summation, and other trial court errors can have “the cumulative effect of depriving the defendant of his due process right to a fair trial.”¹³ Id. at 931. Additionally, Johnson cited to People v. Crimmins, 36 N.Y.2d 230, 237 (1975), where the New York Court of Appeals held that that improper summation by the prosecutor denied petitioner of a fair trial and “constituted constitutional error.” (Appellant Brief at 44.) Habeas courts have previously held that citations to Crimmins in a petitioner's state appellate brief sufficiently alerted the state court of the constitutional nature of his fair trial claims based on improper summation by the prosecution, even without “express federal constitutional analysis.”¹⁴ Guerrero v. Artuz, No. 00 Civ. 2305, 2002 WL 619576, at *2 (S.D.N.Y. Apr. 17, 2002); see also Walker v. Bennett, 262 F.Supp.2d 25, 33 (W.D.N.Y. 2003) (citing Crimmins for the proposition that habeas petitioner's claim of improper prosecutorial summation was fairly presented as having a constitutional nature despite being “couched. . . solely in state law terms” because “New York's case law proscribing certain behavior by the prosecution is grounded in Fifth Amendment due process concerns”).

13 See also People v. Nevedo, 202 A.D.2d 183, 186, 608 N.Y.S.2d 422, 424 (1st Dept. 1994) (holding that even though each alleged error by itself would not be unduly harmful, “the cumulative effect of the errors here was to deny the defendant the fair trial to which he was entitled”).

14 To be clear, merely citing to Crimmins does not automatically alert the state court of the federal constitutional nature of any type of fair-trial claim. See Jean-Baptiste v. Artus, No. 09 Civ. 5920, 2012 WL 12906287, at *11 (S.D.N.Y. June 19, 2012), report and recommendation adopted, No. 09 Civ. 5920, 2016 WL 7118280 (S.D.N.Y. Dec. 6, 2016) (holding that citing to Crimmins did not alert a state appellate court of the constitutional nature of an erroneous evidentiary ruling claim); Canteen v. Kelly, No. 86 Civ. 3951, 1989 WL 116287, at *1 n.3 (S.D.N.Y. Sept. 27, 1989) (holding that citing to Crimmins did not alert a state appellate court to the constitutional nature of an improper hearsay claim). In his state appeal, Johnson, like the appellant in Crimmins, asserted improper prosecutorial summation as a basis for his claim that he did not receive a fair trial. (Appellate Brief at 44). In doing so, Johnson sufficiently alerted the First Department of the constitutional nature of his claim.

Following his unsuccessful appeal to the First Department, Johnson fulfilled the last step of exhausting his claims by requesting leave to appeal to the Court of Appeals. Johnson, 30 N.Y.3d 980. There, Johnson again cited to Crimmins and expressly argued that his Constitutional right to a fair trial had been denied. (See Dkt. 12-3 at 3-5.) Accordingly, Johnson fairly presented his fair-trial claim to both the First Department and the Court of Appeals, thereby exhausting his state judicial remedies.

In sum, the Government's threshold arguments for rejecting Johnson's petition are unavailing. Johnson's claims are sufficiently specific, implicate the requisite federal element, and are fully exhausted in the state courts. His claims are properly before this Court, with one exception discussed next.

4. Procedural Defaults

Johnson premises his fair-trial claim on three errors that he argues occurred at trial: (1) improper impeachment by the prosecution; (2) improper summation by the prosecution; and (3) and improper jury instructions by the trial court. But, Johnson's claims regarding the propriety of Judge Webber's jury instructions are procedurally defaulted and barred from habeas review because Johnson's counsel did not object to these instructions contemporaneously.

“The Supreme Court has made clear that . . . ‘an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice'” Roman v. Filion, No. 04 Civ. 8022, 2005 WL 1383167, at *22 (S.D.N.Y. 2005) (citing Harris v. Reed, 489 U.S. 255, 262 (1989)). “[I]n order to preclude federal review, the last state court to render judgment must ‘clearly and expressly state[] that its judgment rest[ed] on a state procedural bar.'” Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997) (citing Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir.1996)).

