Opinion
Civil Action No. 9:13-CV-0705 (GLS/DEP)
05-03-2016
VARREL MITCHELL, SR., Petitioner, v. NEW YORK STATE DIVISION OF PAROLE, Respondent.
APPEARANCES: FOR PETITIONER: VARREL MITCHELL, SR., Pro Se 3562 HWY 44 Paulina, LA 70763 FOR RESPONDENT: HON. ERIC T. SCHNEIDERMAN New York State Attorney General 120 Broadway New York, NY 12224 OF COUNSEL: ALYSON J. GILL, ESQ. Assistant Attorney General
APPEARANCES: FOR PETITIONER: VARREL MITCHELL, SR., Pro Se
3562 HWY 44
Paulina, LA 70763 FOR RESPONDENT: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
120 Broadway
New York, NY 12224 OF COUNSEL: ALYSON J. GILL, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se petitioner Varrel Mitchell, Sr., a former New York State prison inmate who was convicted in 2003 of various crimes, has commenced this proceeding pursuant to 28 U.S.C. § 2254 seeking federal habeas review of his conviction. In his petition, Mitchell sets forth five separate grounds for granting habeas relief. Respondent has answered the petition, arguing that it should be dismissed on various grounds, including the merits. For the reasons set forth below, I recommend that the petition in this matter be denied and dismissed.
I. BACKGROUND
Petitioner and Jackie Curtis are the parents of twin girls, GM and BM, born on November 25, 2000. Dkt. No. 8-6 at 47. At the times relevant to this case, petitioner and Curtis were not living together, and while the girls lived with Curtis, on occasion petitioner took them to spend the night with him at his residence. Id. at 47, 53. When GM was approximately five months old she became prone to crying. Id. at 50-51. Frustrated by her outbursts, in a couple of instances petitioner took only BM for visitation and left GM with Curtis. Id. at 51.
In accordance with the requirements of Rule 5.2(a)(3) of the Federal Rules of Civil Procedure, the infant victim in this case will be referred to using only her initials.
Petitioner picked the twins up at approximately 6:30 p.m. on the evening of Monday, August 20, 2001. Dkt. No. 8-6 at 56. When returning the twins on the following Wednesday morning, Curtis noticed that GM had a bump on her forehead, which petitioner explained by telling Curtis that the baby struck her head on a coffee table the night before. Id. at 58-59. On the same day, Curtis noticed that GM began to cry when she attempted to lift up or touch her legs. Id. at 61-62. In addition, when GM was placed in her walker, she would not straighten her legs. Id. The next day, Curtis took GM to see her pediatrician, Dr. Estrella Esquerra, believing that the baby might have an ear infection because she felt warm and was pulling at her ear. Id. at 63-64. During that visit, Curtis also asked the doctor to check GM's legs. Id. at 64-65. When Dr. Esquerra noticed that one of GM's legs was swollen and that GM would not allow her to touch the leg, she instructed Curtis to take GM to the hospital for x-rays. Id. at 64-67, 266-67.
The same day, Curtis took GM to the hospital, where the infant was treated by Dr. Deborah Bostic, the pediatrician on-call at the hospital. Dkt. No. 8-6 at 267, 307. Based upon her review of GM's x-rays, Dr. Bostic concluded that GM "had fractures of . . . both bones in both legs at the level of the ankles." Id. 310. Dr. Bostic, Dr. Esquerra, and Dr. John Waldman, a pediatric neurosurgeon employed at the hospital in which GM was treated, testified at petitioner's trial that, in their opinion, it would take a considerable degree of force to cause the fractures disclosed in GM's x-rays and that it was unlikely an accident caused the injuries. Id. at 269, 294-95, 313. Following her examination of GM, Dr. Bostic notified the police, Child Protective Services, and Dr. Esquerra of her findings. Id. at 309.
After the Albany City Police Department was called, Gary Colfer, a patrolman with the department, was dispatched to the hospital. Dkt. No. 8-6 at 136. Officer Colfer met with Dr. Bostic, who reported that a nine-month old juvenile had appeared at the hospital with unusual injuries to her body, including two broken legs. Id. at 137. Dr. Bostic told Officer Colfer that the breaks were at odd angles and must have been the result of an unusual event or "traumatic blunt occurrence" and was therefore likely caused by someone. Id. at 137. Officer Colfer then interviewed Curtis, who informed him that petitioner, the infant's biological father, had taken GM on Monday and returned her on Wednesday. Id. at 139-40. The matter was then transferred to Albany Police Detective Thomas Kubisch, who arrived and was briefed by Officer Colfer. Id. at 141, 148.
