Opinion
21 Civ. 5343 (KMK)(JCM)
03-04-2024
JOHN MURRAY, Petitioner, v. JOSEPH NOETH, Superintendent, Attica Correctional Facility, Respondent.
To the Honorable Kenneth M. Karas, United States District Judge:
REPORT AND RECOMMENDATION
JUDITH C. MCCARTHY UNITED STATES MAGISTRATE JUDGE
Petitioner John Murray (“Petitioner”), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 27, 2021 (“Petition”). (Docket No. 2). The District Attorney of Westchester County, on behalf of Joseph Noeth, Superintendent of the Attica Correctional Facility (“Respondent”), opposed the Petition on December 14, 2021. (Docket Nos. 17, 18). Petitioner filed a reply on July 1, 2022. (Docket No. 27). For the reasons set forth below, I respectfully recommend denying the Petition.
A pro se prisoner's papers are deemed filed at the time he or she delivers them to prison authorities for forwarding to the court clerk. See Houston v. Lack, 487 U.S. 266, 276 (1988); Walker v. Jastremski, 430 F.3d 560 (2d Cir. 2005) (analyzing the “Houston prison mailbox rule”). Petitioner certified that he delivered his Petition to the prison authorities for mailing on May 27, 2021. (Docket No. 2 at 24). Consequently, and because the timeliness of the Petition is not challenged, the Court adopts Petitioner's date for this filing and all other filings discussed herein.
I. BACKGROUND
A. The Crimes, Investigation and Arrest
Petitioner's convictions arise out of an incident that occurred on October 3, 2012. (See generally Trial Tr. at 60). On that date, at approximately 1:38 p.m., Petitioner fatally shot Terry Camper (“Terry”) in Peekskill, New York, (see id. at 153, 595), after conspiring with Terry's wife, Beatrice Camper (“Beatrice”), to do so, (see, e.g., id. at 721-31).
“Trial Tr.” refers to the transcript of Petitioner's trial, held from April 3 to April 17, 2014. (Docket Nos. 19-3, 194, 19-5, 19-6).
The Court views the evidence presented at trial in the light most favorable to the Respondent. See, e.g., Murden v. Artuz, 497 F.3d 178, 184 (2d Cir. 2007).
Beatrice was charged in the same indictment as Petitioner. (Docket No. 17 at 2 n.1). On February 20, 2014, pursuant to a cooperation agreement, Beatrice pled guilty to Second Degree Murder in the Westchester County Court. (Id.). On June 17, 2014, she was sentenced to fifteen years to life imprisonment. (Id.).
Petitioner and Beatrice first met in the late 1980s while Petitioner was in prison for an unrelated crime. (Id. at 632-33, 638). They lost touch for many years, but reconnected in 1998 when Petitioner sent Beatrice a letter while she was imprisoned on drug charges. (Id. at 635-36, 787-88). After her release in December 1998, Beatrice began regularly visiting Petitioner in prison until July 1999. (Id. at 637-39). During that time, Beatrice and Petitioner planned to get married. (Id. at 640). Separately, Beatrice became romantically involved with Terry in 1999. (Id. at 643-44). In 2001, after Terry found out that Beatrice had been visiting Petitioner, he made Beatrice choose between the two of them. (Id. at 644, 788-89). Beatrice chose Terry, and they married in 2002. (Id. at 645-47). In 2008, Beatrice learned that Petitioner married someone else. (Id. at 789-91).
In 2007, Terry, who was employed as a cab driver, was involved in a “very bad accident,” which made him unable to work for “[a] couple of years.” (Id. at 646). This put a financial strain on his relationship with Beatrice, and their marriage began to sour. (Id. at 778). When Terry returned to work, it was on a part-time basis, and he only provided his contact information to certain customers, most of whom were family and friends. (Id. at 646-48).
Although Beatrice knew Petitioner was married, she reached out to him in May 2011 and they spoke on the telephone and rekindled their romantic relationship, sharing 752 phone calls over the next several months while Petitioner was incarcerated. (Id. at 623, 778-81, 789). During these phone calls, Petitioner and Beatrice planned to start a business after Petitioner was released from prison. (Id. at 655). In need of assets, the two planned to liquidate Beatrice's retirement account. (Id. at 666, 693). Petitioner also asked Beatrice if she had a life insurance policy on Terry, which she did. (Id. at 657-59). He instructed her to increase its value and warned Beatrice to avoid speaking on the telephone about it because he “didn't want to make no mistakes,” since “[h]e ain't gonna get caught, got caught once in his life, won't get caught again.” (Id. at 656-58, 662). Beatrice told him that she now had “a very bad relationship with [her] husband,” (id. at 649), and Petitioner responded to “[m]ake sure [she] ke[pt] everything the way it's supposed to be in the household,” (id. at 664-65).
On November 8, 2011, Petitioner was released from prison. (Id. at 717-18). However, Petitioner continued to hide his relationship with Beatrice from others, (id. at 718); they met at hotels and at Beatrice's daughter's apartment where they continued to discuss their plan, (id. at 722, 724). After one visit, Petitioner told Beatrice he was going to kill Terry for “[t]he insurance money.” (Id. at 722-23). He said that “he had to get a spider,” meaning a “gun.” (Id. at 735). Over the next ten months, Petitioner and Beatrice continued their affair and spoke about increasing the insurance policy on Terry's life. (Id. at 725-31). In January 2012, Beatrice increased Terry's life insurance policy to $50,000, and took out a second policy of $50,000 on him. (Id. at 683-86, 1278). The “beneficiary designation [wa]s his wife, Beatrice Camper.” (Id. at 685).
On the morning of the murder, Terry followed his normal work routine, providing rides to his regular customers. (Id. at 739-44). Petitioner called Beatrice to find out if Terry was out on his route, which she confirmed. Petitioner then called Terry to request a ride, insisting that he wanted a cab to pick him up in Peekskill, New York “right then.” (Id. at 84-85). However, Terry already had a customer in his cab, and did not recognize the caller, so he instructed Petitioner to call a different cab. (Id.). Petitioner insisted that he would wait, (id. at 85), and Terry picked him up, (id. at 85-87). Once Petitioner was in the cab, he called Beatrice, who heard Terry's voice in the background, and heard Petitioner tell Terry that he was checking if his “wife [was] ready.” (Id. at 750). Shortly thereafter, people in the area heard “a muffled kind of cracking noise,” (id. at 153), and what sounded like “a firecracker,” (id. at 172). Petitioner then called Beatrice again, and said “[i]t's done.” (Id. at 751). Terry was found an hour later with a gunshot wound behind his left ear. (Id. at 107-12, 187-89).
When law enforcement arrived, they secured the scene and began investigating. (Id. at 123-29). No recoverable DNA was found at the scene. (See, e.g., id. at 1055-59). However, the police later secured records of Petitioner's cell-site location, which showed him moving from Newburgh, to Peekskill, and back to Newburgh at the time of the shooting. (See Trial Tr. at 1111-42). In addition, the police found Terry's cellphone on the side of the road, consistent with it having been thrown from a car traveling from Peekskill to Newburgh. (Id. at 316-18); (see also Docket No. 17 at 11-12) (citing Trial Tr. at 362, 893-94, 956-58).