Johnson's counsel at trial did not object to either of the limiting instructions given by the trial court and, accordingly, is barred from raising the issue before this Court. (See Tr. at 240, 412.) Failing to object to improper jury instructions at trial constitutes “adequate and independent state procedural grounds” and procedurally defaults the claim. Colon v. Artuz, 174 F.Supp.2d 108, 115 (S.D.N.Y. 2001) (refusing to review habeas claim regarding trial court's jury instruction where Appellate Division had ruled that such claim was not preserved by objection); Roman, 2005 WL 1383167 at 24 (“[f]ailure to object at trial . . . is an adequate and independent state ground for the purposes of [denying] habeas review”); Alvarez v. Scully, 833 F.Supp. 1000, 1009 (S.D.N.Y. 1993) (failure to object where trial court allegedly failed to administer a jury instruction constituted procedural bar to habeas relief where same argument was deemed unpreserved by the Appellate Division).

Johnson raised his fair-trial claim in his brief on appeal to the First Department. (Appellate Brief at 24-25.) The First Department held both that Johnson's “challenge to the content of the court's instructions regarding the grand jury testimony is unpreserved” and that “although the standard CJI charge is preferable, the instructions here provide no basis for reversal.” Johnson, 148 A.D.3d at 444. By stating that this issue is “unpreserved, ” the First Department unambiguously held that its decision rested on a procedural bar.¹⁵ See Roman, 2005 WL 1383167 at *23 (holding that the First Department's conclusion that an issue was “unpreserved” for appellate review “unambiguously rested on a state procedural ground.”)

15 The fact that the First Department provided an alternate holding does not preserve the issue. See Roman, 2005 WL 1383167 at *22 (“The Second Circuit has made clear that ‘federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim.'”) (citing Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990)); see also Fama v. Commissioner of Correctional Services, 235 F.3d 804, 810-1 n. 4 (2d Cir. 2000) (“where a state court says that a claim is ‘not preserved for appellate review' and then ruled ‘in any event' on the merits, such a claim is not preserved”).

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.'” Graves v. Cunningham, No. 09 Civ. 5837, 2010 WL 2942614, at *10 (S.D.N.Y. 2010), report and recommendation adopted, No. 09 Civ. 5837, 2010 WL 2985473 (S.D.N.Y. 2010) (quoting Fama, 235 F.3d at 809). Johnson fails to show either. Cause means that the defendant shows “that some objective factor external to the defense impeded . . . efforts to comply with the State's procedural rule.” Id. (internal citations omitted). Common examples of cause include “(1) a showing that the defendant was represented by counsel who was constitutionally ineffective; (2) a showing that the factual or legal basis for a claim was not reasonably available at the time of the default; or (3) interference by state officials that made compliance with the procedural mechanism impracticable.” Id. (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). Neither Johnson's Petition nor his Reply makes a showing that any objective factor external to the defense impeded his efforts to comply with the State's contemporaneous objection rule.

As Johnson has failed to show cause, the Court need not review at length whether Johnson established prejudice. See Graves, 2010 WL 2942614 at *13 (“Because Petitioner fails to show cause, the Court need not address his claim of prejudice.”); McCleskey v. Zant, 499 U.S. 467, 468 (1991) (holding that habeas petitioner “lacks cause . . . and, therefore, the question whether he would be prejudiced by his inability to raise the claim need not be considered.”) Even so, it is clear that Johnson fails to show prejudice because, as discussed below, Johnson's claim that he did not receive a fair trial as a result of Judge Webber's jury instructions is meritless. See Graves, 2010 WL 2942614 at *13 (“it is clear that Petitioner cannot show prejudice because, as is discussed more fully below, his barred claims are without merit.”)

Johnson also fails to show that not considering this claim would result in a “fundamental miscarriage of justice.” Graves, 2010 WL 2942614 at *10. This exception to the cause requirement is meant to be “rare, ” and only for the “extraordinary case.” Schlup v. Delo, 513 U.S. 298, 299 (1995). To show a fundamental miscarriage of justice, petitioner must put forward new evidence that establishes his innocence beyond a reasonable doubt. Graves, 2010 WL 2942614 at *10. Johnson does not put forward any such new evidence. Because Johnson's claim is procedurally defaulted and he fails to show cause or a fundamental miscarriage of justice, this issue is unpreserved for this Court to review. Nonetheless, later in this opinion the Court nonetheless will address the merits of the jury instruction issue when analyzing Johnson's claim that he was denied a fair trial.