Detective Kubisch was assigned as the lead investigator in the matter. Dkt. No. 8-6 at 141. After receiving Officer Colfer's report, Detective Kubisch spoke with Dr. Bostic, who informed him that GM had bilateral fractured legs and an old brain injury. Id. at 148. Detective Kubisch then interviewed Curtis who advised him that petitioner took GM on Monday, August 20, 2001, and returned her on Wednesday, August 22, 2001. Id. at 149.
Detective Kubisch interviewed petitioner on August 27, 2001. Dkt. No. 8-6 at 151. During that interview, Mitchell admitted that, during the time GM was with him between August 20 and 22, 2001, he struck her on her thigh and banged her head on a coffee table. Id. at 156-58, 60. Petitioner also told Detective Kubisch that, in the past, he had hit GM numerous times after becoming angry and frustrated when she cried. Id. at 158. Petitioner also admitted to Detective Kubisch that he swung GM between April and May 2001, and, using a doll, and while being videotaped, he demonstrated for Detective Kubisch the manner in which she was swung. Id. at 159-60. Both Drs. Esquerra and Waldman were shown petitioner's videotaped demonstration. Dkt. No. 8-6 at 193-94, 255, 271, 288-89. Dr. Esquerra was "horrified" by the video. Id. at 193. Dr. Waldman explained at trial that swinging GM in the manner demonstrated by petitioner on the videotape could have caused bleeding on her brain and a serious risk of injury to her spinal cord and the juncture of her head and spine, and could even have been fatal. Id. at 289-90.
II. PROCEDURAL HISTORY
A. State Court Proceedings
On May 14, 2002, an Albany County Grand Jury returned a three-count indictment charging petitioner with second-degree assault, first-degree reckless endangerment, and endangering the welfare of a child in violation of New York Penal Law §§ 120.05(9), 120.25, and 260.10(1), respectively. Dkt. No. 8-2 at 29-31. As a result of a motion filed by petitioner to suppress his oral and written statements provided to law enforcement, the trial court conducted a suppression hearing on September 24, 2002 and November 8, 2002. Dkt. No. 8-6 at 490-652. Following the hearing, County Court Judge Thomas A. Breslin issued an order, dated January 29, 2003, denying petitioner's motion in all respects. Dkt. No. 8-1 at 2-6.
Count 1 of the indictment charged assault in the second degree but contained language that suggested petitioner was charged with attempted second-degree assault. Dkt. No. 8-2 at 29. Characterizing the language regarding attempted assault as a typographical error, at trial the assistant district attorney moved for and was granted permission to eliminate any reference to "attempt." Dkt. No. 8-6 at 378-79. In its decision addressing petitioner's appeal, the New York State Supreme Court, Appellate Division for the Third Judicial Department ("Appellate Division") found no fault with the trial court's decision to permit the amendment. See People v. Mitchell, 94 A.D.3d 1252, 1253 (3d Dep't 2012).
A jury trial was subsequently convened, beginning on June 16, 2003, to address the charges against Mitchell. Dkt. No. 8-6 at 1-489. Petitioner represented himself during the course of the trial, aided by the assistance of stand-by counsel. See, e.g., id. at 5-6. On June 19, 2003, the jury convicted Mitchell on all three counts. Id. at 485-87. He was subsequently sentenced on August 14, 2003, as a second felony offender, to a determinate period of incarceration of seven years on the assault conviction, an indeterminate three-and-one-half-to-seven-year term of imprisonment for reckless endangerment, to run consecutively with the assault sentence, and an additional one-year concurrent sentence on the endangering conviction. Dkt. No. 8-2 at 108-22.
Petitioner was later resentenced on October 29, 2003. Dkt. No. 8-2 at 123-28. The resentencing did not affect the periods of incarceration imposed, but instead was intended to rectify a typographical error concerning the designation of one of the offenses and to clarify the extent of post-release supervision imposed. Id.
