Opinion
18-CV-5627 (ER) (OTW)
06-07-2023
ROBERTO NUNEZ, Petitioner, v. JAIFA COLLADO, Respondent.
REPORT AND RECOMMENDATION TO THE HONORABLE EDGARDO RAMOS
Ona T. Wang, United States Magistrate Judge
I. Introduction
Petitioner Roberto Nunez brings this habeas corpus proceeding in accordance with 28 U.S.C. § 2254, seeking to challenge his conviction of three counts each of Murder in the First Degree and Murder in the Second Degree and his sentence of life without parole.
Petitioner asserts five claims which the Court has grouped as follows:
1) that he was deprived of due process and a fair trial when weighing his testimony (that he shot only one of the victims, and in self defense) against the People's circumstantial case (Ground 1);
2) that he was deprived of due process and a fair trial when the prosecutor made improper arguments about Petitioner's credibility (Ground 2);
3) that Petitioner's sentence of life without parole was excessive “and should be reduced as a matter of mercy” (Ground 3); and
4) ineffective assistance of trial and appellate counsel(Grounds 4 and 5).(See ECF 17, Amended Petition).
Petitioner claims that appellate counsel was ineffective for failing to litigate trial counsel's ineffective assistance, and that trial counsel was ineffective for failing to make various pretrial motions and objections during trial. (ECF 17 at 40-48). While appellate counsel did raise other challenges to Petitioner's conviction and sentence on appeal, those challenges were not successful. (See ECF 17 at 170-171).
Respondent argues that the evidentiary claims (Claims 1 and 2) are not cognizable on habeas review, that the state court's determination of his ineffective assistance of counsel claims was a reasonable application of relevant Supreme Court precedent, and that the excessive sentence claim did not violate the Constitution or any clearly established federal law, because it was within the range prescribed by state law. (ECF 17 at 6, 25; ECF 25).
For the reasons below, I recommend that Petitioner's petition be dismissed.
II. Background
A. The June 7, 2012 Shootings
On June 7, 2012, Michael Lockhart, the director of international students at the Manhattan School of Music, was in his second-floor office in a building on the north side of West 122nd Street. At around 5:30 p.m., he heard “three very loud popping noises” that he assumed had been caused by vehicles on the street. When he looked out his office window, however, he saw Petitioner standing outside a BMW with several of its doors open, parked on the same side of 122nd Street as his building. As Lockhart watched, Petitioner stood behind the BMW's trunk, took off his “grayish-greenish colored” shirt, leaving him wearing a white tee-shirt, and yelled something that sounded like, “teach you to f--- with me.” Petitioner then wiped down the doors on the driver's side with his shirt, closed the trunk and both driver's side doors, and walked toward Broadway.
About an hour later, Robert Murphy was outside the same building when he was approached by a man who asked Murphy to “come with him and just confirm something he just saw.” (ECF 17 at 52). The man brought Murphy to the BMW, where they both observed the three victims, Amauray Rodriguez, Heriberto Suazo and Luis Catalan, after which Murphy notified nearby police officers.
B. The Subsequent Police Investigation
Police officers recovered from the car one spent shell near the driver and eight cell phones. From review of surveillance camera footage from the area around the time of the shooting, investigators saw Petitioner exit the BMW and deposit a green or grayish shirt in a garbage can outside of a deli. The police were also able to capture a shot of Petitioner's face and released that shot as well as other video to the media. Shortly after the shooting, law enforcement personnel recovered the shirt from the garbage can at the deli, and matched DNA from the shirt to Petitioner's DNA profile.
After the shooting, Petitioner stayed with a friend, Jonathan Jarvis, and Jarvis's friend Oglesby. He admitted that he was the man in the video, but denied participating in the shooting. Petitioner gave Jarvis the gun and asked him to dispose of it; law enforcement then obtained the gun from Jarvis in a sting operation. The NYPD Ballistics Unit determined that Petitioner's gun had fired the bullets that had been recovered from the BMW and from the victims during their autopsies.
C. Procedural History
At trial, Lockhart, Murphy, Jarvis and Oglesby testified to the events at and shortly after the shooting. The prosecution also presented considerable medical and ballistics evidence, together with surveillance video, to show that Petitioner had fired all of the shots in the car.
