Opinion
17 Civ. 6319 (KMK)(JCM)
03-15-2021
ELLIOT MAY, Petitioner, v. THOMAS GRIFFIN, Superintendent, Respondent.
KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
JUDITH C. MCCARTHY UNITED STATES MAGISTRATE JUDGE
Petitioner Elliot May (“Petitioner”), proceeding pro se, filed a petition for a writ of habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254 on August 18, 2017. (Docket No. 1 at 26). On December 6, 2017, Respondent Thomas Griffin (“Respondent”) opposed the Petition, (Docket No. 11), accompanied by a supplemental memorandum of law (“Resp't Br.”), (Docket No. 11-1), and supporting exhibits, (Docket Nos. 11-2-11-39). Petitioner replied on March 15, 2018 (“Pet'r Reply”), (Docket No. 21), and Respondent submitted a supplemental letter on March 27, 2018, (Docket No. 22). Petitioner submitted a sur-reply on April 13, 2018. (Docket No. 23). For the reasons set forth below, I respectfully recommend that the Petition be denied in its entirety.
A pro se prisoner's papers are deemed filed at the time he or she delivers them to prison authorities for forwarding to the court clerk. Houston v. Lack, 487 U.S. 266, 276 (1988); see also Walker v. Jastremski, 430 F.3d 560 (2d Cir. 2005) (analyzing the Houston “prison mailbox rule”). Petitioner certified that his petition was delivered to the prison authorities for mailing on August 11, 2017. (Docket No. 1 at 26). Accordingly, because the timeliness of the Petition is not challenged, the Court adopts Petitioner's dates for this filing and all other filings discussed herein.
The page numbers for citations to the September 17, 2009 combined Wade and Huntley hearing transcript, the September 28, 2009 Sandoval hearing transcript, the July 14, 2010 persistent violent felony offender hearing transcript, the August 10, 2010 sentencing hearing transcript, and the trial transcripts, all of which were provided by Respondent pursuant to Rule 5(c) of the Rules Governing Section 2254 Cases in the United States District Courts, refer to the transcripts' original pagination. All other page numbers refer to the pagination on ECF.
I. BACKGROUND
A. The Crimes and Indictment
Petitioner's convictions arise out of an incident that occurred on October 10 and 11, 2007, whereby Petitioner, Tracy Steadman (“Steadman”), with whom Petitioner shares a child, and an unknown accomplice attempted to burglarize Pedro Gonzalez's (“Gonzalez”) apartment. Construing the evidence in the light most favorable to the state, see, e.g., Murden v. Artuz, 497 F.3d 178, 184 (2d Cir. 2007), the following facts were established at trial.
At the time of the incident, Gonzalez and Steadman had been romantically involved for approximately four months. (Trial Tr. at 733-34). Gonzalez owned an extensive jewelry collection, (id. at 735-36), which Steadman repeatedly commented on, (id. at 744), including on one occasion in early October 2007, (id. at 747). About ten days prior to the incident, Gonzalez gave his jewelry to his roommate, Wilfredo Morales (“Morales”), to place in Morales' padlocked closet for safekeeping. (Id. at 660-62, 745-46).
On October 10, 2007, around 11:10 p.m., Steadman told Gonzalez that she was on her way to his apartment, located at One Odell Place in New Rochelle, New York. (Id. at 748-49). Prior to this, Gonzalez was not expecting her arrival. (Id.). At approximately 11:30 p.m., Steadman called Gonzalez to ensure that the lobby door to One Odell Place was unlocked. (Id. at 750-51). Steadman arrived shortly thereafter, retrieved a beverage from the kitchen, and went into Gonzalez's bedroom. (Id. at 750-53). Morales had already gone to sleep in his makeshift bedroom, traditionally used as a living room. (Id. at 1050).
Gonzalez was preparing to take a shower when Steadman told him that she heard a knock at the door. (Id. at 755). Wearing only a towel, Gonzalez cracked open his front door. (Id. at 754-55). Petitioner and his accomplice kicked in the door and entered the apartment. (Id. at 756). Gonzalez called out to Morales, but before Morales could get out of bed, Petitioner's accomplice pushed him facedown onto the floor and held him there at gunpoint. (Id. at 665-67).
Petitioner asked Gonzalez where he kept his jewelry, to which Gonzalez averred that he did not have any. (Id. at 759). Gonzalez and Petitioner began to fight physically. (Id.). Petitioner hit Gonzalez several times on the head with his pistol before physically dominating Gonzalez and ushering him into the kitchen at gunpoint. (Id. at 760-64). Gonzalez then heard one of the men say: “let's kill[] these motherfuckers, ” and observed Petitioner take out a roll of silver duct tape. (Id. at 762, 767). Gonzalez pushed Petitioner in the chest, hurling him eight to ten feet backwards, and ran into his bedroom, where he saw Steadman standing quietly by his closet. (Id. at 770). Gonzalez jumped through the open window in his bedroom to escape and try to “save [his] life.” (Id. at 770-72). Gonzalez fell three stories and landed feetfirst on the soil outside of the building. (Id. at 772-73). He tried to stand up but was unable to move. (Id. at 773). A neighbor came to Gonzalez's aid and called the police. (Id. at 774).
At approximately 12:00 a.m. on October 11, 2007, Pedro Castro (“Castro”), who lived in One Odell Place, heard a “strange” noise while walking out of his lobby, which he later realized was the sound of a person running down the stairwell in flip-flops. (Id. at 862). Castro walked outside and saw a woman wearing flip-flops and two black men moving quickly away from the building. (Id.). Castro watched the individuals enter a mini-van and speed away. (Id. at 863, 866). A few minutes later, Officer Adam Castiglia (“Castiglia”) responded to the scene where he observed Gonzalez laying on the ground naked. (Id. at 464). Gonzalez's head was bloody, and he was attempting to cover himself with debris and leaves. (Id. at 466). He told Castiglia that there may be armed men in his apartment and that he feared his roommate was dead. (Id. at 469). Gonzalez was stabilized on a backboard and taken to Sound Shore Medical Center in New Rochelle. (Id. at 1051). Sergeant Raul Rodriguez (”Rodriguez”) accompanied him to the hospital. (Id. at 1055). Gonzalez was paralyzed from the waist down as a result of the fall. (Id. at 765).
Around 12:30 a.m., Detective Denise Walters (“Walters”) arrived at Gonzalez's apartment. (Id. at 1050). Sergeant Rodriguez told Walters to contact Morales and Steadman. (Id. at 1057). Walters was unable to reach Morales but spoke to Steadman at approximately 1:00 a.m. on Gonzalez's cell phone. (Id.). She also retrieved Gonzalez's jewelry for safekeeping from Morales' padlocked closet. (Id. at 1059). The padlock was still intact upon her arrival. (Id. at 1061).
Steadman was interviewed by police on October 11 and November 29, 2007, at which time she inculpated Petitioner in the crimes. (Id. at 1066-67). On November 30, 2007, Gonzalez identified Petitioner as his assailant from a photo array during an interview with police conducted at the nursing home where he was recovering. (Hearing Tr. at 47-52). On January 9, 2008, Petitioner was taken into custody in his parole office in Brooklyn, New York and transported to the New Rochelle Police Department (“NRPD”) headquarters. (Id. at 62-63). Petitioner gave an oral statement to Detective Walters after she informed him that Steadman had linked him to the incident. (Id. at 63-70; Trial Tr. at 1079).
Refers to the transcript of the pretrial Wade/Huntley hearing held before the Honorable Susan B. Cacace on September 28, 2009.
Petitioner told Detective Walters that on the day of the crimes, he went to New Rochelle to buy marijuana from Steadman's friend. (Trial Tr. at 1079, 1081; Hearing Tr. at 68). Petitioner alleged that he was driven to Steadman's home in Yonkers, New York by a friend named “Shereda, ” and that they picked up another friend named “Knowledge” on the way. (Trial Tr. at 1079-81, 1088; Hearing Tr. at 68-69). Petitioner, Shereda and Knowledge followed Steadman to an apartment building in New Rochelle. (Trial Tr. at 1086). Steadman entered the building and went to the third-floor to retrieve the marijuana, while Petitioner, Knowledge and Shereda waited outside. (Id.). Petitioner told Detective Walters that because Steadman was “taking so long, ” he and Knowledge went to the third-floor of the building to look for her, where they observed her running out of an apartment. (Id.). Petitioner claimed that he never entered an individual apartment and was not armed. (Hearing Tr. at 70). He further alleged that he did not know Gonzalez, but that he had “seen[n] a picture of [him] in Ms. Steadman's house.” (Id.). Petitioner was taken into custody on January 9, 2008, shortly after making the statement. (Trial Tr. at 1088).
In May 2008, Kendall Miller (“Miller”), known as “Swin, ” was serving his final week of a six-month jail sentence in Valhalla, New York. (Id. at 905-06). While in jail, Petitioner approached Miller, a native of New Rochelle, and asked him if he knew Gonzalez. (Id. at 90910). Miller told Petitioner that he knew Gonzalez well and that he heard “somebody robbed him and he's hurt, he's paralyzed, doing real bad.” (Id. at 910). Petitioner proclaimed that he was in jail for Gonzalez's assault and that he was innocent and being set up by Steadman. (Id. at 911, 917-18). Petitioner offered Miller $2,000.00 to get in touch with Gonzalez upon his release. (Id. at 915). Miller accepted Petitioner's offer. (Id. at 918).
Petitioner asked Miller to find Gonzalez a place to stay and asked Miller whether Gonzalez would move to Brooklyn and/or stay in a hotel before trial in exchange for exculpating him. (Id. at 948-49). Thereafter, Miller and Petitioner's friend, Kyrie Baum (“Baum”), known as “Chop, ” went to the nursing home where Gonzalez was recovering to relay Petitioner's offers. (Id. at 927-28). Baum was driven to the nursing home by Petitioner's ex-wife, Gina. (Id. at 927). When they arrived, Miller introduced Baum and told Gonzalez that Baum's friend had been wrongfully accused of his assault. (Id. at 931). Miller and Baum brought Gonzalez food and asked if he would accept money or clothing in exchange for “begin[ning] the process of exonerating [Petitioner].” (Id. at 793, 931, 935). Baum also offered to arrange accommodations for Gonzalez when he left the nursing home. (Id. at 791). Miller and Baum visited the nursing home a second time a few weeks later and - over the course of a month and a half - called Gonzalez roughly sixty times to offer him lodging, medication, clothing and various sums of money to clear Petitioner's name. (Id. at 791, 795). On another occasion, Miller showed Gonzalez an array of photographs, two of which depicted Petitioner wearing “[n]othing but a bathing suit, ” and asked if Gonzalez was able to identify his assailant. (Id. at 941, 952-53).
Furthermore, Dwayne Kirkland (“Kirkland”), a private investigator, and Mr. Mullady (“Mullady”), Petitioner's former attorney, went to Nyack Hospital to interview Gonzalez at Petitioner's behest. (Id. at 1159-61, 1171). Kirkland and Mullady entered a secured floor of the hospital without authorization to locate Gonzalez. (Id. at 1161-62). Kirkland interviewed Gonzalez for approximately twenty minutes, which he surreptitiously tape recorded and later partially transcribed. (Id. at 1172-74). During the interview, Kirkland showed Gonzalez a photo array containing three photographs of Petitioner. (Id. at 1209). Gonzalez made a partial identification during the interview. (Id. at 1219). Kirkland repeatedly pressed Gonzalez to sign a statement attesting that he could not make an identification. (Id. at 1214-15). Gonzalez refused. (Id.). Kirkland and Mullady were subsequently excluded from the premises at Nyack Hospital and instructed not to return. (Id. at 1161-64).
Gonzalez told the NRPD about the visits and calls he received from Miller and Baum, who were thereafter arrested for bribery on December 5, and 6, 2008, respectively. (Id. at 9951000).
B. Pretrial Hearings
On February 23, 2009, Petitioner moved, inter alia, to suppress Gonzalez's November 30, 2007 identification, to suppress his January 9, 2008 statement to Detective Walters, and for a Sandoval hearing. (See Docket No. 11-5 at 4-5). On April 29, 2009, the Honorable Robert A. Neary ordered Wade, Huntley and Sandoval hearings. (See id.). Petitioner was represented at the pretrial hearings and throughout trial by retained counsel, Devereaux Cannick (“defense counsel”), with the assistance of Linda C. Morris. (Id.).
The Wade and Huntley hearings were conducted before the Honorable Susan B. Cacace on September 17, 2009. (Hearing Tr. at 1-136). At the outset of the hearing, defense counsel moved to admit an affidavit prepared by Kirkland in support of Petitioner's motion to suppress Gonzalez's identification. (Id. at 4). The Court denied Petitioner's motion, allowing the defense to probe the officers who conducted the identification procedure on cross-examination. (Id. at 8). Thereafter, Steadman plead guilty to first degree burglary, (id. at 30-44), implicating Petitioner in her plea, (id. at 37).
