Opinion
19 Civ. 1770 (LTS) (GWG)
01-10-2024
SHARIFE MOSES, Petitioner, v. JAIFA COLLADO, Respondent.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Pro se petitioner Sharife Moses brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 2015, Moses was convicted following a jury trial of murder in the second degree, N.Y. Penal Law § 125.25(3); robbery in the first and second degree, N.Y. Penal Law §§ 160.15(2), 160.10(1); and criminal possession of a weapon in the second degree, N.Y. Penal Law § 265.03(3). He received an aggregate sentence of 25 years to life in prison.
Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus, filed Feb. 25, 2019 (Docket # 1) (“Pet.”); Memorandum of Law in Opposition, filed June 22, 2020 (Docket # 25) (“Opp.”); Answer and Appendix, filed June 22, 2020 (Docket # 26) (“Response”).
For the reasons that follow, Moses's petition should be denied.
I. BACKGROUND
A. Testimony Adduced at Trial
In the days leading up to December 12, 2011, Moses and his two friends, Willie Jordan and Ricky Billups, prepared a plan to rob a man in the neighborhood named Sean Collins (“Sean”). (Jordan: Tr. 725-27). The plan was to have two other friends, Keya Owens and Tiffany Moore, call Sean and ask to buy marijuana from him. (Jordan: Tr. 745-47; Owens: Tr. 1639-640). Once Sean left his apartment at the Wilson Houses, Billups and Moses would enter the building and rob him when he returned. (Jordan: Tr. 746-48). Moses proposed that Billups brandish the weapon while Moses took Sean's property. (Jordan: Tr. 745, 749-51).
Citations to “Tr.” refer to the jury trial state court transcript (Docket ## 29-1, at *330, to 29-3, at *1055). Page numbers identified by “*” refer to the pagination provided by the Court's ECF system.
The planned robbery took place on December 12, 2011. (Jordan: Tr. 735). On that date, the robbers arranged for a call to be made by Owens to Sean to purchase marijuana. (Owens: Tr. 1639-640). In response to that call, Sean took the elevator of his building to the lobby where he saw Jordan (whom he knew) and Moses and Billups (whom he recognized from an earlier encounter). (Sean: Tr. 491-493). Sean continued to exit the building but wondered if he was being set up because Jordan did not stop to talk. Id. Sean then saw the three men board an elevator in the building together. Id.
After taking the elevator to the 17th floor with Moses and Billups, Jordan returned to the lobby, leaving Moses and Billups in the 17th floor stairwell. (Jordan: Tr. 755-56). Owens, the person who had called Sean to purchase the marijuana, then called Sean again to say that she was on the 17th floor and told him to meet her there. (Sean: Tr. 496). Because Sean had not seen a woman in the lobby, he realized he was being set up. (Sean: Tr. 496-98).
Sean called his brother Aaron Collins (“Aaron”) to say that there were likely two men still on the 17th floor and asked Aaron to “watch [his] back.” (Sean: Tr. 498). Aaron left the apartment and less than two minutes later Sean's other brother, David Collins (“David”), who was in the apartment, heard multiple gunshots and went to see what had happened. (David: Tr. 229-30). When he entered the stairwell, he “looked up” and saw “this guy looking down.” (David: Tr. 137). David “yelled to him” asking “what happened,” and the man replied, “I don't know.” Id. David would later identify the man as Moses and testify that he recognized him from having seen him with Jordan a month or two prior to December 12, 2011. (Freitag: Supp. Pt. 1 H. 101-04; David: Tr. 152-55, 297-99). David found Aaron lying in the stairwell with a gunshot wound. (David: Tr. 139-41). Aaron's cellphone and wallet were missing. (David: Tr. 171-72). Aaron was brought to a hospital and pronounced dead from gunshot wounds. (Santos: Tr. 1207-1210; Hammers: Tr. 1110-112, 1128).
Sean and David refer to Aaron as “Colby” in their testimony. (See Sean: Tr. 474; David: Tr. 139).
Citations to “Supp. Pt. 1 H.” refer to the state court transcript of the pretrial suppression hearing, conducted on May 12 and 13, 2014 (Docket # 29, at *1-296). Citations to “Supp. Pt. 2 H.” refer to the state court transcript of the pretrial suppression hearing, conducted on May 19 and 20, 2014 (Docket # 29, at *297-368).
After the shooting, Moses met up with Jordan and told him that someone had been shot and that the person did not have anything but “this,” holding up a cellphone and wallet. (Jordan: Tr. 760-63, 1001). Billups, who came “running out of the building” shortly after Moses, told Jordan that he shot the victim “four or five times.” (Jordan: Tr. 761, 765).
Detective Charles Freitag took charge of the investigation into Aaron's death. (Freitag: Supp. Pt. 1 H. 7). Sean and David gave the investigators descriptions of the two men who accompanied Jordan. (Freitag: Supp. Pt. 1 H. 123-24, 126-27, 130-31). Sean described the first man as 5'11” and said he wore a beige coat. (Freitag: Supp. Pt. 1 H. 124-25). He described the other man as 5'6” and said he wore a black hoodie. Id. David described the man he ran into in the stairwell as 5'4” and said that he wore a black hoodie. (Freitag: Supp. Pt. 1 H. 126-27). Sean later described the man as 5'3”. (Freitag: Supp. Pt. 1 H. 132). Investigators also received a description from another resident in the building, Richard Gray, who described one of the men he saw in the stairwell as “short.” (Freitag: Supp. Pt. 1 H. 130-31; see also Gray: Tr. 1404, 1433-45).