Once again representing himself, petitioner appealed his conviction to the Appellate Division arguing that (1) the trial court erred in denying a motion attacking the validity of the indictment as failing to allege the essential elements of the crimes charged; (2) the indictment should have been dismissed based upon errors committed during the grand jury proceedings; (3) the evidence adduced at trial was legally insufficient, and the jury's verdict was against the weight of the evidence; (4) he was denied a fair trial and due process at trial due to the prosecutor's errors; and (5) the trial court erred in failing to suppress his statements made to law enforcement. Dkt. No. 8-2 at 2-26. Petitioner's conviction was affirmed by the Appellate Division in a decision issued on April 12, 2012. People v. Mitchell, 94 A.D.3d 1252 (3d Dep't 2012). The Appellate Division first concluded that the indictment was sufficient because all three counts adequately set forth the charges against petitioner. Mitchell, 94 A.D.3d at 1252-53. The court next rejected petitioner's arguments concerning the integrity of the grand jury process, and then concluded that the trial court did not err in finding that petitioner's statements to law enforcement officers were voluntary. Id. at 1253. After surveying the evidence adduced at trial, the Appellate Division found that the verdict was not against the weight of the evidence. Id. at 1253-55. In a footnote, the Appellate Division observed that petitioner did not preserve his legal sufficiency argument because he failed to make a motion to dismiss after the prosecution rested. Id. at 1253 n.1. The court nonetheless evaluated the sufficiency of the evidence as part of its review addressing the weight of the evidence at trial. Id. Petitioner's remaining contentions were dispensed with by the court's statement that "[d]efendant's remaining contentions have been considered and found lacking in merit." Id. at 1255. Petitioner's request for leave to appeal the Appellate Division's decision to the New York Court of Appeals was subsequently denied on June 14, 2012. People v. Mitchell, 19 N.Y.3d 964 (2012). Petitioner neither sought certiorari review by the United States Supreme Court nor mounted any collateral state court challenges to his conviction. Dkt. No. 1 at 2.
No explanation has been offered for the unusually inordinate amount of time that elapsed between the date of petitioner's conviction and the Appellate Division's decision on appeal.
B. Proceedings in This Court
Mitchell commenced this proceeding on June 19, 2013. Dkt. No. 1. Mitchell's petition sets forth five grounds for habeas relief, arguing that (1) the trial court erred in refusing to dismiss the indictment against him, which was jurisdictionally defective for failing to allege all of the essential elements of the crimes charged; (2) the indictment against him was the product of infected grand jury proceedings, resulting in a denial of due process; (3) the jury's verdict was not supported by sufficient evidence and was against the weight of the evidence adduced at trial; (4) he was deprived of a fair trial by the prosecutor's errors; and (5) the trial court erred in denying the motion to suppress his statements to law enforcement. Id. at 4-23.
In his petition, Mitchell named the People of the State of New York, the Attorney General of the State of New York, and "Hon. Schermerhorn" as respondents. Dkt. No. 1 at 1. In an initial order approving Mitchell's petition for filing, issued on June 26, 2013, I directed the clerk to substitute the New York State Division of Parole, which currently supervises petitioner, as the named respondent. Dkt. No. 3 at 2.
On September 24, 2013, respondent submitted an answer to the petition, as well as a memorandum of law and relevant state court records. Dkt. Nos. 6-8. Those filings were followed by the submission of a reply memorandum by Mitchell on October 7, 2013. Dkt. No. 9.
The petition in this matter, which is now fully briefed and ripe for determination, has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant habeas corpus relief with respect to a claim adjudicated on the merits in state court only if, based upon the record before the state court, the adjudication of the claim (1) 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) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citing 28 U.S.C. § 2254(d)); Premo v. Moore, 562 U.S. 115, 120-21 (2011); Thibodeau v. Portuondo, 486 F.3d 61 (2d Cir. 2007) (Sotomayor, J.). The AEDPA "'imposes a highly deferential standard for evaluating state-court rulings' and 'demands that state-court decisions be given the benefit of the doubt.'" Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)); accord, Cullen, 131 S. Ct. at 1398. Federal habeas courts must presume that the state court's factual findings are correct "unless applicants rebut this presumption with 'clear and convincing evidence.'" Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007) (quoting § 2254(e)(1)); see also Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold." Schriro, 550 U.S. at 473 (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).
As required by section 2254, on federal habeas review, a court may only consider claims that have been adjudicated on the merits by the state courts. 28 U.S.C. § 2254(d); Cullen, 563 U.S. at 181; Washington v. Schriver, 255 F.3d 45, 52-55 (2d Cir. 2001). The Second Circuit has held that, when a state court adjudicates a claim on the merits, "a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim - even if the state court does not explicitly refer to either the federal claim or to relevant federal case law." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
B. Defective Indictment
Petitioner first contends, as he did in his state court appeal, that the indictment against him was defective because it did not allege certain elements of the crimes charged. Dkt. No. 1 at 4-6. Respondent maintains that this claim is not cognizable on federal habeas review. Dkt. No. 6-1 at 22-24.
A defect in a state court indictment can support a federal habeas claim only if the indictment falls below basic constitutional standards. Beverly v. Walker, 899 F. Supp. 900, 909 (N.D.N.Y. 1995) (Scullin, J.). An indictment is constitutionally adequate "when it charges a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events." United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992) (citing Russell v. United States, 369 U.S. 749, 763-64 (1962)); accord, DeVonish v. Keane, 19 F.3d 107, 108 (2d Cir. 1994). Generally, an indictment that tracks the language of the applicable criminal statutes and states the time and place "in approximate terms" of the alleged crime will satisfy due process. Stavroulakis, 952 F.2d at 693; accord, DeVonish,19 F.3d at 749.