The hearing proceeded with respect to Petitioner and Baum. (Id. at 44). The People called Detective Claudio Carpano (“Carpano”), (id. at 46-58), and Detective Walters, (id. at 5887), as witnesses. The defense called Detective Michael Messina (“Messina”), who prepared the photo array shown to Gonzalez on November 30, 2007. (Id. at 87-96). On September 21, 2009, the court denied Petitioner's suppression motions, finding that Gonzalez's identification was not the product of an impermissibly suggestive procedure and that Petitioner knowingly, voluntarily and intelligently waived his Miranda rights in making the January 9, 2008 statement to Detective Walters. (Docket No. 11-6 at 5-6).
Petitioner's Sandoval hearing was conducted on September 28, 2009 before the Honorable Susan B. Cacace. (Sept. 28, 2009 Trial Tr. at 1-24) (“Sandoval Hearing Tr.”). The prosecution sought to introduce numerous prior felony convictions to impeach Petitioner if he testified at trial. (Id. at 3-14). The court admitted several of Petitioner's prior felony convictions for impeachment purposes. (Id. at 22-23).
The court found that the prosecution could impeach Petitioner with: (1) his December 3, 1990 conviction for robbery in the third degree, sentence of 3.5 to 7 years' imprisonment, and the underlying facts of the conviction; (2) his March 2, 2000 felony conviction and sentence of 1.5 to 3 years' imprisonment; (3) his March 15, 2007 conviction for larceny and criminal impersonation, his sentence, and the underlying facts of the conviction; and (4) his June 18, 1987 first degree robbery conviction and sentence of 4 to 12 years' imprisonment. (Sandoval Hearing Tr. at 22-23). The court ruled that the prosecution could not inquire into Petitioner's 1996 felony conviction in Connecticut. (Id. at 23).
C. Trial and Verdict
The Honorable Susan B. Cacace presided over the trial. Jury selection took place on September 29 and 30, 2009, and October 1 and 5, 2009. (Trial Tr. at 1-414). The trial commenced on October 5, 2009 with opening statements. (Id. at 446-60). In support of its casein-chief, the People called: Officer Castiglia, (id. at 460-98); Sergeant Rodriguez, (id. at 499515); Megan Quigley, (id. at 527-49); Heather Ramos, (id. at 551-56); Officer Marc Weinerman, (id. at 567-79); Detective Robert Torr, (id. at 581-624, 638-41); Peter John Primrose, (id. at 642-54); Morales, (id. at 655-709); Samantha Walters, (id. at 710-22); Gonzalez, (id. at 730-856); Castro, (id. at 857-74); Miller, (id. at 899-983); Investigator Arthur Muhammad, (id. at 993-1008); Donald Smith, (id. at 1009-20); Detective Walters, (id. at 10471113); and Dr. Charles Walsh, (id. at 1115-28). The People rested on October 15, 2009 and the defense moved to dismiss the witness bribery charges, alleging that the People did not establish a prima facie case. (Id. at 1138). The court denied the motion. (Id. at 1138-39).
Petitioner called Kirkland in support of his case-in-chief. (Id. at 1157-1225). Before Kirkland took the stand, defense counsel informed the court that Kirkland's tape-recorded interview with Gonzalez and the transcript of the tape were stolen from Kirkland's car on January 29, 2009, and that the defense did not have a copy of the tape or transcript. (Id. at 1148).
The prosecutor then requested that she be allowed to cross-examine Kirkland regarding the photo array he showed Gonzalez at Nyack hospital. (Id. at 1149). The court denied the prosecution's request. (Id.).
Kirkland briefly testified on direct examination. He alleged that Gonzalez told him that he was unable to see his assailant because he “had blood in his eyes.” (Id. at 1158). On crossexamination, Kirkland informed the prosecution that he gave a copy of the taped interview to defense counsel earlier that morning. (Id. at 1174). The court recessed to address the defense's failure to turn over reciprocal discovery and for the prosecution to listen to the tape. (Id. at 1185). Defense counsel represented to the court that he had forgotten to turn over the tape because he was distracted preparing for his summation. (Id. at 1177). After the prosecution listened to the tape, which was partially unintelligible, the court revisited its prior ruling and allowed the prosecution to cross-examine Kirkland about the photo array that he showed Gonzalez. (Id. at 1174, 1189). A partial transcript of the tape was admitted into evidence. (Id. at 1210). Despite Kirkland's repeated contention that Gonzalez was unable to make an identification during the interview, (see, e.g., id. at 1207, 1216, 1220), the transcript revealed the following colloquy:
[Gonzalez]: It looks close to this guy, very close to this guy. [Kirkland]: It looks close to which guy? [Gonzalez]: It's him. [Kirkland]: . . . Okay.(Id. at 1219).
Thereafter, the defense rested and moved to dismiss the indictment for the prosecution's failure to prove its case beyond a reasonable doubt. (Id. at 1227-28). The motion was denied. (Id. at 1228). The parties delivered summations on October 19, 2009, (id. at 1237-1307), and the jury was charged on October 20, 2009, (id. at 1311-82). The jury deliberated for three days, (id. at 1311-1416), and rendered a verdict on October 23, 2009, finding Petitioner guilty of two counts of Burglary in the First Degree, one count of Assault in the First Degree and two counts of Attempted Bribing a Witness in the First Degree. (Id. at 1420-21). Petitioner was found not guilty of Attempted Robbery in the First Degree. (Id. at 1420).
On December 4, 2009, the People filed a persistent violent felony offender (“PVFO”) statement pursuant to N.Y. C.P.L. § 400.16. (Docket No. 11-14). A hearing was held to adjudicate Petitioner's PVFO status on July 14, 2010. (July 14, 2010 Trial Tr. at 1-18) (“PVFO Hearing Tr.”). The Court found that the People demonstrated beyond a reasonable doubt that Petitioner was the subject of recurrent violent felony offenses and should be sentenced as a PVFO. (Aug. 10, 2010 Trial Tr. at 2-3) (“Sentencing Tr.”). Petitioner was sentenced to an indeterminate aggregate term of twenty-seven years to life imprisonment. (Id. at 9-10).
D. N.Y. C.P.L. § 330.30 Motion
Petitioner moved to set aside the trial verdict pursuant to N.Y. C.P.L. § 330.30(1) (“330.30 Motion”) due to ineffective assistance of trial counsel. (Docket No. 11-7). Specifically, Petitioner asserted that counsel failed to meaningfully confer with Kirkland and adequately review the tape-recorded interview between Kirkland and Gonzalez. (Id. at 4-6). The People opposed the motion, (Docket No. 11-12), which was denied on the merits on June 22, 2010, (Docket No. 11-13 at 5).
E. N.Y. C.P.L. § 440.10 Motion
On July 1, 2014, Petitioner filed a pro se motion to vacate the judgment against him pursuant to N.Y. C.P.L. § 440.10 (“440.10 Motion”). (Docket Nos. 11-17-11-20). Petitioner argued that defense counsel was ineffective insofar as counsel failed to object to the jury's verdict as repugnant and failed to object to the lack of evidence corroborating Steadman's statement implicating Petitioner. (Docket No. 11-17 at 3). The People opposed Petitioner's motion, (Docket No. 11-21), and Petitioner replied, (Docket No. 11-22). The court summarily denied Petitioner's motion on January 15, 2015 pursuant to N.Y. C.P.L. § 440.10(2)(c), finding that Petitioner's claims were record-based. (Docket No. 11-26 at 5). The trial court alternatively found that the claims failed on the merits. (Id. at 6).
F. Direct Appeal
Petitioner filed a direct appeal through counsel on December 9, 2014, (Docket Nos. 1123-11-25), and a pro se supplemental brief in support of his appeal on July 15, 2015, (Docket Nos. 11-33-11-34), arguing that: (1) aspects of the grand jury proceeding were improper; (2) the verdicts were inconsistent and repugnant; (3) the trial court failed to comply with N.Y. C.P.L. §§ 270.40 and 310.10; (4) his conviction was not supported by sufficient evidence and was against the weight of the evidence; (5) the prosecution engaged in misconduct including withholding Brady and Rosario material and making improper comments during summation; (6) the denial of his § 330.30 Motion was in error; (7) trial counsel was ineffective; (8) the denial of Kirkland's affidavit at the suppression hearing was in error; (9) his January 9, 2008 statement to police was not properly noticed; (10) the court's Sandoval ruling was in error; (11) the trial court's limitation on defense counsel's ability to probe Gonzalez's status as a confidential informant violated the New York and federal confrontation clauses; (12) the prosecution's comment that Steadman was his “baby's mother” violated due process; (13) his sentence was excessive; (14) his adjudication as a PVFO was unconstitutional; and (15) the “cumulative effect” of the alleged errors deprived him of a fair trial. (See Docket Nos. 11-23-11-25, 11-33-11-34.). The People responded to Petitioner's direct appeal, (Docket Nos. 11-27-11-29), and Petitioner replied, (Docket No. 11-32).
The Appellate Division denied Petitioner's appeal in its entirety on April 20, 2016. See People v. May, 138 A.D.3d 1024 (2d Dep't 2016). On April 20, 2016, Petitioner sought leave to appeal to the Court of Appeals, raising three grounds for relief: (1) that the trial court's denial of Kirkland's affidavit at the suppression hearing deprived him of his right to present a defense; (2) that the prosecutor's comments during summation violated due process; and (3) that the verdicts were inconsistent and repugnant. (Docket No. 11-36). Petitioner also submitted a pro se letter in support of his request for leave, raising the following grounds for relief: (1) infirmities with the grand jury process violated due process; (2) his January 9, 2008 statement to Detective Walters was not properly noticed; (3) the prosecution withheld unspecified Brady and Rosario material; (4) improper hearsay was admitted at trial; (5) trial counsel failed to investigate whether Petitioner was in Brooklyn at the time of the incident, failed to turn over Kirkland's interview with Gonzalez to the trial court and failed to object to hearsay, rendering counsel's assistance ineffective; and (6) Petitioner's adjudication as a PVFO violated due process. (Docket No. 11-37 at 2-17). The People opposed Petitioner's leave application on June 22, 2016, (Docket No. 1138), and the Court of Appeals issued a certificate denying leave on August 1, 2016, (Docket No. 11-39).
G. Federal Habeas Corpus Proceedings
Petitioner filed his Petition on August 8, 2017. (Docket No. 1). Respondent opposed the Petition on December 6, 2017, (Docket No. 11), and Petitioner filed a reply on March 15, 2018, (Pet'r Reply). Respondent submitted a supplemental letter on March 27, 2018, (Docket No. 22), to which Petitioner replied on April 13, 2018, (Docket No. 23).
II. APPLICABLE LAW
“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 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97 (2011). “Before a federal district court may review the merits of a state court criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254.” Visich v. Walsh, No. 10 Civ. 4160 (ER)(PED), 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013). The procedural and substantive standards are summarized below.
If Petitioner does not have access to cases cited herein that are available only by electronic database, then he may request copies from Respondent's counsel. See Local Civ. R. 7.2 (“Upon request, counsel shall provide the pro se litigant with copies of such unpublished cases and other authorities as are cited in a decision of the Court and were not previously cited by any party.”).
A. Exhaustion as a Procedural Bar
A habeas petition may not be granted unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b). As the statute prescribes:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
...
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254(b)-(c).
Exhaustion requires a prisoner to have “fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts.” Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (internal quotations omitted). If a petitioner “cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court.” Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001); see also Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (even “a minimal reference to the Fourteenth Amendment” presents a federal constitutional claim to the state courts). However, a petitioner may fairly present his claim even without citing to the U.S. Constitution. See Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). Fair presentation includes petitioning for discretionary review in the state's highest appellate court. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999) (“[A] state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement[.]”).
“[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.” Daye, 696 F.2d at 194.
However, “a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.” Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotations omitted). In such cases, although the claim is technically unexhausted, the district court may deem the claim to be exhausted but procedurally barred from habeas review. See id. at 140 (“[A] claim is procedurally defaulted for the purposes of federal habeas review where ‘the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'” (quoting Coleman v. Thompson, 501 U.S. 722, 735 (1991)).