While Sean initially declined to provide information to the investigators, after learning of Aaron's death, Sean suggested that Jordan may be responsible. (Sean: Tr. 516-17). In January 2012, Jordan was arrested. (Jordan: Tr. 688-89). When interviewed, Jordan initially told the police that he was “Kevin Harper,” but after police took his fingerprints, he admitted that he was in fact Willie Jordan. (Jordan: Tr. 793-95). After waiving his Miranda rights, he confessed the robbery plan to the investigators. Id. The investigators then arrested Billups and Moses for Aaron's murder. (Freitag: Tr. 1988-90).
On February 25, 2013, investigators conducted identification lineups featuring Moses and Billups. (Freitag: Tr. 1991). Investigators brought in Sean and David, along with Gray, who had seen two men in the stairwell on December 12, 2011. (Freitag: Supp. Pt. 1 H. 93; Freitag: Tr. 2009, 2019; see also Gray Tr. 1433-45). Moses's lineup included five “fillers” with varying heights: one was 5'10”, two were 5'11”, and the final two were 6' and 6'5”. (Freitag: Supp. Pt. 1 H. 90). Moses was the shortest, with a reported height of 5'8”. Id. All the men wore blankets covering their legs and were seated as to “lessen[]” any height disparities. (Freitag: Supp. Pt. 1 H. 91-92). Sean did not identify anyone during the lineup. (Freitag: Supp. Pt. 1 H. 97; Freitag: Tr. 2009). David initially “focus[ed]” on Moses, but Detective Freitag was unable to recall what David had said to give him that impression. (Freitag: Supp. Pt. 1 H. 201-02; Freitag: Tr. 2078). David requested a closer look at each of the people in the lineup (Freitag: Tr. 2078, 2080), and the police instructed each of the lineup participants to approach the viewing window one at a time. (Freitag: Tr. 2078-79). Before approaching the window, the window shades were lowered until each man was directly in front of the window. Id. David identified Moses as the man he had seen in the stairwell. (Freitag: Tr. 2071).
C. Suppression Hearing
Moses moved to suppress David's identification, arguing that the lineup was unduly suggestive. Counsel argued that the descriptions initially given to investigators all identified one of the men as “short,” and thus argued that putting Moses in a lineup where he was the shortest person was unduly suggestive. (Supp. Pt. 2 H. 9-10, 61). Justice Zweibel, who presided over Moses's pretrial proceedings, determined that the lineup was not unduly suggestive, finding that the height differential between Moses and the fillers “wasn't as great” as trial counsel was claiming. (Supp. Pt. 2 H. 62). Justice Zweibel credited the testimony of Detective Freitag (Supp. Pt. 2 H. 70), who had testified that David had “focused” on Moses prior to having each of the men in the lineup approach the window (see Freitag: 5/12/14 H. 201-02).
D. The Trial
Moses and Billups had a joint trial conducted in the Supreme Court of the State of New York, New York County. (Tr. 1). Both men were charged with second degree murder, first and second degree robbery, and second degree criminal possession of a weapon. (Tr. 28-30). The first trial ended in a mistrial after one of the jurors was found to be “grossly unqualified.” Pet. at *36.
In a second trial, the State called David (see Tr. 109-253, 281-361), Sean (see Tr. 472666), and Gray (see Tr. 1404-44). Jordan testified pursuant to a cooperation agreement. (Jordan: Tr. 689; see Tr. 667-803, 877-944, 955-1096). Owens also testified about the robbery scheme pursuant to a cooperation agreement. (Owens: Tr. 1624; see Tr. 1621-84).
The defense called several witnesses and Moses testified on his own behalf. (See Tr. 2197-448). Moses claimed that while he was with Jordan and Billups that evening, he did not plan or participate in a robbery and that he never saw a gun that weekend. (Moses: Tr. 2263, 2292-97, 2301, 2305). He testified that on the day Aaron was shot, he went to the 13th floor of the Wilson Houses in an attempt to purchase marijuana from Gray (Moses: Tr. 2297-99, 243233). Gray did not respond to a knock on his door, however. (Moses: Tr. 2299-2300). Moses testified that he never went to the 17th floor, that he never saw any of the Collins brothers, that he did not witness a shooting, that Billups did not have a gun, and that afterwards he returned to the Wagner Houses, another housing complex (Moses: Tr. 2301, 2415, 2443-44), and then went to Brooklyn with Billups (Moses: Tr. 2444-45).
Richard Gray is referred to as “Fat Boy” or “Bay” during Moses's testimony. (See Moses: Tr. 2296).
Before charging the jury, the attorneys for Moses and Billups raised objections to the proposed jury instructions. (See Tr. 2496-2502). Billups' attorney objected to the fact that the trial judge planned to read --- in addition to the Criminal Jury Instructions (“CJI”) related to New York's accomplice-corroboration requirement (N.Y. Crim. Proc. § 60.22) --- certain language from People v. Reome, 15 N.Y.3d 188 (N.Y. 2010). (See Tr. 2497 (“I'm objecting to the second part of your charge, where you are going to use the language of harmonize, which was from [Reome].”)). The trial judge ultimately overruled the objection, stating that he planned to “us[e] the last paragraph in the accomplice corroboration charge not because it's in the CJI, but because it's in Reome” (Tr. 2499), and that if the jury was confused about any terminology, the parties could provide “the best kinds of definition possible” (Tr. 2500). Moses's attorney “join[ed] in the application of [Billup's attorney] relative to” the accomplice-corroboration instruction, stating that Reome was wrongly decided, and “ask[ed] the Court to just charge the statute.” (Tr. 2501). The trial judge rejected the request, stating that he felt “constrained to follow the Court of Appeals interpretation of the statute in Reome.” Id.
