Opinion
19-CV-05964 (GHW)(SN)
04-18-2022
MERLIN MORENO-GRATINI, Petitioner, v. THOMAS STICHT, Respondent.
REPORT AND RECOMMENDATION
SARAH NETBURN, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE GREGORY H. WOODS:
Pro se petitioner Merlin Moreno-Gratini seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to vacate his September 6, 2017 convictions of attempted murder in the second degree and assault in the first degree. Moreno-Gratini's petition should be denied. All of his claims are procedurally barred. Even if they were not, habeas relief is unavailable on the merits.
BACKGROUND
I. Moreno-Gratini's Arrest and Indictment
On May 18, 2016, Officers Gertrude Escobar and Marilyn Estrada responded to a 911 report of an assault at a building on West 139th Street. ECF No. 32-3 (“T.”) at 188-89, 223. When they and other police officers arrived at the scene, they observed a woman, later identified as Moreno-Gratini's sister, Ingrid Moreno, lying in the street in front of the building. She was bleeding from a chest wound and several wounds to her hands. She and another woman with her, later identified as Moreno's and Moreno-Gratini's grandmother, Dolores Mauricio, both spoke Spanish, which Officers Escobar and Estrada spoke fluently.
According to the officers' testimony at trial, both Moreno and Mauricio told the police that Moreno's brother had stabbed Moreno and then directed the officers in the direction he had fled. Mauricio gave an officer an identification card with Moreno-Gratini's photograph and told Officer Escobar that he and Moreno had had an argument the prior night that continued into the morning when the stabbing occurred. Officer Escobar then accompanied Mauricio to her apartment in the building, where there was blood on the kitchen floor. Mauricio again said that Moreno and Moreno-Gratini had been arguing (over money) and that he had stabbed Moreno in the chest with a knife.
Another officer took Moreno-Gratini into custody shortly afterwards. On May 23, 2016, a grand jury indicted Moreno-Gratini for attempted murder in the second degree and assault in the first degree under N.Y. Penal Law §§ 125.25(1) and 120.10(1). ECF No. 32-2 (“R.”) at 2-3.
II. Relevant Trial Court Proceedings
Before the jury was selected, the court held a hearing on whether to admit out-of-court statements made by Moreno and Mauricio to Officer Gertrude Escobar, one of the prosecution's witnesses. The prosecution sought to introduce the statements because Moreno did not testify for the prosecution, only for the defense, and Mauricio did not testify at all due to her health. T. 2-3. Officer Escobar testified that when she arrived at the scene, she saw Moreno on the ground, crying and yelling not to let her die. T. 10-12. According to Officer Escobar, when she approached Moreno, Moreno said that her brother did it. T. 12-14. Officer Escobar also testified that, a couple of minutes later, she spoke to Mauricio, who was distraught and crying. T. 15. According to Officer Escobar, Mauricio said that Moreno was her granddaughter and that she was present when Moreno was stabbed. T. 16-17. Mauricio then took Officer Escobar to her apartment, where Mauricio told her that there had been a dispute the night before over money, and then in the morning, her grandson Moreno-Gratini came out of the room, took a knife, and stabbed Moreno in the chest. T. 17, 23.
The court admitted as excited utterances Moreno's statements to Officer Escobar, rejecting the defense's argument that there was time for reflection between when the incident occurred and when Moreno spoke to Officer Escobar. T. 32-33. The defense attorney asked the court to note his objection. T. 34.
The court also admitted as excited utterances Mauricio's statements to Officer Escobar, again rejecting the defense's arguments that there was time for Mauricio to reflect between when the incident occurred and when she spoke with Officer Escobar in the street and in the apartment. T. 36-39. The defense attorney again asked the court to note his objection. T. 39.
At voir dire, the presiding judge asked the panel of prospective jurors a series of questions to facilitate jury selection, including: whether the jurors or anyone close to them had ever been the victim of a crime or involved in the criminal justice system; whether any of the jurors were or had family members who were lawyers; whether the jurors accepted Moreno-Gratini's presumption of innocence and the government's duty to prove his guilt beyond a reasonable doubt; whether the jurors accepted that their task was to determine Moreno-Gratini's guilt but not his punishment; whether Moreno's refusal to testify for the prosecution would affect the jurors' ability to be fair; whether Moreno and Moreno-Gratini's familial relationship would lead the jurors to take the crime less seriously; whether any of the jurors' sibling relationships would affect their ability to be fair; whether the jurors would assess the police officer witnesses' credibility as though they were any other witness; and whether any of the jurors lived in the area where the crime took place. See T. 50-102. The court also asked the prospective jurors about their jobs, education, living situation, and hobbies, and whether anything troubled them about the case. See T. 102-125.