The police identified the number that called to request the cab, (the “201 Number”), from Terry's phone. (Id. at 259-61). The 201 Number was not tied to Petitioner's name, however, it was a prepaid mobile phone for which no accurate subscriber information is necessary. (Id. at 264-65). In addition, the 201 Number received a voicemail from one of Petitioner's acquaintances, Sandra Dolman (“Dolman”). (Id. at 332-36). Records also showed that the 201 Number made a call to Terry shortly before the murder. (See, e.g., Trial Tr. at 79-83).
The police interviewed Dolman, who gave them Petitioner's name, and showed them that Petitioner used the 201 Number to call her on the night of the murder. (Id. at 338-40). At midnight on October 4, 2012, the police went to Petitioner's house and he agreed to accompany them to the police station for an interview. (Id. at 894-902). The police questioned Petitioner at the police station after he waived his Miranda rights. (Id. at 857). Petitioner denied being in Peekskill on October 3, 2012, and denied having another phone. (Id. at 41). After questioning Petitioner, the police spoke with Petitioner's wife alone. (Id. at 380-82). While they were talking, her cellphone “kept [ringing] like crazy, and she would say [to Petitioner], I will be out in a second.” (Id. at 382).
“Miranda rights” refers to the landmark case Miranda v. Arizona, 384 U.S. 436 (1966), in which the Supreme Court held that law enforcement personnel must advise individuals in government custody of their constitutional rights before interrogating them.
The police also obtained video surveillance footage records from the Bear Mountain toll area. (Id. at 292-300, 870). Detective Thomas Burke, an expert in automobile identification, examined the video footage, still photographs of the video footage, and a photograph of Petitioner's wife's car, and concluded that her car had driven over the bridge into Peekskill at 1:00 p.m. on October 3, 2012, the same time Terry's cab was in the area, and returned at 2:00 p.m. the same day. (Id. at 473, 1267-68).
The police also questioned Beatrice, who was not forthcoming in her initial interview. (Id. at 821). Shortly after the interview, however, police learned that Beatrice destroyed her cellphone and discarded it in a dumpster. (Id. at 741). They also subsequently discovered prison records of Petitioner and Beatrice's phone calls, so they interviewed Beatrice a second time, at which point she confessed that she and Petitioner conspired to murder Terry. (Id. at 384, 76366). Thereafter, Beatrice was arrested for Terry's murder. (Id. at 766). She also provided law enforcement with consent to search her apartment, where they found Terry's life insurance policies, Beatrice and Terry's marriage certificate, and letters between Petitioner and Beatrice. (Id. at 773, 908-17).
Police also recovered two copper-jacket bullets from Terry's body, and a ballistics examination showed that they were .25 caliber and had been fired from the same semi-automatic pistol. (Id. at 1020-21). Furthermore, the discharge cartridge casing and live cartridge found in the back seat of Terry's car were also .25 caliber and are consistent with having been fired from the same type of gun that killed Terry. (Id.).
On November 14, 2012, Petitioner was charged in the County Court for Westchester County (“Westchester County Court”) with First Degree Murder, Second Degree Murder, and Second Degree Criminal Possession of a Weapon. (Docket No. 17 at 2).
B. Pre-Trial Motions
Before trial, Petitioner moved to suppress the statements he made to the police, and the trial court held a pre-trial hearing in which it heard testimony from several police officers. (See Pre-Trial Hr'g Tr. at 4-7). The police officers testified that they went to Petitioner's house shortly after midnight on October 4, 2012. People v. Murray, No. 121281, 2014 WL 12519936, at *2 (Westchester Cnty. Sup. Ct. Jan. 23, 2014). Upon knocking on the front door, Petitioner's wife, Patricia Murray (“Patricia”), answered it. Id. The police told her that they wanted to speak to Petitioner about a serious incident that occurred earlier that day, and Patricia let them in. Id. Petitioner was upset, initially believing that police were there due to a parole violation, but the police told him that was not what they were investigating and that they wanted him to accompany them to the police station for an interview. Id. He voluntarily agreed to go with them, and the officers testified that he was not restrained in the squad car, and did not speak during the ride. Id.
“Pre-Trial Hr'g Tr.” refers to the transcript of the combined Rodriguez and Huntley hearing the trial court held on January 9, 2014. (Docket No. 19). “‘A Rodriguez hearing is held to determine whether the identification of a defendant is confirmatory in nature, that is, whether the witness had sufficient familiarity with the defendant to eliminate the issue of police suggestiveness in the identification process.'” Hankins v. Smith, No. 03 Civ. 5404 (WHP)(KNF), 2008 WL 4601000, at *12 (S.D.N.Y. Oct. 15, 2008) (quoting In re Duane F., 309 A.D.2d 265, 278 (1st Dep't 2003)). A Huntley hearing is held pursuant to People v. Huntley, 15 N.Y.2d 72 (1965), to determine the admissibility of statements. See Haywood v. Portuando, 288 F.Supp.2d 446, 450 (S.D.N.Y. 2003).
The police gave Petitioner a Miranda warning, which was recorded and confirmed in writing, and then began their interview. Id. During the interview, Petitioner denied being in Peekskill on October 3, 2012, and denied having another phone. (Trial Tr. at 41). However, the interview was cut short as Petitioner then invoked his right to counsel, and “all questioning ceased.” Murray, 2014 WL 12519936, at *2. The police told Petitioner that “[h]e was free to go[,] and [he] left,” but he was arrested later that day. Id. Before giving him a Miranda warning, Sergeant Raymond Henderlong (“Sergeant Henderlong”) told Petitioner that “his girlfriend had been arrested[,] to which [Petitioner] responded that he did not have a girlfriend.” Id.
The court denied Petitioner's motion to suppress the statements he made at the police station prior to his arrest, holding that Petitioner was given a proper Miranda warning at the police station, and that he “knowingly, voluntarily and intelligently waived his rights prior to speaking” with the police. Id. However, the court granted Petitioner's motion to suppress statements he gave at the police station after he was arrested, because Sergeant Henderlong did not provide Petitioner with a Miranda warning before questioning him, and his question was “very likely to get a reaction from [Petitioner].” Id. As a result, Petitioner's statements were “not spontaneous within the meaning of the law,” and the court suppressed them. Id.
C. Trial and Verdict
On April 3, 2014, Petitioner was tried for First Degree Murder, Second Degree Murder, and Second Degree Criminal Possession of a Weapon in Westchester County Court. The prosecution presented substantial evidence establishing Petitioner's guilt, including: (1) evidence of his relationship with Beatrice, (see id. at 762-65), and the substance of their conversations, (id. at 705-06); (2) surveillance footage showing Petitioner driving to and from Peekskill at the time of the murder, (id. at 1268-69); (3) Beatrice's confession that she and Petitioner spoke about killing Terry and planned to share in the proceeds of his life insurance, (id. at 1275-76); and (4) ballistics evidence proving that two bullets from the same gun were fired from Terry's backseat, (id. at 1020-21). Moreover, cellphone records placed Petitioner in the vicinity of the murder at the time Terry was killed, and cell-site location information showed that Petitioner drove from Newburgh to Peekskill and back to Newburgh around the time of the murder. (See id. at 111314). In his defense, Petitioner called his wife's son, Jaquan Boykin (“Boykin”), to establish an alibi. (Id. at 1151-66). However, on cross-examination, Boykin admitted that he was not home the entire day. (Id.).