The trial judge delivered the charges to the jury. In the first part of the accomplicecorroboration charge, the trial judge stated:
Under our law, Willie Jordan and Keya Owens are accomplices because there is evidence that they participated in and were convicted of a crime based upon conduct involved in the allegations here against the defendants.
Our law is especially concerned about the testimony of an accomplice who implicates another in the commission of a crime, particularly when the accomplice has received, expects or hopes to receive a benefit in return for testimony.
Therefore, our law provides that a defendant may not be convicted of any crime upon the testimony of an accomplice unless it is supported by corroborative evidence tending to connect a defendant with the commission of that crime.
In other words, even if you find the testimony of Willie Jordan and Keya Owens to be believable, you may not convict a defendant solely upon the testimony unless you also find that it was corroborated by other evidence tending to connect the defendant with the commission of the crime.
The corroborative evidence need not, by itself, prove that a crime was committed or that the defendant is guilty. What the law requires is that there be evidence, apart from the testimony of an accomplice, that tends to connect a defendant with the commission of a particular crime charged in such a way as may reasonably satisfy you that the accomplice is telling the truth about the defendant's participation in that crime.
In determining whether there is the necessary corroboration, you may consider whether there is material believable evidence, apart from the testimony of the accomplice, which itself tends to connect the defendant with the commission of the crime.
You may also consider whether there was material, believable evidence, apart from the testimony of the accomplice, which, while it does not itself tend to connect the defendant with the commission of the crime charged, it nonetheless so harmonizes with the narrative of the accomplice as to satisfy you that the accomplices are telling the truth about a defendant's participation in the crime and thereby tends to connect the defendant to the commission of the crime.(Tr. 2871-872). The trial judge went on to add excerpts from Reome, stating:
And perhaps it would further help you to understand this phrase, quote, “tends to connect,” unquote by actually quoting directly from the main case on it in the Court of Appeals, which is the state's highest court.
So let me use their language, and that's, in substance, essentially this:
“The corroborative evidence required by this statute need not be powerful in itself. The corroborative evidence need not show the commission of the crime[;] [i]t need not show that defendant was connected with the commission of the crime. It is enough if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth.[”]
[“]The role of the additional evidence is only to connect the defendant with the commission of the crime, not to prove that he committed it. The accomplice testimony[ . . .] may serve that latter purpose.[”]
[“]Indeed,[ . . .] much less evidence and of a distinctly inferior quality is sufficient to meet the slim corroborative linkage to otherwise independently probative evidence from accomplices.[”]
[“]Some evidence may be considered corroborative [even] though it simply supports the accomplice testimony[,] and does not independently incriminate the defendant.[”]Tr. 3872-873; accord Pet. at *73. The jury found both Billups and Moses guilty of all four charges. (See Tr. 2911-914). Moses was sentenced to 40 years to life imprisonment, “running the maximum 15-year term for the weapon conviction consecutive to the maximum 25-years-to-life for the felony murder.” Pet. at *59; see also Docket # 29-3 at *1127-1128.
D. Direct Appeal
Following his conviction, Moses appealed to the Appellate Division, First Department. See Direct Appeal Brief, annexed as Ex. A to Response (Docket # 26) (“Direct Appeal Brief”). Moses raised three grounds for reversal. First, he argued that the lineup had been unduly suggestive, similar to the arguments he made to the trial court at the suppression hearing. See id. at 37-46. Second, he argued that the trial court erred in adding quotations from Reome to the pattern jury instruction on accomplice-corroboration. See id. at 46-57. Moses principally argued that the trial court erred in giving the instruction but also briefly argued that his counsel was ineffective for failing to object. See id. at 56-58. Finally, Moses argued that the trial court erred in having his sentences run consecutively, rather than concurrently. See id. at 58-64.
The Appellate Division affirmed the trial court on all but the last point, ordering Moses's sentences to run concurrently. See People v. Moses, 155 A.D.3d 476 (1st Dep't 2017). On the issue of the lineup, the Appellate Division found that Moses and the fillers “were all reasonably similar in appearance, and there was no substantial likelihood that defendant would be singled out.” Id. at 476 (citing People v Chipp, 75 N.Y.2d 327, 336 (N.Y. 1990), cert. denied, 498 U.S. 833 (1990)). In particular, the court did not find the height differentials between Moses and “almost all of the fillers” presented a risk of misidentification. Id. As to the jury instruction issue, the court held that while it would be “better practice” to read the pattern instructions without more, the added quotations from Reome “conveyed the appropriate principles.” Id. The Appellate Division also rejected Moses's ineffective assistance of counsel argument. Id. at 47677.
On January 10, 2018, the New York Court of Appeals denied Moses's motion for leave to appeal. See People v. Moses, 30 N.Y.3d 1107 (N.Y. 2018).
E. The Filing of the Habeas Petition and Section 440 Motion
On February 25, 2019, Moses filed the instant habeas petition. See Pet. After Moses failed to either pay the filing fee or file a motion to proceed in forma pauperis (“IFP”), his petition was dismissed on April 22, 2019. See Order of Dismissal, filed Apr. 22, 2019 (Docket # 3). After Moses filed an IFP application, the district court reopened his petition. See Order, filed June 27, 2019 (Docket # 7).
In the meantime, Moses filed a pro se motion to vacate his conviction under N.Y. C.P.L. § 440.10 in state court on May 23, 2019. See Section 440 Motion, annexed as Ex. D to Response (Docket # 26) (“Section 440 Mot.”). In the motion, Moses argued two points related to ineffective assistance of counsel. First, Moses argued that his trial counsel was ineffective for not requesting a jury instruction related to an affirmative defense to felony murder - namely, that the jury should have been instructed to consider whether Moses believed the gun used to kill Aaron was loaded. See id. at 13-23. Second, Moses argued that his attorney was ineffective for failing to “bring forth critical facts” - namely, that prior to the lineup, David may have been aware of Jordan's confession implicating Moses and that Sean may have shown David a photo of Moses, see id. at 25-27 - which Moses argued “would have more than likely got defendant granted an independent source hearing,” id. at 24 (capitalization omitted); see id. at 24-41.