Given the scope of the court's questioning, the court instructed the attorneys not to be repetitious in their questioning of the jury. T. 125-26. The prosecuting attorney attempted to ask the jury whether they understood that the state, not the victim, had brought the case; the court stopped the attorney and said, “That's the rule. Move on. They know that.” T. 127. The prosecuting attorney then attempted to ask whether the jury felt that any particular evidence was required; the court again stopped the attorney and said that the jury did not “have to answer questions like that.” Id. The prosecuting attorney asked no further questions. T. 127-28. The defense attorney attempted to ask whether any members of the jury would not hold the prosecution to the burden of “beyond a reasonable doubt”; the court stopped the attorney and said, “Counsel, I promised them that you would not be repetitious. I went through that.” T. 128. The defense attorney said, “The judge is killing me, ” and asked no further questions. T. 128-29.
At trial, Officer Escobar testified for the prosecution that, on May 18, 2016, she and Officer Estrada responded to a 911 call for an assault in progress at 602 139th Street. T. 188-89. When Officer Escobar arrived at the scene, she saw Moreno on the ground, crying and yelling not to let her die. T. 189. Officer Escobar testified that when she approached Moreno, Moreno said that her brother did it. T. 190-91. Defense counsel did not object to the statement's admission.
After Moreno was taken away in an ambulance, Officer Escobar spoke to Mauricio, who had been holding Moreno's head. T. 193. Mauricio was crying, shaken, and distraught. Id. Officer Escobar testified that Mauricio said that Moreno was her granddaughter, and that Mauricio was present when Moreno was stabbed, and that there had been an argument the night before that spilled over into the morning. T. 193. Mauricio took Officer Escobar to her apartment, where Officer Escobar saw blood on the kitchen floor. T. 193-94. According to Officer Escobar, when she was inside the apartment with Mauricio, Mauricio told her that there had been a dispute the night before over money, and in the morning, her grandson came out of the room, took a knife, and stabbed Moreno in the chest. T. 194. Officer Escobar recovered the knife and returned to the precinct. T. 195. Defense counsel did not object to the statements' admission.
Officer Petra Anderson testified for the prosecution that she arrested Moreno-Gratini on May 18, 2016. T. 204. On that day, she received a call for an assault in progress with a knife. T. 205. When Officer Anderson arrived at the scene, she saw Officer Escobar in the street with Moreno. T. 205-06. As Officer Anderson walked in Officer Escobar's direction, an older woman, who Officer Anderson later learned was Mauricio, approached. T. 27-28. Mauricio appeared distraught and crying, and she was holding an identification card with Moreno-Gratini's photo on it, which she gave to Officer Anderson. T. 206-07. According to Officer Anderson, Mauricio said “hermano, ” or “brother” in Spanish, and pointed down 139th Street towards Riverside Drive. T. 207. Defense counsel did not object.
The court then held a hearing outside the jury's presence to determine whether Officer Estrada could also testify to identifying statements made by Moreno and Mauricio. At the hearing, she testified that when she arrived at the scene and approached Moreno, Moreno said that her brother did it and pointed with her finger going west on 139th Street. T. 217-18. Officer Estrada also spoke to the victim's grandmother, Mauricio, who said that Moreno's brother was responsible and, when asked which way the perpetrator went, pointed down 139th Street and the West Side Highway. T. 218. Finally, Officer Estrada testified that she asked Mauricio about the reason for the stabbing, and she said it was a fight over money. Id. When prompted by the court to make his argument as to the statement's admissibility, the defense attorney said, “Judge, we went over that before.” T. 219. The prosecuting attorney then asked, “The Crawford issue, your Honor, the statements are nontestimonial in nature?” T. 220. The defense attorney said nothing. The court admitted both Moreno's and Mauricio's out-of-court statements as to the identity of the perpetrator as non-testimonial excited utterances but did not allow Officer Estrada to testify about Mauricio's stated reason for the stabbing. T. 220. Officer Estrada testified before the jury within the limitations set by the court, and defense counsel did not object.