Petitioner took the stand in his own defense, testifying that he and Catalan, the murder victim in the back seat, had met with Suazo and Rodriguez to rob them during a drug transaction. According to Petitioner, after they drove to West 122nd Street and parked, Catalan shot Suazo and Rodriguez in the course of the robbery, and then turned the gun on Petitioner. Petitioner then shot Catalan in self-defense.
Petitioner's lawyer argued the same during summation, suggesting at times that the prosecution's narrative was “false” or not reliable (ECF 26-2 at 586-587), and repeatedly suggesting that the prosecution's witnesses were not being truthful (e.g., ECF 26-2 at 596-599, 603 (“His story is absurd. It is patently a lie”)).
On the prosecution's summation, the prosecutor referred to Petitioner's testimony as “preposterous” and a “preposterous, concocted story,”and repeatedly accused Petitioner of lying - both on the stand and to Jarvis and Oglesby.
(ECF 26-2 at 616, 621).
(See ECF 26-2 at 637 (“And the other thing that may have had a little significance is, you know, what the defendant told them. Well, he told them a lie. Of course he told them a lie. Told everybody lies. But he admitted to them he was there . . . And exactly which lie he told them . . . who cares what lies he told them. They probe that he them about he was the guy there and this gun came from him”)).
After lunch break and before the jury reentered, Justice Farber cautioned the attorneys as follows:
THE COURT: In terms of preserving your record, you could do that after Mr. Drucker's summation is finished, which is just in the future
just for guidance, I'm allowing some rhetorical characterization of the defendant's testimony in part because that's the nature of the beast and in part because I allowed it with respect to the defense characterization of the People's witness's. But generally, the Courts don't like words like preposterous or absurd except in the context of analyzing the statements. So when you get around to talking about the defendant's statement, you're entitled to at this point talk about the content and how it doesn't make sense or whatever words you want to use, that are not overly flamboyant. With respect to the other arguments that I took to be arguments about the defendant's right not to testify, I sustained the objection when the argument was I thought to be construed as that's why the defendant testified, because the proof was so strong. That is objectionable, it seems to me. The argument that that's why he's testifying in this manner because it would be so strong is not objectionable and I overruled those objections where I thought that was the import of the argument.
MR. KLEIN: Judge, we're going to actually bring up those two points, but you already addressed them.
THE COURT: Yeah, you could preserve your record at the close of the People's case. You could actually at the close of Mr. Drucker's argument, you could make further argument on your objection. So I was just informing both of you why I was ruling the way I was ruling on that.
MR. KLEIN: There is one other point that I'm -- I don't know if the District Attorney is going here, but one thing he's focused on is how much work he's done that to fulfill his burden of proof and he's continually indicated he's not just saying what he's saying, but he's bringing in witnesses to prove he said he was going to do things in the openings. He's not just proved it. Look at the defendant's testimony. All of the defense is the defendant's word for it. He's just saying it. And then some sense trying to counterbalance. Defendant simply says what he has to say, but with his burden of proof, he's actually gone beyond just saying it, but proven it. We think that would be unfair in terms of the defendant's right to testify and shifting the burden of proof in the case. And I'm not saying it happened yet, but I feel that's argument that's being set up.
THE COURT: He's entitled to point out -- point out that there is no support or little support for the defendant's version of the events.
It is contrary to common sense or anything like that, yes, he's not allowed to comment on anything that would suggest the defendant has to put on a case or call witnesses.
MR. KLEIN: If anything, I'm commenting on my own burden of proof. I'm emphasizing it is our burden of proof.
THE COURT: There has not even been an objection. Let's bring the jury in, please.(ECF 26-2 at 640-42).
After the Court's guidance to the lawyers, the prosecution continued to question whether Petitioner's testimony was credible, questioned whether Petitioner had a motive to lie, and then juxtaposed Petitioner's testimony with the other evidence to argue that Petitioner's testimony was “absolute nonsense,” and “defies common sense.” (ECF 26-2 at 658).
(See, e.g., ECF 26-2 at 643 (“The question is, is it believable? Is it so persuasive, so credibly that it undoes all of the overwhelming evidence of who killed those three people ... “).