In this case, the indictment returned against petitioner meets this modest standard. Count one of the indictment charges as follows:
Assault in the Second Degree, in violation of Section 120.05(9) of the Penal Law of the State of new [sic] York, a Class D Felony, in that the defendant, sometime between August 20, 2001 and August 22, 2001, at 31 Third Ave., in the City of Albany, County of Albany, State of New York, did, being eighteen years old or more, with intent to cause physical injury to a person less than seven years old,Dkt. No. 8-2 at 29 (emphasis and alterations in original). As noted above, this count originally included language regarding attempted assault. Dkt. No. 8-2 at 29. At trial, however, the prosecutor moved to amend the indictment to eliminate the references to an attempted assault. Dkt. No. 8-6 at 378-82. That motion was granted based upon the trial court's finding that the amendment rectified a typographical error and was properly sought pursuant to New York Criminal Procedure Law § 200.70. Id. In rejecting petitioner's argument on appeal that the amendment was improper, the Appellate Division noted that it was clear from the record that the grand jury considered and voted to accuse petitioner of assault in the second degree, and not an attempted assault. Mitchell, 94 A.D.3d at 1253. Notwithstanding the typographical error contained in this count of the indictment, petitioner was on notice of the charges alleged in light of (1) the inclusion of all of the essential elements of second-degree assault under New York Penal Law § 120.05(9), (2) the identification of the victim, (3) the specification of the location of where the crime is alleged to have occurred, and (4) the allegation that the crime was committed between August 20, 2001 and August 22, 2001. Moreover, the Appellate Division's decision regarding the County Court's ruling on the motion to amend the indictment was not contrary to any Supreme Court precedent.attempt tocause such injury to such person, to wit: at the aforesaid date, time and place, the defendant being eighteen years old or more (D.O.B. 9/29/58) didattempt towith intentionallyto cause physical injury to one [GM] whose date of birth is 11/25/00, did cause such injury by fracturing both her left and right tibia and fibula.
That provision states that a "person is guilty of assault in the second degree when. . . [b]eing eighteen years old or more and with intent to cause physical injury to a person less than eleven years old, the defendant recklessly causes serious physical injury to such person[.]" N.Y. Penal Law § 120.05(9).
Count two of the indictment charges as follows:
Reckless Endangerment in the First Degree, in violation of Section 120.25 of the Penal Law of the State of New York, a Class D Felony, in that defendant, sometime between April 1, 2001 and May 31, 2001, at 31 Third Ave., in the City of Albany, County of Albany, State of New York, did under circumstances evincing a depraved indifference to human life, recklessly engage in conduct which created a grave risk of death to another person to wit: at the aforesaid date, time and place the defendant did evince a depraved indifference to human life by recklessly creating a grave risk of death to one [GM] (DOB 11/25/00) by grabbing her by the legs and swinging her in a pendulum motion for ten to fifteen minutes.Dkt. No. 8-2 at 30 (emphasis in original). Once again, this charge tracks the statutory language of New York Penal Law § 120.25, which provides, in relevant part, that "[a] person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person." N.Y. Penal Law § 120.25. In addition, this count states approximately when the crime occurred, specifies a location, identifies the victim, and describes the conduct that gave rise to the offense. Dkt. No. 8-2 at 30. Due process was therefore satisfied in connection with this count, as well.
Count three of the indictment charges petitioner with endangering the welfare of a child, alleging as follows:
Endangering the Welfare of a Child, in violation of Section 260.10(1) of the Penal Law of the State of New York, a Class A Misdemeanor, in that the defendants, between August 20, 2001 and August 22, 2001, at 31 Third Ave., in the City of Albany, County of Albany, State of New York, did knowingly act in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or direct or authorize such child to engage in an occupation involving a substantial risk of danger to his life or health, to wit: during the aforesaid date, time and place, the defendants [sic], did subject a child who is less than seventeen years old and whose name is [GM] (D.O.B. 11/25/00), to a substantial risk of danger to her life and health by
striking her about the lower legs, buttocks, and thighs.Dkt. No. 8-2 at 31. Once again, the language of the applicable statute, New York Penal Law § 260.10(1) is tracked almost verbatim, an approximate date and location of the criminal offense is stated, the victim is identified, and the basic essential factual allegations associated with the charge are set forth. Count three therefore similarly satisfies the requirements of due process and adequately apprised petitioner of the charges against him.