On April 17, 2014, Petitioner was convicted of First Degree Murder and Second Degree Criminal Possession of a Weapon. (Id. at 1333). On September 30, 2014, Petitioner was sentenced, as a predicate violent felony offender, to life imprisonment without parole for his First Degree Murder conviction, and to a concurrent determinate term of fifteen years for his Second Degree Criminal Possession of a Weapon conviction. (Sentencing Tr. at 3, 12).
With Petitioner's consent, the Second Degree Murder charge was not presented to the jury. (Docket No. 17 at 7 n.7).
“Sentencing Tr.” refers to records from the transcript of Petitioner's sentencing hearing, held on September 30, 2014. (Docket No. 19-7); see also (Docket No. 17 at 19) (noting Petitioner's sentencing took place on September 30, 2014).
D. New York Criminal Procedure Law § 330.30 Motion and Sentence
On June 10, 2014, Petitioner's trial counsel filed a motion to set aside the verdict pursuant to New York Criminal Procedure Law § 330.30 (“330.30 Motion”), arguing that: (1) Petitioner's prior murder conviction was improperly introduced to the grand jury; (2) the trial court's Sandoval ruling was unduly prejudicial; (3) the trial court made multiple erroneous evidentiary rulings when it (i) denied Petitioner access to Sergeant Henderlong's personnel records and the ability to cross-examine Sergeant Henderlong on the subject, (ii) allowed references to Petitioner's prior incarceration, (iii) allowed Detective Thomas Burke to testify as an expert on the “ultimate issue” in the case, and (iv) instructed the jury about an agreement, which did not exist, between the prosecution and the defense regarding the playing of prison phone calls between Petitioner and Beatrice; (4) the prosecution (i) relied on facts not in evidence, and (ii) made prejudicial comments “in vouching for her witnesses;” (5) the evidence was legally insufficient to support Petitioner's convictions; (6) the testimony of Beatrice was unsupported by sufficient corroborative evidence; (7) Petitioner is actually innocent; and (8) the prosecution knowingly used false evidence at trial. (See Docket No. 18-1).
“Sandoval” refers to the case People v. Sandoval, 357 N.Y.S.2d 849 (N.Y. 1974), in which the Court of Appeals held that criminal defendants have the right to a pre-trial determination of the admissibility defendant's prior crimes or convictions.
On June 20, 2014, Petitioner filed a supplemental motion which elaborated on his claims of actual innocence and that the prosecution presented false evidence to the jury, and added two new grounds for relief, that: (1) his weapons-possession conviction is unsupported by evidence; and (2) the prosecution committed a Batson violation by using their peremptory challenges to strike potential Black female jurors. (See Docket No. 18-2). On July 2, 2014, the prosecution opposed the motion. (Docket No. 18-3). On August 26, 2014, the trial court denied Petitioner's 330.30 Motion. People v. Murray, No. 121281, 2014 WL 12519935 (Sup. Ct. Westchester Cnty. Aug. 27, 2014). The court found that four of the thirteen claims were not cognizable in a 330.30 Motion because they were unpreserved for appellate review and denied the remaining nine claims as being without merit. (Id.); (see also Docket No. 18-4). On September 3, 2014, Petitioner moved to reargue the 330.30 Motion, claiming that some of his claims were preserved for appellate review. (Docket No. 18-5). The prosecution filed its opposition on September 17, 2014, and the trial court denied it on January 6, 2015. (Docket Nos. 18-6, 18-7).
“Batson” refers to the landmark case Batson v. Kentucky, 476 U.S. 79 (1986), in which the Supreme Court held that prosecutors may not exclude potential jurors on the basis of race.
The trial court's denial of Petitioner's motion to reargue the 330.30 Motion contains a typographical error and is dated January 6, 2014, rather than January 6, 2015.
E. Direct Appeal
On October 21, 2014, Petitioner appealed his convictions and the denial of his 330.30 Motion to the Supreme Court of the State of New York, Appellate Division, Second Department (“Second Department”). (Docket No. 17 at 20). Petitioner filed his brief on November 11, 2016, (id. at 21), which included as an exhibit “an online newspaper article” which “was not part of the record on appeal, and [offered] substantive arguments relying upon that exhibit,” (id.). On December 6, 2016, the State moved to strike the brief's references to materials outside of the record, which the Second Department granted on March 2, 2017. (Id.).
As a result, Petitioner submitted an amended brief on March 5, 2017, arguing that: (1) the trial court violated the Confrontation Clause of the Sixth Amendment by denying Petitioner access to Sergeant Henderlong's personnel records, and the ability to cross-examine him on his disciplinary suspension; and (2) Petitioner's grand jury presentation was defective. (Docket No. 18-10 at 5). On March 15, 2017, the State opposed Petitioner's appeal. (Docket No. 18-11).
On March 24, 2017, Petitioner moved, for a second time, to proceed pro se. (Docket No. 18-12). The Second Department denied the motion, but granted him leave to file a pro se supplemental brief. (Docket No. 18-13). On December 4, 2017, Petitioner filed his pro se supplemental brief, arguing: (1) his convictions were not supported by legally sufficient evidence and the jury's verdict was against the weight of the evidence; and (2) he was denied effective assistance of trial counsel due to: (1) counsel's failure to object to “misstated testimony” by the prosecution; (2) the “prosecution becoming an unsworn witness;” and (3) counsel's failure to “properly prepare for trial by investigating matters” and “taking time for reflection upon [the] prior witness's testimony.” (Docket No. 18-18 at 6). On January 25, 2018, the State filed a supplemental brief responding to Petitioner's pro se brief. (Docket No. 18-19).
By Decision and Order, dated July 25, 2018, the Second Department affirmed Petitioner's conviction in its entirety. See People v. Murray, 82 N.Y.S.3d 455 (2d Dep't 2018). Petitioner then sought leave to appeal the Second Department's decision to the New York Court of Appeals (“Court of Appeals”), which was summarily denied on February 19, 2019. People v. Murray, 99 N.Y.S.3d 197 (N.Y. 2019).
F. Coram Nobis Application
On October 11, 2019, proceeding pro se, Petitioner filed a petition for a writ of coram nobis, arguing ineffective assistance of appellate counsel. (Docket No. 18-22). Petitioner argues that his appellate counsel failed to: (1) conduct due diligence before submitting his brief, which was ultimately flawed; (2) raise arguments that Petitioner subsequently argued in his pro se supplemental brief; and (3) communicate with Petitioner. (See Docket No. 22 at 6-10, 12-16). The State opposed the petition, and the Second Department denied it on August 12, 2020. People v. Murray, 126 N.Y.S.3d 683 (2d Dep't 2020). Petitioner sought leave to appeal this decision to the Court of Appeals, which was denied on November 30, 2020. See People v. Murray, 135 N.Y.S.3d 339 (N.Y. 2020).