(See, e.g., ECF 26-2 at 644 (“Obviously, the defendant is the least objective person who testifies. The person with the most - the only thing to gain or lose by your believing a particular story, the person with the biggest motive to make up a story for his own needs. Nothing hard about that, hard to understand about that. . . [I]f a defendant is going to testify, he's going to basically say in some form or other, I'm not guilty. If he's in fact innocent, he would be telling the truth. If he's in fact guilty, he won't be telling the truth. Him saying, “I didn't do it” really adds very little to your understanding of the case. It comes down to the evidence against him, our burden of proof”); (see also ECF 26-2 at 645).
(See, generally, ECF 26-2 at 646-690 (comparing discrepancies in Petitioner's testimony to other evidence)). The prosecution highlighted 15 points where Petitioner's testimony conflicted with other circumstantial evidence, including pointing out that only 7 seconds had elapsed from the time the car had parked to the time Petitioner exited the car and wiped down the outside of the car. The prosecution finished their summation by replaying the video and arguing that it would have been virtually impossible for Catalan to announce a robbery, shoot Suazo and Rodriguez in the front seat, turn the gun on Petitioner, struggle with Petitioner for the gun, partially open his door, and lose both the gun and his life in 7 seconds. (ECF 26-2 at 679). Indeed, the Prosecution argued that the slight opening of the car door by Catalan's seat during that 7 seconds was evidence that Catalan had been attempting to escape the car when Petitioner started shooting.
On October 24, 2013, the jury found Petitioner guilty of all six counts submitted to it: three counts of first-degree felony murder and three counts of intentional second-degree murder. (ECF 17 at 53). On November 26, 2013, Justice Farber sentenced Petitioner, as a second violent felony offender, to consecutive terms of life without parole on each of the first degree murder counts, and 25 years to life on each of the three second degree murder counts, to run concurrently with the sentences imposed on the first degree murder counts. (See ECF 25 at 1-2 and n.1). In doing so, Justice Farber remarked:
There are judges who give fiery sentencing speeches. I am not one of those judges. I've been doing this for now about 18 years and felonies for at least 10, and although I've seen some horrendous crimes, I have never imposed a sentence that would guarantee that somebody would spend the rest of his life in jail, so I am fully aware of the enormity of what I am being asked to do.
The only possible justifications for such a sentence would be first, that the very nature of the crime itself is such that I could not in good conscience impose any other type of sentence, and the other would be that a defendant by his words and actions had indicated that he was so devoid of any kind of humanity that it would be impossible for me to believe that he was capable of any type of redemption.
Although Mr. Nunez's testimony was chilling in its utter disregard for the feelings of anyone other than himself, as a personal matter I refuse to believe that there is any human being who is not capable of redemption, but I am ultimately and fairly convinced that the nature of this crime itself, cold blooded triple homicide, compels a sentence of life without parole.
So, my sentence for each of the counts of Murder in the First Degree is life without the possibility of parole. ...
The sentence for each of the counts of Murder in the Second Degree is 25 years to life.
With respect to each of the victims who was murdered, the Murder One and Murder 2 counts will run concurrently. All counts otherwise will run consecutive to each other.
So, Counts One and 4 will run consecutive to Counts 2 and 5, which will run consecutive to Count 3 and 6.(ECF 26-3 at 16-17).
On direct appeal, Petitioner raised the following grounds: sufficiency of the evidence, a due process violation due to the prosecutor's comments during summation, and that Justice Farber imposed an excessive sentence. On February 2, 2017, the Appellate Division unanimously affirmed Petitioner's conviction and sentence, finding that the legal sufficiency claim was unpreserved, but ruling in the alternative that “the jury could have reasonably found defendant's testimony incredible and disregarded it, while instead accepting the People's compelling circumstantial case.” People v. Nunez, 147 A.D.3d 423, 45 N.Y.S.3d 794 (2017). The Appellate Division further held that the “prosecutor's remarks in summation fell within the broad bounds of rhetorical comment permissible in closing argument,” and finally, found no basis for reducing the sentence. Id. at 423-24. Leave to appeal to the Court of Appeals was denied on March 29, 2017.