That statute provides as follows:
A person is guilty of endangering the welfare of a child when. . . [h]e or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his or her life or health[.]N.Y. Penal Law § 260.10(1).
In sum, the first ground of Mitchell's petition is cognizable on federal habeas review only to the limited extent of inquiring as to whether basic requirements of due process were satisfied. Because I find that petitioner was afforded due process with respect to the contents of the indictment and the state court rulings below were not contrary to any Supreme Court precedent, I recommend this ground be denied.
Even assuming the state court indictment was defective, "a petit jury's guilty verdict transforms any defect in the grand jury proceedings into harmless error by establishing both that there was probable cause to indict the defendant and that the defendant was actually guilty beyond a reasonable doubt." Beverly, 899 F. Supp. at 908 (citing United States v. Mechanik, 475 U.S. 66, 70 (1986)). Accordingly, to the extent that the indictment was defective, the jury's verdict finding petitioner guilty on all three counts renders the defect harmless.
C. Defect in Grand Jury Proceedings
In his second ground, Mitchell asserts that there were several defects in the grand jury proceedings leading to his indictment. Dkt. No. 1 at 7-16. Specifically, he alleges that (1) the grand jury was not provided with a copy of his proposed witness list, (2) unauthorized persons were present in the grand jury session, (3) the prosecutor suppressed exculpatory evidence during the grand jury proceedings; and (4) the prosecutor knowingly offered perjured testimony to the grand jury. Id. Respondent counters by arguing that none of these claims provide a basis for overturning petitioner's conviction on habeas review. Dkt. No. 6-1 at 25-26.
In this proceeding, the court is tasked with determining whether petitioner's conviction resulted from a "violation of the Constitution, laws or treaties of the United States." 28 U.S.C. § 2254(a); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Although petitioner has a right under New York law to an indictment by a grand jury, People v. lannone, 45 N.Y.2d 589, 594 (1978), an individual's right under the Fifth Amendment to a grand jury indictment has not been incorporated against the states through the Fourteenth Amendment. LanFranco v. Murray, 313 F.3d 112, 118-19 (2d Cir. 2002) (citing Branzburg v. Hayes, 408 U.S. 665, 688 n.25 (1972)). Accordingly, the defects now alleged in connection with petitioner's grand jury proceedings are not cognizable in a petition for writ of habeas corpus. Lopez v. Riley, 865 F.2d 30, 32-33 (2d Cir. 1989). In any event, the jury's guilty verdict following petitioner's trial rendered any defects that occurred in connection with the grand jury proceedings harmless, definitively establishing both the existence of probable cause to indict and that petitioner was actually guilty beyond a reasonable doubt of the crimes charged in the indictment. Lopez, 865 F.2d at 32 (citing Mechanik, 475 U.S. at 70). For these reasons, I recommend that petitioner's second ground for habeas relief be denied.
D. Sufficiency/Weight of the Evidence
Petitioner next challenges both the sufficiency and weight of the evidence adduced at trial. Dkt. No. 1 at 16-18. Respondent contends that this argument does not present a federal claim, is foreclosed based upon an independent and adequate state ground, and, in any event, is without merit because the evidence at trial was adequate to support the jury's verdict.
1. Sufficiency of the Evidence
The Appellate Division rejected petitioner's contention on appeal regarding the sufficiency of the evidence because he did not preserve that argument for review by "declin[ing] County Court's offer to make a motion to dismiss after the People rested[.]" Mitchell, 94 A.D.3d at 1253 n.1. In light of this conclusion, respondent contends that petitioner's sufficiency of the evidence claim now raised in his habeas petition is foreclosed. Dkt. No. 6-1 at 26-28.
As a matter both of comity, and in keeping with the principles of federalism, a federal court ordinarily will not review a federal claim presented in a habeas petition if it has been rejected by the state courts on a ground that is both "independent and adequate[.]" Coleman v. Thompson, 501 U.S. 722, 736 (1991); accord, Brown v. Greiner, 409 F.3d 523, 532 (2d Cir. 2005). While a procedural forfeiture is typically the product of a failure to comply with a state's requirements regarding timely presentment of issues to a court, the question of whether a default discerned by a state court is sufficiently adequate and independent to preclude federal habeas review is governed by federal law. Monroe v. Kuhlman, 433 F.3d 236, 240-41 (2d Cir. 2006).
When presented with this issue, the court examines both whether the state court's ruling is wholly independent of any federal question presented, and whether the claim has been rejected based upon an adequate ground - that is, whether the rule relied upon by the state court is firmly established and regularly followed. Downs v. Lape, 657 F.3d 97, 101-02 (2d Cir. 2011). The habeas court's function is "to determine only whether the state ruling falls within the state's usual practice and is justified by legitimate state interests, not whether the state court ruling was correct." Downs, 657 F.3d at 101 (citing Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011)).