Moreno testified for the defense that, on May 18, 2016, she was at home in the kitchen using a knife to eat her meal. T. 273-74. While she was telling her grandmother, Mauricio, about a disagreement she had with Moreno-Gratini about money she owed him, he overheard the conversation and came into the kitchen. T. 275-76. According to Moreno, she said that she was not going to pay him, got on top of him, and scratched him. T. 277. Moreno-Gratini then pushed her, and she grabbed the knife. T. 277-78. Moreno further testified that she fell against the wall, which caused her to get cut with the knife. T. 278. She said that she was not the one who called 911, that she was not crying when she was waiting for the ambulance, and that she did not speak to anyone. T. 281-82. Defense counsel also introduced a letter written by Moreno asking the District Attorney to drop the charges against Moreno-Gratini. T. 284-86.
The jury found Moreno-Gratini guilty of attempted second-degree murder and first-degree assault. T. 382-83. Before sentencing, Moreno-Gratini hired a new attorney who moved to set aside the verdict pursuant to N.Y. CPL § 330.30(1). R. 6-10. The defense argued in relevant part that the court had improperly admitted into evidence multiple out-of-court statements in violation of Moreno-Gratini's Confrontation Clause rights, specifically Moreno's and Mauricio's statements about the identity of the perpetrator, his location, and the basis for the stabbing. The motion was denied on June 30, 2017. R. 49-52. The court found that, because trial counsel had not specifically objected to the statements' admission, Moreno-Gratini's challenge was unpreserved. In the alternative, the court ruled that his evidentiary and constitutional objections were without merit. On September 6, 2017, the court sentenced Moreno-Gratini on each count to six years in prison, to be served concurrently, and to be followed by five years of post-release supervision.
III. Appellate Proceedings
Moreno-Gratini appealed to the Appellate Division, First Department, on three bases: (i) the trial court deprived him of a fair opportunity to question potential jury members during voir dire; (ii) the trial court erred by admitting Mauricio's out-of-court statements to Officer Escobar as excited utterances; and (iii) for a number of reasons, he was deprived of effective assistance of counsel. The Appellate Division affirmed the judgment on December 11, 2018. R. 170-73; People v. Moreno-Grantini, 167 A.D.3d 471 (1st Dep't 2018). The Appellate Division first found that Moreno-Gratini had not preserved his challenge to the court's alleged restriction of his counsel's voir dire, and, in the alternative, his counsel's decision not to ask questions on voir dire was neither compelled by the court nor prejudicial to him. 167 A.D.3d at 471. Similarly, the Appellate Division found that Moreno-Gratini had not preserved his claim that the admission of certain out-of-court statements violated the Confrontation Clause, and, in the alternative, that the statements were non-testimonial “because they were made to an officer whose primary purpose was to determine what had happened and to ensure the safety of other persons.” Id. at 471-72. And finally, the Appellate Division held that Moreno-Gratini's ineffective assistance of counsel claim was unreviewable on direct appeal because it involved matters of trial strategy not in the record, and, in the alternative, to the extent permitted by the existing record, that he received effective assistance under state and federal standards. Id. at 472.
Moreno-Gratini sought leave to appeal to the New York Court of Appeals. That application was denied on March 20, 2019. R. 178.
The record does not include a copy of Moreno-Gratini's leave application. As Respondent notes, the leave opposition stated that he sought leave “on the same grounds” raised in the Appellate Division. R. 175. The Court therefore proceeds on the assumption that Moreno-Gratini's application raised all of the issues that he argued in the Appellate Division. Respondent does not argue that any of Moreno-Gratini's claims were unexhausted for failure to include them in the leave application.
IV. Moreno-Gratini's Federal Habeas Petition and CPL § 440.10 Motion
On June 25, 2019, Moreno-Gratini filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Moreno-Gratini argued three grounds for relief: (i) during jury selection, the trial court improperly limited his counsel's ability to personally question prospective jurors; (ii) the trial court improperly admitted Mauricio's out-of-court statements to Officer Escobar in violation of his Confrontation Clause rights; and (iii) his trial counsel rendered ineffective assistance by not asserting a justification defense at trial.