G. Federal Habeas Corpus Proceedings
Petitioner filed a petition for a writ of habeas corpus on June 16, 2021, (Docket No. 2), which Respondent opposed on December 14, 2021, (Docket No. 17). Petitioner filed a reply on July 1, 2022. (Docket No. 27). While the Petition was pending, Petitioner filed a motion to stay the proceedings and hold the case in abeyance on April 5, 2022, (Docket No. 23), which the Court denied on June 13, 2022, Murray v. Noeth, No. 21 Civ. 5343 (KMK)(JCM), 2022 WL 2116842 (S.D.N.Y. June 13, 2022) (denying the motion because Petitioner's proposed new claims were unexhausted and would be futile).
Construing the Petition broadly, see Williams v. Kullman, 722 F.2d 1048, 1051 (2d Cir. 1983) (holding that pleading requirements in habeas proceedings should not be “overly technical and stringent”), Petitioner asserts four grounds for relief: (1) the trial court violated the Confrontation Clause of the Sixth Amendment by denying him the right to cross-examine Sergeant Henderlong regarding his disciplinary record; (2) there was insufficient evidence to support his conviction; (3) ineffective assistance of trial counsel; and (4) ineffective assistance of appellate counsel. (See Docket No. 2 at 5, 7, 12, 16).
II. APPLICABLE LAW
“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”). Harrington v. Richter, 562 U.S. 86, 97 (2011). “Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254.” Visich v. Walsh, No. 10 Civ. 4160 (ER) (PED), 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013). The procedural and substantive standards are summarized below.
If Petitioner does not have access to cases cited herein that are available only by electronic database, then he may request copies from Respondent's counsel. See Local Civ. R. 7.2 (“Upon request, counsel shall provide the pro se litigant with copies of such unpublished cases and other authorities as are cited in a decision of the Court and were not previously cited by any party.”).
A. Exhaustion as a Procedural Bar
A habeas petition may not be granted unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b). As the statute prescribes:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
...
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254(b)-(c).
Exhaustion requires a prisoner to have “fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts.” Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (internal quotations omitted). If a petitioner “cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court.” Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001); see also Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (even “a minimal reference to the Fourteenth Amendment” presents a federal constitutional claim to the state courts). A petitioner may fairly present his claim even without citing to the U.S. Constitution, by, inter alia: “(a) [relying] on pertinent federal cases employing constitutional analysis, (b) [relying] on state cases employing constitutional analysis in like fact situations, (c) [asserting] . . . [a] claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) [alleging] . . . a pattern of facts that is well within the mainstream of constitutional litigation.” Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). Fair presentation includes petitioning for discretionary review in the state's highest appellate court. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999) (“[A] state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement”).
However, “a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.” Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotations omitted). In such cases, although the claim is technically unexhausted, the district court may deem the claim to be exhausted but procedurally barred from habeas review. See id. at 140 (“[A] claim is procedurally defaulted for the purposes of federal habeas review where ‘the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'”) (quoting Coleman v. Thompson, 501 U.S. 722, 735 (1991)).
Under New York law, defendants are permitted only one direct appeal. See Dasney v. People of the State of New York, No. 15-cv-5734 (RJS), 2017 WL 253488, at *5 (S.D.N.Y. Jan. 19, 2017) (citing N.Y. Ct. App. R. § 500.20); see also Roa v. Portuondo, 548 F.Supp.2d 56, 78 (S.D.N.Y. 2008) (“Any attempt to raise these claims at this stage as part of a direct appeal would be rejected because a criminal defendant is entitled to only one direct appeal and one application for leave to appeal to the Court of Appeals.”). Petitioners must raise record-based claims by direct appeal rather than by a collateral motion in state court. See, e.g., O'Kane v. Kirkpatrick, No. 09 Civ. 05167 (HB)(THK), 2011 WL 3809945, at *7 (S.D.N.Y. Feb. 15, 2011) (“[A]ll claims that are record-based must be raised in a direct appeal.... It is only when a defendant's claim hinges upon facts outside the trial record, that he may collaterally attack his conviction by bringing a claim under CPL § 440.10.”), report and recommendation adopted, 2011 WL 3918158 (S.D.N.Y. Aug. 25, 2011); Lowman v. New York, No. 09-CV-0058T (MAT), 2011 WL 90996, at *9 (W.D.N.Y. Jan. 11, 2011) (“Collateral review of this claim-by way of another CPL § 440 motion-is also barred because the claim is a matter of record that could have been raised on direct appeal, but unjustifiably was not.”) (citing N.Y. C.P.L. § 440.10(2)(c)).
This rule states, in relevant part, that a letter application for leave to appeal “shall indicate . . . (2) that no application for the same relief has been addressed to a justice of the Appellate Division, as only one application is available.” N.Y. Ct. App. R. 500.20(a) (emphasis added).
N.Y. C.P.L. § 440.10(2)(c) states, in relevant part, that a court must deny a § 440.10 motion to vacate judgment when “[a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his or her unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him. . . .”
To avoid the procedural default of an unexhausted claim, a petitioner may show “cause for the default and prejudice, or that failure to consider the claim will result in miscarriage of justice, i.e., the petitioner is actually innocent.” Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003).
B. Adequate and Independent State Grounds as a Procedural Bar
“It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that ‘is independent of the federal question and adequate to support the judgment.'” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729). This preclusion applies even if the state court alternatively rules on the merits of the federal claim, so long as there is an adequate and independent state ground that would bar the claim in state court. See, e.g., Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); accord Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).
“A state court decision will be ‘independent' when it ‘fairly appears' to rest primarily on state law.” Taylor v. Connelly, 18 F.Supp.3d 242, 253 (E.D.N.Y. 2014) (quoting Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006)). Typically, a ground is adequate “only if it is based on a rule that is ‘firmly established and regularly followed' by the state in question.” Garcia, 188 F.3d at 77 (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); see also Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003). A decision that a state procedural rule is inadequate should not be made “lightly or without clear support in state law.” Garcia, 188 F.3d at 77 (internal quotations omitted). However, “there are ‘exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.'” Cotto, 331 F.3d at 240 (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)). In determining whether a case is “exceptional” in that the state ground should be held inadequate, the Second Circuit uses the following factors as “guideposts”:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had substantially complied with the rule given the realities of trial, and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Id. (internal quotations omitted).
To avoid a procedural default based on independent and adequate state grounds, a petitioner must “show ‘cause' for the default and ‘prejudice attributable thereto,' . . . or demonstrate that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.'” Harris, 489 U.S. at 262 (quoting Murray v. Carrier, 477 U.S. 478, 485, 495 (1986)).