Addressing the issue of adequacy, the Second Circuit has observed that
a procedural bar will be deemed adequate only if it is based on a rule that is firmly established and regularly followed by the state in question. When a federal court finds that the rule is inadequate under this test the rule should not operate to bar federal review. Nonetheless, the principles of comity that drive the doctrine counsel that a federal court that deems a state procedural rule inadequate should not reach that conclusion lightly or without clear support in state law.Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (citations and quotation marks omitted); accord, Monroe, 433 F.3d at 241. As may be self-evident, a state court determination is sufficiently independent if it is divorced from and bears no relation to the merits of the federal law claim presented. See Coleman, 501 U.S. at 729 ("This Court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question[.]"). When addressing the question of procedural forfeiture, a court should presume that there is no independent and adequate state ground for a state court decision when the decision "'fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion[.]'" Coleman, 501 U.S. at 733 (quoting Mich. v. Long, 463 U.S. 1032, 1040-41 (1983)); accord, Brown, 409 F.3d at 531.
For a federal court to deny habeas review based on the independent and adequate state ground doctrine, it must be clear that the state court actually relied upon the procedural bar as the basis for its disposition of the claim. Coleman, 501 U.S. at 735; Harris v. Reed, 489 U.S. 255, 262 (1991); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000). In a case where both procedural and substantive arguments have been advanced by the parties but no opinion is issued by the state court explaining its rejection of a claim, a federal court may properly assume that the state court based its decision on state procedural grounds absent good reason to believe the state court's silence represents a decision to deny the claim on its merits. Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993). In instances where a state court has expressly found both a failure to preserve the argument for appellate review and alternatively or "in any event" that the argument lacks merit, the procedural bar applies. Fama, 235 F.3d at 810 n.4. If there is ambiguity, however, as in "when a state court uses language such as the defendant's remaining contentions are either unpreserved for appellate review or without merit, the validity of the claim is preserved and is subject to federal review." Fama, 235 F.3d at 810 (quotation marks and alterations omitted).
In this instance, the Appellate Division applied a well-recognized, firmly established, and regularly followed rule in New York in denying petitioner's claim regarding the sufficiency of the evidence. See Gordon v. Graham, No. 09-CV-1368, 2012 WL 293620, at *4 (E.D.N.Y. Jan. 31, 2012) (finding Appellate Division's reliance on petitioner's failure to raise the sufficiency claim before the trial court to be an "independent and adequate state procedural ground preclud[ing] federal habeas review of [the] claim"); see also Rustici v. Philips, 497 F. Supp. 2d 452, 482 (E.D.N.Y. 2007) (citing Gonzalez v. Sullivan, 934 F.2d 419, 421 (2d Cir. 1991)). Accordingly, this court's review of that claim is foreclosed absent a finding of either (1) cause for petitioner's default and actual prejudice, or (2) that a failure to review the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; accord, Brown v. Rivera, No. 05-CV-1478, 2008 WL 2559372, at *2 (N.D.N.Y. June 23, 2008) (Treece, M.J.). Petitioner in this case, however, does not contend or otherwise provided a basis for finding that he is justified in failing to raise this claim before the trial court or that a failure to grant his request for a writ of habeas corpus would result in a miscarriage of justice. Because there is nothing before me to suggest that either of those exceptions apply, I recommend that petitioner's sufficiency of the evidence claim be denied on this procedural basis.
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
Even though the Appellate Division ruled in the alternative on the merits of petitioner's legal insufficiency claim, the procedural bar still precludes habeas review. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law." (emphasis in orginal)); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) ("[F]ederal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim.").
2. Weight of the Evidence
Turning to petitioner's claim that the jury's verdict was against the weight of the evidence adduced at trial, although it is a statutory claim that need not be preserved for appellate review, N.Y. C.P.L. § 470.15(5), it is not cognizable on habeas review because it is grounded in New York's criminal procedure statute. N.Y. C.P.L. § 470.15(5); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996). Accordingly, I recommend that the court deny petitioner's weight of the evidence claim on this basis.
E. Prosecutorial Misconduct
In the fourth ground of his petition, petitioner asserts that his due process rights were violated through prosecutorial misconduct. Dkt. No. 1 at 18-21. Specifically, Mitchell alleges that the prosecutor violated his right to a fair trial by successfully seeking suppression of evidence suggesting that GM suffered her injuries on August 23, 2001, when the infant was no longer in his custody, rather than between August 20 and 22, 2001, the dates charged in the indictment. Id. at 19-20. Petitioner further argues that the prosecution knowingly permitted perjured testimony to be given at trial, claiming that there was no evidence that he swung GM. Id. at 20-21.