Under New York law, defendants are permitted only one direct appeal. See Dasney v. People of the State of New York, No. 15 Civ. 5734 (RJS), 2017 WL 253488, at *5 (S.D.N.Y. Jan. 19, 2017) (citing N.Y. Ct. App. R. § 500.20); see also Roa v. Portuondo, 548 F.Supp.2d 56, 78 (S.D.N.Y. 2008) (“Any attempt to raise these claims at this stage as part of a direct appeal would be rejected because a criminal defendant is entitled to only one direct appeal and one application for leave to appeal to the Court of Appeals.”). A petitioner must raise record-based claims by direct appeal rather than by a collateral motion in state court. See, e.g., O'Kane v. Kirkpatrick, No. 09 Civ. 05167 (HB)(THK), 2011 WL 3809945, at *7 (S.D.N.Y. Feb. 15, 2011) (“[A]ll claims that are record-based must be raised in a direct appeal. . . . It is only when a defendant's claim hinges upon facts outside the trial record, that he may collaterally attack his conviction by bringing a claim under CPL § 440.10.”), report and recommendation adopted, 2011 WL 3918158 (S.D.N.Y. Aug. 25, 2011); Lowman v. New York, No. 09 Civ. 0058T, 2011 WL 90996, at *9 (W.D.N.Y. Jan. 11, 2011) (“Collateral review of this claim - by way of another CPL § 440 motion - is also barred because the claim is a matter of record that could have been raised on direct appeal, but unjustifiably was not.”) (citing N.Y. C.P.L. § 440.10(2)(c)).
This rule states, in relevant part, that a letter application for leave to appeal “shall indicate . . . (2) that no application for the same relief has been addressed to a justice of the Appellate Division, as only one application is available.” N.Y. Ct. App. R. 500.20(a) (emphasis added).
N.Y. C.P.L. § 440.10(2)(c) states, in relevant part, that a court must deny a § 440.10 motion to vacate judgment when “[a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him.”
B. Adequate and Independent State Grounds as a Procedural Bar
“It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that ‘is independent of the federal question and adequate to support the judgment.'” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729); see also Downs v. Lape, 657 F.3d 97, 23 (2d Cir. 2011). This preclusion applies even if the state court alternatively rules on the merits of the federal claim, so long as there is an adequate and independent state ground that would bar the claim in state court. See, e.g., Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).
“A state court decision will be ‘independent' when it ‘fairly appears' to rest primarily on state law.” Taylor v. Connelly, 18 F.Supp.3d 242, 253 (E.D.N.Y. 2014) (quoting Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006)). In the normal case, a ground is adequate “only if it is based on a rule that is ‘firmly established and regularly followed' by the state in question.” Garcia, 188 F.3d at 77 (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); see also Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003). A decision that a state procedural rule is inadequate should not be made “lightly or without clear support in state law.” Garcia, 188 F.3d at 77 (internal quotations omitted).
To avoid procedural default of an unexhausted claim or a claim decided on an adequate and independent state ground, a petitioner must “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.'” Harris, 489 U.S. at 262 (quoting Murray v. Carrier, 477 U.S. 478, 485 (1986)). “The cause requirement is met if some objective factor, external to [the] [petitioner's defense, interfered with his ability to comply with the state's procedural rule.” Gutierrez v. Smith, 702 F.3d 103, 111 (2d Cir. 2012). A petitioner may establish prejudice by showing that the alleged trial errors “substantially] disadvantage[d]” the petitioner and “infect[ed] his entire trial with error of constitutional dimensions.” See id. at 112. A petitioner demonstrates a fundamental miscarriage of justice by showing that he “is actually innocent of the crime for which he has been convicted.” Dunham v. Travis, 313 F.3d 724, 729 (2d Cir.2002)).
C. AEDPA Standard of Review
When a federal court reaches the merits of a habeas petition, AEDPA prescribes a “highly deferential” standard for reviewing state court rulings. Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015). AEDPA provides that an application for a writ of habeas corpus:
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1)-(2).
Courts have interpreted the phrase “adjudicated on the merits” in AEDPA as meaning that a state court “(1) dispose[d] of the claim on the merits, and (2) reduce[d] its disposition to judgment.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (internal quotation marks omitted). Courts examine the “last reasoned decision” by the state courts in determining whether a federal claim was adjudicated on the merits. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”). “[W]hen a state court issues an order that summarily rejects without discussion all the claims raised by a defendant, including a federal claim that the defendant subsequently presses in a federal habeas proceeding, the federal habeas court must presume (subject to rebuttal) that the federal claim was adjudicated on the merits.” Johnson v. Williams, 568 U.S. 289, 293 (2013) (emphasis in original). The same presumption applies when “a state court rules against the defendant and issues an opinion that addresses some issues but does not expressly address the federal claim in question.” Id. at 292. This “presumption is a strong one that may be rebutted only in unusual circumstances.” Id. at 302.
If a state court adjudicates a federal claim on the merits, the Court must apply AEDPA deference to that state court ruling. 28 U.S.C. § 2254(d)(1)-(2). In the context of AEDPA deference, the phrase “clearly established Federal law” means “the holdings, as opposed to the dicta, of [the Supreme Court of the United States'] decisions as of the time of the relevant statecourt decision.” Williams v. Taylor, 529 U.S. 362, 365 (2000). “A state court decision is contrary to such clearly established federal law if it ‘applies a rule that contradicts the governing law set forth in the Supreme Court's cases or if 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 its precedent.'” Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d Cir. 2015) (quoting Boyette v. Lefevre, 246 F.3d 76, 90 (2d Cir. 2001)).
If, by contrast, a state court does not adjudicate a federal claim on the merits, “AEDPA deference is not required. . . . [and] conclusions of law and mixed findings of fact and conclusions of law are reviewed de novo.” DeBerry v. Portuondo, 403 F.3d 57, 66-67 (2d Cir. 2005).
A state court decision involves an “unreasonable application” of Supreme Court precedent if: (1) “the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case, ” or (2) “the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407. For a federal court to find a state court's application of Supreme Court precedent unreasonable, the state court's decision must have been more than “incorrect or erroneous” -- it must have been “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). In other words, “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 665 (2004)). However, “the trial court's decision need not teeter on ‘judicial incompetence' to warrant relief under § 2254(d).” Alvarez v. Ercole, 763 F.3d 223, 229 (2d Cir. 2014) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). If a state court decision does not contain reasons for the dismissal of a defendant's federal claim, the Court must “consider ‘what arguments or theories . . . could have supported[] the state court's decision,' and may grant habeas only if ‘fairminded jurists could [not] disagree that those arguments or theories are inconsistent with the holding in a prior decision of' the Supreme Court.” Lynch v. Superintendent Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (alterations in original) (quoting Richter, 562 U.S. at 102).
AEDPA “sets forth a precondition to the grant of habeas relief . . . not an entitlement to it.” Fry v. Pliler, 551 U.S. 112, 119 (2007) (“‘a writ of habeas corpus . . . shall not be granted' unless the conditions of § 2254(d) are met”) (quoting 28 U.S.C. § 2254(d)). Therefore, even if a state court decision is “contrary to, or involved an unreasonable application of” federal law, the petitioner still carries “the ultimate burden of proving by a preponderance of the evidence that his constitutional rights have been violated.” Epps v. Poole, 687 F.3d 46, 50 (2d Cir. 2012); 28 U.S.C. § 2254(d).
III. DISCUSSION
Petitioner argues that he is entitled to habeas relief on the following grounds: (1) improprieties in the grand jury proceeding violated due process, (Petition at 4-6); (2) the jury verdicts were inconsistent and repugnant, (id. at 6-7); (3) the trial court failed to admonish the deliberating jury in accordance with N.Y. C.P.L. §§ 270. 40 and 310.10, (id. at 8); (4) the conviction was not supported by sufficient evidence and/or was against the weight of the evidence, (id. at 8-9); (5) the prosecution engaged in misconduct, (id. at 9-10, 11, 12); (6) Petitioner's sentence was excessive, (id. at 10-11); (7) the “cumulative effect” of the trial errors violated due process, (id. at 10-12); (8) trial counsel was ineffective, (id. at 7, 12-13); and (9) Petitioner's adjudication as a PVFO was unconstitutional, (id. at 13).
Petitioner also asserts as a separate ground for relief that the court erred in denying his 330.30 Motion because “trial counsel was ineffective for “fail[ing] to properly investigate or prepare for trial, ” and “invit[ing] the jury to consider that Petitioner was indeed guilty” by stating during summation that “The People of the State of New York is [sic] served by any verdict you bring back here.” (Petition at 7). The Court will consider these claims together with Petitioner's other ineffective assistance of counsel claims. See infra, Section III(H).
A. Grand Jury Process
Petitioner argues that his proceedings before the grand jury were constitutionally infirm. (Id. at 4-6). He specifically challenges the trial court's exclusion of Kirkland as a grand jury witness, alleges that certain interrogatories submitted by the grand jurors were not answered, contends that the prosecutor used an “aggressive and pointed cross-examination style of questioning, ” and avers that the government presented false testimony by Steadman. (Id. at 5-6). Respondent argues that Petitioner's claims regarding the grand jury proceedings are procedurally barred, do not present a cognizable federal question, and are alternatively meritless. (Resp't Br. at 8-12).
Petitioner's claims are properly exhausted as he raised the same claims throughout his direct appeal. The Appellate Division found Petitioner's grand jury claims unpreserved for appeal and alternatively meritless. See May, 138 A.D.3d at 1024. Where, as here, a state court finds “that a claim is ‘not preserved for appellate review' and then rule[s] ‘in any event' on the merits, ” the state court has relied on a state procedural bar, precluding federal habeas review. Grant v. Bradt, No. 10 Civ. 394(RJS), 2012 WL 3764548, at *3 (S.D.N.Y. Aug. 30, 2012) (quoting Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810 n.4 (2d Cir. 2000)). Thus, Petitioner's claims were decided on an adequate and independent state ground and are procedurally barred from federal review. See Bowman v. Racette, No. 12CV4153-LTS-SN, 2015 WL 1787130, at *30 (S.D.N.Y. Apr. 20, 2015) (quoting Harris, 489 U.S. at 263 (internal citations omitted)). Petitioner may overcome this bar only by showing cause and prejudice, or a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750.
Petitioner avers in his Reply that the Court should review his grand jury claims on the merits because he is actually innocent of the crimes for which he stands convicted. (Pet'r Reply at 2-4). To demonstrate a fundamental miscarriage of justice, Petitioner must adduce “new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Although Petitioner claims that Kirkland's testimony proves his innocence, (Pet'r Reply at 3-4), Kirkland testified at trial regarding his interview with Gonzalez, (Trial Tr. at 1158-59). Thus, Kirkland's testimony is not “new” evidence presented on habeas review “that was not presented at trial.” See Schlup, 513 U.S. at 324. Accordingly, such evidence is insufficient to demonstrate a fundamental miscarriage of justice necessary to overcome a procedural default. Cf. id. Petitioner does not argue, and cannot establish, cause and prejudice for his default.
Assuming arguendo, that Petitioner could overcome the procedural bar, claimed deficiencies in a state grand jury proceeding are not cognizable on habeas review, since “there is no federal constitutional right to a grand jury in a state criminal proceeding.” Mirrer v. Smyley, 703 F.Supp. 10, 11 (S.D.N.Y. 1989). Since “[t]he right to a grand jury is a matter of New York State law, ” alleged infirmities in a grand jury proceeding are “not reviewable on a petition for habeas corpus.” Id. at 11-12; accord Alexander v. Louisiana, 405 U.S. 625, 633 (1972) (“Although the Due Process Clause guarantees petitioner a fair trial, it does not require the States to observe the Fifth Amendment's provision for presentment or indictment by a grand jury.”). Consequently, the Court respectfully recommends that Petitioner's claims regarding the grand jury process be dismissed.
B. Inconsistent and Repugnant Verdicts
Petitioner asserts that the jury's verdicts were inconsistent and repugnant insofar as he was found guilty of burglary but not-guilty of attempted robbery. (Petition at 6). Respondent maintains that Petitioner's claim is procedurally barred and otherwise meritless. (Resp't Br. at 13-15). Petitioner properly exhausted this claim, which the Appellate Division found to be unpreserved and alternatively without merit. See May, 138 A.D.3d at 1024-25. The claim was thus disposed of on a state procedural ground, barring federal review. See Grant, 2012 WL 3764548, at *3.
Petitioner argues in his Reply that “Respondent has conceded that petitioner demonstrates cause and prejudice due to counsel's” ineffectiveness, sufficient to overcome the procedural bar to his inconsistent and repugnant verdict claim. (Pet'r Reply at 4). Respondent has not conceded this point. Further, Petitioner has not established cause and prejudice.
To demonstrate cause, Petitioner must show either that “some objective factor, external to [his] defense, interfered with his ability to comply with the state's procedural rule, ” e.g., that “‘the factual or legal basis for a claim was not reasonably available to counsel' at the time of trial, ” Gutierrez, 702 F.3d at 111 (quoting Strickler v. Greene, 527 U.S. 263, 283 n.4 (1999)), or that “prior state case law has consistently rejected a particular constitutional claim, ” such that bringing the claim was futile, see id. at 112. Petitioner claims that his trial counsel's failure to object to the verdicts as repugnant constituted ineffective assistance of counsel and caused his default. (Pet'r Reply at 4). Defense counsel's failure to preserve a claim for appeal may establish cause for a procedural default, if such a failure constituted ineffective assistance of counsel. Murray, 477 U.S. at 491. However, Petitioner has not established cause in the instant case, since, as discussed infra, the verdicts were not repugnant under state law. Therefore, defense counsel's failure to object to the verdicts (an objection which would have lacked merit) cannot form the basis of an ineffective assistance of counsel claim. See United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) (defense counsel's “failure to make a meritless argument does not rise to the level of ineffective assistance”). Alternatively, even if Petitioner's repugnant verdict challenge had merit, “the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, ” does not render counsel's performance constitutionally infirm such that cause for a procedural default is established. Murray, 477 U.S. at 486.