C. AEDPA Standard of Review
When a federal court reaches the merits of a habeas petition, AEDPA prescribes a “highly deferential” standard for reviewing state court rulings. Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015). An application for a writ of habeas corpus:
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1)-(2).
Courts have interpreted the phrase “adjudicated on the merits” in AEDPA as meaning that a state court “(1) dispose[d] of the claim on the merits, and (2) reduce[d] its disposition to judgment.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (internal quotations omitted). Courts examine the “last reasoned decision” by the state courts in determining whether a federal claim was adjudicated on the merits. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”).
If a state court adjudicates a federal claim on the merits, the Court must apply AEDPA deference to that state court ruling. 28 U.S.C. § 2254(d)(1)-(2). In the context of AEDPA deference, the phrase “clearly established Federal law” means “the holdings, as opposed to the dicta, of [the Supreme Court of the United States'] decisions as of the time of the relevant statecourt decision.” Williams v. Taylor, 529 U.S. 362, 365 (2000). “A state court decision is contrary to such clearly established federal law if it ‘applies a rule that contradicts the governing law set forth in the Supreme Court's cases' or ‘if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent.'” Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d Cir. 2015) (quoting Boyette v. Lefevre, 246 F.3d 76, 90 (2d Cir. 2001)). A state court decision involves an “unreasonable application” of Supreme Court precedent if: (1) “the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case,” or (2) “the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407.
If, by contrast, a state court does not adjudicate a federal claim on the merits, “AEDPA deference is not required . . . [and] conclusions of law and mixed findings of fact and conclusions of law are reviewed de novo.” DeBerry v. Portuondo, 403 F.3d 57, 66-67 (2d Cir. 2005).
For a federal court to find a state court's application of Supreme Court precedent unreasonable, the state court's decision must have been more than “incorrect or erroneous” - it must have been “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). In other words, “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of [the state court's] decision.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). However, “the trial court's decision need not teeter on ‘judicial incompetence' to warrant relief under § 2254(d).” Alvarez v. Ercole, 763 F.3d 223, 229 (2d Cir. 2014) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). If a state court decision does not contain reasons for the dismissal of a defendant's federal claim, the court must “consider ‘what arguments or theories . . . could have supported[] the state court's decision,' and may grant habeas only if ‘fairminded jurists could [not] disagree that those arguments or theories are inconsistent with the holding in a prior decision of' the Supreme Court.” Lynch v. Superintendent Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (alterations in original) (quoting Richter, 562 U.S. at 102).
When reviewing an application for a writ of habeas corpus, “a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting the state court's factual holding by “clear and convincing evidence.” Id.; see also Chapman v. Vanzandt, No. 96 CIV. 6940 (JGK), 1997 WL 375668, at *4 (S.D.N.Y. July 8, 1997).
III. DISCUSION
A. Sixth Amendment Confrontation Clause Claim
Petitioner claims that the trial court violated his Sixth Amendment right to confront his accuser by denying his request to obtain Sergeant Henderlong's personnel file in order to crossexamine him regarding prior discipline. (Docket No. 2 at 5). Respondent counters that the trial court's ruling was not contrary to, nor an unreasonable application of, clearly established federal law. (Docket No. 18 at 10-13).
“The Sixth Amendment . . . guarantees a criminal defendant ‘the right . . . to be confronted with the witnesses against him.'” DeJesus v. Perez, 813 Fed.Appx. 631, 633 (2d Cir. 2020) (quoting U.S. CONST. amend. VI). “The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross examination.” Davis v. Alaska, 415 U.S. 308, 316-17 (1974) (quoting 5 J. Wigmore, Evidence § 1395 (3d ed. 1940) (emphasis in original)). However, “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
Furthermore, federal habeas review is not available for evidentiary rulings made by a trial court pursuant to the laws of the state. See Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012) (“state trial court evidentiary rulings generally are not a basis for habeas relief.”). “When a state court has decided a case [or issue] on an independent and adequate state ground-whether substantive or procedural,” federal courts may not disturb that decision. Garraway v. Phillips, 591 F.3d 72, 75 (2d Cir. 2010). “In reviewing a state court's evidentiary ruling in the context of a habeas petition, ‘[t]he first step . . . is to determine whether the state court decision violated a state evidentiary rule, because the proper application of a presumptively constitutional state evidentiary rule would not be unconstitutional.'” Hayes v. Lee, No. 10 Civ. 5134 (PGG)(RLE), 2013 WL 4008638, at *6 (S.D.N.Y. July 30, 2013) (quoting Green v. Herbert, No. 01 Civ. 11881 (SHS), 2002 WL 1587133, at *12 (S.D.N.Y. July 18, 2002)). If the court finds that the trial court's decision violated state law, it must then evaluate whether the “evidentiary error amounted to a deprivation of due process” that was “so pervasive as to have denied [Petitioner] a fundamentally fair trial.” Barrett v. Ricks, No. 00-CV-4636 (JBW), 2003 WL 22284164, at *7 (E.D.N.Y. Aug. 20, 2003).
First, Petitioner's claim is not cognizable on habeas review as the trial court's denial of his request to examine Sergeant Henderlong's personnel file was an evidentiary ruling based on independent and adequate state law. At the time of Petitioner's trial, New York Civil Rights Law § 50-a provided:
All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency . . . shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order.N.Y. Civ. Rights Law § 50-a (repealed June 11, 2020) (“Section 50-a”). Thus, New York courts did not require such records to be released pursuant to Section 50-a “when requests to examine records [we]re motivated by nothing more than impeachment of witnesses' general credibility.” People v. Gissendanner, 423 N.Y.S.2d 893, 896 (1979). The “availability [of such records] rest[ed] largely on the exercise of a sound discretion by the trial court.” Id.
Here, the trial court conducted an in camera review of the records and held that the file should remain confidential because it found “nothing relevant and material to the [Petitioner's] case in th[e] records.” (Trial Tr. at 390) (see also id. at 1035-36) (the trial court opined that the records fell “squarely within [Section 50-a]”). The Second Department affirmed this ruling, holding that the trial court did not abuse “its discretion in denying [Petitioner's] repeated applications for disclosure” of the files. Murray, 82 N.Y.S.3d at 456. Since Section 50-a was a presumptively constitutional evidentiary rule, see, e.g., Attali v. City of New York, No. 15 Civ. 426 (AT), 2017 WL 11718116, at *3 (S.D.N.Y. Oct. 10, 2017), its application in Petitioner's case, to preclude disclosure of Sergeant Henderlong's personnel file, was an appropriate evidentiary ruling based on independent and adequate state law, DeJesus v. Superintendent of Attica Corr. Facility, 17 Civ. 3932 (GBD)(AJP), 2017 WL 6398338 (S.D.N.Y. Dec. 13, 2017)) (“the proper application of a presumptively constitutional state evidentiary rule could not be unconstitutional”), report and recommendation adopted, 2018 WL 4043144 (S.D.N.Y. Aug. 7, 2018). Thus, Plaintiff's challenge to this ruling is not a proper basis for habeas relief.
Second, even if the State had applied Section 50-a improperly, its application did not violate the Confrontation Clause of the Sixth Amendment. Where “the [habeas] [c]ourt finds that the trial court's decision violated state law, it must then evaluate whether the evidentiary error amounted to a deprivation of due process that was so pervasive as to have denied [Petitioner] a fundamentally fair trial.” Serrano v. Royce, No. 20 Civ. 06660 (PMH)(JCM), 2023 WL 9418661, at *7 (S.D.N.Y. Dec. 20, 2023) (citations and internal quotations omitted), report and recommendation adopted, 2024 WL 295374 (S.D.N.Y. Jan. 25, 2024). While Petitioner argues that he was deprived of a fair trial since he could not cross-examine Sergeant Henderlong about his disciplinary history, “[a]ll erroneous rulings that improperly restrict cross-examination under state or federal rules of evidence do not necessarily implicate the Confrontation Clause.” Harper v. Kelly, 916 F.2d 54, 57 (2d Cir. 1990). Here, the trial court excluded the evidence on relevance grounds, but did not otherwise deprive Petitioner of an opportunity to cross-examine the witness. Thus, there was no Confrontation Clause violation as trial judges have discretion to “balance prejudice versus probative value” in limiting cross-examination without running afoul of the Confrontation Clause. Watson v. Greene, 640 F.3d 501, 510 (2d Cir. 2011).
Accordingly, I respectfully recommend that Petitioner's Sixth Amendment claim be denied.
B. Sufficiency of the Evidence
Petitioner argues that there was insufficient evidence to support his two convictions because Beatrice's testimony was inconsistent, not corroborated, and the testimony of the prosecution's experts proves that he did not kill Terry. (Docket No. 2 at 7-11). Respondent counters that there was “overwhelming” evidence to convict Petitioner of both crimes. (Docket 18 at 14-18).
On federal habeas review, “a petitioner who claims that the evidence was insufficient to sustain a conviction bears a very heavy burden.” Shamsuddin v. Smith, 578 F.Supp.3d 328, 338 (N.D.N.Y. 2022) (citation omitted). When considering this claim, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis added). Notably, a federal court may not overturn a state court decision that rejects a challenge to the “sufficiency of the evidence . . . simply because the federal court disagrees with the state court.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam) (highlighting “it is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial.”). The federal court instead may overturn the state court only in the rare case that the state court decision was “objectively unreasonable.” Renico v. Lett, 559 U.S. 766, 773, (2010) (quotation omitted).
When considering a sufficiency of the evidence claim, a federal court must first determine the elements of the crime. See Nunez v. Conway, 923 F.Supp.2d 557, 564 (S.D.N.Y. 2013). To establish First Degree Murder in New York, the prosecution must prove that a person intentionally caused the death of another, and that he had previously been convicted of First or Second Degree Murder. N.Y. Penal Law § 125.27(1)(a)(ix). A person is guilty of Second Degree Criminal Possession of a Weapon when he possesses a loaded firearm outside of his home or place of business. See id. § 265.03(3); see also 35C N.Y. Jur. 2d Criminal Law: Principles and Offenses § 1845 (“[w]hen there is no gun or ballistics evidence recovered, those elements . . . may be proved circumstantially through eyewitness testimony and surrounding circumstances”) (citing People v. Samba, 948 N.Y.S.2d 58 (1st Dep't 2012)).
Petitioner's sufficiency of the evidence claim is without merit. At the outset, the Second Department denied Petitioner's sufficiency of the evidence claim, People v. Murray, 82 N.Y.S.3d at 455, and that ruling is entitled to AEDPA deference, 28 U.S.C. § 2254(d)(1)-(2). Here, the prosecution presented substantial evidence establishing Petitioner's guilt. Beatrice testified to the specific details of her and Petitioner's plan to murder Terry for his life insurance money to start a business and a new life together. (See Trial Tr. at 800); (see also Docket No. 18 at 14-17). Telephone records corroborated this testimony, showing that Petitioner told her to avoid calling because he did not want to “get caught again.” (Trial Tr. at 656-62). The prosecution further substantiated Beatrice's testimony with: (1) cell-site location information placing Petitioner at the scene of the crime when the shooting occurred, (Id. at 1113-14); (2) surveillance footage that caught Petitioner in the vicinity of the murder at the date and time it occurred, (Id. at 315-17); and (3) ballistics evidence showing Terry was murdered by two gunshots from the same weapon, (Id. at 1012-13). (See also, e.g., Docket No. 18 at 15) (summarizing evidence presented at Petitioner's trial).
Petitioner's contention that “hundreds if not thousands” of guns can fire the caliber of bullet recovered from Terry does not change this conclusion. (Docket No. 2 at 11). Where “the jury's decision was largely a matter of choosing whether to believe [the petitioner's] version of the events or to believe the version offered by the State[] [and] [t]he jury chose to believe the State's witnesses,” the Court “cannot say that no rational jury could have found guilt beyond a reasonable doubt ....” Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981). In fact, the argument that Beatrice, or any of the prosecution's other witnesses, offered speculative and unreliable testimony are not for the Court to determine, as “the credibility of a witness is for the jury to decide.” Padro v. Strack, 169 F.Supp.2d 177, 180 (S.D.N.Y. 2001); see also Garbutt v. Conway, 668 F.3d 79, 81 (2d Cir. 2012) (holding the jury returned an “entirely reasonable [guilty] verdict,” and the state court did not unreasonably apply federal law in upholding it). Thus, Petitioner's claim that there was insufficient evidence to support his convictions of First Degree Murder and Second Degree Criminal Possession of a Weapon fails as a matter of law.
Accordingly, I respectfully recommend denying Petitioner's sufficiency of the evidence claim.
C. Ineffective Assistance of Trial Counsel
Petitioner also claims that he was denied effective assistance of trial counsel under the Due Process Clause of the Sixth Amendment. Petitioner contends that his trial counsel was ineffective because: (1) he should have objected to, or impeached, Beatrice's testimony as inconsistent with her prior statements; (2) he should have objected to the prosecutor's summation, when the prosecutor (i) referenced material not in the record, (ii) misquoted witnesses, (iii) became an “unsworn witness,” and (iv) characterized the cellphone as belonging to Petitioner; and (3) he misstated Petitioner's permissible sentencing range. (Docket No. 2 at 1214). Respondent counters that Petitioner's trial counsel was not ineffective because: (1) he pursued a legitimate defense strategy; (2) Beatrice's statements were consistent; (3) he did not act ineffectively by refraining from objecting to the prosecution's summation; and (4) any erroneous statement made at the sentencing hearing did not prejudice Petitioner. (Docket No. 18 at 22-25).
“Ineffective assistance claims are evaluated under the framework provided in Strickland v. Washington, 466 U.S. 668 (1984).” Reynart v. Griffin, 11-CV-0748 (PKC), 2017 WL 6626247, at *9 (E.D.N.Y. Oct. 9, 2017). There are two elements of an ineffective assistance of counsel claim under Strickland. First, a successful ineffective assistance claim requires a showing that “counsel's representation fell below an objective standard of reasonableness,” and second, it requires that “there [be] a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” See Strickland, 466 U.S. at 68796. With respect to the first element, a petitioner must show that “counsel's performance was deficient,” considering “the reasonableness of counsel's actions under all circumstances, [and] keeping in mind that a ‘fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight.'” Swanton v. Graham, No. 07-CV-4113 (JFB), 2009 WL 1406969, at *10 (E.D.N.Y. May 19, 2009) (quoting Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005)).