The precise nature of petitioner's first argument is unclear. It appears he may be arguing that he was deprived of a fair trial and due process by the prosecutor's conduct. In any event, a careful review of the trial transcript does not reveal any basis to conclude that the prosecutors in this case deprived petitioner of due process. There is no record that the prosecutors attempted to "suppress" any evidence with respect to the date GM's legs were injured. The indictment accused petitioner of assaulting GM between August 20 and 22, 2001, and Curtis testified at trial that GM was healthy when petitioner picked her up on August 20, but was injured on the morning of August 22, when petitioner returned her. Dkt. No. 8-2 at 29; Dkt. No. 8-6 at 67-68, 83. Although petitioner contends that "[r]espondents knew [GM] was in fact injured on August 23, 2001," there is no evidence to support this allegation and this portion of the petition should be denied as meritless.
Respondent has construed this ground as asserting a violation of the prosecution's obligations under Brady v. Maryland, 373 U.S. 83 (1963). A review of the trial transcript in this case, however, reveals that no Brady violation occurred. It is clear from Mitchell's own petition that he was aware of the evidence that he claims was unlawfully suppressed. Consequently, it was not withheld from him by the prosecution, and thus the requirements of Brady are not implicated.
With respect to petitioner's claim that the prosecutor at trial offered perjured testimony, it is true that "a prosecutor's use of false testimony can result in a denial of a habeas petitioner's right to due process." Black v. Rock, 103 F. Supp. 3d 305, 318 (E.D.N.Y. 2015); see also Napue v. People of the State of Ill., 360 U.S. 264, 269 (1959). The threshold question, however, is whether the evidence presented was false. Napue, 360 U.S. at 269; accord, Black, 103 F. Supp. 3d at 318. In this instance, petitioner contends that the "perjured" testimony offered by the prosecution was that petitioner swung GM. Dkt. No. 1 at 20-21. This contention is belied not only by petitioner's oral and written admissions provided to Detective Kubisch, but also by the video recording of petitioner demonstrating how he swung his daughter when she was an infant. Accordingly, because there is no basis in the record to find that the testimony regarding petitioner swinging GM was false, I recommend this portion of the petition be denied.
F. Suppression of Petitioner's Statements
Petitioner's final ground for seeking habeas review is based on his allegation that the trial court erred in denying his application to suppress statements made by him to law enforcement officers upon being questioned concerning GM's injuries. Dkt. No. 1 at 22-23. Respondent asserts that the Appellate Division's conclusion that petitioner's rights were not violated was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent. Dkt. No. 6-1 at 34-37.
When reviewing a habeas petition, "[t]he factual findings of the New York Courts are presumed to be correct." Green v. Scully, 850 F.2d 894, 900 (2d Cir.1988). This presumption, however, "refers to historical facts, that is, recitals of external events and the credibility of the witnesses narrating them." Green, 850 F.2d at 900. If "the material facts were not adequately developed at the State court hearing or the District Court finds that the factual determination is not fairly supported by the record," the presumption of correctness is set aside. Pagan v. Keane, 984 F.2d 61, 64 (2d Cir.1993) (citations and quotation marks omitted).
"The police may use a defendant's confession [obtained during a custodial interrogation] without transgressing his Fifth Amendment right only when the decision to confess is the defendant's free choice." United States v. Anderson, 929 F.2d 96, 98 (2d Cir.1991). The prosecution bears the burden of demonstrating by a preponderance of the evidence that a confession was voluntary. Anderson, 929 F.2d at 99. "[T]he ultimate issue of voluntariness is a legal question requiring independent federal determination." Arizona v. Fulminante, 499 U.S. 279, 287 (1991) (quotation marks omitted). "No single criterion controls whether an accused's confession is voluntary: whether a confession was obtained by coercion is determined only after careful evaluation of the totality of the surrounding circumstances." Green, 850 F.2d at 901. The Second Circuit has said that factors to be considered in determining whether a confession is voluntary include (1) the characteristics of the accused, such as his experience, background, and education; (2) the conditions of the interrogation; and (3) the conduct of law enforcement officials, especially whether there was physical abuse, the period of restraint in handcuffs, and use of psychologically coercive tactics. Id. at 901-02. "[S]ubsidiary questions, such as the length and circumstances of [an] interrogation," or whether "the police engaged in the intimidation tactics alleged by the defendant," are entitled to the presumption of correctness, Miller v. Fenton, 474 U.S. 104, 112, 117 (1985).