Additionally, Petitioner cannot establish prejudice. Petitioner is tasked with showing that the alleged error, failure to object to the verdict, “put h[im] at a substantial disadvantage and infected h[is] entire trial with error of constitutional dimensions.” Annabi v. United States, 17-cv-5182(CM), 2018 WL 3756455, at *6 (S.D.N.Y. July 20, 2018). Despite Petitioner's conclusory allegation that he was “prejudiced because Appellate review was barred because of deficient performance, ” (Pet'r Reply at 4), defense counsel's failure to object did not substantially disadvantage Petitioner, because the verdicts were not repugnant under state law. Under New York law, a repugnant verdict must be set aside “where the defendant is convicted of an offense containing an essential element that the jury has found the defendant did not commit, ” i.e., where the verdicts are inherently inconsistent. People v. Trappier, 637 N.Y.S.2d 352, 354 (1995). Whether a verdict “is inherently inconsistent [is] viewed in light of the elements of each crime as charged to the jury.” People v. Tucker, 447 N.Y.S.2d 132, 132 (1981). Here, the jury was instructed that to find Petitioner guilty of burglary, the People must prove the following four elements beyond a reasonable doubt:
[One]: That on or about and between October 10, 2007 and October 11, 2007 . . . Elliot May . . . unlawfully entered a dwelling located at One Odell Place . . .[;] Two: That the defendant did so knowingly[;] Three: That the defendant did so with intent to commit a crime inside the dwelling[;] [a]nd Four: That in affecting entry or while in the dwelling or immediate flight therefrom, the defendant or
another participant in the crime caused physical injury to a person who is not a participant in the crime.(Trial Tr. at 1340-41) (emphasis added). The judge further admonished that “[t]he crime of burglary is separate and distinct from any crime which a person may commit within the dwelling . . . [and] is complete when a person knowingly entered in a dwelling unlawfully and does so with the intent to commit a crime . . . regardless of whether that person ever commits or even attempts to commit any crime in the dwelling.” (Id. at 1340).
The jury was further charged that to satisfy the second burglary count, the People must prove the following elements beyond a reasonable doubt: “[One]: That on or about and between October 10, 2007 and October 11, 2007 . . . Elliot May . . . unlawfully entered a dwelling located at One Odell Place . . .[;] Two: That the defendant did so knowingly[;] Three: That the defendant did so with intent to commit a crime inside the dwelling[;] [a]nd Four: That in affecting entry or while in the dwelling or immediate flight therefrom, the defendant or another participant displayed what appeared to be a pistol, revolver, shotgun, machine gun or other firearm.” (Trial Tr. at 1342-43) (emphasis added).
The jury was also instructed that Petitioner should be found guilty of attempted robbery if the People proved the following three elements beyond a reasonable doubt:
One: That on or about and between October 10, 2007 and October 11, 2007 . . . defendant intended to forcibly steal property from Pedro Gonzalez[;] Two: That the defendant engaged in conduct which tended to affect the commission of that crime[;] [a]nd Three: that in the course of the commission of the crime or of immediate flight therefrom, the defendant or another participant in the crime caused serious physical injury to Pedro Gonzalez and Pedro Gonzalez was not a participant in the robbery.(Trial Tr. at 1347) (emphasis added). With respect to the first element, the jury was told that “[a] person steals property . . . when[, ] with intent to deprive another of property[, ] . . . such person wrongfully takes, obtains, or withholds property from an owner of the property. (Id. at 1344). As to the second element, a person “engage[s] in conduct which tend[s] to affect the commission of a crime” when that person “comes dangerously close or very near to the completion of the intended crime.” (Id. at 1346). The burglary and attempted robbery charges were read back to the jury during deliberations. (Id. at 1398-1414).
The jury was further charged that to satisfy the second attempted robbery count, they must find beyond a reasonable doubt: “One: [t]hat on or about and between October 10, 2007 and October 11, 2007 . . . the defendant . . . intended to forcibly steal property from . . . Gonzalez; Two: [t]hat the defendant engaged in conduct which intended to affect the commission of that crime; [a]nd [T]hree: [t]hat in the course of the commission of the crime or immediate flight therefrom, the defendant . . . displayed what appeared to be a pistol, revolver, rifle shotgun, machine gun or other firearm.” (Trial Tr. at 1349) (emphasis added).
The elements of burglary and attempted robbery, as charged, are not inherently contradictory. See Tucker, 447 N.Y.S.2d at 132. Put differently, a finding that one of the elements of attempted robbery was not proved beyond a reasonable doubt does not necessarily negate an element of burglary. See id. For instance, based on Detective Walters' testimony that the padlock on Morales' closet was intact when she arrived at the crime scene, the jury may have found that the People did not prove the second element of attempted robbery - that Petitioner came “dangerously close” to “taking, obtain[ing], or withhold[ing]” Gonzalez's jewelry - beyond a reasonable doubt.. Such a finding would not negate any of the essential elements of a burglary conviction. Thus, the verdicts are not repugnant and could not have substantially disadvantaged Petitioner. See Mitchell v. Artus, No. 07 Civ. 4688(LTS)(AJP), 2008 WL 2262606, at *36 (S.D.N.Y. June 2, 2008) (finding, in the context of an ineffective assistance claim, that counsel's failure to object to the verdicts could not have prejudiced the petitioner where the verdicts were not repugnant under state law). Consequently, Petitioner has not established cause and prejudice.
Even if Petitioner established cause and prejudice, “[a] claim of inconsistent or repugnant verdicts” is “entirely an issue of State law, ” which “presents no issue upon which federal habeas corpus relief could be granted.” Williams v. Artuz, No. 98-CIV-7964(LTS)(DFE), 2002 WL 989529, at *8 (S.D.N.Y. May 15, 2002) (citing Harris v. Rivera, 454 U.S. 339, 345 (1981)); accord Suarez v. Bennett, 207 Fed.Appx. 114, 116 (2d Cir. 2006) (a federal court is “not permitted to grant habeas [relief] simply because a jury's verdicts are inconsistent.”).
Accordingly, the Court respectfully recommends that Petitioner's inconsistent and repugnant verdicts claim be dismissed.
C. Cautioning the Deliberating Jury
Next, Petitioner argues that habeas relief is warranted because the trial court “failed to fully caution the deliberating jury as required by [N.Y. C.P.L. §§ 270.40 and 310.10] at each recess and failed to give full cautions at the end of most court sessions.” (Petition at 8). Respondent avers that this claim is procedurally barred and alternatively, that compliance with N.Y. C.P.L. §§ 270.40 and 310.10 is a question of state-law and is not cognizable on habeas review. (Resp't Br. at 16-18).
The Court agrees with Respondent. Petitioner's claim was properly exhausted before the state courts and the Appellate Division found it unpreserved for appellate review and alternatively without merit. See May, 138 A.D.3d at 1025. Thus, Petitioner's claim was decided on the basis of an adequate and independent state ground and is barred from federal review. See Grant, 2012 WL 3764548, at *3. Petitioner does not argue cause and prejudice, nor can he demonstrate actual innocence required to overcome the procedural bar.
Petitioner argues in his Reply that the trial court's alleged failure to fully caution the deliberating jury deprived him of “a fair trial and due process of law.” (Pet'r Reply at 4). Notwithstanding the procedural bar, Petitioner's claim that the trial court failed to adequately caution the deliberating jury is “normally [a] matter[] of state law” which is “immune from habeas review unless [the] error is so prejudicial so as to constitute a violation of due process.” Ortiz v. Leferve, No. 89 CIV. 6553 (MJL), 1990 WL 100889, at *3 (S.D.N.Y. July 9, 1990), aff'd, 932 F.2d 956 (2d Cir. 1991).
The Court finds that the trial court's failure to fully comply with N.Y. C.P.L. § 270.40 by not including all of the statute's required admonitions in its instructions to the jury before opening statements, (see Trial Tr. at 436-45), did not violate due process since the error was not of a constitutional dimension. See Ortiz, 1990 WL 100889, at *2 (“Irrespective of whether the preliminary instructions are reversible as a matter of state law, the errors must be of a constitutional dimension to warrant habeas corpus relief.”). N.Y. C.P.L. § 270.40 provides that “[a]fter the jury has been sworn and before the people's opening address, the court must instruct the jury generally concerning its basic functions, duties and conduct.” N.Y. C.P.L. § 270.40. The statute lists several instructions that, among others, must be relayed to the jury. See id. N.Y. C.P.L. § 310.10 requires that “the court . . . admonish the jury as provided in [N.Y. C.P.L. § 270.40]” before the jury is recessed from its deliberations. Id. § 310.10(2). As noted in the practice commentaries to the N.Y. C.P.L., “[the statute] is to provide a helpful context for the jury, not a trap for judges, so reversible error . . . should be rare.” Ortiz, 1990 WL 100889, at *2 n.3 (quoting William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Criminal Procedure Law § 270.40 at 502).
N.Y. C.P.L. § 270.40 requires that the trial court provide, “among other matters, ” the following admonitions to the jury: “that the jurors may not converse among themselves or with anyone else upon any subject connected with the trial; that they may not read or listen to any accounts or discussions of the case reported by newspapers or other news media; that they may not visit or view the premises or place where the offense or offenses charged were allegedly committed or any other premises or place involved in the case; that prior to discharge, they may not request, accept, agree to accept, or discuss with any person receiving or accepting, any payment or benefit in consideration for supplying any information concerning the trial; and that they must promptly report to the court any incident within their knowledge involving an attempt by any person improperly to influence any member of the jury.”
Although the trial court failed to fully comply with N.Y. C.P.L. § 270.40, such a failure did not deprive Petitioner of his due process rights. See id. As articulated by the Appellate Division, “the court's preliminary instructions and frequent admonitions throughout the trial and before each recess during deliberations, taken together, adequately conveyed to the jury its functions, duties and conduct.” May, 138 A.D.3d at 1025 (internal quotations and citations omitted). The record supports this finding. Before opening statements, the judge instructed the jury on its role and duties. (Trial Tr. at 436-45). Throughout the proceedings and jury deliberations, the court recurrently instructed the jury, inter alia, not to discuss the case amongst themselves or with anyone else, visit or view any place where the crimes occurred, read any accounts of the case in the media, investigate any aspect of the case, or speak with the trial's participants. (See, e.g., id. at 874-75, 1174, 1316-38, 1359, 1379-80, 1415). In sum, the jury was properly advised of its role. Accordingly, the trial court's incomplete compliance with N.Y. C.P.L. § 270.40 was not an error of a “constitutional dimension” warranting habeas relief. Thus, the Court respectfully recommends dismissal of Petitioner's claim that the trial court failed to fully caution the deliberating jury.
D. Insufficient Evidence and Verdicts Against the Weight of the Evidence
Petitioner argues that the jury verdicts were not supported by sufficient evidence and were against the weight of evidence because the “eyewitness/victim identification was incredible [sic].” (Petition at 8-9). Specifically, Petitioner emphasizes Gonzalez's testimony that “his assailant was his height, ” and argues that because he is “significantly taller and larger” than Gonzalez, it is not plausible that Gonzalez was able to “push [him] a considerable distance, ” or otherwise “manhandle” him. (Id. at 9). Respondent contends that Petitioner's attack on the weight of the evidence is not cognizable on habeas review, and that Petitioner's insufficient evidence claim fails on the merits. (Resp't Br. at 19-20). Petitioner's claims regarding the sufficiency and weight of the evidence were exhausted before the state courts, and the Appellate Division rejected both claims on the merits. See May, 138 A.D.3d at 1025. Therefore, the Court reviews these claims under the standard set forth in AEDPA.
First, Petitioner's “claim that the verdict was against the weight of the evidence does not raise a federal question appropriate for habeas review.” Mayo v. Burge, No. 02 Civ. 10192(NRB), 2003 WL 21767767, at *3 (S.D.N.Y. July 30, 2003) (collecting cases); accord Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996). Put differently, “[d]isagreement with a jury verdict about the weight of the evidence is not grounds for federal habeas corpus relief.” Kearsev v. Artuz, No. 99CIV.2428(TPG), 2000 WL 1253205, at *1 (S.D.N.Y. Sept. 5, 2000) (finding that the petitioner's “cursory allegation of flaws in the identification evidence is not sufficient to raise a valid claim of violation of [p]etitioner's constitutional rights.”).