Moreno-Gratini also requested that the Court hold the petition in abeyance while he returned to state court to exhaust his ineffective assistance of counsel claim. The Court granted his request on July 15, 2019. ECF No. 7.
On August 7, 2019, Moreno-Gratini filed a pro se motion pursuant to CPL § 440.10 to vacate the judgment, arguing that his trial counsel was ineffective for failing to assert a justification defense at trial. R. 184; see id. 179-256. The trial court denied the motion in February 2020 “for all the reasons previously stated” in the June 2017 order denying Moreno-Gratini's CPL § 330.30 motion. R. 257. Respondent filed a letter on July 16, 2020, stating that Moreno-Gratini had not filed an application seeking leave to appeal. ECF No. 10. Accordingly, on July 24, 2020, the Court lifted the stay in this case.
Moreno-Gratini then filed letters indicating that he had sought leave to appeal the February 2020 order but had not received a response. See ECF Nos. 15, 17. The Court instructed him to supplement the record with proof of his application, but he did not. There is no evidence that Moreno-Gratini in fact sought leave to appeal the denial of his CPL § 440.10 motion.
DISCUSSION
I. Legal Standards
A. Pro Se Filings
Courts liberally construe pleadings prepared by pro se litigants and hold them “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). It is appropriate to interpret pro se submissions to raise the strongest arguments that they suggest. Gomez v. Brown, 655 F.Supp.2d 332, 342 (S.D.N.Y. 2009) (explaining that because of the right of self-representation, the court is obligated to make reasonable allowances to protect pro se litigants from “inadvertent forfeiture of important rights because of their lack of legal training” (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983))).
B. Habeas Standard of Review
A state prisoner seeking habeas relief under Section 2254 must show by a preponderance of the evidence that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the standard of review of a federal habeas corpus petition “depends upon whether the petitioner's claims have previously been ‘adjudicated on the merits' by a state court.” Spears v. Greiner, 459 F.3d 200, 203 (2d Cir. 2006); see 28 U.S.C. § 2254(d). An “adjudication on the merits” is one that “(1) disposes of the claim ‘on the merits,' and (2) reduces its disposition to judgment.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001); accord Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007).
Before determining whether the state court's adjudication was on the merits, I first ascertain whether the petitioner has cleared all necessary procedural hurdles. As relevant here, the state court decision cannot have rested on independent and adequate state law grounds, and the petitioner must have exhausted each of his claims before bringing them in federal court.
II. Adequate and Independent State Grounds
“A federal habeas court will not review a claim rejected by a state court ‘if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'” Walker v. Martin, 562 U.S. 307, 315 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 55 (2009)) (alteration in Kindler). The state-law ground may be substantive or procedural. Id.; accord Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006). “Even where the state court has ruled on the merits of a federal claim ‘in the alternative,' federal habeas review is foreclosed where the state court has also expressly relied on the petitioner's procedural default.” Murden v. Artuz, 497 F.3d 178, 191 (2d Cir. 2007) (quoting Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005)). “To bar federal habeas review, however, the state court's decision must rest not only on an independent procedural bar under state law, but also on one that is ‘adequate to support the judgment.'” Id. at 191-92 (quoting Jimenez, 458 F.3d at 138).
A state procedural bar is “adequate” if it “is firmly established and regularly followed by the state in question” in the “specific circumstances presented in a case.” Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006) (citation omitted); see Kindler, 558 U.S. at 60-61 (holding same); Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (citation omitted) (listing guideposts for determining adequacy of procedural rule).
The Appellate Division rejected Moreno-Gratini's jury selection and Confrontation Clause claims as unpreserved under N.Y. CPL § 470.05(2), New York's contemporaneous objection rule. The Court of Appeals has “held repeatedly that the contemporaneous objection rule is a firmly established and regularly followed New York procedural rule.” Downs v. Lape, 657 F.3d 97, 104 (2d Cir. 2011). The preservation rule is an independent and adequate state law bar as to claims regarding jury selection, e.g., Richardson v. Greene, 497 F.3d 212, 219 (2d Cir. 2007) (Batson challenges); People v. Azaz, 10 N.Y.3d 873, 875 (2008) (trial court's voir dire instructions); People v. Amaro, 216 A.D.2d 172, 172-73 (1st Dep't 1995) (trial court's restrictions on juror questioning), appeal denied, 87 N.Y.2d 843 (1995), and Confrontation Clause claims, e.g., Chrysler v. Guiney, 806 F.3d 104, 119 (2d Cir. 2015) (“Under New York law, a defendant does not preserve a Confrontation Clause claim unless he specifically objects to the introduction of the relevant evidence on constitutional grounds.”); People v. Cato, 22 A.D.3d 863 (2d Dep't 2005) (finding same).