In this case, after conducting a suppression hearing to address the issues, County Court Judge Thomas A. Breslin issued a decision in which he found that Detective Kubisch spoke with petitioner at his place of employment on August 27, 2001, and petitioner told him that he would not be off work until later that evening. Id. at 3-4. The detective then left his card and asked petitioner to make contact. Id. at 4.
According to the trial court, following the encounter at petitioner's workplace, Detective Kubisch returned to his office, where petitioner appeared shortly thereafter. Dkt. No. 8-1 at 4. The two went into an interview room where Detective Kubisch immediately read petitioner his full Miranda warnings from a printed card. Id. Petitioner indicated that he understood the rights recited to him, and acknowledged as much by signing the Miranda warning card. Id. During the course of his interview with Detective Kubisch, petitioner made various admissions concerning his actions toward GM. Id. at 4-5. At one point petitioner agreed to demonstrate how he swung the child and permitted the demonstration to be videotaped. Id. at 5.
Miranda v. Arizona, 384 U.S. 436 (1966).
On the next evening, August 28, 2001, Detective Kubisch went to petitioner's residence, where a further conversation regarding GM's injuries ensued. Dkt. No. 8-1 at 5. Petitioner made additional admissions during that conversation, including that he had struck GM at the relevant times. Id.
Based upon these factual findings, Judge Breslin concluded that the petitioner's statements were not the result of a custodial interrogation and were voluntarily made. Dkt. No. 8-1 at 5-6. That determination was upheld by the Appellate Division, which noted that, while petitioner argued that his admissions were coerced and that the written statement and video recording were "fake," he did not testify or offer evidence to support those claims during the suppression hearing. Mitchell, 94 A.D.3d at 1253.
Having carefully reviewed the record, I conclude that the factual findings rendered by Judge Breslin and affirmed by the Appellate Division are fully supported by the evidence. At the suppression hearing before Judge Breslin, Detective Kubisch testified that on August 27, 2001, after returning to his office following his initial contact with petitioner, petitioner appeared at the station voluntarily. Dkt. No. 8-6 at 542-43. Detective Kubisch further testified that, after petitioner was read the Miranda warning card and petitioner signed it, petitioner admitted to hitting GM on Tuesday, August 21, 2001, in the lower leg, near her calf because he was frustrated with her crying. Id. at 547. Petitioner demonstrated for Detective Kubisch how he struck his daughter, as well as how he swung her when she was approximately four months old. Id. at 547-48, 551, 555. Petitioner also worked with Detective Kubisch to create a written statement, and petitioner thereafter read the statement and signed it. Id. at 550-54. At the end of the interview with Detective Kubisch on August 27, 2001, petitioner left the police department of his own volition, and he was not placed under arrest until months later. Id. at 558, 562.
In light of the record evidence, there is no basis to conclude that petitioner's statements to law enforcement officers were not voluntary or that the state courts' determinations were otherwise contrary to or an unreasonable application of any Supreme Court precedent. Accordingly, I recommend that this ground also be denied.
G. Certificate of Appealability
To appeal a final order denying a request by a state prisoner for habeas relief, a petitioner must obtain from the court a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(A); see also Fed. R. App. P. 22(b)(1) ("[T]he applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)."). In the absence of a COA, a federal court of appeals lacks jurisdiction to entertain an appeal from the denial of a habeas petition. Hoffler v. Bezio, 726 F.3d 144, 152 (2d Cir. 2013). A COA may issue only "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Hoffler, 726 F.3d at 154. A petitioner may demonstrate a "substantial showing" if "the issues are debatable among jurists of reason; . . . a court could resolve the issues in a different manner; or . . . the questions are adequate to deserve encouragement to proceed further." Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (quotation marks omitted). In this instance, I conclude that petitioner has not made a substantial showing of the denial of a constitutional right, and therefore recommend against the issuance of a COA.
A similar standard applies when a COA is sought to challenge the denial of a habeas petition on a procedural basis. See Slack v. McDaniel, 529 U.S. 473, 478 (2000) ("[A] COA should issue . . . if the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.").
IV. SUMMARY AND RECOMMENDATION
The petition in this matter raises five grounds for habeas relief. Several of those grounds present claims that are not cognizable in a federal habeas review proceeding. The remaining claims that are available to the petitioner in this proceeding lack merit, and the state courts' determinations are neither contrary to nor an unreasonable application of clearly established Supreme Court precedent. Accordingly, it is hereby respectfully
RECOMMENDED that the petition in this matter be DENIED and DISMISSED in all respects; and it is further
RECOMMENDED, based upon my finding that Mitchell has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2), that a certificate of appealability not issue with respect to any of the claims set forth in his petition.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge Dated: May 3, 2016
Syracuse, New York