Second, although Petitioner's claim regarding the sufficiency of the evidence is cognizable on federal habeas review, the Appellate Division's ruling was not an unreasonable application of federal law. See Mayo, 2003 WL 21767767, at *3. For a federal court to order habeas corpus relief on a claim of constitutionally insufficient evidence of guilt, the court must find “upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979). Petitioner carries the “very heavy burden, ” United States v. Rosenthal, 9 F.3d 1016, 1024 (2d Cir. 1993), of demonstrating that “the record is ‘so totally devoid of evidentiary support that a due process issue is raised.'” Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994) (quoting Mapp v. Warden, N.Y. State Corr. Inst. for Women, 531 F.2d 1167, 1173 n.8 (2d Cir. 1976)). Put another way, there must have been “no evidence from which a reasonable mind ‘might fairly conclude guilt beyond a reasonable doubt.'” United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (quoting United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984)). Further, the habeas court “must credit every inference that could have been drawn in the government's favor.” United States v. Benitez, 920 F.2d 1080, 1088-89 (2d Cir. 1990) (quoting United States v. Villegas, 899 F.2d 1324, 1339 (2d. Cir. 1990)). Additionally, a lack of physical evidence does not render a verdict constitutionally infirm. See Strauss, 999 F.2d at 696 (“[A] conviction may be based upon circumstantial evidence and inferences based upon the evidence”) (internal citations omitted).
There is substantial evidence in the record that corroborated Gonzalez's identification of Petitioner as his assailant. At trial, the prosecution presented: (1) phone records of calls between Steadman and Petitioner demonstrating that Steadman called Petitioner within minutes of informing Gonzalez that she was on her way to his apartment, multiple times from Gonzalez's apartment, and over thirty times on October 10, 2007; (see Trial Tr. at 541-45), (2) testimony from Detective Walters that Petitioner admitted to being at the scene of the crime during its commission, (id. at 1086); (3) testimony from Miller and Gonzalez corroborated by recorded jail calls between Petitioner, Miller and Baum, in which Petitioner admitted to recruiting others to offer Gonzalez money, lodging, clothing, food and medicine if Gonzalez exonerated him, (see, e.g., id. at 793, 931-35, 952-53); and (4) testimony from Castro that he observed a woman and two men fleeing One Odell Place immediately after Gonzalez jumped from his window, (id. at 862-66).
Furthermore, Gonzalez did not testify that he “manhandled” Petitioner. (See Petition at 9). Gonzalez stated that Petitioner was standing “very close to [him], ” while holding him at gunpoint, prompting Gonzalez to seize the opportunity to push Petitioner away in a desperate attempt to save his own life. (Id. at 770). In light of the prolonged struggle between Petitioner and Gonzalez, (id. at 759), the fact that Gonzalez was repeatedly hit on the head with a pistol requiring 110 stitches, (id. at 760-61), and the life-changing injuries Gonzalez sustained, it is plausible that Gonzalez was unable to accurately assess his assailant's height. Finally, Petitioner's actual height was considered by the jury, which “is exclusively responsible for determining a witness' credibility.” See Strauss, 999 F.2d at 696.
The Court finds that the Appellate Division's ruling that the verdict was “supported by constitutionally sufficient evidence, ” was not an unreasonable application of federal law, as the record indicates that the circumstantial evidence presented by the state could have led a rational juror to find Petitioner's guilt beyond a reasonable doubt. See Bossett, 41 F.3d at 830. Accordingly, the Court respectfully recommends that Petitioner's insufficient evidence claim be dismissed.
E. Prosecutorial Misconduct
Petitioner argues that the prosecutor engaged in various types of misconduct including withholding unspecified Brady and Rosario material, improperly eliciting hearsay testimony, and making improper remarks during her opening and summation. (Petition at 9-11, 12, 23).
1. Prosecutorial Comments During Summation
Petitioner identifies three allegedly improper statements made during the prosecution's summation. (Petition at 9-11). Petitioner alleges that the prosecutor: (1) “paint[ed] him as a thug, ” by remarking on “body building” photos that he gave to Miller; (2) “shifted the burden of proof” to the defense by asking “why the defendant had devoted resources to prepar[ing] a defense;” and (3) inappropriately inflamed the jury by asking them to “bring here the very justice that Pedro came in here for.” (Id.). Respondent contends that Petitioner's claims regarding the prosecution's comments during summation are procedurally barred, involve issues of state-law, and lack merit, since the statements were not improper. (Resp't Br. at 26-28).
Petitioner exhausted his present challenges to the prosecutor's summation comments before the state courts. However, his claims are procedurally barred. The Appellate Division found these claims unpreserved, and alternatively without merit, holding that “the challenged comments were either not improper or not so flagrant or pervasive as to deny the defendant a fair trial.” May, 138 A.D.3d at 1025. As Petitioner has not demonstrated cause and prejudice or actual innocence, his claims are barred from federal review.
Furthermore, the Appellate Division's alternate merits ruling was neither contrary to, nor an unreasonable application of, federal law. The Supreme Court instructs courts reviewing habeas petitions premised upon prosecutorial misconduct in summations to determine whether “the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair, ” violating due process. Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986). This circuit applies a three factor test to determine whether prosecutorial remarks violate due process: (1) “the severity of the misconduct;” (2) the “measures adopted to cure the misconduct;” and (3) “the certainty of conviction absent the improper statements.” Floyd v. Meachum, 907 F.2d 347, 355 (2d Cir. 1990) (quoting United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981)). The proceedings must be evaluated as a whole and a court must consider whether the defense “invited” the alleged improper comments, i.e., whether the prosecutor was merely responding in summation to defense counsel's attack on the evidence. United States v. Young, 470 U.S. 1, 11 (1985) (courts invoke the “invited reply” rule to address “an all too common occurrence in criminal trials” in which “the defense counsel argues improperly, provoking the prosecutor to respond in kind”). “[I]nappropriate prosecutorial comments, standing alone, ” do not justify reversal of a “criminal conviction obtained in an otherwise fair proceeding.” Id. “It is ‘a rare case' in which improper comments in a prosecutor's summation are so prejudicial that a new trial is required.” United States v. Newton, 369 F.3d 659, 680 (2d Cir. 2004) (quoting United States v. Rodriguez, 968 F.2d 130, 142 (2d Cir. 1992)).
First, Petitioner challenges the prosecution's remark regarding a photograph that he gave to Miller to show Gonzalez, which the prosecutor described as “a photograph of the defendant whose [sic] over six feet tall, body building. Very ripped, muscles ripped, wearing nothing but a bathing suit.” (Trial Tr. at 1296). The prosecutor argued that “[t]his is a very purposeful photograph to show somebody....This is for [Miller] to show [Gonzalez] this man means business. This is called intimidation.” (Id.). Petitioner alleges this statement improperly painted him as a “thug.” (Petition at 9).
Petitioner's argument is unavailing. The prosecution's description of Petitioner as over six feet tall, “[v]ery ripped” and “wearing nothing but a bathing suit” was a proper recitation of the trial evidence. Miller testified that Petitioner gave him a “body building” photograph, in which Petitioner was “showing [his] muscles” and “[w]earing nothing but a bathing suit.” (Id. at 940). He described Petitioner as “a big guy.” (Id.). The defense further elicited from Detective Walters that Petitioner is 6 feet 2 inches tall and weighs 205 pounds. (Id. at 1090).Additionally, the prosecution's description of Petitioner was invited by the defense. A central theme of Petitioner's misidentification defense was that Petitioner was larger than Gonzalez and thus, Gonzalez could not have freed himself from Petitioner to run for his window. (See, e.g., id. at 1265). Defense counsel stated during summation that Petitioner is “about [6 feet 2 inches] [and] I think a number of us wish we had his muscles.” (Id. at 1264). Defense counsel further referenced the recorded calls between Petitioner and Miller, stating that “[Petitioner] was laughing” when he heard that Gonzalez “said he almost took a gun from [him] because [Gonzalez] is about [5 feet 3 inches tall].” (Id.). Defense counsel argued to the jury: “Come on. Let's be for real. He's a body builder.” (Id.).
The prosecutor's statement that the photograph was intended to intimate Gonzalez was also invited by the defense. In summation, defense counsel argued that Petitioner asked Miller to show Gonzalez his photograph simply to prove his theory that the NRPD was setting him up. (Id. at 1269). The prosecution's assertion that the photograph was meant to be intimidating was an appropriate retort to the defense's attack on the evidence. See Young, 1 U.S. at 12. Accordingly, the People's comment regarding the “body building” photograph was both an appropriate summary of the trial evidence and an invited response to the defense's narrative.
Second, Petitioner alleges that the prosecutor's statement that “if [Petitioner] was really wrongly accused of this crime, he[] [would not] work so hard [to] pay[] off Pedro, he[] [would] find the real gunman, ” placed on Petitioner a burden to demonstrate his innocence. (Trial Tr. at 1301; see Petition at 10). It is improper for a prosecutor to remark that a defendant has the burden of proving innocence. See United States v. Millar, 79 F.3d 338, 344 (2d Cir. 1996). However, the prosecution's comment was merely a response to defense counsel's repeated attacks on the trial evidence. See Young, 1 U.S. at 12. Defense counsel argued on summation that Petitioner's attempt to “buy[] [Gonzalez] medicine and get[] him an apartment and clothes, . . . was to get him to come to court . . . not . . . to change [his] testimony.” (Trial Tr. at 1269) (emphasis added). Defense counsel's comment thus invited the prosecution's argument that Petitioner's offering of money, food, clothing and living arrangements was an attempt to coax Gonzalez into changing the testimony he gave before the grand jury. Accordingly, the comment was not improper. Furthermore, the judge admonished the jurors throughout trial that the defendant is presumed to be innocent, curing any alleged impropriety. (See, e.g., Trial Tr. 442-43, 1322-33, 1355-56). Accordingly, the prosecutor did not violate due process by asking the jury to consider if Petitioner expended resources in an attempt to change Gonzalez's testimony.
Third, Petitioner challenges the prosecutor's plea to the jury to “bring here the very justice that Pedro came in here for, ” (Trial Tr. at 1307), which Petitioner alleges improperly “called upon the jury to use emotion and a sense of revenge, ” in rendering its decision. (Petition at 10). The prosecutor's comment was a proper response to defense counsel's contention that “the People . . . of New York [are] served by any verdict” the jury returned. (Id. at 1273). Additionally, the judge repeatedly instructed the jury that their verdict cannot rest on speculation, bias, prejudice or sympathy. (See, e.g., Trial Tr. at 444, 1324). Thus, the prosecutor's appeal to the jury to “bring . . . justice” for Gonzalez did not violate due process.
2. Prosecutorial Comment During Opening Statement
Additionally, Petitioner alleges that the prosecution's characterization of Steadman as his “baby's mother” during opening statements unfairly prejudiced his trial. (Petition at 11). Petitioner properly exhausted this claim, which the Appellate Division denied on the merits, finding that “[t]he challenged remark was not improper since it served to introduce the People's theory of the case and was consistent with the evidence they proceeded to present.” See May, 138 A.D.3d at 1026.
The Appellate Division's ruling was not an unreasonable application of federal law. During her opening, the prosecutor introduced Steadman as Petitioner's “baby's mother, for want of a better phrase, ” and stated that Steadman “has a child in common with [Petitioner] from years ago” and that “they're not currently man and wife.” (Trial Tr. at 447). This statement was proper and did not deprive Petitioner of due process. The record indicates that Steadman and Petitioner have a child in common. Moreover, the prosecution did not highlight this relationship to unfairly prejudice Petitioner, but rather because the relationship between Steadman and Petitioner was central to its theory of the case. The prosecution argued throughout trial that Steadman and Petitioner hatched a plan to steal Gonzalez's jewelry. In fact, Steadman plead guilty to First Degree Attempted Burglary and implicated Petitioner in her plea. (Hearing Tr. at 37). Thus, the prosecutor's description of Steadman and Petitioner's relationship during her opening statement was a proper summary of the evidence later adduced at trial and did not violate due process.
3. Confrontation Clause, Brady , and Rosario Claims
Petitioner argues that the prosecution “improperly elicited hearsay” in violation of his Sixth Amendment right to confrontation. (Petition at 12). Petitioner properly exhausted this claim, which was found to be without merit by the Appellate Division. See May, 138 A.D.3d at 1027. However, Petitioner does not allege any facts in his Petition or appellate briefing to support his Confrontation Clause claim. In fact, he does not even identify the supposed hearsay statement that he alleges deprived him of his right to confrontation. Thus, even assuming arguendo, that the state court unreasonably applied federal law, Petitioner still fails to meet his burden of demonstrating the occurrence of a constitutional violation by a preponderance of the evidence. See Epps, 687 F.3d at 50 . Put another way, Petitioner's cursory allegation regarding alleged hearsay is facially insufficient to warrant habeas relief. See id.