“New York's highest courts uniformly instruct that to preserve a particular issue for appeal, defendant must specifically focus on the alleged error.” Richardson, 497 F.3d at 218 (quoting Garvey v. Duncan, 485 F.3d 709, 714-15 (2d Cir. 2007)) (emphasis in Richardson). At trial, Moreno-Gratini's attorney did not specifically object during voir dire to the trial court's curtailment of his questioning, or to the introduction of Mauricio's out-of-court statements to Officer Escobar on constitutional grounds. These two claims are therefore unpreserved.
A petitioner may overcome a procedural bar by “show[ing] ‘cause' for the default and ‘prejudice attributable thereto,' or demonstrat[ing] that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice, '” Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted), which requires demonstration of “actual innocence, ” Calderon v. Thompson, 523 U.S. 538, 559 (1998); accord Dretke v. Haley, 541 U.S. 386, 388 (2004) (citation omitted); Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002). Moreno-Gratini has neither demonstrated good cause to excuse his failure to preserve his claims nor presented “new, ” “credible, ” and “compelling” evidence of his innocence. Hyman v. Brown, 927 F.3d 639, 656-57 (2d Cir. 2019). The two letters Moreno submitted proclaiming his innocence, ECF Nos. 20, 26, only reiterate her trial testimony, which the jury rejected in finding Moreno-Gratini guilty.
I therefore recommend the Court find that Moreno-Gratini's jury selection and Confrontation Clause claims are procedurally barred because the Appellate Division's decision rested on the adequate and independent state ground of preservation.
III. Exhaustion
Before a federal court can review a petition for a writ of habeas corpus, a petitioner must exhaust all state-provided remedies. 28 U.S.C. § 2254(b)(1)(A); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (to exhaust a claim a petitioner must “invoke[] one complete round of the State's established appellate review process” before bringing the same claim in federal court). A claim is deemed exhausted if the petitioner: (i) “fairly presented” to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts; and (ii) presented his claim to the highest state court that could hear it. Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan, 526 U.S. at 844-48.
In New York, a “defendant must first appeal . . . to the Appellate Division, and then must seek further review . . . by applying to the Court of Appeals for a certificate granting leave to appeal.” Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005). “New York procedural rules bar its state courts from hearing either claims that could have been raised on direct appeal but were not, or claims that were initially raised on appeal but were not presented to the Court of Appeals.” Sparks v. Burge, No. 06-cv-6965 (KMK)(PED), 2012 WL 4479250, at *4 (S.D.N.Y. Sept. 28, 2012); see also DiGuglielmo v. Smith, 366 F.3d 130, 135 (2d Cir. 2004) (affirming the “denial of [a] habeas petition on the grounds, inter alia, that [petitioner's] claims were not properly exhausted” where “they were not properly presented to New York's highest court”). For claims involving matters “not reflected in, or fully explained by, the record, ” Moreno-Grantini, 167 A.D.3d at 472, a petitioner must assert the claim in a N.Y. CPL § 440.10 motion. If that motion is denied, he must then seek leave to appeal to the Appellate Division in order to exhaust his state court remedies. See N.Y. CPL § 450.90; Cosey v. Lilley, 460 F.Supp.3d 346, 370 (S.D.N.Y. 2020) (noting that, if Appellate Division denies leave to appeal the denial of a § 440.10 motion, no further appellate review under state law is available); accord Klein v. Harris, 667 F.2d 274, 284 (2d Cir. 1981).
A claim of ineffective assistance of counsel is properly exhausted only when the petitioner has asserted in state court the specific conduct giving rise to the claim. Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994) (“[T]o reach the merits of [an ineffective representation claim], all of [the] allegations must have been presented to the state courts.” (alterations in original)); Castillo v. Walsh, 443 F.Supp.2d 557, 566-67 (S.D.N.Y. 2006) (finding same). Moreno-Gratini's ineffective assistance claim is based on counsel's “failure to present a defense of justification” or to request a jury instruction on that defense. ECF No. 1 at 12. His direct appeal of his conviction did not discuss this ground. R. 97-102. Instead, as discussed above, Moreno-Gratini sought a stay specifically so that he could return to state court to exhaust his ineffective assistance claim.