On September 4, 2019, the district court received a letter from Moses requesting a stay of his habeas petition pending resolution of his section 440 motion. See Letter, filed Sept. 4, 2019 (Docket # 15).
On October 21, 2019, Justice Michele Rodney denied Moses's section 440 motion. See Decision & Order, annexed as Ex. E to Response (Docket # 26) (“Section 440 Decision”). As to the felony murder affirmative defense instruction, the court rejected the argument for three reasons. First, it held that the claim was procedurally barred because Moses failed to raise the issue in his direct appeal. See id. at 4-5 (“[D]efendant unjustifiably failed to raise this issue on appeal. Therefore, defendant's claim that his attorney was ineffective for failing to request the affirmative defense is denied without a hearing.”) (citing N.Y. C.P.L. § 440.10(2)(c)). Second, the court denied the claim under N.Y. C.P.L. § 440.10(4)(a) because Moses failed to provide in his moving papers any “legal basis” suggesting this error deprived him of “meaningful representation.” Id. at 5. Finally, the court found that the failure to object was “a reasonable defense strategy.” Id. at 6. The court reasoned that Moses's defense was that he knew nothing about the robbery, and if defense counsel had asked the jury to consider whether or not Moses thought the gun was loaded, “it would have undermined the defendant's main defense.” Id. As to the second ineffective assistance of counsel claim, Justice Rodney rejected the argument because (1) Moses failed to substantiate that information about Moses, such as the photograph obtained by Sean, was actually received by David, citing N.Y. C.P.L. § 440.30(4)(b), and (2) even if true, there would be no basis for an objection since the alleged misconduct was “actions of civilians outside the control of the police.” Id. at 7-8. Moses was granted leave to appeal the denial of his section 440 motion on March 20, 2020. See Order Granting Leave to Appeal, annexed as Ex. G to Response (Docket # 26).
While Moses's appeal was pending, Judge Freeman of this court denied Moses's request to stay the instant habeas proceedings pending resolution of his section 440 motion. See Order, filed Apr. 14, 2020 (Docket # 17). Judge Freeman reasoned that Moses had not shown good cause for the failure to exhaust his claims under the principles announced in Rhines v. Weber, 544 U.S. 269 (2005). See id.
On May 19, 2022, the Appellate Division affirmed the denial of Moses's section 440 motion. See People v. Moses, 205 A.D.3d 558 (1st Dep't 2022). As to the issue related to the felony murder affirmative defense jury instructions, the Appellate Division held that “there was no reasonable view of the evidence warranting an affirmative defense charge” given Moses “testified that he was not involved in the crime at all.” Id. at 559. As to counsel's failure to present additional evidence at the suppression hearing, the Appellate Division affirmed on grounds similar to those relied on by the trial court. Id. On July 29, 2022, the New York Court of Appeals denied Moses's leave to appeal. See People v. Moses, 38 N.Y.3d 1135 (N.Y. 2022).
Judge Freeman retired in April 2022, but the case was not referred to the undersigned until September 19, 2023. On November 16, 2023, the Court requested that respondent provide an update as to whether any additional state court proceedings had occurred and whether those proceedings exhausted any of the grounds raised in Moses's petition. See Order, filed Nov. 16, 2023 (Docket # 30). The Order directed respondent to respond on the merits as to any claim that had since been exhausted following the filing of their opposition brief. Id. Respondent provided a letter indicating that the claims raised in Moses's section 440 motion had been exhausted, but that Moses's claim related to ineffective assistance of counsel for failing to object to the prosecutor's summation, see Pet. at *13-14, had not been exhausted, see Letter, filed Nov. 20, 2023 (Docket # 31) (“Supp. Letter”).
Petitioner was given leave to respond to respondent's submission by December 12, 2023, see Order, filed Nov. 16, 2023 (Docket # 30), but to date has not filed any response.
II. GOVERNING LAW
A petition for a writ of habeas corpus may not be granted with respect to any claim that has been “adjudicated on the merits” in state court unless the state court's adjudication:
(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).
For a claim to be “adjudicated on the merits” within the meaning of § 2254(d), it must “finally resolv[e] the parties' claims, with res judicata effect,” and it must be “based on the substance of the claim advanced, rather than on a procedural, or other, ground.” Sellanv. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). As long as “there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds,” a claim will be considered “adjudicated on the merits” even if the state court fails to mention the federal claim and cites no relevant federal case law. Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001); accord Harrington v. Richter, 562 U.S. 86, 99 (2011) (“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.”); id. at 98 (section 2254(d) deference applies even “[w]here a state court's decision is unaccompanied by an explanation”). Thus, a court must “extend considerable deference even to deficient reasoning, at least in the absence of an analysis so flawed as to undermine confidence that the constitutional claim has been fairly adjudicated.” McCray v. Capra, 45 F.4th 634, 640 (2d Cir. 2022) (citation and punctuation omitted).