Petitioner also alleges that the prosecution withheld Brady and Rosario material. (Petition at 12). Petitioner properly exhausted these claims, which the Appellate Division found to be unpreserved and, in the alternative, without merit. See May, 138 A.D.3d at 1027. These claims were thus resolved on an adequate and independent state ground, barring habeas review. See Grant, 2012 WL 3764548, at *3. Petitioner is unable to overcome the procedural bar. Alternatively, Petitioner does not identify any information that was allegedly wrongfully withheld by the prosecution in his Petition or state court briefings. Thus, assuming arguendo, that the Appellate Division's alternate ruling on the merits was unreasonable, Petitioner has not demonstrated a constitutional violation by a preponderance of the evidence, entitling him to habeas relief. See Epps, 687 F.3d at 50. Accordingly, the Court respectfully recommends dismissal of Petitioner's prosecutorial misconduct claims.
F. “Cumulative Effect” of Trial Errors
Petitioner further contends that his due process rights were violated by the “cumulative effect[]” of several alleged trial errors. (Petition at 10, 12). Specifically, Petitioner alleges that: (1) the court's failure to admit Kirkland's affidavit at the suppression hearing violated his right to present a defense; (2) his January 9, 2008 statement to Detective Walters was not properly noticed in violation of N.Y. C.P.L. § 710.30; (3) the court's Sandoval ruling was erroneous; and (4) the court improperly limited the scope of the defense's inquiry into Gonzalez's status as a confidential informant. Respondent avers that each of these claims involve issues of state-law, which are not cognizable on habeas review, and are alternatively without merit. (Resp't Br. at 31-40).
1. Denial of Kirkland's Affidavit at Suppression Hearing
First, Petitioner argues that the trial court's ruling denying admission of Kirkland's affidavit at his suppression hearing was in error and violated his Sixth Amendment right to present a defense. (Petition at 10). Respondent counters that Petitioner was not prejudiced by the trial court's ruling and is therefore not entitled to habeas relief. (Resp't Br. at 34).
At the combined Huntley/Wade hearing, Petitioner's trial counsel moved to admit a notarized affidavit from Kirkland which stated that Gonzalez “told [Kirkland] that it was law enforcement who told him who to pick [from the photo array] . . . and that [Gonzalez] had seen photographs of [Petitioner]” before he identified Petitioner on November 30, 2007. (Hearing Tr. at 6). The court denied Petitioner's request, remarking that the defense “will have as much leeway as [it] want[s] to cross-examine the People's witnesses . . .” (Id. at 8). Petitioner properly exhausted this claim and the Appellate Division decided it on the merits, finding that the court's ruling was erroneous but did not prejudice Petitioner. See May, 138 A.D.3d at 1026 (“the court did afford defense counsel the opportunity to cross-examine the police witness who conducted the identification procedure concerning the relevant allegations in the affidavit . . . under [these] circumstances . . . reversal was not required since the defendant was not prejudiced by the error.”). The Court will thus address the merits of this claim pursuant to the standard set forth by AEDPA.
“[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.'” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). Furthermore, “[t]hat opportunity would be an empty one” if “competent, reliable evidence bearing on” the credibility of an identification was excluded, especially where the defendant's primary defense was a faulty identification. Id. Nonetheless, erroneous evidentiary rulings raise issues of state-law and thus, federal courts are “traditional[ly] reluctan[t] to impose constitutional constraints on” such rulings. Id. at 689. Consequently, Petitioner carries the heavy burden of showing that the evidentiary error “deprived him of a fundamentally fair trial.” Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988) (quoting Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983)). To deprive an accused of a fair trial, an evidentiary error must have had a “substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). For example, the wrongfully suppressed evidence must have been “sufficiently material to . . . remove a reasonable doubt that would have existed on the record with[] it.” Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992). When assessing the impact of a state-law error, the court considers, inter alia, “the nature of the [alleged] violation and the context in which it occurred, taking into account . . . the strength of the government's case [and] the degree to which the statement was material to a critical issue.” United States v. Reifler, 446 F.3d 65, 87 (2d Cir. 2006) (internal citations omitted). “The strength of the prosecution's case is . . . the single most critical factor.” United States v. Castano, 999 F.2d 615, 618 (2d Cir. 1993).
The court's improper denial of Kirkland's affidavit at the suppression hearing did not have a substantial and injurious effect on the jury's verdict. See Brecht, 507 U.S. at 623 . The trial court allowed the defense to present ample evidence rebutting the integrity of Gonzalez's identification throughout the proceedings. At the suppression hearing, defense counsel crossexamined Detective Carpano regarding Gonzalez's identification of Petitioner and called Detective Messina, who prepared the subject photo array, as a witness. (Id. at 52-58, 88-95). Moreover, Kirkland testified at trial about his interview with Gonzalez and the jury heard portions of the recorded interview from the partial transcript Kirkland created. (Trial Tr. at 115859). Kirkland told the jury that Gonzalez stated that he was unable to see his attacker because “he had blood in his eyes.” (Id. at 1158).
Moreover, Kirkland's testimony was not wholly exculpatory. The transcript of Kirkland's interview admitted into evidence revealed that Gonzalez made a partial identification after seeing a photo array prepared by Mullady which included three photographs of Petitioner. (Id. at 1219). Finally, as discussed supra, the prosecution introduced substantial evidence of Petitioner's guilt aside from Gonzalez's identification. See supra, Section III(D). In sum, the Appellate Division's conclusion that Petitioner was not prejudiced by the trial court's erroneous denial of Kirkland's affidavit at Petitioner's suppression hearing was not an unreasonable application of federal law. Furthermore, the error did not substantially disadvantage Petitioner at trial. Accordingly, the Court respectfully recommends dismissal of this claim.
2. January 9, 2008 Statement to Police
Second, Petitioner maintains that his January 9, 2008 statement to Detective Walters was not properly noticed under state law, since it was not attached to the initial indictment filed against him. (Petition at 10). After Petitioner was indicted for burglary, assault and attempted robbery pursuant to Indictment No. 1614-2008, the People filed a superseding indictment, Indictment No. 0260-2008, adding two counts of attempted bribing a witness to the original charges against Petitioner. (See Hearing Tr. 16, 18). The People affixed notice of its intent to use Petitioner's January 9, 2008 statement at trial only to the superseding indictment. (Id. at 18). Respondent argues that this claim does not present a federal question and alternatively, that the People complied with N.Y. C.P.L. § 710.30. (Resp't Br. at 35-36). Petitioner properly exhausted this claim before the state courts and the Appellate Division reached the merits, finding that “the notice of intention to use the statement at trial that the People served at the time of defendant's arraignment on a superseding indictment met the requirements of [N.Y. C.P.L. § 710.30].” May, 138 A.D.3d at 1024.
Compliance with N.Y. C.P.L. § 710.30 is a state-law issue, which is not cognizable on habeas review absent a showing that the error was of a constitutional dimension, i.e., that it substantially prejudiced Petitioner's trial. See Brecht, 507 U.S. at 623. Petitioner cannot show substantial prejudice because he received notice of the prosecution's intention to use the statement at his arraignment on the superseding indictment and had sufficient time to prepare his defense accordingly. Furthermore, in addition to his statement, the prosecution introduced ample trial evidence linking Petitioner to the crimes, such that the statement was not “‘smoking gun' evidence that alone sealed [Petitioner's] fate at the state criminal proceeding.” See Long v. Donnelly, 335 F.Supp.2d 450, 461 (S.D.N.Y. 2004) (emphasis added) (finding that even if N.Y. C.P.L. § 710.30 was violated, the error was harmless and not of constitutional dimension).
Regardless, the court did not err in admitting the statement, which was properly noticed under New York law. See People v. Littlejohn, 585 N.Y.S.2d 495, 496 (2d Dep't 1992). Where, as here, the state provided notice of its intent to use the statement at Petitioner's arraignment on his superseding indictment, N.Y. C.P.L. § 710.30 is satisfied. See id. (finding that the People complied with N.Y. C.P.L. § 710.30 by providing defendant notice of its intent to use his statement at defendant's second arraignment). Accordingly, the Court respectfully recommends dismissal of this claim.
3. Sandoval Ruling
Third, Petitioner asserts that “[a]fter a Sandoval hearing, the court inexplicably admitted the people to delve into an array of crimes and the details therein.” (Petition at 11). Respondent asserts that this claim is procedurally barred, does not present a federal question, and otherwise fails on the merits. (Resp't Br. at 36-37). While this claim was properly exhausted before the state courts, it is procedurally barred. The Appellate Division determined that Petitioner's challenge was unpreserved for appellate review and, in any event, without merit. May, 138 A.D.3d at 1026. The claim was thus decided on an adequate and independent state ground, constituting a procedural bar to habeas review. See Grant, 2012 WL 3764548, at *3. Petitioner has neither argued cause and prejudice, nor established actual innocence, necessary to overcome the procedural bar.
Regardless, Petitioner's Sandoval claim is not cognizable on habeas review because it does not present a federal question. See, e.g., Underwood v. Kelly, 692 F.Supp. 146, 150-51 (E.D.N.Y. 1988), aff'd, 875 F.2d 857 (2d Cir. 1989). Moreover, the Court cannot review Petitioner's contention that he was prejudiced by the court's Sandoval ruling because Petitioner did not testify at trial. See Peterson v. LeFevre, 753 F.Supp. 518, 521 (S.D.N.Y. 1991). “It is well-settled that a petitioner's failure to testify is fatal to any claims of constitutional deprivation arising out of a Sandoval type ruling” on habeas review since, without Petitioner's testimony, “the [c]ourt has no adequate non-speculative basis upon which to assess the merits of that claim.” Id. (citing Luce v. United States, 469 U.S. 38, 41-42 (1984)). Consequently, the Court respectfully recommends dismissal of Petitioner's Sandoval claim.
4. Defense's Ability to Elicit Information About Gonzalez's Status as a Confidential Informant
Fourth, Petitioner contends that the trial court's limitation on the defense's ability to inquire into Gonzalez's status as a confidential information was erroneous and deprived him of a fair trial. (Petition at 11). The Court interprets Petitioner's claim as an alleged violation of his Sixth Amendment confrontation right. Respondent contends that Petitioner's Confrontation Clause claim is procedurally barred and meritless. (Resp't Br. at 38-40).
Where, as here, a party appears pro se, district courts must construe pro se pleadings liberally and interpret them to “raise the strongest arguments they suggest.” See, e.g., Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).
Petitioner properly exhausted this claim before the state courts. The Appellate Division found that Petitioner's contention was unpreserved and “[i]n any event, the court's limitation was a provident exercise of discretion.” May, 138 A.D.2d at 1026. Thus, the state court relied on an adequate and independent state ground in disposing of Petitioner's claim, which is procedurally barred from federal review. See Grant, 2012 WL 3764548, at *3. Petitioner is unable to overcome the procedural bar.
Additionally, the Appellate Division's alternate ruling on the merits was not contrary to, or an unreasonable application of, federal law. “The Sixth Amendment . . . guarantees a criminal defendant ‘the right . . . to be confronted with the witnesses against him.'” DeJesus v. Perez, 813 Fed.Appx. 631, 633 (2d Cir. 2020) (quoting U.S. CONST. amend. VI). “The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross examination.” Davis v. Alaska, 415 U.S. 308, 316-17 (1974) (quoting 5 J. Wigmore, Evidence § 1395 (3d ed. 1940) (emphasis in original)). However, “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); accord Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (“the Confrontation Clause guarantees the opportunity for effective cross-examination, not cross examination that is effective in whatever way, and to whatever extent, the defense might wish.”) (emphasis in original).
At the outset of trial, the prosecution sought to preclude questioning regarding Gonzalez's status as a confidential informant for the NRPD. (Trial Tr. at 416). Defense counsel opposed, arguing that it was relevant to the defense's theory that Gonzalez's attacker was a drug dealer who Gonzalez had testified against, and that it tended to demonstrate that Gonzalez may alter his testimony to conform to what the NRPD officers wanted. (Id. at 417, 420). The court ruled in favor of the defense with the caveat that counsel's questioning would be limited if he began “attack[ing]” Gonzalez about his involvement in prior cases. (Id. at 425). Defense counsel elicited from Sergeant Rodriguez that before his attack, Gonzalez worked as a confidential informant for the NRPD and had assisted with the prosecution of approximately 15 to 20 drug cases. (Trial Tr. at 509-12). After a sidebar, the court stopped defense counsel from eliciting further information about Gonzalez's role as a confidential informant from Sergeant Rodriguez. (Trial Tr. at 513-14). Later on in the trial, defense counsel cross-examined Gonzalez about his prior convictions and role as a confidential informant with the NRPD. (Id. at 817-20).
Thus, the jury heard testimony regarding Gonzalez's relationship with the NRPD, which was properly limited by the trial judge when counsel's questioning went “far afield” of direct examination. (Id. at 514). The Appellate Division's ruling that the trial court's limitation on this line of questioning “was a provident exercise of discretion, ” was therefore not an unreasonable application of federal Confrontation Clause jurisprudence.