Moreno-Gratini raised the justification defense in his § 440.10 motion, R. 184-86, but there is no proof that he ever sought leave from the Appellate Division to appeal the denial of that motion. He alleged that he sought leave but had not received a response, but despite the Court's urging, has failed to supplement the record with supporting evidence. His ineffective assistance claim is therefore unexhausted. As with his jury selection and Confrontation Clause claims, Moreno-Gratini could overcome this procedural bar by demonstrating good cause to excuse his failure to exhaust his claim or presenting new evidence of his innocence. Again, he has done neither.
Accordingly, I recommend the Court find Moreno-Gratini's ineffective assistance claim is procedurally barred because he did not exhaust it in state court.
IV. Merits
Moreno-Gratini's claims are procedurally barred and therefore unreviewable. However, even if the Court could reach the merits of his claims, he cannot establish that federal habeas relief is warranted.
Where a claim has been “adjudicated on the merits” in state court, under the AEDPA standard, a federal court on habeas review must determine whether the state court's determination was (1) “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.” 28 U.S.C. §§ 2254(d)(1)-(2); see Johnson v. Williams, 568 U.S. 289, 292 (2013); Spears, 459 F.3d at 203.
A state court decision is “contrary to [the Supreme Court's] clearly established precedents if it applies a rule that contradicts the governing law set forth in” Supreme Court precedent, “or if it confronts a set of facts that is materially indistinguishable from a decision of [the] Court but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (first citing Williams v. Taylor, 529 U.S. 362, 405 (2000); and then citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)). A state court decision constitutes an “unreasonable application” of the Supreme Court's precedent if “the state court applies [that Supreme Court] precedents to the facts in an objectively unreasonable manner.” Id. (first citing Williams, 529 U.S. at 405; and then citing Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam)). Thus, in construing and applying federal law, even erroneous state court decisions that are deemed reasonable will survive habeas review. See Williams, 529 U.S. at 409-13. For federal habeas review, factual determinations made by a state court are presumed correct, and a petitioner bears the burden of rebutting this presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
The Appellate Division alternatively addressed all three of Moreno-Gratini's claims on the merits, see 167 A.D.3d at 471-72, so AEDPA's standard of review applies. Zarvela v. Artuz, 364 F.3d 415, 417 (2d Cir. 2004). The Appellate Division's determination must have either been contrary to (or involved an unreasonable application of) clearly established federal law or have been based on an unreasonable determination of the facts.
With respect to his jury selection claim, Moreno-Gratini has offered no evidence that the Appellate Division's factual determination that “defense counsel's decision not to ask questions on voir dire was compelled by the court” was incorrect. 167 A.D.3d at 471. Having conducted a broad-ranging examination of the prospective panel, the court instructed counsel to avoid repetition and improper questioning, but nothing in the record suggests that the court would not have permitted questions on issues it had not already covered. Moreover, the Appellate Division's decision correctly applied clearly established federal law. The Sixth and Fourteenth Amendments' guarantee of an impartial jury necessitates leaving “a great deal” of the voir dire inquiry “to [the court's] sound discretion.” Mu'Min v. Virginia, 500 U.S. 415, 422 (1991) (quoting Connors v. United States, 158 U.S. 408, 413 (1895)). That is, courts have a great deal of discretion in deciding how to conduct their voir dire. The trial court's voir dire conformed to both state and federal rules. See N.Y. CPL § 270.15(1)(c) (“[T]he court shall not permit questioning that is repetitious or irrelevant, or questions as to a juror's knowledge of rules of law.”); Fed. R. Crim. P. 24(a)(2)(A) (“If the court examines the jurors, it must permit the attorneys for the parties to ask further questions that the court considers proper.”). The trial court's thorough questioning of the potential panel satisfied its obligation to vet the jury for impartiality, and Moreno-Gratini's jury selection claim is therefore meritless.