A state court decision is “contrary to” clearly established federal law only “if the state court applies a rule that contradicts the governing law set forth” in Supreme Court precedent 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 different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Habeas relief is available under the “unreasonable application” clause only “if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. A federal court may not grant relief “simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411. Rather, the state court's application must have been unreasonable - a standard that is met only “where there is no possibility fair[-]minded jurists could disagree that the state court's decision conflicts with” Supreme Court precedent. Harrington, 562 U.S. at 102 (“[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.”). In other words, to demonstrate an “unreasonable” application of Supreme Court law, the habeas petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair[-]minded disagreement.” Id. at 103; see also Woods v. Donald, 575 U.S. 312, 318-19 (2015) (per curiam) (habeas relief available only where there is an “extreme malfunction” by the state court in applying Supreme Court precedent) (citation and punctuation omitted).
The “determination of whether a court has unreasonably applied a legal standard depends in large measure on the specificity of the standard in question.” Brisco v. Ercole, 565 F.3d 80, 89 (2d Cir. 2009). “The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations” inasmuch as the application of a general standard to a specific case “can demand a substantial element of judgment.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Thus, “where the precise contours of a right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” Woods, 575 U.S. at 318 (citation, brackets, and internal quotation marks omitted); accord Brisco, 565 F.3d at 90 (a court applying a “fact-dependent standard .... to the facts of a specific case is . . . entitled to significant ‘leeway' when [a habeas court] review[s] its decision for reasonableness”) (quoting Yarborough, 541 U.S. at 664). “It is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court.” Harrington, 562 U.S. at 101 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)). In assessing this question, “it is the habeas applicant's burden to show that the state court applied [Federal law] to the facts of his case in an objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“The petitioner carries the burden of proof.”).
Only holdings of the Supreme Court are considered for purposes of determining clearly established Federal law. Rodriguez v. Miller, 537 F.3d 102, 106 (2d Cir. 2008). Thus, “[n]o principle of constitutional law grounded solely in the holdings of the various courts of appeals or even in the dicta of the Supreme Court can provide the basis for habeas relief.” Id. at 106-07. Where there is “[n]o holding” from the Supreme Court on the question presented, Carey v. Musladin, 549 U.S. 70, 77 (2006), or where Supreme Court cases “give no clear answer” to the question presented in the petition, Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam), a state court's decision can be neither contrary to nor an unreasonable application of clearly established federal law, see Knowles, 556 U.S. at 122 (“[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court.”) (citations and internal quotation marks omitted).
In habeas proceedings, “a determination of a factual issue made by a State court shall be presumed to be correct” and must be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Further, “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (citation omitted). Thus, where a petition raises issues of state law, a federal court may not grant relief “unless such misapplication violates the Constitution, laws, or treaties of the United States.” Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir. 2002).
Finally, we note that “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). This applies with equal force to a pro se habeas petition. See, e.g., Enrique Santiago v. United States, 385 F.Supp.3d 209, 211 (S.D.N.Y. 2019) (noting that “because [habeas petitioner] is a pro se litigant, his submission must be held to ‘less stringent standards than formal pleadings drafted by lawyers'”) (quoting Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993)); Bell v. Ercole, 631 F.Supp.2d 406, 413 (S.D.N.Y. 2009) (same). Thus, the Court must construe a pro se habeas petitioner's claims “liberally and interpret them to raise the strongest arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks and citation omitted). To this end, where a petitioner expresses a “state law claim . . . not cognizable on habeas review,” the Court may “construe the claim as . . . a cognizable habeas corpus claim.” Silva v. Keyser, 271 F.Supp.3d 527, 538-39 (S.D.N.Y. 2017). However, “not every error of state law can be transmogrified by artful argumentation into a constitutional violation.” Ponnapula, 297 F.3d at 182 (citation and punctuation omitted).
III. DISCUSSION
Moses submitted a form petition that attaches the brief his attorney submitted to the Appellate Division in connection with his direct appeal. See Pet. The petition presents two grounds for habeas relief. First, Moses argues that the identification lineup was unduly suggestive. See id. at *5. Second, he argues that his trial counsel was ineffective for “failing to object to the courts [sic] erroneous jury instruction.” Id. at *7. As to this point, he references the appended brief from his direct appeal, which principally argued that the trial court erred in quoting from Reome, see id. at *69-79, but secondarily asserted that trial counsel was ineffective for failing to object, see id. at *79-80.
In addition to the two grounds discussed above, Moses indicates in his petition that he was “in the process of filing a post-conviction (mixed petition) addressing” two other grounds. Id. at *13. These consist of two ineffective assistance of counsel claims: (1) that his attorney failed to request a felony murder affirmative defense jury instruction and (2) that his attorney “fail[ed] to object to the prosecutions [sic] summation.” Id. at *13-14. Moses requests that the court “hold petitioners [sic] motion in abenyace [sic] while Petitioner exhaust[s] the above claim[s].” Id. at *14. While Moses did not list these two claims in the section of the petition identifying grounds for habeas relief, the Court will assume, in light of Moses's pro se status, they were intended to be included.
The Court will address each of these four claims, beginning with the issue of whether Moses has complied with the exhaustion requirement.
A. Exhaustion and Mixed Petition
“Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see 28 U.S.C. § 2254(b)(1)(A) (“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 [ ] the applicant has exhausted the remedies available in the courts of the State.”). The Supreme Court has held:
Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are
presented to the federal courts . . . state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.O'Sullivan, 526 U.S. at 845; accord Smith v. Duncan, 411 F.3d 340, 347 (2d Cir. 2005). Thus, a petitioner is required to have presented each claim to all available levels of the state courts. See, e.g., Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“[T]he prisoner must fairly present his claim in each appropriate state court (including a state supreme court with powers of discretionary review)....”) (internal quotation marks and citations omitted). The petitioner must also have fairly presented the “federal nature” of each claim to the state courts. Id.; Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Rosa v. McCray, 396 F.3d 210, 217 (2d Cir. 2005).