B. Johnson's Conviction was Supported by Legally Sufficient Evidence

Turning to the merits of Johnson's first claim, the evidence adduced at trial was legally sufficient for a rational jury to find Johnson guilty for first-degree manslaughter and two counts of second-degree criminal possession of a weapon.

1. First-Degree Manslaughter

Under New York law, a person is guilty of manslaughter in the first degree when “[w]ith intent to cause serious physical injury to another person, he causes the death of such person or of a third person.” N.Y. Penal Law § 125.20(1). A rational jury could find that Johnson was guilty of first-degree manslaughter based on both Davis' testimony and corroborating evidence. Davis testified to having witnessed Johnson and Doughty arguing in a neighborhood bodega immediately prior to the murder (motive), that Johnson possessed a loaded gun and stated that he would kill Doughty (intent), and that he saw Johnson shoot Doughty several times (caused death). (Tr. at 78-90.) Even though Davis testified inconsistently and even recanted his testimony later in the trial, the question of Davis' credibility and what to make of his testimony was solely for the jury.¹⁶ United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (“the jury is exclusively responsible for determining a witness' credibility.”); United States v. Roman, 870 F.2d 65, 76 (2d Cir. 1989) (“Plainly the jury is entitled . . . to evaluate whether the testimony of a given witness is plausible in light of other evidence in the record.”); Gray v. Meachum, No. 96-2074, 1996 WL 478665, at *1 (2d Cir. 1996) (same); Gonzalez v. Reiner, 177 F.Supp.2d 211, 218 (S.D.N.Y. 2001) (same).

16 When determining whether to grant habeas relief, the “burden on petitioner is ‘very heavy' because all inferences are to be drawn in the prosecution's favor, and ‘a conviction may be based upon circumstantial evidence and inferences based upon the evidence, and the jury is exclusively responsible for determining a witness' credibility.'” Gonzalez v. Reiner, 177 F.Supp.2d 211, 218 (S.D.N.Y. 2001) (quoting United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993)). A rational jury could infer from Davis' increasing agitation on cross-examination, unwillingness to remain in the courtroom, his testimony overall, and the corroborating evidence that his change in testimony was induced by reasons having nothing to do with his credibility. See Roman, 870 F.2d at 76 (2d Cir. 1989) (“Plainly the jury is entitled to consider the evidence in its entirety and to evaluate whether the testimony of a given witness is plausible in light of other evidence in the record.”); United States v. Anderson, 747 F.3d 51, 63 (2d Cir. 2014) (“It is the province of the jury and not of the court to determine whether a witness who may have been inaccurate, contradictory and even untruthful in some respects was nonetheless entirely credible in the essentials of her testimony.”) (citing United States v. Truman, 688 F.3d 129, 140 (2d Cir. 2012)) (internal brackets removed).

Moreover, independent circumstantial evidence corroborated Davis' account: Davis' 911 call made at 4:27 a.m. on February 6, 2010, in which Davis stated that someone had been shot (Tr. at 89-91); the testimony of Officer Beharry, who found Doughty shot on the stoop of 1233 Union Avenue, thus corroborating Davis' testimony that Doughty was shot on the stoop of a neighboring building (id. at 89-90, 283-84); bullets found on the stoop where Davis testified the shooting occurred (id. at 317); cell phone location records showing that Johnson was both in the vicinity of the crime on February 6, 2010 and made numerous phone calls before and after the crime occurred (id. at 202-05); and lastly, the fact that Doughty was not robbed of the cash, crack, and cocaine that he had in his possession when he was killed, thus supporting Davis' testimony that the motive for the murder was not robbery but instead that Doughty was encroaching on Johnson's drug territory. (Id. at 288-89.) Considering the criminal act and the attendant circumstances, a jury could rationally have found that Johnson intentionally caused serious physical injury to Doughty which resulted in Doughty's death. Accordingly, the evidence was sufficient to support the jury's conviction for manslaughter in the first degree.

2. Second-Degree Criminal Possession of a Weapon (Two Counts)

A rational jury also could find there was sufficient evidence that Johnson was guilty of two counts of second-degree criminal possession of a weapon. “A person is guilty of criminal possession of a weapon in the second degree when . . . with intent to use the same unlawfully against another, such person . . . possesses a loaded firearm.” N.Y. Penal Law § 265.03(1). A person is also guilty of second-degree criminal possession of a weapon if “such person possesses any loaded firearm.” N.Y. Penal Law § 265.03(3).

Davis testified that he saw Johnson possess a loaded gun (possession), threaten to kill Doughty while waving the gun (intent), and subsequently saw Johnson shoot Doughty multiple times (unlawful use). (Tr. at 73-90.) As set forth above, independent evidence corroborated Davis' account. The jury thus had ample reason to credit Davis' initial testimony, reject his later contradictory testimony, and find that Johnson was guilty of both weapon-possession counts.

C. Johnson Received a Fair Tri

Johnson claims that he was denied his Constitutional right to a fair trial because the trial court (i) permitted the prosecution to impeach its own witness, (ii) issued inadequate limiting instructions to the jury, and (iii) permitted the prosecution to bolster its case during summation. The Court, however, finds nothing improper in the trial court proceedings that deprived Johnson of a fair trial.

1. Impeachment

Johnson argues that he was “denied a fair trial when the trial court improperly permitted the People to impeach their own witness with his Grand Jury testimony.” (Petition at 5.) Johnson contends that the prosecution should not have been permitted to impeach Davis because Davis' testimony did not tend to disprove the prosecution's case and the prosecution was aware of how their witness would testify. (Petition at 5.) Johnson is incorrect on both points.

The trial court acted properly in allowing the prosecution to impeach their witness because Davis gave entirely contradictory testimony. Under New York law, a party may impeach their own witness by prior inconsistent statement “[w]hen, upon examination by the party who called him, a witness in a criminal proceeding gives testimony upon a material issue of the case which tends to disprove the position of such party.” NYCPL § 60.35(1); see also People v. Saez, 69 N.Y.2d 802, 804 (1987) (“A party may impeach its own witness if such witness' testimony on a material fact tends to disprove the party's position or affirmatively damages the party's case.”) (internal citations omitted).

Davis' testimony is a textbook example of testimony given on a material issue which tends to disprove the position of the party who called him. On his first day on the stand, Davis testified, as did before the Grand Jury, that he witnessed Johnson shoot Doughty. During re-direct testimony by the prosecution, however, Johnson recanted on this material issue. Although other evidence corroborated Davis' initial testimony, his was the only direct evidence linking Johnson to the murder. Davis' alternate version of the events given during cross-examination and re-direct examination was irreconcilable with his initial testimony upon which the prosecution largely based its case. The prosecution had no choice but to impeach their own witness with his prior grand jury testimony. See People v. Berry, 27 N.Y.3d 10, 18 (2016) (prosecution properly impeached their witness with previously signed statement indicating that defendant was the shooter where, at trial, that witness stated that he did not see defendant at the scene).

As for Johnson's second argument, nothing in the record indicates that the prosecution was aware that Davis would recant his initial testimony during trial. To the contrary, during re-direct examination the prosecutor reacted with surprise to Davis' contradictory testimony. For example, when Davis said that the police had told him that Johnson was the shooter, the prosecutor stated, “What are you talking about, Mr. Davis?” (Tr. at 170.) Similarly, the prosecutor reacted to another contradiction by asking Davis why he had “never brought this up” before. (Id. at 170.) In an apparent attempt to make sense of Davis' blatant contradictions, the prosecution asked Davis “so you don't want to be here?”; “So is that why?”; and “So is that why you are giving that answer because you don't want to be here?” (Id. at 170-71.) In short, there is no basis to conclude that the prosecution knew that Davis would recant. Because Davis' contradictory testimony affirmatively damaged an integral part of the prosecution's case, the trial court properly allowed the prosecution to impeach their own witness.

2. Limiting Instructions

As explained earlier, the portion of Johnson's fair-trial claim based on allegedly improper jury instructions is procedurally defaulted. But even considering the issue on the merits, Johnson's constitutional right to a fair trial was not violated by inadequate limiting jury instructions about Davis' prior inconsistent testimony. The instructions were timely given and, although not perfect, do not give rise to any constitutional violation.

The trial court issued limiting instructions to the jury twice: once immediately after

Davis' impeachment by prior inconsistent statement and a second time in the trial court's final charge to the jurors. Immediately after the prosecution impeached Davis with his prior inconsistent testimony, the trial court told the jury:

[W]hat was read to you was prior testimony taken of . . . Mr. Davis. As stated that testimony was under oath. The People elicited that testimony as an inconsistency between the testimony here by Mr. Davis and the testimony previously given. You are to evaluate and make a determination as to credibility. And how you will evaluate the statements, the alleged inconsistencies by the witness.

(Tr. at 240.) And, in its final charge to the jury, the trial court instructed that “[t]he content of a prior inconsistent statement is not proof of what happened. You may use the evidence of a prior inconsistent statement only to evaluate the truthfulness or accuracy of the witness' testimony here at trial.” (Id. at 412.) Defense counsel did not object to either of the jury instructions. But Johnson now challenges both their timeliness and their content. (Petition at 6; Reply at 18-19.) The Court discusses each in turn.

a. Timing of the Limiting Instructions

New York procedural law requires that when a party impeaches its own witness due to a prior inconsistent statement, the court must instruct the jury that the introduction of the prior inconsistent statement is relevant “only for the purpose of impeaching the credibility of the witness with respect to his testimony upon the subject, and does not constitute evidence in chief.” New York Criminal Procedure Law § 60.35(2). Johnson argues that the trial court violated this requirement because it did not give its first limiting instruction before the prosecution impeached Davis with his own prior testimony. But neither the statute nor case law imposes such a requirement. Indeed, limiting instructions may be given immediately following the testimony in question. See, e.g., People v. Keitt, 141 A.D.2d 437, 438 (1st Dep't 2016) (finding no error where limiting instruction was given immediately after admission into evidence and in final instructions). That is exactly what the trial court did. The trial court then reinforced the limiting instructions by repeating them during the jury charge. No. more is required.

The Petition cites no precedent to support Johnson's contention about the timeliness of the trial court's limiting instructions. In his counseled brief on appeal, Johnson did cite three cases on this point. (Appellant Brief, at 49-50 (citing People v. Montgomery, 22 A.D.3d 960, 803 N.Y.S.2d 228 (2005); People v. Boone, 56 A.D.2d 892, 392 N.Y.S.2d 488 (1977); People v. Patterson, 48 A.D.2d 933, 369 N.Y.S.2d 534 (1975).)) Those cases, however, stand for the proposition that limiting instructions must be given at the time the statements were received into evidence and as part of the jury's final charge; they do not hold or suggest that limiting instructions must be given before the evidence is introduced.

In short, the Court finds no constitutional error in the timing of the trial court's limiting instructions.

b. Content of the Limiting Instructions

Nor was Johnson deprived of a fair trial by the content of the trial court's limiting instructions. New York Criminal Procedure Law § 60.35(2) requires that the jury be instructed that that the introduction of the prior inconsistent statement is relevant “only for the purpose of impeaching the credibility of the witness with respect to his testimony upon the subject, and does not constitute evidence in chief.” The jury instructions recommended by the New York State Unified Court System for impeaching a witness by prior inconsistent statement provide: “The contents of a prior inconsistent statement are not proof of what happened. You may use evidence of a prior inconsistent statement only to evaluate the truthfulness or accuracy of the witness's testimony here at trial.”¹⁷ In the instructions issued immediately after impeachment, the trial court informed the jury what the statements were, why the statements were introduced, and that the jury was “to evaluate and make a determination as to credibility. And how you will evaluate the statements, the alleged inconsistencies by the witness.” (Tr. at 240.) Those instructions were accurate but incomplete inasmuch as they did not affirmatively instruct the jury that the evidence could not be used as proof of what actually happened.

17 The recommended criminal jury instructions can be found at http://www.nycourts.gov/judges/cji/1-General/cjigc.shtml, under the title “Inconsistent Statements.”

That omission, however, does not give rise to a due process violation for at least two reasons.¹⁸ First, the trial court instructed the jury what the prior statements should be used for, namely to asses Davis' credibility in light of the inconsistencies by the witness. The court did not misstate the law but instead omitted the affirmative admonition of how the prior inconsistent statements could not be used. “‘An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law, '" and "a petitioner's burden of demonstrating a constitutional violation is ‘especially heavy' where the petitioner is challenging the trial court's failure to give a particular instruction.” Olsen v. Doldo, No. 16 Civ. 5366, 2020 WL 685707, at *28 (S.D.N.Y. Jan. 2, 2020), report and recommendation adopted, No. 16 Civ. 5366, 2020 WL 635605 (S.D.N.Y. Feb. 11, 2020) (quoting Henderson v. Kibbe, 431 U.S. 145, 154-55 (1977)). Second, in the final charge to the jury, the court gave both parts of the recommended instructions. (Tr. at 412.) See People v. McClain, 250 A.D.2d 871, 872 (3d Dep't 1998) (concluding jury instructions not improper where the instruction was given both at the time the evidence was offered and during the charge).

18 As the First Department stated on this issue: “although the standard [Criminal Jury Instructions are] preferable, the instructions here provide no basis for reversal (see CPL 60.35(2)).” People v. Johnson, 148 A.D.3d 444, 444 (1st Dep't 2017).

As the cases cited by Petitioner during his appeal to the First Department show, courts that have reversed a state trial court conviction based on jury instruction errors have done so where the trial court issued no instructions whatsoever when the prior statements were introduced or gave unclear or no instructions in the final instructions to the jury. See Boone, 56 A.D.2d at 892 (reversal of conviction was warranted because no instructions were issued when the prior inconsistent statements were introduced at trial and unclear instructions were given in the final jury charge); Patterson, 48 A.D.2d at 933 (same); Montgomery, 22 A.D.3d at 963 (reversal of conviction was warranted because no instructions were given at any point regarding the prior inconsistent statements). None of those situations exist here. The trial court gave correct but incomplete limiting instructions at the time the prior statements were introduced at trial and gave the complete recommended model instructions in the jury's final charge. The trial court's failure to provide a complete charge when the impeachment testimony was first introduced cannot be said to have “‘so infected the entire trial that the resulting conviction violate[d] due process.'” Olsen, 2020 WL 685707, at *28 (internal citation omitted).

In short, the Petition's challenge to the content and timing of the limiting instructions lack merit.

3. The Prosecutor's Summation

Finally, Johnson was not denied his right to a fair trial by the prosecution's remarks during summation.

Johnson argues that the prosecution acted improperly during summation in a way that “compounded” the issues created by the allegedly improper impeachment and limiting instructions, therefore depriving him of a fair trial and warranting reversal of his conviction. (Reply at 19-22.) According to Johnson, the prosecution improperly bolstered Davis' testimony with Davis' grand jury testimony in a way that led the jury to believe that his grand jury testimony could “be used as direct evidence or suggest the prior statement is the credible version.” (Petition at 6; Reply at 19-22.) Johnson points to the following remarks made during summation to support his argument: that the prosecution told the jury that Davis had been under oath when he gave the grand jury testimony; that Davis' grand jury testimony was “crystal clear” and “very specific”; and that Davis had not been pressured at the grand jury “to do anything but to tell the truth.” (Id. at 19 (citing Tr. at 395-96).) According to Johnson, those remarks led the jury to “the unavoidable conclusion that since Davis had previously given his statement under oath, that version had already been found to be credible.” (Reply at 19-20.)

Johnson further argues that it is “highly probable” that these remarks influenced the jury's verdict because the jury requested a readback of Davis' testimony that included his grand jury testimony. (Id. at 20-21.) Johnson asserts that the readback was especially problematic because the grand jury testimony was used at trial outside the presence of the jury and therefore the jury had never had the opportunity “to view [Davis'] demeanor to adequately assess his credibility. It was here Davis testimony was allowed to be considered by the jury as evidence-in-chief.” (Id. at 20.) The Court finds Johnson's contentions unavailing.