Petitioner filed the instant habeas petition on June 20, 2018 (ECF 2), which was subsequently stayed to allow Petitioner to exhaust his state remedies and amend his petition to add claims of ineffective assistance of trial and appellate counsel. (ECF 15). In an opinion dated May 16, 2019, Justice Farber denied Petitioner's motion to vacate his judgment in all respects. (ECF 17 at 161-172). On around October 25, 2019, the Appellate Division denied Petitioner leave to appeal the summary denial of his ineffective assistance claims, and Petitioner filed his amended petitionon February 3, 2021, adding his ineffective assistance of counsel claims. (ECF 17).
Although an amended pleading is meant to supersede a prior pleading, I have reviewed Petitioner's original and amended petitions in order to interpret the petition(s) “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal quotation marks omitted).
III. Analysis
A. Exhaustion
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may not consider a petition for a writ of habeas corpus by a prisoner in state custody unless the petitioner has exhausted all state judicial remedies. 28 U.S.C. § 2254(b)(1)(A); see Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). To satisfy the exhaustion requirement, the petitioner must have “fairly presented” his claims to the state courts, thereby affording those courts the opportunity to correct the alleged violations of federal rights. Picard v. Connor, 404 U.S. 270, 275 (1971). The exhaustion requirement is fulfilled once the federal claims have been presented to “the highest court of the state.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted). In New York, the petitioner must have presented each of his claims to the Appellate Division and then sought leave to appeal on the same grounds to the Court of Appeals. See id. at 74 (“one complete round” of New York's appellate review process involves appeal to Appellate Division and then application to Court of Appeals for certificate granting leave to appeal). Here, all of the claims presented by Petitioner have been exhausted.
B. The Standard of Review
A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 401 (1993). Instead, a state prisoner seeking habeas relief under § 2254 must show by a preponderance of the evidence that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a) (1996). The petitioner thus has the burden of proving, by a preponderance of the evidence, that his rights have been violated. See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
A federal court may grant a writ of habeas corpus to a state prisoner where the state court's adjudication of the petitioner's federal claim on the merits:
(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) (1996).
A decision is “contrary to” clearly established federal law, as determined by the Supreme Court, “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law” or “if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court's].” Williams v. Taylor, 529 U.S. 362, 404-405 (2000). A decision is an unreasonable application of clearly established federal law if a “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; accord Cullen v. Pinholster, 563 U.S. 170, 182 (2011); Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (defining “unreasonable application” to require more than clear error). Moreover, a “federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411; accord Lockyer, 538 U.S. at 75.
The standard for relief under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) “is difficult to meet, because the purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction.” Greene v. Fisher, 565 U.S. 34, 38 (2011) (internal quotation marks omitted); accord Metrish v. Lancaster, 569 U.S. 351, 356-59 (2013); see Burt v. Titlow, 571 U.S. 12, 19 (2013) (“AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court”).
“[C]learly established Federal law” for purposes of § 2254(d)(1) includes only “the holdings, as opposed to the dicta, of this Court's decisions.” Howes v. Fields, 565 U.S. 499, 505, 132 S.Ct. 1181, 1187, 182 L.Ed.2d 17 (2012) (quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). And an “unreasonable application of” those holdings must be “objectively unreasonable,” not merely wrong; even “clear error” will not suffice. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Rather, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner 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 fairminded disagreement.” Harrington v. Richter, 131 S.Ct. 770, 786-787, 178 L.Ed.2d 624 (2011).White v. Woodall, 572 U.S. 415, 419-20 (2014); accord Smith v. Artus, 610 Fed.Appx. 23, 26 (2d Cir. 2015) (summary order). “[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the prisoner's claim on the merits.” Greene, 565 U.S. at 38 (citing Cullen, 563 U.S. at 181).