Respondent argues that Moses's petition is a “mixed petition” - that is, a petition that consists of both exhausted and unexhausted claims - and therefore should be dismissed. See Opp. at 36-38. In making this argument, respondent pointed to two of Moses's claims: the ineffective assistance of counsel claims related to the failure to seek a felony murder affirmative defense jury instruction and the failure to object to the prosecutor's summation. See id. Since making this argument, however, petitioner has exhausted the former claim, as respondent acknowledges. See Supp. Letter at 2. The latter claim, however, remains unexhausted.
While Moses's petition states that he was presenting the summation claim in his section 440 motion, see Pet. at *13-14, the Court cannot find any reference to this ground in his moving papers or in the state court opinions discussing Moses's motions. Respondent's recent filing confirms that this claim was not presented in Moses's section 440 motion or in “any other state post-conviction motions.” Supp. Letter at 2. Accordingly, the Court considers this claim unexhausted and will not address it on the merits. Additionally, the Court cannot discern the basis for this argument as it seems to be addressed in only a single sentence in the petition. See Pet. at *14.
Thus, Moses's petition is indeed a “mixed petition.” Where, as is the case here, a stay has been denied, a court has two options for addressing such a petition: it can either dismiss the entire petition because it contains exhausted and unexhausted claims, see Rhines, 544 U.S. at 274-75; or it can give the petitioner the opportunity to amend the petition to exclude the unexhausted claims, see id. at 278. We will assume that Moses would prefer to have the petition deemed amended to exclude the unexhausted summation claim rather than have the entire petition dismissed. See Murphy v. Warden of Attica Correctional Facility, 2022 WL 1182043, at *3 (S.D.N.Y. Apr. 19, 2022) (“We will assume that [petitioner] would prefer to exclude the unexhausted claims rather than have the petition dismissed in its entirety.”). Accordingly, the petition is deemed amended to exclude that ground and we address the remaining three grounds.
B. Unduly Suggestive Lineup
Moses claims that the lineup was unduly suggestive, thereby violating his due process rights. See Pet. at *5; *60-69. Noting that the identifying witness, David, had described Moses as “short,” Moses argues that the lineup was unduly suggestive because he was “by far the shortest participant.” Id. at *60 (capitalization omitted). Respondent argues that habeas relief is inappropriate because the rulings upholding the validity of the lineup were not an “unreasonable application” of Supreme Court law. See Opp. at 40-41. Specifically, respondent argues that the lineup was not unduly suggestive and that even if it was, the identification was “independently reliable.” See id. at 40-50. Additionally, respondent argued that in light of the vast evidence against Moses, including his admission that he was in the building at the time, any erroneous admission of the lineup identification did not result in any actual prejudice. Id. at 50-54.
In Simmons v. United States, 390 U.S. 377 (1968), the Supreme Court held that “convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside . . . if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Id. at 384; accord Stovall v. Denno, 388 U.S. 293, 302 (1967). In United States v. Wade, 388 U.S. 218 (1967), the Supreme Court remanded to the trial court for a hearing to determine whether a pretrial identification had been unduly suggestive. Id. at 242. Thus, a hearing to determine whether a pretrial identification had been so suggestive as to taint an incourt identification is commonly called a “Wade hearing.” The assessment of suggestiveness is determined based “on the totality of the circumstances.” Simmons, 390 U.S. at 383. In Raheem v. Kelly, 257 F.3d 122 (2d Cir. 2001), the Second Circuit has held that a two-step inquiry should be used to evaluate whether an out-of-court identification procedure violates due process:
The court must first determine whether the pretrial identification procedures unduly and unnecessarily suggested that the defendant was the perpetrator. If the procedures were not suggestive, the identification evidence presents no due process obstacle to admissibility [and] no further inquiry by the court is required.... If the court finds, however, that the procedures were suggestive, it must then determine whether the identification was nonetheless independently reliable. In sum, the identification evidence will be admissible if (a) the procedures were not suggestive or (b) the identification has independent reliability.Raheem, 257 F.3d at 133 (citations omitted); accord Brisco, 565 F.3d at 88. In the context of a petition for a writ of habeas corpus, the Second Circuit has held that a state court's determination on the issue of suggestiveness is entitled to deference under § 2254(d)(1). See Dunlap v. Burge, 583 F.3d 160, 166 (2d Cir. 2009).
Here, the trial court conducted a Wade hearing and concluded that the lineup was not unduly suggestive. (See Supp. Pt. 1 H.; Supp. Pt. 2 H). Defense counsel agreed that the initial phase of the lineup, where all lineup participants remained seated with blankets covering their legs (see Freitag: Supp. Pt. 1 H. 91-92), was not unduly suggestive, see Supp. Pt. 1 H. 61 (“I'm suggesting that the rest of the lineup becomes unduly suggestive when they stand up.”); see also Pet. at *63-64. Rather, it was the second phase, where the participants stood up one-by-one and approached the viewing window, that was alleged to be improper. See id. The trial judge credited the testimony of Detective Freitag, who testified that prior to the participants standing, David had already “focused” on Moses. (See Supp. Pt. 2 H. 70; see also Freitag: Supp. Pt. 1 H. 201-02). Additionally, the trial judge concluded that the “height differential wasn't as great as [defense counsel] [was] trying to make it out to be” (Supp. Pt. 2 H. 62), since most of the fillers were within a few inches of Moses's height. Indeed, because the fillers were 5'10”, 5'11”, 5'11”, 6'0”, and 6'5”, four of the five fillers were within four inches of petitioner's height of 5'8”. (See Freitag: Supp. Pt. 1 H. 90). On direct appeal, the Appellate Division similarly found that the “difference in height between defendant and almost all of the fillers was not so significant as to create a risk of misidentification,” and credited the procedures used “to limit any effect of a height differential.” Moses, 155 A.D.3d at 476.
We cannot find that the state court's determination that the lineup was not suggestive was contrary to or involved an unreasonable application of Simmons or any other clearly established Supreme Court law or that any factual findings were rebutted by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). There was evidence supporting the finding that the witness, David, had already focused on Moses at the time he asked to see each of the participants in closer view. (See Freitag: Supp. Pt. 1 H. 201-02). In any case, the participants never stood up at the same time so that the height differential could be easily compared. Instead, they were called forward one by one. (Freitag: Supp. Pt. 1 H. 142; Freitag: Tr. 2078-79). Courts have recognized that such a procedure is not unduly suggestive. See People v. Johnson, 306 A.D.2d 214, 215 (1st Dep't 2003) (lineup was not unduly suggestive where the witness “had already picked out defendant when he was sitting” and procedures were used to “minimize any height comparison” - such as having “each person in the lineup [stand] and approach[] the window separately”). Indeed, in Moses's case, a shade was pulled down over the observation window as each lineup participant approached, and after the witness looked at the person, the shade was pulled back down. (Freitag: Tr. 2078-79). Such a procedure made it especially difficult to compare the heights of the participants.
The cases cited by Moses present far more extreme differences between the suspect and the fillers. For example, in People v. Perry, 133 A.D.3d 410 (1st Dep't 2015), the suspect was the only person in the lineup that had an “apparently defective eye” despite the fact that the identifying witness had described the suspect as having a “deformed right eye.” In People v. Kenley, 87 A.D.3d 518 (1st Dep't 2011), the suspect “weighed 400 pounds” and “there was a very noticeable weight difference between defendant and the fillers.” Id.
In sum, it was not an unreasonable application of Supreme Court precedent to find that the lineup was not unduly suggestive. Accordingly, it is not necessary to reach respondent's arguments regarding independent reliability or the lack of prejudice.
C. Ineffective Assistance of Counsel
Moses makes two claims of ineffective assistance of counsel: (1) that trial counsel was ineffective for failing to object to the addition of quotations from the Reome case when the accomplice-corroboration instruction was charged, see Pet. at *7; and (2) that counsel was ineffective for not seeking a felony murder affirmative defense charge, see id. at *13.
Respondent's brief argues that the trial judge did not err in giving the special accomplice-corroboration instruction, and that any such claim by Moses must fail as it is procedurally barred, see Opp. at 59-62, and is purely a state law basis, see id. at 62-63. While this claim was presented in Moses's direct appeal, see Pet. at *69-78, Moses's petition does not appear to raise it independently of the ineffective assistance of counsel claim, see id. at *7 (“Trial counsel was ineffective for failing to object to the courts erroneous jury instructions.”). Thus, we do not view it necessary to address it here. Even if Moses's petition could be read to raise this issue, we agree with respondent, see Opp. at 62-63, that it cannot provide a basis for habeas relief given the allegedly improper instruction implicates only the requirements of state law, see Young v. McGinnis, 319 Fed. App'x 12 (2d Cir. Mar. 27, 2009) (finding that violations of the accomplice-corroboration rule does not present a “violation of federal law, let alone of any federal constitutional right”) (citing Caminetti v. United States, 242 U.S. 470, 495 (1917)).
To demonstrate ineffective assistance of counsel, a petitioner must show that his “counsel's representation fell below an objective standard of reasonableness” and “must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Harrington, 562 U.S. at 104 (punctuation omitted) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)); accord Tavarez v. Larkin, 814 F.3d 644, 648 (2d Cir. 2016); United States v. Brown, 623 F.3d 104, 112 (2d Cir. 2010); Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003); see also Massaro v. United States, 538 U.S. 500, 505 (2003) (“[A] defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial.”).
In evaluating the first prong - whether counsel's performance fell below an objective standard of reasonableness - “[j]udicial scrutiny . . . must be highly deferential,” and the petitioner must “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Bell v. Cone, 535 U.S. 685, 698 (2002) (punctuation omitted) (quoting Strickland, 466 U.S. at 689); see Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (according counsel a presumption of competence). This analysis requires a court to “affirmatively entertain the range of possible reasons [petitioner]'s counsel may have had for proceeding as they did.” Cullen, 563 U.S. at 196 (punctuation omitted).
The second prong requires a showing of prejudice. To satisfy this prong, the petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694; accord Tavarez, 814 F.3d at 648. With respect to the second prong, the Second Circuit generally “requires some objective evidence other than defendant's assertions to establish prejudice.” Pham, 317 F.3d at 182 (citing United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998) (per curiam)); accord Melo v. United States, 825 F.Supp.2d 457, 462 (S.D.N.Y. 2011). Unlike the reasonableness prong, “the prejudice determination may be made with the benefit of hindsight.” Lynch v. Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (internal quotation marks omitted) (quoting Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir. 1994)). Thus, a court will consider the evidence against a defendant in deciding if the outcome of the trial would have been different but for his attorney's performance. See, e.g., United States v. Hasan, 586 F.3d 161, 170 (2d Cir. 2009) (“[G]iven the overwhelming evidence against [the defendant] at trial, [he] cannot show prejudice ....”).