In evaluating this prong, the court must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” See Strickland, 466 U.S. at 689. The second element “focuses on prejudice to the defendant.” Swanton, 2009 WL 1406969, at *10. Strickland's “reasonable probability” standard for this element entails errors serious enough to “undermine confidence in the outcome.” 466 U.S. at 694. Since “there are countless ways to provide effective assistance in any given case and . . . even the best criminal defense attorneys would not defend a particular client in the same way[,] . . . reasonable, but unsuccessful strategic choices cannot provide the basis for ineffective assistance of counsel.” Speringo v. McLaughlin, 202 F.Supp.2d 178, 190-91 (S.D.N.Y. 2002). “A court need not decide both prongs of the Strickland test for ineffective assistance of counsel if a party has made an insufficient showing on one.” McCollough v. Bennett, No. 02-cv-5230, 2010 WL 114253, at *8 (E.D.N.Y. Jan. 12, 2010).
The Court notes that the Second Department's denial of Petitioner's claim is entitled to AEDPA deference. The Second Department held that Petitioner's ineffective assistance of counsel claim was “without merit.” Murray, 82 N.Y.S.3d at 457. The Supreme Court has emphasized that when a habeas petitioner brings a claim for ineffective assistance of counsel, AEDPA is “doubly deferential,” and “gives both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013).
Petitioner's trial counsel was not ineffective as his actions were reasonable under the circumstances. At the outset, the Court notes that Petitioner's trial counsel successfully argued for the suppression of some of Petitioner's custodial statements prior to trial, see Murray, 2014 WL 12519936, at *4, challenged the prosecution's evidence, (see Trial Tr. at 1233), and presented a viable theory that Beatrice murdered her husband, (see id. at 807-16, 1205). Further, his trial counsel challenged the prosecution's evidence through various objections and a lengthy summation, (see, e.g., id. at 1233, 1251), and presented a viable theory that Beatrice murdered her husband without Petitioner's help, (see id. at 810-17, 1205) (highlighting that Beatrice told Petitioner “about [her possibly] cutting the brake lines to [Terry's] car”). This bolsters the presumption that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690.
Petitioner's specific arguments as to actions trial counsel could have taken do not render his counsel's assistance ineffective. First, Petitioner argues that his counsel should have objected to Beatrice's trial testimony, because at his pre-trial hearing she did not state that “Petitioner ever ask[ed] her for any of the insurance money.” (Docket No. 2 at 13). However, as Respondent contends, Beatrice's statements were “consistent with their agreement to later share in the proceeds once [Terry] was dead . . . .” (Docket No. 18 at 23). Therefore, trial counsel acted reasonably in not objecting to this testimony, as there is substantial evidence indicating the two intended to share in the proceeds after the insurance money was paid, (see, e.g., Trial Tr. at 72223), which never occurred, (Id. at 686). Moreover, defense counsel cross-examined Beatrice, where he “extracted concessions” out of her, (Docket No. 18 at 23), elicited testimony that she had a poor relationship with her husband, (Trial Tr. at 779-81), sought to end their marriage, (id. at 789-90), and had joked of killing him herself, (Id. at 807-16). Thus, not objecting to Beatrice's testimony was a reasonable strategic choice by Petitioner's counsel and is “within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 669.
Second, Petitioner argues that his trial counsel should have objected to the prosecutor's summation. Petitioner claims that the characterization of the 201 Number as his own, and a separate phone as Jaquan Boykin's, “improperly encouraged inferences of guilt based on facts not in evidence,” and amounted to the prosecution mischaracterizing witness testimony and becoming an “unsworn witness.” (Docket No. 2 at 12-14). However, there is no evidence supporting this contention. The prosecution presented substantial evidence establishing each person's ownership of the respective cellphones. (See Trial Tr. at 338-40) (one of Petitioner's acquaintances told the police Petitioner used the 201 Number to call her on the night of the murder); (see also id. at 1264) (Boykin received a text message from his mother, Beatrice, that was sent to him on a different phone). Moreover, the prosecution merely recounted facts already in the record. (See id. at 1259-65) (after recounting their evidence, the prosecution argued “[t]here is no doubt, ladies and gentlemen, that the voice on . . . the 201 phone is that of [Petitioner]”); (see also id. at 79-83) (Ruth Smith says she spoke with a male caller using the 201 Number on October 3, 2012, the day of the murder). While Petitioner disagrees that the other phone belonged to Boykin, the prosecution specifically points to evidence that Boykin received a text from his mother, Beatrice, which read, “Jaquan, give me a call, mommy.” (Id. at 1264). Thus, the prosecution's statements were “permissible inferences from the evidence at trial,” and it was reasonable for trial counsel to refrain from objecting. United States v. Rivera, 971 F.2d 876, 884 (2d Cir. 1992).
Finally, Petitioner complains that his trial counsel told the sentencing court that twenty to twenty-five years imprisonment would leave Petitioner over eighty-years-old. (See Sentencing Tr. at 11). Petitioner does not articulate how this characterization affected Petitioner's sentence. See, e.g., Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (holding that counsel's error must negatively influence the judgment to rise to a constitutional claim of ineffectiveness). Even if this action was deficient, “not every error that conceivably could have influenced the outcome” will amount to ineffective assistance of counsel as Petitioner must still show prejudice. Strickland, 466 U.S. at 693. Since Petitioner has not articulated any harm suffered from this comment, and the Court cannot identify one, Petitioner's complaint is meritless.
Accordingly, I respectfully recommend that Petitioner's ineffective assistance of trial counsel claim be denied.
D. Ineffective Assistance of Appellate Counsel
Petitioner's final claim is that he was deprived of the effective assistance of appellate counsel because his appellate counsel: (1) failed to investigate Petitioner's claims by not obtaining records of (i) Petitioner's arraignment, (ii) Petitioner's Huntley hearing, and (iii) sealed records by the Newburgh City Court; (2) submitted a flawed brief; (3) failed to communicate with Petitioner; and (4) failed to request more time for Petitioner to file his supplemental brief. (Docket No. 2 at 16-19). Respondent counters that: (1) Petitioner's appellate counsel submitted a lengthy brief “demonstrat[ing] competent understanding” of the case by raising “two viable claims” supported by “relevant citations to the law and references to the record;” and (2) the Second Department's determination that his appellate counsel was not ineffective was not contrary to, nor an unreasonable application of, clearly established federal law. (See Docket No. 18 at 26-31).