C. Weight and Sufficiency of the Evidence (Ground One)
Petitioner's first claim - raised and rejected on direct appeal - was that his own testimony “that he did not shoot two of the deceased and shot the third only in self-defense” was “as plausible as” the circumstantial case against him, and thus “his convictions violated due process.” (ECF 17 at 5). This claim can be read two ways: first, as a “weight of the evidence” claim (i.e., that the jury incorrectly weighed Nunez's testimony against the other evidence presented), or second, as a sufficiency of the evidence claim (i.e., regardless of Nunez's testimony that he only shot one of the victims and in self-defense, that the prosecution did not prove every element of the crime beyond a reasonable doubt). For the reasons set forth below, this claim is without merit, whether it is a weight or sufficiency of the evidence claim.
1. Weight of the evidence
“[A] habeas court must defer to the assessments of the weight of the evidence and credibility made by the jury ....” Frazier v. New York, 187 F.Supp.2d 102, 109 (S.D.N.Y. 2002), aff'd, 156 Fed.Appx. 423 (2d Cir. 2005) (citing Herrera, 506 U.S. at 401). See Robinson v. Mazzuca, No. 01-CV-0001 (LTS) (JCF), 2002 WL 31246535, at *4 (S.D.N.Y. Oct. 7, 2002); Gutierrez v. Ricks, No. 02-CV-3780 (BSJ) (AJP), 2002 WL 31360417, at *6 (S.D.N.Y. October 21, 2002). “It is well established that ‘weight of the evidence' claims are not cognizable on federal habeas review, given the difference between such a challenge and that of a challenge based on the sufficiency of the evidence.” Taylor v. Poole, 538 F.Supp.2d 612, 618 (S.D.N.Y. 2008) (citing Douglas v. Portuondo, 232 F.Supp.2d 106, 116 (S.D.N.Y. 2002)). “The determination of how much weight to accord eyewitness testimony . . . in light of any circumstantial evidence that corroborates or refutes such testimony is a matter of credibility., [and] [t]he jury is exclusively responsible for determining a witness' credibility.” Douglas, 232 F.Supp.2d 106 at 115 (internal citations omitted).
2. Sufficiency of the evidence
Because Petitioner is pro se, the Court will liberally interpret Ground One's assertion of a due process violation as also raising a sufficiency argument. See id. at 113. As a threshold matter, the Appellate Division found that the legal sufficiency argument was unpreserved, but issued an alternative holding rejecting it on its merits. Accordingly, the Court addresses Nunez's legal sufficiency claim in accordance with the deferential standard of review expressed in AEDPA and presented above.
Federal courts are generally procedurally barred from considering a state court ruling “if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991) (emphases added). Examples of such include failure to comply with a state's filing deadline. Id. at 743-44. A state procedural bar is “adequate” if it “is firmly established and regularly followed by the state in question” in the specific circumstances in the instant case. See Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006). The bar is “independent” if the “state court must actually have relied on the procedural bar as an independent basis for its disposition of the case,” by “clearly and expressly stat[ing] that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 261-64 (1989) (internal quotation marks omitted).
If a claim is procedurally barred, a district court may not review it on the merits unless the petitioner demonstrates both cause for the default and prejudice resulting therefrom, or if he demonstrates that the failure to consider the claim will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. The “fundamental miscarriage of justice” exception is narrow, reserved for situations “where a constitutional violation has probably resulted in the conviction of one who is actually innocent of the substantive offense.” Dretke v. Haley, 541 U.S. 386, 393 (2004). To establish cause for a default, a petitioner must adduce “some objective factor external to the defense” that explains why he did not raise the claim previously. See Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). A showing of prejudice requires a petitioner to demonstrate that the failure to raise a claim previously had a substantial injurious effect on the petitioner's case such that he was denied fundamental fairness. See Carrier, 477 U.S. at 493-94. Finally, to establish a fundamental miscarriage of justice, a petitioner must demonstrate that he is “actually innocent.” See Schlup v. Delo, 513 U.S. 298, 324 (1995).
Petitioner's petition does not expand on the arguments made below, but only references his “direct appeal brief pages 36-42.” ECF 17 at 5. Nowhere in the petition or amended petition does Petitioner explain cause and prejudice for the failure to raise the sufficiency argument to the state court, nor does he demonstrate that no reasonable juror would be able to find the defendant guilty. Ortiz v. Martuscello, 16-CV-7927 (LAP) (OTW), 2018 WL 10468148, at *10 (S.D.N.Y. Aug. 23, 2018), report and recommendation adopted, 16-CV-7927 (LAP), 2019 WL 6817496 (S.D.N.Y. Dec. 13, 2019).