Accordingly, the Court respectfully recommends that Petitioner's claim that his due process rights were violated by the “cumulative effect” of numerous trial errors must be dismissed.
G. Excessive Sentence and Wrongful Adjudication as a PVFO
Petitioner contends that his sentence was excessive. (Petition at 11, 24). Respondent alleges that Petitioner's sentencing claim is not cognizable on habeas review as his sentence fell into the statutory range prescribed by state law. (Resp't Br. at 43). Petitioner properly exhausted his excessive sentence claim before the state courts, which was denied by the Appellate Division on the merits. See May, 138 A.D.3d at 1027.
An allegation that a trial judge abused their sentencing discretion is not a federal claim cognizable on habeas review where, as here, the sentence falls within the range prescribed by state law. See Thomas v. Senkowski, 968 F.Supp. 953, 956 (S.D.N.Y. 1997). Petitioner was sentenced as a PVFO to an indeterminate sentence of twenty-five years to life imprisonment for counts one, two and five (two counts of First Degree Burglary and one count of First Degree Assault), and to indeterminate terms of two to four years imprisonment for counts six and seven (two counts of Attempted Bribing a Witness), one of which was ordered to run consecutively with the burglary and assault sentences. (Sentencing Tr. at 9-11). In New York, First Degree Burglary and First Degree Assault are class B felonies. See N.Y. C.P.L. §§ 120.10, 140.30. Further, New York's persistent violent felony offender sentencing statute provides that “[w]hen the court has found . . . that a person is a” PVFO, defined as “a person who stands convicted of a violent felony offense . . . after having previously been subjected to two or more predicate violent felony convictions, ” the court “must impose an indeterminate sentence of imprisonment, the maximum term of which will be life imprisonment.” N.Y. Penal L. § 70.08(2) (emphasis added). For a class B felony, the minimum term of imprisonment “must be at least twenty years and must not exceed twenty-five years.” Id. § 70.08(3)(a) (emphasis added).
Petitioner was determined to be a PVFO following a hearing held on July 14, 2010.(PVFO Hearing Tr. at 1-18). Thus, N.Y. Penal L. § 70.08 mandated that Petitioner be given an indeterminate sentence with a minimum term of twenty to twenty-five years and a maximum term of life imprisonment for his burglary and assault convictions. See N.Y. Penal L. § 70.08. Petitioner was sentenced to twenty-five years to life imprisonment on the burglary and assault counts. (Sentencing Hr. at 9-10). His sentence thus fell within the range prescribed by state law. See N.Y. Penal L. § 70.08. Consequently, Petitioner's excessive sentence claim must be dismissed. See Thomas, 968 F.Supp. at 956.
At Petitioner's hearing, Petitioner admitted that: (1) on September 26, 1986, he was convicted of eight counts of First Degree Robbery in the Supreme Court of New York County and was sentenced to 4 to 12 years' incarceration on each count, (PVFO Hearing Tr. at 4-5); (2) he was convicted of Third Degree Robbery by the Supreme Court, New York County in September 1990 and subsequently sentenced on December 3, 1990 to 42 months to 7 years' incarceration, (id. at 5); (3) on June 12, 1996, Petitioner was convicted of First Degree Attempted Robbery in the Superior Court of Connecticut, and sentenced to 30 months of imprisonment, (id.); and (4) on February 16, 2000, he was convicted in the Supreme Court of Queens County of Third Degree Attempted Robbery and sentenced to one-and-a-half to three years' incarceration, (id.).
Petitioner also challenges his adjudication as a PVFO on the ground that the prosecution failed to demonstrate beyond a reasonable doubt that his 1996 guilty plea in Connecticut was voluntarily entered. (Petition at 14). Respondent contends that the prosecution demonstrated that Petitioner was the subject of two prior felony offenses beyond a reasonable doubt, and that Petitioner failed to rebut this showing. (Resp't Br. at 46-49). Pursuant to N.Y. Penal Law § 70.08, New York courts must “sentence a defendant as a persistent violent felony offender if at the time of sentencing the defendant has . . . been subjected to two or more predicate violent felony convictions.” Adelman v. Ercole, No. 08 CV 3609(RJD), 2010 WL 3210718, at *4 (E.D.N.Y. Aug. 12, 2010) (emphasis omitted). Where the defendant plead guilty to a prior felony, the prosecution must prove beyond a reasonable doubt that the defendant's guilty plea was “knowingly and voluntarily entered.” See People v. Harris, 61 N.Y.2d 9, 15 (1983).
At Petitioner's PVFO hearing, the prosecution introduced evidence of Petitioner's prior felony convictions for: (1) first degree robbery in New York City in 1986; and (2) attempted robbery in Connecticut in 1996. (PVFO Hearing Tr. at 4, 6). Petitioner admitted to the constitutionality of the New York conviction, but challenged his conviction in Connecticut on the grounds that attempted robbery is a non-violent offense under Connecticut law, that he plead guilty to the entry of the conviction but not to the facts surrounding the crimes, and that he was not advised of the consequences of his plea. (Id. at 9, 14-15). The court rejected Petitioner's arguments and found that the People demonstrated beyond a reasonable doubt that Petitioner knowingly and voluntarily plead guilty to both felony offenses. (Sentencing Hr. at 2-3). On appeal, Petitioner challenged the trial court's determination regarding his plea in Connecticut, which the Appellate Division summarily denied on the merits. See May, 138 A.D.3d at 1027.
Petitioner now argues on habeas review that his conviction in Connecticut was improperly considered by the trial court, because the People failed to prove beyond a reasonable doubt that his guilty plea in Connecticut was voluntary. (Petition at 14). This argument is predicated on Petitioner's contention that the Connecticut court did not advise him of the direct consequences of pleading guilty during his plea allocution. (See id.). Petitioner's claim is not cognizable on habeas review. Whether a state court “improperly subjected [a convicted person] to recidivist sentencing under New York state law” is purely a question of state law. Saracina v. Artus, 452 Fed.Appx. 44, 46 (2d Cir. 2011) (finding that the question of whether the state court “erred in applying a New York recidivist sentencing enhancement statute, ” such as N.Y. Penal Law § 70.08, “is a question of state law” and is not cognizable on habeas review); accord Albritton v. Commissioner, New York State Dep't of Corr. Servs., No. 11-CV-3482 (RRM), 2013 WL 4500736, at *7 (E.D.N.Y. Aug. 20, 2013) (claim that prior conviction was improperly used as a predicate for a “second felony adjudication” is “purely a matter of state law”); Boutte v. Poole, No. 07 Civ. 8412(GEL), 2008 WL 3166696, at *1 (S.D.N.Y. Aug. 4, 2008) (finding that Petitioner's claim that he was improperly sentenced as a PVFO because his prior conviction “was not . . . for a violent felony” is “exclusively a question of state law” and “may not be a basis for federal habeas relief.”). Consequently, Petitioner's claim concerning the state court's application of New York's criminal procedure law in adjudicating him as a PVFO is not cognizable by this Court. See Estelle v. McGuire, 502 U.S. 62, 67 (1991).
The transcript of Petitioner's 1996 plea allocution in Connecticut indicates that the court informed Petitioner that pleading guilty could impact his parole in New York and may require him to serve the unexecuted portion of his 1986 felony conviction. (Docket No. 11-16 at 10-11).
Finally, Petitioner argues that his adjudication as a PVFO violates the Supreme Court's holding in Apprendi v. New Jersey, which instructs that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” 530 U.S. 466, 490 (2000) (emphasis added). The Supreme Court subsequently concluded that “[i]f the jury's verdict alone does not authorize the sentence” and “the judge must find an additional fact to impose the longer term, the Sixth Amendment . . . is not satisfied.” Cunningham v. California, 549 U.S. 270, 290 (2007) (“Cunningham”). Petitioner cites to Cunningham in support of his assertion that the trial judge made improper findings of fact during sentencing, and that “only a jury not a judge . . . may determine whether a defendant's history and character warrants a persistent finding.” (Petition at 14, 24). Respondent alleges that Petitioner failed to exhaust this claim for presentation to the federal court. (Resp't Br. at 42).
Petitioner failed to present the instant Apprendi claim to the state courts. (See Resp't Br. at 42). Thus, Petitioner's claim is unexhausted. However, the Court finds that Petitioner's Apprendi claim is plainly meritless and subject to dismissal. See Rhines v. Weber, 544 U.S. 269, 277 (2005) (citing 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”)).
“Article 70 of New York's Penal Law sets forth two categories of recidivists, or persistent offenders:'” persistent felony offenders, who are sentenced pursuant to N.Y. Penal Law § 70.10, and persistent violent felony offenders, sentenced pursuant to N.Y. Penal Law § 70.08. See Portalatin v. Graham, 625 F.3d 69, 73 (2d Cir. 2010). Petitioner's claim is seemingly premised on the incorrect contention that Cunningham rendered N.Y. Penal L. §70.10, pursuant to which Petitioner claims to have been sentenced, unconstitutional. (See id.). Despite Petitioner's contention, Petitioner was sentenced under N.Y. Penal Law § 70.08. This distinction is important. Unlike N.Y. Penal Law § 70.10, a judge imposing a sentence pursuant to N.Y. Penal Law § 70.08 lacks discretion to depart from the statutorily prescribed indeterminate sentencing range. See id. at 73-74 (quoting N.Y. Penal L. § 70.08(2), (3) (“[w]hen the court has found . . . that a person is a persistent felony offender the court must impose an indeterminate sentence of imprisonment”) (emphasis added)). Thus, a trial judge need not “find any additional facts beyond [the petitioner's] previous convictions” when sentencing a convicted individual as a persistent violent felony offender. See Mack, 2016 WL 3077877, at *4. Accordingly, sentences imposed pursuant to the New York persistent violent felony offender statute have been uniformly held to comply with Apprendi. See id.; see also Hernandez v. Williams, No. 1:10-cv-03073(ALC)(FM), 2013 WL 5405472, at *8 (Sept. 26, 2013) (collecting cases) (“the federal district courts addressing this issue have unanimously concluded that the New York persistent violent felony offender statute is constitutional.”); Long, 335 F.Supp.2d at 465 (“N.Y. [Penal] L. § 70.08 is squarely within the narrow exception announced in Apprendi encompassing judicial fact-finding based solely on prior convictions.”).
After a finding is made that an individual is a persistent felony offender under the statute, N.Y. Penal Law § 70.10 authorizes the sentencing court to “impose any sentence authorized for an ‘A-1' felony if ‘the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest.'” Id. (quoting N.Y. Penal L. § 70.10(2)). After Apprendi, the federal courts in this circuit debated whether the fact finding contemplated by N.Y. Penal Law § 70.10(2) violated the Sixth Amendment. See, e.g., Mack v. Lavalley, 1:13-cv-8194-GHW, 2016 WL 3077877, at *4 (S.D.N.Y. May 31, 2016). Ultimately, the Second Circuit determined in Portalatin v. Graham that the statute was constitutional. 624 F.3d at 93-94. As discussed herein, Petitioner conflates N.Y. Penal Law § 70.10 with § 70.08. The latter, pursuant to which Petitioner was sentenced, does not involve judicial fact finding in imposing a sentence. In any event, the former has been determined not to involve any unconstitutional fact finding. See Portalatin, 624 F.3d at 93.
“A persistent violent felony offender is defined as a person who stands convicted of a violent felony . . . and has previously been convicted of two or more violent felonies.... Such an individual is subject to an enhanced sentencing range, with a maximum term of life in prison, ” Portalatin, 625 F.3d at 73-74, and for a class B offender a minimum term of twenty years and a maximum term of twenty-five years, see N.Y. Penal L. § 70.08(3).
Accordingly, the Court recommends that Petitioner's excessive sentence and improper sentencing under New York's persistent violent felony offender statute claims be dismissed.
H. Ineffective Assistance of Trial Counsel
Petitioner advances several theories arguing that his representation at trial was constitutionally deficient. Petitioner contends that defense counsel: (1) failed to object to the allegedly inconsistent and repugnant verdicts, (Petition at 20); (2) “surrendered the presumption of innocence and waived the People's burden of proof” by stating that “[t]he People of the State of New York is [sic] served by any verdict you bring back here, ” in summation, (Id. at 7); (3) “failed to investigate and make proper use of the investigatory materials, ” by failing to effectively use Kirkland as a defense witness, (Id. at 8); (4) failed to investigate Petitioner's alibi that he was in Brooklyn at the time of the crimes, (Id. at 13); and (5) failed to object to unspecified hearsay, (Id.).