As a general rule, prosecutors are given “‘broad latitude in the inferences they may suggest to the jury in summation,' and ‘are free to make arguments which may be reasonably inferred from the evidence presented.'” United States v. Jones, No. 96-1438, 96-1451, 1997 WL 722938, at *7 (2d Cir. 1997) (citing United States v. Roldan-Zapata, 916 F.2d 795, 807 (2d Cir.1990)). To warrant habeas relief on a state court's conviction for improper summation, “the prosecutorial misconduct must cause the defendant ‘substantial prejudice' by ‘so infecting the trial with unfairness as to make the resulting conviction a denial of due process.'” United States v. Elias, 285 F.3d 183, 190 (2d Cir. 2002) (citing United States v. Shareef, 190 F.3d 71, 78 (2d Cir.1999)). “In assessing whether prosecutorial misconduct caused ‘substantial prejudice,' [the Court of Appeals for the Second Circuit] has adopted a three-part test: the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the misconduct.” Id. at 190. Here, the prosecution acted properly, and, even if he had not, all three factors demonstrate that that the prosecutor's allusions to Davis' grand jury testimony during summation did not give rise to substantial prejudice.

a. Severity of the Misconduct

First, the prosecution's references to Davis' grand jury testimony were entirely proper, and the severity of any potential impropriety was mitigated by the context in which the prosecution made them.

As the record clearly shows, the prosecution did not reference Davis' grand jury testimony as evidence-in-chief, but rather only to establish the credibility of Davis' initial trial testimony that Johnson shot Doughty. The prosecution began summation by stating that it is easy to dismiss Davis as a “crackhead” and “crazy, ” but ultimately Davis' initial testimony “is corroborated where it counts.” (Tr. at 375.) To support that argument, the prosecution then pointed to the many pieces of evidence corroborating Davis' initial account of the shooting including Davis' 911 call which corroborated that he had just witnessed a murder (Id. at 375-76); police testimony corroborating the place of death (Id. at 376-77); the fact that valuable items were left on Doughty's body, which corroborated Davis' testimony that the motivation behind the murder was a drug territorial rivalry and not a robbery (Id. at 377-78); the cell phone records corroborating Davis' testimony that Johnson was a drug dealer in the neighborhood who was available virtually any time of day (Id. at 379); and ballistic reports corroborating Davis' testimony that there was only one shooter (Id. at 388-89). The prosecution continued building the credibility of Davis' initial testimony by arguing that Davis' identification was likely to be accurate since he knew Doughty and Johnson (Id. at 380-83); that Davis changed his testimony after getting the “jitters” from fear of Johnson (Id. at 390); and that Davis had no financial interest in this case (Id. at 392-93).

That context - providing indicia of the credibility of Davis' first day of testimony - is the context in which the prosecutor referred to Davis' grand jury testimony. When arguing in summation that Davis' first account of the killing should be believed over his later account, the prosecutor stated that “on direct [examination] he was very clear that it was the early morning hours. In the grand jury he was crystal clear about that as well.” (Id. at 385.) Coming in the middle of building up the credibility of Davis' initial testimony, the prosecution's use of Davis' grand jury testimony cannot reasonably be viewed as evidence-in-chief, but rather as one of many factors for the jury to consider in determining whether to credit Davis' initial or later testimony. In other words, the prosecution did not engage in any misconduct, let along misconduct that could be substantially prejudicial.¹⁹

19 The fact that defense counsel did not object to the prosecutor's reference to the grand jury testimony during summation suggests that even the defense did not view it as improper. See Fowle v. Smith, No. 85 CIV. 7311, 1986 WL 10484, at *2 (S.D.N.Y. Sept. 18, 1986) (holding that petitioner's claim that he was denied a fair trial by prosecutor's improper remarks during summation was “weakened by the defense counsel's failure to contemporaneously object to the prosecutor's comments during trial.”) Although defense counsel did object in close proximity to one of the prosecutor's remarks about the grand jury testimony, that objection was unrelated to the grand jury testimony. (Tr. at 400-01.)

b. Measures Taken to Cure Misconduct

Second, any potential harm caused by the prosecution's remarks suggesting that Davis' grand jury testimony was evidence-in-chief was cured by the trial court's limiting instructions to the jury given immediately after introduction of the testimony and in the final charge as previously described. These instructions directly countered any notions the jury may have had that the grand jury testimony could be relied upon as evidence. See United States v. Melendez, 57 F.3d 238, 242 (2d Cir. 1995) (discussing curative effect of final jury instructions directly addressing any prosecutorial misconduct made during summation).

c. Certainty of Conviction

Lastly, it is unlikely that any of the allegedly improper remarks materially affected Johnson's conviction. The prosecution only briefly referred to Davis' grand jury testimony with respect to the timing of the killing, which was merely one aspect of the overall relevant testimony. The jury had to make a credibility decision regarding different portions of Davis' testimony. And, as already established, considerable other evidence corroborated Davis' first account. The jury thus had ample basis to believe Davis' initial testimony independent of any remarks made by the prosecution during summation. See Melendez, 57 F.3d at 242 (holding that the appellant's conviction was “highly likely” even absent alleged prosecutorial misconduct during summation since key witness testimony was corroborated “by independent evidence.”)

Johnson asserts that the jury requesting a readback of the grand jury testimony during deliberation shows that it is “highly probably” that the jury was influenced by the prosecutor's remarks at summation. The Court disagrees. The jury never asked specifically for the grand jury testimony. Rather, the record shows that the jury requested to be reminded of many pieces of evidence during deliberation, including requests to see crime scene photographs again; to hear a playback of Davis' 911 call; to re-watch surveillance video; to see Johnson's cellphone call log from February 6, 2010; to have legal terms defined again; and for readbacks of statements Davis gave to the police on February 8, 2010, of portions of Davis' first two days of testimony and, from the third day, the events that had occurred “from the bodega, until the 911 call.” (Tr. at 426-27, 441-43, 448, 466.) That the jury requested readbacks from Davis' third day of testimony, among many other pieces of evidence and without specific reference to the grand jury testimony, does not show that it is “highly probable” that the jury was influenced by the portions of the prosecution's summation that referenced Davis' grand jury testimony.

Johnson's assertion that the readback was especially problematic because the jury did not have an opportunity “to view [Davis'] demeanor to adequately assess his credibility” with regard to the grand jury testimony is factually incorrect. The jury was present when Davis was impeached using the grand jury testimony. (Tr. at 233-40.) Johnson appears to have confused references to Davis' grand jury testimony (which was used to impeach Davis) with references to Davis' statements to police officers on February 8, 2010 (which was used to refresh Davis' memory). Johnson's citation in his Reply to the trial transcript at pages 174-181 evidence that mistake.²⁰

20 When used at trial to refresh Davis' memory, the statements to the police were read outside of the jury's presence. (Tr. at 174-76.) And when the jury requested to be read these statements during deliberation, the parties agreed to provide certain portions of them. (Tr. at 440-41.)

The cases cited by Johnson (in his state appeal) granting habeas relief based on prosecutorial misconduct do not warrant any different conclusion. Again, Johnson cites to People v. Mattocks, 100 A.D.3d 930 (2nd Dep't 2012), where the Second Department held that the trial court erred in allowing a party to impeach their own witness and that the error was magnified by the prosecution's summation. By contrast, both the trial and appellate courts here found that the prosecution's impeachment of their own witness was proper. This Court agrees.

Petitioner's other cases are similarly distinguishable. See Montgomery, 22 A.D.3d at 961 (finding summation improper where prosecution characterized prior inconsistent statements as “the most truthful version of what had happened” and trial court failed to issue any limiting instructions); People v. Cavallerio, 71 A.D.2d 338, 342 (1st Dep't 1979) (prosecutor engaged in grossly improper conduct when he “deliberately elicited an answer of such an unquestionably prejudicial character as to fatally undermine the inherent fairness of the trial” and then deliberately referred to that prejudicial answer several times during summation); People v. Abdul-Malik, 61 A.D.2d 657, 663 (1st Dep't 1978) (prosecution engaged in “obvious mischief” by making comments specifically proscribed by the relevant law).

In sum, all relevant factors confirm that the prosecutor's remarks regarding Davis' grand jury testimony at summation did not deprive Davis of a fair trial. Such remarks were proper references for purposes of credibility, and any purported impropriety (although there was none) was mitigated by the limited nature of the remarks and by the trial court's jury instructions.

Conclusion

For the foregoing reasons, the Petition for writ of habeas corpus is without merit.²¹Accordingly, I recommend that the Petition be DENIED and the action dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Alison J. Nathan, United States Courthouse, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.

21 Petitioner's arguments, to the extent not addressed above, have been considered by the Court and found to be without merit.

Defendants are directed to serve a copy of this Report & Recommendation on Petitioner and to file proof of service of same by June 12, 2020. If counsel is unable to complete this mailing as a result of COVID-19 and related disruptions, counsel shall promptly notify the Court by letter filed on ECF.