Accordingly, whether Ground One asserts that the jury erred in weighing the evidence, or that the prosecution's evidence was insufficient to establish Petitioner's guilt beyond a reasonable doubt of the crimes for which he was convicted, Petitioner has not shown that he is entitled to habeas relief on this claim.
D. Prosecutor's Closing Arguments (Ground Two)
In evaluating allegedly improper remarks by a prosecutor on summation, “[t]he relevant question is whether the prosecutors' comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). In evaluating a habeas claim based on prosecutorial misconduct in summation, this Court must “distinguish between ‘ordinary trial error of a prosecutor and that sort of egregious misconduct ... amount[ing] to a denial of constitutional due process.'” Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) (quoting Donnelly, 416 U.S. at 647-48). Three factors are relevant to the Court's evaluation regarding: (1) the severity of the misconduct, (2) the measures the trial court adopted to cure the misconduct, and (3) the certainty of conviction absent the improper statement. Floyd, 907 F.2d at 355; Thompson v. Cunningham, No. 08-CV-10548 (VB), 2013 WL 3742490, at *12 (S.D.N.Y. June 28, 2013).
1. Severity of the prosecutor's alleged misconduct
First, the prosecutor's statements here, essentially comparing Petitioner's testimony to inferences to be drawn from the other evidence, and challenging Petitioner's credibility, do not rise to a constitutionally infirm level of severity, as Justice Farber and the First Department had found. (See Nunez, 147 A.D.3d at 423-424 (“The prosecutor's remarks in summation fell within the broad bounds of rhetorical comment permissible in closing argument. The People were entitled to argue that their case was strong, that defendant's testimony was incredible, and that defendant's status as an interested witness was one of the factors affecting his credibility. Nothing in the People's phrasing of these arguments was so inflammatory as to warrant reversal”); compare ECF 26-2 at 637 and United States v. Bonventre, No. 10-CR-228 (LTS), 2014 WL 3673550 at *15 (S.D.N.Y., Jul. 24, 2014) (prosecution's rebuttal summation, although “aggressive,” did not constitute improper vouching where defense counsel had impugned credibility of prosecution witnesses) with Floyd, 907 F.2d at 354-55 (finding prosecutor's characterization of petitioner as a liar over 40 times in summation and linking lies to burden of proof constituted excessive and inflammatory use).
2. Cure, if any, and certainty of conviction
Considering the second and third factors together, the First Department's rejection of this claim was not contrary to nor an unreasonable application of clearly established federal law. Justice Farber cautioned the prosecution during a break, outside the presence of the jury, about repeated use of the word “preposterous” and then correctly instructed the jury that counsel's statements were not evidence and that the defendant did not bear the burden of proof. (ECF 26 at 114; 116-117). This was an “appropriate measure[ ] to cure any prejudice” that might have resulted from the prosecutor's statements. Thompson, 2013 WL 3742490, at *13. The First Department rejected Petitioner's arguments on appeal (see Nunez, 147 A.D.3d at 423-424), and Justice Farber also found that “the prosecution was ultimately successful in showing that defendant's version of the events was not, in fact, plausible.” (ECF 17 at 167-68 and n.3.) Accordingly, Petitioner's claim relating to the prosecutor's summation does not provide a basis for habeas relief.
E. Ineffective Assistance of Counsel (Grounds 4 and 5)
To prevail on his ineffective assistance of counsel claim, Petitioner must demonstrate that (a) his counsel's performance “fell below an objective standard of reasonableness,” and (b) there is a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Under Strickland, there is a “strong presumption that [a lawyer's] conduct falls within the wide range of reasonable professional assistance.” Id. at 689. Therefore, a petitioner “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). As the Second Circuit has noted, “[t]he Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard.” Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001). The “purpose of the effective assistance guarantee of the Sixth Amendment is ... simply to ensure that criminal defendants receive a fair trial.... Thus, ‘[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'” Cullen, 563 U.S. at 189 (quoting Strickland, 466 U.S. at 686, 689) (emphasis added) (citation and internal quotation omitted).