Petitioner's claim of ineffective assistance of appellate counsel is evaluated under the same standard as his claim for ineffective assistance of trial counsel. See Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001) (“Although it was born in the context of ineffective assistance of trial counsel, Strickland's two-prong test applies equally to claims of ineffective assistance of appellate counsel.”). As discussed, there are two elements of an ineffective assistance of counsel claim under Strickland. See supra Section III.C. In short, a petitioner must first show that “counsel's representation fell below an objective standard of reasonableness,” and second, “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” See Strickland, 466 U.S. at 687-96. In addition, since the Second Department ruled on the merits when dismissing Petitioner's ineffective assistance of appellate counsel claim in his coram nobis application, the Second Department's decision is entitled to AEDPA deference. See Murray, 126 N.Y.S.3d at 683.
Petitioner cannot satisfy either prong of the Strickland standard. First, Petitioner argues that his appellate counsel did not investigate “any of the pretrial minutes” which would have shown “that the record was incomplete and required him to file a motion for reconstruction of the testimony . . . or . . . reversal.” (Docket No. 2 at 16-17). Specifically, Petitioner highlights: (1) the Huntley records, which he claims would have rebutted Beatrice's trial testimony; and (2) sealed search warrants, which may have added “value” to his appeal, and grand jury documents that contained errors. (Id. at 17, 19). However, it is well-established that “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation,” and counsel may “make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 690-91. Here Petitioner offers no evidence in support of his claims, and the record indicates that his appellate counsel filed a lengthy brief raising two viable claims on appeal, namely, (1) that the trial court violated his Sixth Amendment right to confrontation by denying him access to Sergeant Henderlong's personnel file; and (2) Petitioner's grand jury presentation was defective. (See generally Docket No. 18-10). Therefore, Petitioner has failed to establish that appellate counsel acted unreasonably in choosing to focus on certain appealable issues over others. See Martinez v. Graham, 13 Civ. 8914 (AJN)(HBP), 2018 WL 10128083, at *17 (S.D.N.Y. Jan. 23, 2018) (“The absence of any evidence that further investigation would have created a substantial likelihood of a different result at trial requires the rejection of this specification of ineffective assistance.”), report and recommendation adopted, 2019 WL 3729461 (S.D.N.Y. Aug. 8, 2019).
Moreover, Petitioner does not explain how anything from the pre-trial records would change the outcome of his proceeding, as Beatrice's trial testimony was substantially corroborated. United States v. Noorzai, 953 F.Supp.2d 499, 510 (S.D.N.Y. 2013) (denying habeas relief where a petitioner's “allegations [we]re not corroborated by any objective evidence”). In addition, the other materials Petitioner claims his appellate counsel failed to investigate were part of the trial record, Murray, 2013 WL 12096622, at *3, which was unsealed for the purpose of Petitioner's appeal, (see Docket No. 18-15 at 3). Thus, in the absence of evidence to the contrary, it is reasonable to assume that counsel reviewed the record prior to filing Petitioner's appeal. As a result, Petitioner's claim must be denied.
Second, Petitioner claims that his appellate counsel lacked “understanding [of] the appellate process,” as shown by his “hopelessly flawed” brief which contained evidence outside the record and “imaginary/incorrect” facts that “gav[e] a false impression of Petitioner's guilt,” (Docket No. 2 at 16-18). This claim does not satisfy the Strickland standard. While his appellate counsel submitted a brief that cited to a newspaper article, the state court allowed him to resubmit the brief without the citation, which counsel ultimately did. (Docket No. 18-10). Thus, Petitioner does not articulate how the error influenced the outcome of his proceeding. See Strickland, 466 U.S. at 694-96. Nor does he identify facts in his appellate brief that implied guilt, as he claims, and the Court does not find any. Thus, Petitioner's argument is meritless.
Third, Petitioner claims that his appellate counsel did not put the necessary effort into his appeal because Petitioner filed a grievance against him. This claim is unsupported by any evidence, and an ineffective assistance of counsel claim cannot prevail on bare allegations. Pierre v. Ercole, 560 Fed.Appx. 81, 83 (2d Cir. 2014) (“[T]he burden to show that counsel's performance was deficient rests squarely on the defendant . . . [T]he absence of evidence cannot overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.”) (internal quotation marks and alternations omitted) (quoting Burt, 571 U.S. at 21). Moreover, Petitioner's appellate counsel raised two viable claims on appeal, which were supported by evidence and citation to the record. (See generally Docket No. 18-10). Therefore, this argument is unavailing.
Fourth, Petitioner argues that he was unable to file a proper pro se supplemental brief because he did not receive records of his arraignment, Huntley hearing, or sealed documents from the “trial court and city court.” (Docket No. 2 at 17-18). He claims that he requested these documents from his appellate counsel and did not receive them until he asked his former trial counsel for them. (Id.). This argument is not a proper basis for habeas relief. When Petitioner requested the records, his appellate counsel had already filed an appellate brief, thus it was not unreasonable for him not to assist Petitioner in drafting the pro se brief that he requested to file. See Falas v. Phillips, No. 03 CIV. 4839 (PKC) (GWG), 2004 WL 1730289, at *16 (S.D.N.Y. Aug. 3, 2004) (holding counsel did not act unreasonably when it did not assist petitioner in filing a pro se motion to reargue that was without merit), report and recommendation adopted, 2005 WL 756886 (S.D.N.Y. Apr. 1, 2005). Moreover, even if Petitioner's counsel acted unreasonably by not providing the requested documents, Petitioner was not prejudiced by this inaction since the evidence against him was overwhelming and the outcome of his appeal would have been the same regardless. See, e.g., Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir. 2001).
Finally, Petitioner's argument that his appellate counsel failed to communicate with him is insufficient to prevail on an ineffective assistance of counsel claim. (Docket No. 2 at 17). “An appellate attorney's failure to communicate with his or her client, by itself, does not constitute per se ineffective assistance of counsel.” McIntyre v. Duncan, No. 03-CV-0523 (ADS), 2005 WL 3018698, at *3 (E.D.N.Y. Nov. 8, 2005). “Although it may be desirable and productive, the Constitutional right to effective assistance of counsel does not encompass the requirement that an attorney consult with his client to discuss the alleged trial errors that his client wishes to pursue.” Id. Here, Petitioner has not specified the circumstances supporting his allegation that counsel did not respond to him, nor has he “show[n] that [it] actually had an adverse effect on the defense.” Strickland, 466 U.S. at 693; Farr v. Greiner, No. 01-CV-6921 (NG)(MDG), 2007 WL 1094160, *38 (E.D.N.Y. Apr. 10, 2007) (denying habeas relief where “[petitioner] has not demonstrated any prejudice stemming from appellate counsel's failure to communicate with him”). Thus, this argument is insufficient to establish his ineffective assistance of appellate counsel claim.
Accordingly, I respectfully recommend denying Petitioner's claim of ineffective assistance of appellate counsel.
IV. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend that the Petition be denied. Further, because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). The Clerk of Court is requested to mail a copy of this Report and Recommendation to the pro se Petitioner.
V. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from the receipt of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed.R.Civ.P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Kenneth M. Karas at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Requests for extensions of time to file objections must be made to the Honorable Kenneth M. Karas and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).