“The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (punctuation and internal citation omitted). A petitioner “must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance . . . . Rather, he must show that the [state court] applied Strickland to the facts of his case in an objectively unreasonable manner.” Bell, 535 U.S. at 698-99. Our task on habeas review is limited, therefore, to asking whether the state court's “rejection of this claim amounted to an unreasonable application of the Strickland standard.” Aparicio, 269 F.3d at 99 (citing 28 U.S.C. § 2254(d)(1)).
i. Accomplice Corroboration
Moses argues that counsel should have objected to the trial judge's inclusion of the excerpts from Reome when charging the jury with the accomplice-corroboration instruction. See Pet. at *7. On direct appeal, the Appellate Division rejected the argument, ruling as follows:
Defendant's challenge to the content of the court's instructions regarding corroboration of accomplice testimony is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we find that the better practice would have been to read the CJI without augmentation since the charge was revised to accord with Reome; however the instructions, read as a whole, conveyed the appropriate principles (see People v Reome, 15 N.Y.3d 188 [2010]). Similarly, we reject defendant's claim that his counsel rendered ineffective assistance by failing to object to the instructions (see People v Benevento, 91 N.Y.2d 708, 713-714 [1998]; Strickland v Washington, 466 U.S. 668 [1984]); accordingly, we do not find that the lack of preservation should be excused on the ground of ineffective assistance.Moses, 155 A.D.3d at 476-77.
As an initial matter, there are strong arguments that Moses's attorney made appropriate objections to the inclusion of the language from Reome. See Tr. 2497 (Billups' attorney stated “I'm objecting to the second part of your charge, where you are going to use the language of harmonize, which is from People v.[ Reome]”); Tr. 2501 (Moses's attorney “join[ed] in the application” made by Billups' attorney and “ask[ed] the Court to just charge the statute”).
It is not necessary to reach the first part of the Strickland analysis, however, because Moses has not shown “that there is a reasonable probability that . . . the result of the proceeding would have been different” had counsel made the objection and had the trial court omitted the language from Reome in its instruction. See Strickland, 466 U.S. at 694. The Reome language simply described the nature of corroborative evidence required to meet the New York standard. As the Appellate Division observed, “the instructions, read as a whole, conveyed the appropriate principles” of the law surrounding accomplice corroboration. Moses, 155 A.D.3d at 476. The additions merely provided detail, from the state's highest court, on the meaning of the phrase “tends to connect.” The cases cited by Moses deal with the failure to charge the accomplicecorroboration instruction at all - not the providing of additional context around the instruction. See, e.g., People v. Gonzalez, 159 A.D.2d 721, 722 (2d Dep't 1990); People v. Van Denburg, 107 A.D.2d 891, 892 (3d Dep't 1985). There is no basis other than speculation to conclude that the omission of the Reome language would have had any effect on the outcome of the case. Thus, Moses's first ineffective assistance of counsel claim is not a basis for habeas relief.
ii. Felony Murder Affirmative Defense
The claim related to the felony murder charge is that defense counsel should have asked for an affirmative defense instruction. Such an instruction would have asked the jury to consider whether Moses believed the gun “was [ ] readily and capable of causing death or serious physical injury,” or whether Moses believed “any other participant [of the robbery] intended to engage in conduct likely to result in death or serious physical injury.” Section 440 Mot. at 21-22; see also N.Y. Penal Law § 125.25(3)(a)-(d).
The trial court denied Moses's section 440 motion on the ground that the claim was procedurally barred inasmuch as it had not been raised on direct appeal. See Section 440 nDecision at 4-5. Additionally, the trial court found that defense counsel's strategy was reasonable because “[c]ounsel pursued a defense at trial that defendant did not know anything about the robbery,” and that “[h]ad counsel at the same time asked the jury to consider that defendant did know of and participate in the plan, but merely did not think the gun was loaded, it would have undermined defendant's main defense.” Id. at 6.
On appeal, the Appellate Division held as follows:
[D]efendant claims that trial counsel should have requested a jury charge on the affirmative defense to felony murder. However, nothing in the People's case demonstrated that defendant lacked a reasonable ground to believe that another participant in the crime was armed with a loaded firearm (see Penal Law § 125.25 [3] [c]), and defendant testified that he was not involved in the crime at all. Accordingly, there was no reasonable view of the evidence warranting an affirmative defense charge (see People v Curet, 99 A.D.3d 611 [1st Dept 2012], lv denied 20 N.Y.3d 1010 [2013]), and no reason to believe that the jury would have accepted that defense if so charged. “Moreover, while the assertion of inconsistent defenses is permissible, it is plainly a hazardous tactic” (People v Stokes,
25 A.D.3d 332, 333 [1st Dept 2006] [internal quotation marks and citations omitted], lv denied 6 N.Y.3d 839 [2006]).Moses, 205 A.D.3d at 559.
This claim fails on habeas review because counsel could properly have chosen to forgo the felony murder defense since it would have been completely at odds with Moses's defense and testimony, which was that he was not involved in the crime at all. (See Moses: Tr. 2301-305 (testifying that he never saw Aaron, Sean or David, and that he merely attempted to purchase marijuana from someone else in the Wilson Houses before leaving with Billups)). As the Appellate Division observed, asking the jury to both believe his testimony that he did not participate in the robbery and at the same time consider whether he believed the gun used in the robbery was loaded “is plainly a hazardous tactic,” Moses, 205 A.D.3d at 559 (quoting People v Stokes, 25 A.D.3d 332, 333 (1st Dep't 2006)), because it may have defeated Moses's ultimate defense and undermined his credibility. Thus, we cannot find that Moses's trial counsel was ineffective for failing to seek it. See Romero v. Sheahan, 2016 WL 3460372, at *11 (E.D.N.Y. June 21, 2016) (“Having elected to pursue a defense of innocence and misidentification, trial counsel's decision to forgo the inconsistent argument that Romero did in fact commit the robbery, albeit with a fake gun, did not constitute deficient performance under Strickland.”). Conclusion
For the foregoing reasons, Moses's petition should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Chief Judge Swain. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).