So is Moreno-Gratini's Confrontation Clause claim, which the Appellate Division also alternatively addressed on the merits. 167 A.D.3d at 471-72. Because the Confrontation Clause provides criminal defendants the right to confront the witnesses against them, the state cannot introduce “testimonial” statements by a non-testifying witness unless the witness is unable to testify and the defendant had a prior opportunity for cross-examination. See Crawford v. Washington, 541 U.S. 36, 53-54 (2004). However, non-testimonial statements “made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency” are not subject to the Confrontation Clause. Ohio v. Clark, 576 U.S. 237, 244 (2015) (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)). The Appellate Division held that Mauricio's out-ofcourt statements were made “to an officer whose primary purpose was to determine what had happened and to ensure the safety of other persons.” 167 A.D.3d at 471-72. There is no evidence that Officer Escobar knew Moreno-Gratini had been arrested at the time she spoke with Mauricio, see id. at 472, and her questions were focused on what had happened and the weapon used in the stabbing. On the record, it is not possible to conclude that the trial judge's admission of Mauricio's statements as non-testimonial excited utterances (and the Appellate Division's affirmance thereof) was contrary to, or an unreasonable application of, Supreme Court precedent. See Brown v. Keane, 355 F.3d 82, 87 (2d Cir. 2004) (noting that excited utterances generally satisfy the Confrontation Clause); Branham v. Lee, No. 10-cv-3074 (NRB), 2011 WL 5979530, at *6 (S.D.N.Y. Nov. 29, 2011) (“Statements properly classified as excited utterances are an archetype of the off-hand, non-testimonial statements that do not implicate the Confrontation Clause.”).
Additionally, even if admitting Mauricio's statements did violate the Confrontation Clause, such admission would be subject to harmless-error analysis. Neder v. United States, 527 U.S. 1, 18 (1999) (citing Delaware v. Van Arsdall, 475 U.S. 673 (1986)). To show prejudice sufficient to warrant relief under habeas, Moreno-Gratini would need to demonstrate that admitting the statements had a “substantial and injurious effect or influence in determining the jury's verdict.” Davis v. Ayala, 576 U.S. 257, 268 (2015) (citation omitted). Here, Mauricio's statements to Officer Escobar identifying Moreno-Gratini as the assailant were cumulative of Moreno's identification, and there is no evidence that Officer Escobar would not have recovered the weapon without Mauricio's statements about the knife. Excluding the statements would therefore not have affected the jury's deliberations or trial's outcome.
Finally, Moreno-Gratini's ineffective assistance claim is also meritless. To establish a claim of ineffective assistance of counsel, a petitioner must show that counsel's assistance fell below an objective standard of reasonableness and that, but for counsel's deficient conduct, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. Habeas review of ineffective assistance claims is “doubly deferential” “to afford both the state court and the defense attorney the benefit of the doubt.” Woods v. Donald, 575 U.S. 312, 316-17 (2015) (cleaned up). The decision not to pursue a defense does not constitute deficient performance where “the lawyer has a reasonable justification for the decision, ” Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) (citation omitted), and “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, ” Strickland, 466 U.S. at 690. Given Moreno's testimony for the defense that her wounds were self-inflicted, Moreno-Gratini's counsel was justified in choosing to present a defense of innocence rather than justification or self-defense. The strategy's ultimate failure does not render it unreasonable. See United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987). And, as Respondent notes, presenting the justification defense in the alternative is a risky tactic, and “foregoing [it] does not make counsel ineffective.” Abraham v. Lee, No. 13-cv-2525 (RWS), 2014 WL 3630876, at *11 (S.D.N.Y. July 22, 2014).
In sum, should the Court find that Moreno-Gratini's claims are not procedurally barred and subject to review, I recommend the Court nevertheless find that they are without merit.
CONCLUSION
I recommend denying Moreno-Gratini's petition as to all three of his claims because they are procedurally barred. His jury selection and Confrontation Clause claims are procedurally barred because the Appellate Division's decision rested on the adequate and independent state ground of preservation, and his ineffective assistance of counsel claim is procedurally barred because he failed to exhaust it in state court. Alternatively, on the merits, Moreno-Gratini cannot establish that habeas relief is warranted.
The Clerk of Court is respectfully directed to mail a copy of this report and recommendation to the pro se Petitioner.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Gregory H. Woods at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Woods. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).