It is axiomatic that “a person accused of a federal or state crime has the right to have counsel appointed, ” and further that “the right to counsel is the right to the effective assistance of counsel.” Stricklandv. Washington, 466 U.S. 668, 685-86 (1984) (internal quotations omitted). To establish that counsel was constitutionally ineffective, a petitioner must demonstrate: (1) that counsel's performance “fell below an objective standard of reasonableness” in light of “all the circumstances” (“deficiency prong”); and (2) “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different” (“prejudice prong”). Id. at 688, 694, 695. “The Strickland standard is rigorous.” Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001). “Counsel's ineffectiveness must be egregious in light of the strong presumption that “adequate assistance” was rendered and that counsel “made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. Furthermore, the Supreme Court has emphasized that when a habeas petitioner brings a claim for ineffective assistance of counsel, AEDPA review is “doubly deferential, ” and gives “both the state court and the defense attorney the benefit of the doubt, ” Burt v. Titlow, 571 U.S. 12, 15 (2013). Since “there are countless ways to provide effective assistance in any given case and . . . even the best criminal defense attorneys would not defend a particular client in the same way[, ] . . . reasonable, but unsuccessful strategic choices cannot provide the basis for ineffective assistance of counsel.” Speringo v. McLaughlin, 202 F.Supp.2d 178, 190-91 (S.D.N.Y. 2002). “A court need not decide both prongs of the Strickland test for ineffective assistance of counsel if a party has made an insufficient showing on one.” McCollough v. Bennett, No. 02-CV-5230, 2010 WL 114253, at *8 (E.D.N.Y. Jan. 12, 2010).
At the outset, Petitioner's claims that counsel was ineffective for failing to investigate whether Petitioner was in Brooklyn at the time of the crimes and for allegedly surrendering the presumption of innocence during summation are unexhausted. Petitioner raises these claims for the first time either on habeas review or in his application for leave to the Court of Appeals and has thus failed to fairly present them to the state courts. (See Docket Nos. 11-23-11-25, 11-3311-34).
1. Summation Comment Allegedly Surrendering the Presumption of Innocence
Petitioner has no remedies available in the state courts to exhaust his claim that counsel surrendered the presumption of innocence. Petitioner already used the sole direct appeal to which he is entitled under state law. See N.Y. Ct. App. R. § 500.20. Although New York law allows a convicted person to collaterally attack a judgment in violation of their constitutional rights pursuant to N.Y. C.P.L. § 440.10(1)(h), Petitioner is procedurally barred from doing so by N.Y. C.P.L. § 440.10(2)(c). N.Y. C.P.L. § 440.10(2)(c) mandates denial of claims in a § 440.10 motion that the defendant unjustifiably failed to raise on direct appeal, if the claims are recordbased. Id. § 440.10(2)(c). “Claims are record-based when a reviewing court could conclude that defendant's counsel was ineffective simply by reviewing the trial record without the benefit of additional background facts that would need to be developed through a post-conviction” proceeding. Rodriguez v. Smith, No. 10-CV-8306 (KMK) (LMS), 2015 WL 6509153, at *14 (S.D.N.Y. Oct. 28, 2015) (quoting McDowell v. Heath, No. 09 Civ. 7887(RO)(MHD), 2013 WL 2896992, at *5 (S.D.N.Y. June 13, 2013) (internal quotations omitted)).
Petitioner's claim that counsel surrendered the presumption of innocence during summation, which is based on defense counsel's comment that: “The People of the State of New York is [sic] served by any verdict you bring back here, ” (Id. at 1273), does not “hinge[] upon facts outside of the record.” O'Kane v. Kirkpatrick, No. 09 CIV. 05167 HB THK, 2011 WL 3809945, at *7 (S.D.N.Y. Feb. 15, 2011), report and recommendation adopted, No. 09 CIV. 05167 HB THK, 2011 WL 3918158 (S.D.N.Y. Aug. 25, 2011). A reviewing court could thus determine whether counsel was ineffective through a review of the trial record. Petitioner has not articulated a reason that appellate counsel would have needed an evidentiary hearing to develop this claim. See Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003). Accordingly, although technically unexhausted, Petitioner's claim is deemed exhausted since Petitioner has no further remedies available before the state courts. See Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Nonetheless, Petitioner is considered to have procedurally defaulted on his claim that counsel surrendered the presumption of innocence, since Petitioner did not raise it to the Appellate Division during the single direct appeal to which he was entitled, which would have been the appropriate forum to adjudicate the claim. See Coleman, 501 U.S. at 735. Consequently, the Court is barred from reaching the merits of this claim.
2. Failure to Investigate Petitioner's Alibi
Petitioner's unexhausted claim that defense counsel was ineffective for failing to investigate whether Petitioner was in Brooklyn at the time of the crimes is plainly meritless and subject to dismissal. See Rhines, 544 U.S. at 277. Petitioner avers that “[d]efense counsel was made aware” that at the time of Gonzalez's attack, Petitioner was driving from Yonkers, New York back to his home in Brooklyn, New York, after attending his son's birthday party at Steadman's home. (Petition at 13). Petitioner further alleges that he passed through “several toll booths” and defense counsel should have “investigated and gathered evidence” of “the video recording” of Petitioner leaving Westchester County. (Id.).
Counsel is obligated “to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 690-91. However, “[t]he duty to reasonably investigate does not ‘compel counsel to investigate comprehensively every lead or possible defense or to scour the globe on the off-chance something will turn up.'” Krasniqi v. United States, 195 F.Supp.3d 621, 633 (S.D.N.Y. 2016) (quoting Greiner v. Wells, 417 F.3d 305, 321 (2d Cir. 2005) (internal citations omitted)). Moreover, if there is a “reason to believe that pursuing certain investigations would be fruitless or even harmful, failure to pursue those investigations may not later be challenged as unreasonable.” Greiner, 417 F.3d at 321.
Petitioner's claim that counsel was deficient for failing to investigate his alibi is plainly meritless. Assuming arguendo, that alleged “video recording[s]” of Petitioner leaving Westchester County existed, defense counsel's decision not to introduce this evidence was a strategic decision that cannot be challenged on habeas review. See United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998) (per curiam) (habeas “courts are ill-suited to second-guess” defense counsel's trial strategy). It is conceivable that defense counsel would seek to avoid introducing evidence placing Petitioner in Westchester County and with Steadman on the day of the crimes, considering Petitioner resided in Brooklyn at the time of Gonzalez's attack. Further, introducing this evidence may have strengthened the prosecution's theory of the case, which hinged on Steadman and Petitioner's joint effort to steal from Gonzalez. Thus, defense counsel was justified in choosing not to introduce it. See Greiner, 417 F.3d at 323 (declining to fault defense counsel for choosing not to introduce certain evidence “in light of its ‘significant potential downside' [and] that it would have opened the door to a prosecution line of inquiry harmful to the defense.”) (quoting Sacco v. Cooksey, 214 F.3d 270, 275 (2d Cir. 2000)). Since strategic choices by defense counsel, regardless of their success, cannot form the basis of an ineffective assistance of counsel claim, Petitioner has failed to demonstrate that defense counsel's decision not to introduce alleged alibi evidence rendered his performance deficient. See Speringo, 202 F.Supp.2d at 190-91. As Petitioner fails to satisfy Strickland's deficiency prong, the Court need not reach the prejudice prong. See McCollough, 2010 WL 114253, at *8.
3. Failure to Object to the Verdict as Repugnant
In addition, Petitioner's claim that counsel was ineffective for failing to object to the verdict as inconsistent and repugnant is procedurally barred. Petitioner advanced this claim in his 440.10 Motion. The claim was rejected by the court pursuant to N.Y. C.P.L. § 440.10(2)(c) as record-based, constituting an adequate and independent state ground for dismissal. (See Docket No. 11-26 at 5); see also McDowell, 2013 WL 2896992, at *4 (“Record-based ineffective assistance of trial counsel claims . . . may be brought on direct appeal and when a petitioner fails to do so, rejection by a section 440.10 court is an independent and adequate ground precluding the petitioner from bringing the claim in a federal habeas petition.”).
Petitioner's remaining ineffective assistance of counsel claims were properly exhausted in Petitioner's direct appeal or 330.30 Motion and were denied on the merits. See May, 138 A.D.3d at 1026; (Docket No. 11-13 at 5). The Court will thus review the merits of these claims, affording AEDPA deference to the state court rulings.
4. Failure to Object to Hearsay Testimony
Petitioner's cursory allegation that trial counsel failed to object to “improperly elicited hearsay statements, ” without specifying the allegedly improper statements, is facially insufficient to meet Petitioner's burden on habeas review. See Epps, 687 F.3d at 50. Neither the Petition nor Petitioner's Reply articulate which statements defense counsel allegedly failed to object to, or how these alleged failures prejudiced Petitioner's trial. Furthermore, the trial record and Petitioner's own admissions undermine his claim. For instance, in Petitioner's pro se brief in support of his application for leave to the Court of Appeals, Petitioner argues that “[t]he trial testimony of Pedro Gonzalez was replete with hearsay that violated the Sixth Amendment Confrontation Clause . . . a[nd], of course, defense counsel not only objected, but a discussion on the matter was had [sic].” (Petition at 13 (emphasis added); see also Trial Tr. at 737-42).
Regardless, an attorney's decision not to object to a witness's testimony is generally considered a strategic decision. See Charles v. Fischer, 516 F.Supp.2d 210, 217 (E.D.N.Y. 2007) (citing United States v. Grunberger, 431 F.2d 1062, 1069 (2d Cir. 1970) (“[I]t is understandable that a defense counsel may wish to avoid underscoring a prejudicial remark in the minds of the jury by drawing attention to it [through an objection].”)). As petitioner's disagreement with strategic decisions made by trial counsel cannot form the basis of an ineffective assistance of counsel claim, the Court recommends dismissal of Petitioner's claim that counsel was ineffective for failing to object to unspecified hearsay testimony. See Speringo, 202 F.Supp.2d at 190-91.
5. Failure to Effectively Utilize Kirkland as a Witness
Petitioner argues that defense counsel was ineffective for “fail[ing] to properly investigate or prepare for trial, ” by not properly utilizing Kirkland as a defense witness. (See Petition at 8). Petitioner's argument centers on the defense's use of Kirkland at trial. Although Kirkland's testimony at trial was ultimately impeached by the prosecution, Petitioner's disagreement with counsel's trial strategy or his discontentment with the ultimate result of the trial do not establish that counsel's conduct was constitutionally deficient. See Strickland, 466 U.S. at 690-92. Further, to the extent Kirkland can be said to have possessed evidence exculpating Petitioner, such evidence was relayed to the jury at trial. (See Trial Tr. at 1158-59). It is clear that defense counsel consulted with Kirkland during trial preparation, since counsel sought to introduce Kirkland's affidavit regarding Kirkland's interview with Gonzalez at Petitioner's suppression hearing. (Hearing Tr. at 3-4). Moreover, Kirkland testified on Petitioner's case-in-chief that “Gonzalez informed him that he couldn't see whoever had assaulted him because as soon as he opened his apartment door, he was struck over the head with a weapon and . . . blood came down his face.” (Trial Tr. at 1158-59).
Furthermore, defense counsel's decision to limit Kirkland's role as a trial witness by questioning him only briefly on direct examination was a strategic choice that this Court will not disturb on habeas review. See Charles, 516 F.Supp.2d at 217. Counsel's strategic choices “made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690-91; accord Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (A habeas court cannot “second guess [counsel]'s strategy choices” using hindsight). Counsel's limited questioning of Kirkland may have been an attempt to narrow the scope of the prosecution's cross-examination, since Kirkland's credibility was severely impeached by the prosecution. For instance, the prosecutor elicited on cross-examination that in the process of interviewing Gonzalez, Kirkland and Mullady entered a restricted area without authorization, tape recorded Gonzalez without his permission, and were subsequently excluded from hospital premises and ordered not to return. (Trial Tr. at 1161-64, 1172-74). Further, despite Kirkland's contentions, the incomplete transcript of Gonzalez's interview revealed that Gonzalez made a partial identification to Kirkland. (Trial Tr. at 1219).
Regardless of whether counsel's use of Kirkland as a defense witness was a provident strategy, the record indicates that counsel thoroughly investigated the law and facts in preparing for trial. Thus, Petitioner's disagreement with counsel's strategy fails to satisfy Strickland's deficiency prong. See Strickland, 466 U.S. at 690-91; accord Garcia v. Portuondo, 459 F.Supp.2d 276, 287 (S.D.N.Y. 2006) (habeas courts should not “disturb the portion of counsel's performance that is related to trial strategy.”). Since Petitioner has not made a sufficient showing in support of the deficiency prong, Strickland's prejudice prong need not be reached. Accordingly, the Court recommends that Petitioner's ineffective assistance of counsel claim be dismissed. See McCollough, 2010 WL 114253, at *8.
IV. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend that the Petition 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, I 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).
The Clerk of Court is requested to mail a copy of this Report and Recommendation to the pro se Petitioner.
V. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(C) 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 the receipt 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 seventeen (17) days from receipt of the same to file and serve written objections. See Fed.R.Civ.P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Kenneth M. Karas at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Requests for extensions of time to file objections must be made to the Honorable Kenneth M. Karas and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).
RESPECTFULLY SUBMITTED.