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.... [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.Strickland, 466 U.S. at 689 (citation omitted).
Ineffective assistance claims “are quite often the law's equivalent of ‘buyer's remorse' or ‘Monday morning quarterbacking' . . . Decisions by criminal defense counsel are often choices among bad alternatives.” Mui v. United States, 614 F.3d 50, 57 (2d Cir. 2010); accord, e.g., Cullen, 563 U.S. at 189; Harrington, 562 U.S. at 105 (“It is ‘all too tempting' to ‘second-guess counsel's assistance after conviction or adverse sentence'”). Petitioner's “burden is to show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed to the defendant by the Sixth Amendment.” Id. at 104 (internal quotations omitted).
Petitioner's ineffective assistance of trial and appellate counsel claims are raised as Grounds Four and Five in his Amended Petition. (ECF 17). Because Petitioner's complaints against his appellate counsel all sound in failure to raise and litigate trial counsel's ineffectiveness, I will consider these claims together. Reading Petitioner's claim broadly as possible, he raises eight incidences of alleged trial counsel ineffectiveness (see ECF 17 at 3549):
In support of Grounds Four and Five, Petitioner attaches and incorporates by reference his coram nobis petition. While there are nine “points” raised in Petitioner's coram nobis petition, the first one is entitled “DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AND WRIT OF ERROR CORAM NOBIS SHOULD ISSUE,” and sets out general case law about the right to effective assistance of trial and appellate counsel in criminal proceedings.
1) Failure to challenge the sufficiency of the indictment;
2) Trial counsel's “performance was unreasonably under professional standard”;
3) Failure to object that the jury was not sworn;
4) Failure “to object to the court amending the statute of 125.27” [sic];
5) Failure to object to the jury charge;
6) Failure to object to admission of the crime scene photos;
7) Failure to object to the “People[‘s] inflammatory remark during summation;” and
8) Failure to object to the trial court's “personal opinion” and inflammatory remarks.”(ECF 17 at 46).
All of these claims were previously raised and addressed in the state court. Justice Farber addressed them at length in his opinion dated May 16, 2019 (ECF 17 at 163), the Appellate Decision denied leave to appeal that decision, and Petitioner has not overcome the presumption that these decisions are correct.
In particular, Justice Farber noted:
“Of course, a brilliant and artfully constructed defense is not necessarily a successful defense. Here, where the evidence against defendant was overwhelming, no defense was likely to succeed. And the prosecution was ultimately successful in showing that defendant's version of the events was not, in fact plausible. But this does not make counsel ineffective.”(ECF 17 at 167-168).
F. Excessive Sentence Claim (Ground 3)
Petitioner's last claim, that the trial court's sentence of life without parole to run concurrently with three consecutive terms of 25 years to life, was excessive and should be reduced “as a matter of mercy,” is also without merit. Although Respondent argues that the claim is not cognizable under 28 U.S.C. 2254(a), (ECF 25 at 63), the Court reads this to raise an Eighth Amendment claim. Even raised as an Eighth Amendment claim, however, it cannot succeed.
“The term of a sentence does not violate the Eight Amendment if the sentence falls within the statutory range.” Diaz v. Bell, No. 21-CV-5452 (LGS) (JLC), 2022 WL 1260176, at *21 (S.D.N.Y. Apr. 28, 2022), report and recommendation adopted, No. 21-CV-5452 (LGS), 2022 WL 2003461 (S.D.N.Y. June 6, 2022) (internal citations omitted). Even where a sentence of life in prison is mandatory, it is not a per se violation of the Eighth Amendment unless applied to juveniles. See Miller v. Alabama, 567 U.S. 460 (2012); United States v. Sierra, 933 F.3d 95 (2d Cir. 2019). In Sierra, the Second Circuit also examined whether a mandatory minimum life sentence violated the Eighth Amendment for a defendant who played a lesser role in the charged murder. Id. at 97. Specifically, the Second Circuit upheld a life sentence for a defendant who had been convicted of conspiracy and substantive counts of murder in aid of racketeering where he “did not commit the murders directly” and a co-defendant had fired the shots that had killed the victims. