Opinion
19 Civ. 7054 (PMH) (PED)
04-25-2022
SAMUEL LEWIS, JR., Petitioner, v. ANTHONY J. ANNUCCI, Acting Commissioner, New York Department of Corrections and Community Supervision, Respondent.[1]
TO THE HONORABLE PHILIP M. HALPERN, United States District Judge.
REPORT AND RECOMMENDATION
PAUL E. DAVISON, U.S.M.J.
I. INTRODUCTION
On June 4, 2013. an Orange County jury convicted petitioner Samuel Lewis, Jr. (“petitioner” or “defendant”) of second degree criminal possession of a weapon (N.Y. Penal Law § 265.03(3)). He was sentenced on October 31, 2013 to a determinate prison term of six years followed by five years of post-release supervision.
Petitioner was acquitted of fourth degree criminal possession of stolen property.
Presently before this Court is petitioner's pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 This petition is before me pursuant to an Order of Reference dated September 13, 2019 (Dkt. #9). For the reasons set forth below, I respectfully recommend that Your Honor deny the petition in its entirety.
Although petitioner has been released from incarceration, “a petition for habeas corpus relief does not necessarily become moot when the petitioner is released from prison. Rather, the matter will remain a live case or controversy if there remains ‘some concrete and continuing injury' or ‘collateral consequence' resulting from the conviction.” Byng v. Annucci, No. 18 Civ. 0994, 2021 WL 1565189, at *3 (N.D.N.Y. Apr. 21, 2021) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)). In other words, “[a] habeas petition is generally not moot so long as the petitioner continues to be held in the custody that he alleges is unlawful. See Dhinsa v. Krueger, 917 F.3d 70, 77 n.5 (2d Cir. 2019). That is so whether the petitioner is experiencing direct physical custody (e.g., incarceration), or is subject to restraints on his liberty, such as parole.” Janakievski v. Exec. Dir., Rochester Psychiatric Ctr., 955 F.3d 314, 319 (2d Cir. 2020). Here, petitioner is presently subject to a five-year period of post-release supervision (until September 2024). Accordingly, the instant habeas Petition is not moot. Copies of all unpublished cases available only in electronic form cited herein have been mailed to petitioner. See Lebron v. Sanders, 557 F.3d 76, 78 (2d Cir. 2009).
The information in this section is drawn from the instant petition (Dkt. #1), respondent's Affirmation in Opposition to Petition for a Writ of Habeas Corpus (Dkt. #13), respondent's Memorandum of Law (Dkt. #14), respondent's Exhibits (Dkt. #14-1 and #14-2) and transcripts of the state court proceedings (Dkt. #14-3 through #14-9).
A. The Crime
During the early morning hours of November 19, 2012, City of Newburgh police officers responded to a report of a robbery in the vicinity of a building on West Parmenter Street. As officers began searching the area, Officer Joseph Palermo heard noises coming from behind an abandoned house. Officer Palermo (backed up by Officer Perez) drew his firearm and approached the back of the house. He immediately saw petitioner and another male on the back porch. The area was well-illuminated by street lamp and the lights from a nearby restaurant. Officer Palermo's firearm had an LED flashlight attached; he pointed his weapon/flashlight toward the porch and ordered the two men to get out. Petitioner s cohort came off the porch with his hands up in the air, and was immediately passed off to Officer Perez. Officer Palermo observed that petitioner was crouched down, and watched him place a black object underneath a rug on the porch floor, Petitioner then walked out with his hands up and was passed off to other officers.
Officer Palermo walked up onto the porch and examined the area where petitioner had been crouching. Officer Palermo observed a lump under the rug and, after stepping on it and confirming that something was there, he lifted up the rug and observed a black .38 caliber Colt revolver. Officer Palermo opened the cylinder and found it was loaded with four rounds.
Petitioner, who was nineteen at the time of the incident, did not have a pistol permit. The gun was subsequently test-fired (using one of the rounds recovered with it) and deemed operable.
B. The “Holdout Juror”
At approximately 9:00 a.m. on the third day of deliberations (June 4, 2013), Juror number 6 entered the courtroom. T. 319 (Dkt. #14-8, at 19). The following colloquy occurred in the presence of counsel and defendant:
Numbers preceded by “T.” refer to pages from the trial transcript. Citations to page numbers preceded by “Dkt. #” reflect ECF pagination.
THE COURT: Ma'am, come in, have a seat. You're Juror number 6?
JUROR NUMBER 6: Yes, I am.
THE COURT: Talk to me. You wanted to talk to us about something to do with deliberations, right?
JUROR NUMBER 6: Well, now they're going to go back in and talk to you. See-let's see what happened.
THE COURT: Who is going to go back and talk to me?
JUROR NUMBER 6: You said you were going to call them to discuss witness number two's statement first thing today.
THE COURT: To read testimony back, Yuvondra will read the testimony back. We had to let you guys go because Juror Number 8 yesterday had a doctor's appointment. But is there something you want to bring to my attention?
JUROR NUMBER 6: No. It's just that I'm the holdout and it's getting really tough in there.
THE COURT: The jury instructions are such that they say, that the jury instructions I read to you are, obviously, each juror has to make a decision based upon their own view of the facts. You need to talk to the other jurors. You shouldn't give up your view just because you are out-voted. By the same token, you shouldn't hesitate to re-examine your own views if, ultimately, you think that they're in error.
So that's pretty much part of deliberations. Everybody doesn't agree immediately and sometimes it takes a long time for everybody to agree. And sometimes everybody doesn't agree and there has to be a mistrial. So all those things have happened. But in your case, as I say, and I don't want to know what the issues are, anything like that.
JUROR NUMBER 6: No.
THE COURT: Yeah. Again, you should not give up your own views unless you're convinced that after listening to everybody else, and reviewing the evidence again, that you could be in error. So that's kind of the dynamics of deliberations.
JUROR NUMBER 6: Okay.
THE COURT: So we're going to read this stuff back. And I will, mayber, I'll read the entire charge about deliberations back to you again.
JUROR NUMBER 6: Thank you.
THE COURT: And we will go from there.
JUROR NUMBER 6: Okay.
THE COURT: All right. And we will see you out here in a couple of minutes.
JUROR NUMBER 6: Yes. Thank you for getting me out of that room. Thanks.
(Juror Number 6 exits the courtroom.)
THE COURT; I don't know.
MR. COBB [defense counsel]: I thought you did as well as you could possibly do with that. What the hell can you say?
THE COURT: You can bring them out, Tom.
COURT OFFICER: Jury entering.
THE COURT: Mr. Cobb, Mr. Healy, you don't have any objection to me reading the deliberations charge?
MR. COBB: No, your Honor.
MR HEALY [the prosecutor]: No, your Honor.
(The jury enters the courtroom.)T. 319-21 (Dkt. #14-8, at 19-21). Thereafter, following read-back of the testimony requested the day before, Judge DeRosa reiterated the deliberations charge and deliberations resumed. T. 32122 (Dkt. #14-8, at 21-22).
C. Direct Appeal
Petitioner, by and through counsel, timely appealed his conviction to the Appellate Division, Second Department on the following grounds: (1) petitioner's conviction was neither supported by legally sufficient evidence nor consistent with the weight of the evidence; and (2) his sentence was excessive. Exh. 9, at ¶ 00060-70. On June 30, 2016, by Decision and Older on Motion (Exh. 11, at 000098), the Appellate Division granted petitioner's motion to be furnished with copies of the state court transcripts and for leave to file a pro se supplemental brief. On or about March 15, 2018, petitioner submitted a pro se Supplemental Brief to the Second Department wherein he argued: (1) he was denied a fair trial because the trial judge failed to disclose the contents of Juror number 6's communication with the court prior to her appearance in open court; and (2) defense counsel was ineffective because he did not object to the trial court's failure to disclose the contents of its off-the-record communication with Juror number 6. Exh. 12, at 000117-127. By Decision and Order dated December 26, 2018, the Second Department affirmed petitioner's conviction. People v. Lewis, 167 A.D.3d 1045, 88 N.Y.S.3d 893 (2d Dep't 2018). Petitioner, by and through counsel, timely submitted an application for leave to appeal to the New York Court of Appeals, wherein he sought review of all of the claims raised in his initial appellate brief and pro se supplemental brief. Exh. 15, at 000150. The Court of Appeals denied petitioner leave to appeal on March 26, 2019. People v. Lewis, 33 N.Y.3d 950, 123 N.E.3d 810 (Table), 100 N.Y.S.3d 151 (2019).
Citations to “Exh.” refer to Respondent's Record of Exhibits Volume I (Dkt. #14-1) and Volume II (Dkt. #14-2). Respondent has provided the court with hard copies of the two volumes of exhibits, Bates stamped 000001 - 000150. Page number citations following “Exh.” reflect Bates numbering (not ECF pagination).
D. The Instant Petition
On or about July 29, 2019, petitioner timely filed the instant Petition for a Writ of Habeas Corpus (Dkt. #1), seeking habeas relief on the following grounds: (1) the conviction was not supported by legally sufficient evidence; (2) the verdict was against the weight of the evidence; (3) the sentence was harsh and excessive; (4) petitioner was denied a fair trial because the trial judge failed to disclose the contents of Juror number 6's communication with the court prior to her appearance in open court; (5) defense counsel was ineffective because he did not object to the trial court's failure to disclose the contents of its off-the-record communication with Juror number 6; and (6) the verdict was repugnant.
This claim appears in Ground 4 of the Petition, and is restated with slight (but insignificant) variation in Ground 5. Dkt. #1.
III. 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)). “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). See 28 U.S.C. § 2254(a). “The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antitenoiism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97 (2011).
When reviewing petitions filed subsequent to the AEDPA's effective date, a federal court may not grant habeas relief unless the petitioner establishes that the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (d)(2). The AEDPA deferential standard of review will be triggered if the petitioner's claim “was adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d); see Bell v. Miller, 500 F.3d 149, 154-55 (2d Cir. 2007). “A state court adjudicates a state prisoner's federal claim on the merits when it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment.” Jimenez v. Walker, 458 F.3d 130, 140 (2d Cir. 2006) (quoting Sedan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)).
A state court's decision is “contrary to” clearly established Federal law if (1) “the state court applies a rule that contradicts the governing law set forth [by the Supreme Court of the United States]” or (2) “the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). “Clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of [Supreme Court] decisions. And an ‘unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even ‘clear error' will not suffice.” White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (internal quotation marks and citations omitted). “The critical point is that relief is available under § 2254(d)(1)'s unreasonable application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no ‘fair minded disagreement' on the question.” Id. at 1706-07 (quoting Harrington, 131 S.Ct. at 786-87) (“As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”).
Finally, under the AEDPA, the factual findings of state courts are presumed to be correct. See 28 U.S.C. §2254(e)(1); see also 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). “A state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Cardoza v. Rock, 731 F.3d 169, 178 (2d Cir. 2013) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)).
IV. DISCUSSION
A. Insufficient Evidence
Petitioner seeks habeas relief on the ground that his conviction was not supported by legally sufficient evidence. He presented this argument to the Second Department on direct appeal; the Second Department rejected the claim on procedural grounds and, alternatively, on its merits:
The defendant's contention that the People failed to present legally sufficient evidence to sustain his conviction is unpreserved for appellate review (see CPL 470.05(2]; . . .). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.People v. Lewis, 167 A.D.3d at 1045-46, 88 N.Y.S.3d at 893 (internal citations omitted).
Federal habeas corpus review of a state court's denial of a state prisoner's federal constitutional claim is barred if the state court's decision rests on an independent and adequate state procedural ground, unless the petitioner can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional violation, or that he is actually innocent. See Bousley, 523 U.S. at 622; Coleman v. Thompson, 501 U.S. 722, 750 (1991). See also Lee v. Kemna, 534 U.S. 362, 375 (2002); Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002). A procedural ground is “independent” if “the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar.” See Harris v. Reed, 489 U.S. 255, 263 (1989) (internal quotation marks and citation omitted). A procedural bar is “adequate” if it is “based on a rule that is firmly established and regularly followed by the state in question.” Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006) (internal quotation and citation omitted).
In certain limited circumstances, however, “even firmly established and regularly followed state rules will not foreclose review of a federal claim if the application of the rule in a particular case is ‘exorbitant.'” See Garvey v. Duncan, 485 F.3d 709, 713-14 (2d Ch. 2007) (citing Lee, 534 U.S. at 376). To this end, the Second Circuit has set forth the following “guideposts” for evaluating the adequacy of the state procedural bar in the context of the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had “substantially complied” with the rule given “the realities of trial, ” and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee, 534 U.S. at 381-85).
New York's contemporaneous objection rule (codified at section 470.05(2) of New York's Criminal Procedure Law) “provides that, with a few exceptions not applicable here, New York appellate courts will review only those errors of law that are presented at a time and in a manner that reasonably prompted a judge to correct them during criminal proceedings.” Downs v. Lape, 657 F.3d 97, 103 (2d Cir. 2011). Here, defense counsel did not move to dismiss the charges against petitioner on the ground of insufficient evidence, either at the close of the prosecution's case or at the close of the evidence. T. 138-39, 209-14. On direct appeal, although the Second Department rejected petitioner's insufficient evidence claim on its merits, it also explicitly invoked an “independent” state procedural ground (New York's contemporaneous objection, rule) as a basis for its decision. Where a state court has expressly relied on a procedural default, federal habeas review is foreclosed even if the state court also addressed the merits of the federal claim. See Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005) (federal habeas review barred where state court held claim “not preserved for appellate review' but then ruled on the merits of the claim “in any event”).
The Second Circuit has consistently recognized New York's contemporaneous objection rule as an independent and adequate state procedural rule barring habeas review. See, e.g., Whitley v. Ercole, 642 F.3d 278, 292 (2d Cir. 2011); Downs, 657 F.3d at 104; Garvey, 485 F.3d at 720; Garcia v. Lewis, 188 F.3d 71, 79 (2d Cir. 1999) (federal courts “have observed and deferred to New York's consistent application of its contemporaneous objection rules”). Further, the Appellate Division's application of CPL 470.05(2) in this case was not exorbitant. As to the first Cotto consideration, it is “meaningless to ask whether the alleged procedural violation was actually relied on in the trial court-the violation only first occurred when defendant raised an argument on appeal that he had not raised earlier.” See Garvey, 485 F.3d at 719. Indeed, perfect compliance with CPL 470.05 would have given the trial court an opportunity to address head-on the issues petitioner now raises. The second Cotto consideration clearly weighs against petitioner because, as discussed above, New York case law requires compliance with the contemporaneous objection rule under the specific circumstances presented here. The third Cotto consideration similarly disfavors petitioner because, just as in Garvey, petitioner did not simply violate the “formal requirements” of CPL 470.05(2), but rather “the very essence of the rule. See Garvey, 485 F.3d at 720. Moreover, petitioner's compliance would have served a legitimate purpose in that “[a]t a bare minimum, the trial court could have developed a factual record supporting its decision[s] that could then properly be reviewed on appeal.” See Whitley, 642 F.3d at 290.
Because there is an adequate and independent finding by the Appellate Division that petitioner procedurally defaulted on the insufficient evidence claim he now asserts as grounds for habeas relief, petitioner must demonstrate in his habeas petition “cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” See Coleman, 501 U.S. at 750; Acosta v. Artuz, 575 F.3d 177, 184 (2d Cir. 2009). Petitioner, however, has made no attempt to show cause or prejudice, and there is no indication that this Court's failure to address the merits of the unpreserved claim would result in a fundamental miscarriage of justice. Accordingly, I conclude and respectfully recommend that petitioner's procedural default bars federal habeas review of his insufficient evidence claim.
Dismissal of a claim for habeas relief on the ground of procedural default amounts to “a disposition of the habeas claim on the merits.” See Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011).
B. Weight of the Evidence
Petitioner alleges, as a basis for habeas relief, that his conviction was against the weight of the evidence. “Unlike a legal sufficiency claim, which is based on federal due process principles, a weight of the evidence argument is a pure state law claim grounded in CPL § 470.15(5).” Dixson v. Lamanna, No. 18 Civ. 8285, 2022 WL 19180, at *23 (S.D.N.Y. Jan. 3, 2022) (quotation marks and citation omitted). In other words, “a petitioner's claim that his conviction was against the weight of the evidence is not a basis for federal habeas relief because it is based upon an error of state law, for which habeas review is not available.” Id. (quotation marks and citation omitted). See also Rios v. Miller, No. 17 Civ. 2256, 2021 WL 1178163, at *5 (S.D.N.Y. Mar. 29, 2021), appeal dismissed (Oct. 12, 2021). Accordingly, I conclude and respectfully recommend that petitioner's weight-of-the-evidence claim is not cognizable on federal habeas review and must be dismissed.
C. Excessive Sentence
Petitioner also seeks habeas relief on the ground that his sentence was harsh and excessive. It is well-settled that an excessive sentence claim is not cognizable on habeas corpus review unless the sentence imposed falls outside the range prescribed by state law. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam) (“No federal constitutional issue is presented where ... the sentence is within the range prescribed by state law.”); see also Rivera v. Collado, No. 19 Civ. 11403, 2021 WL 603047, at *14 (S.D.N.Y. Feb. 16, 2021).
Second degree criminal possession of a weapon, defined in New York Penal Law § 265.03, is a Class C violent felony offense under New York Penal Law § 70.02(1)(b). Under New York law, the sentence imposed upon conviction of second degree criminal possession of a weapon “must be at least three and one-half years and must not exceed fifteen years.” N.Y. Penal Law § 70.02(3)(b). Further, New York law mandates imposition of an additional term of post-release supervision “not less than two and one-half years nor more than five years whenever a determinate sentence of imprisonment is imposed pursuant to subdivision three of section 70.02 of this article upon a conviction of a class B or class C violent felony offense.” N.Y. Penal Law § 70.45. Petitioner was sentenced to a determinate prison term of six years followed by five years of post-release supervision; his sentence, therefore, fell within the range prescribed by state law. Accordingly, I conclude and respectfully recommend that petitioner's excessive sentence claim is not cognizable and must be dismissed, D, Repugnant Verdict
Petitioner argues that he is entitled to habeas relief because the jury convicted him of second degree criminal possession of a weapon but acquitted him of fourth degree stolen property and, thus, the verdict was repugnant or inconsistent. However, it is well-settled that petitioner's claim is purely a state-law claim and, thus, is not a basis for federal habeas relief. See Carrasco v. Miller, No. 17 Civ. 7434, 2021 WL 1040473, at *1-2 (S.D.N.Y. Mar. 18, 2021), Roberts v. New York, No. 18 Civ. 5455, 2019 WL 3302381, at *9 (E.D.N.Y. July 23, 2019). Accordingly, I conclude and respectfully recommend that petitioner's repugnant verdict claim is not cognizable and must be dismissed.
In any event, petitioner's claim is unexhausted and procedurally barred. Before granting habeas relief, the Court must confirm that “the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b). In particular, the AEDPA states. An applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented.” Id. § 2254(c). Here, petitioner failed to present his repugnant verdict claim on direct appeal and, thus, his claim is unexhausted. Nevertheless, the claim is “deemed exhausted because it is now procedurally barred under state law. See St. Helen v. Senkowski, 374 F.3d 181, 183 (2d Cir. 2004). Specifically, petitioner is precluded from raising his claim in a collateral proceeding because it could have been raised on direct appeal to the Appellate Division. See N.Y. Crim. Proc. Law § 440.10(2)(c). Petitioner has not alleged the cause and prejudice necessary to overcome his forfeiture, nor has he alleged that he is actually innocent or that the court's failure to consider the claim would result in a fundamental miscarriage of justice.
E. Ineffective Assistance of Trial Counsel
Petitioner seeks habeas relief on the ground that his trial counsel was ineffective. Specifically, petitioner complains that his trial counsel did not object to the trial court's failure to disclose the contents of its off-the-record communication with Juror number 6. Petitioner presented this argument on direct appeal; the Second Department denied it on the merits. People v. Lewis, 167 A.D.3d at 1046, 88 N.Y.S.3d at 893. Accordingly, on habeas review, I must apply the deferential AEDPA review standard in evaluating petitioner's ineffective assistance of trial counsel claim. See Contant v. Sabol, 987 F.Supp.2d 323, 330 (S.D.N.Y. 2013).
In order to establish his claim of ineffective assistance of trial counsel, petitioner must demonstrate (1) that his attorney's performance “fell below an objective standard of reasonableness” and (2) that there is a “reasonable probability” that, but for counsel's error, “the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). “The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard.” Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001). A petitioner who seeks habeas review of ineffective assistance of counsel claims must overcome a “doubly deferential” standard of review. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[w]hen [AEDPA] applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard. Harrington, 562 U.S. at 105.
In considering whether counsel's performance was deficient under Strickland s fust prong, decisions by trial counsel that “fall squarely within the ambit of trial strategy, ... if reasonably made, ” cannot give rise to a claim of ineffectiveness. United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987). Moreover, “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 690). The second prong focuses on prejudice to the petitioner. A habeas petitioner bears the burden of establishing both deficient performance and prejudice. See id. at 319. Thus, “there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697.
Here, under the deferential AEDPA standard of review, there is indeed a reasonable argument that trial counsel was not ineffective. Petitioner's contention hinges on the (inferred) premise that there was antecedent ex parte communication between the trial court and Juror number 6 prior to the colloquy in open court, on the record. But this premise is faulty: there is nothing in the record to suggest that the trial court communicated off-the-record with Juror number 6 prior to her appearance in open court. Although it appears the trial court had some prior knowledge of the general nature of Juror number 6's concerns (“You wanted to talk to us about something to do with deliberations, right?”), the trial court also asked “is there something you want to bring to my attention?” Dkt. #14-8, at 19. Common sense dictates that Juror number 6 told a court officer she wanted to speak with the judge, and the court officer relayed that message to the trial court. In response, the trial court spoke to Juror number 6 in the courtroom, in the presence of the prosecutor, defense counsel and petitioner. Given the absence of any indication of an ex parte conversation between the trial court and Juror numbei 6, defense counsel reasonably refrained from raising the specious objection which petitioner now claims should have been asserted. Thus, petitioner fails to demonstrate that trial counsel's performance fell below an objective standard of reasonableness. Accordingly, I conclude and respectfully recommend that petitioner's ineffective assistance of trial counsel claim must be denied.
F. Denial of Fair Trial
Petitioner's final claim for habeas relief is an off-shoot of his ineffective assistance of counsel claim: petitioner contends that he was denied a fair trial because the trial judge failed to disclose the contents of Juror number communication with the court prior to her appearance in open court. Although this claim is clearly meritless (given the absence of any indication of an ex parte conversation between the trial court and Juror number 6) it is also procedurally barred.
To the extent petitioner's claim is premised on a violation of N.Y. Crim. Proc. Law § 310.30 and the procedures set forth in People v. O'Rama, 78 N.Y.2d 270 (1991), it is non-cognizable on federal habeas review. See Serrano v. Kirkpatrick, No. 11 Civ. 2825, 2013 WL 3226849, at *11 (S.D.N.Y. June 25, 2013); Johnson v. Graham, No. 09 Civ. 5838, 2010 WL 3855286* at *5 (S.D.N.Y. Oct. 1, 2010).
Petitioner presented his fair trial claim on direct appeal; the Second Department rejected the claim as “unpreserved for appellate review” and, alternatively, on its merits. People v. Lewis, 167 A.D.3d at 1045-46, 88 N.Y.S.3d at 893. As stated above, where a state court has expressly relied on a procedural default, federal habeas review is foreclosed even if the state court also addressed the merits of the federal claim. See Green, 414 F.3d at 294. Further, as discussed above, the contemporaneous objection rule is well-established as an independent and adequate state-law ground barring federal habeas review, so long as it is not “exorbitant[ly] misapplied. Downs, 657 F.3d at 102. This Court sees no misapplication, nor has petitioner contended that is the case. To overcome this procedural bar, petitioner must demonstrate in his habeas petition “cause for the default and actual prejudice” or that he is actually innocent. See Coleman, 501 U.S. at 750; Carvajal, 633 F.3d at 104. Petitioner can establish “cause” if he can demonstrate that “some objective factor, external to [his] defense, interfered with his ability to comply with a state procedural rule.” Gutierrez v. Smith, 702 F.3d 103, 111-12 (2d Cir. 2012). Here, petitioner argues that his default was due to defense counsel's ineffectiveness. However, as previously discussed, defense counsel was not ineffective and, therefore, petitioner fails to demonstrate cause on that basis. Petitioner proffers no other explanation for his default, nor has he demonstrated actual innocence. Accordingly, I conclude and respectfully recommend that petitioner's procedural default bars federal habeas review of his claim that he was denied a fail trial.
V. CONCLUSION
For the reasons set forth above, I conclude - and respectfully recommend that Your Honor should conclude - that the instant petition for a writ of habeas corpus should be denied in its entirety. Further, because reasonable jurists would not find it debatable that petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, 1 recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(c), Rule 72(b) of the Federal Rules of Civil Procedure and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. Fed, R, Civ. P. 6(d). See also Fed.R.Civ.P. 6(a). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Hon. Philip M. Halpeen, at the Hon. Charles L. Brieant, Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Catdor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008).
Requests for extensions of time to file objections must be made to Judge Halpern.
Chambers mailed a copy of this Report and Recommendation to:
Samuel Lewis, Jr.
130 Fullerton Avenue Newburgh, New York 12550
-19- .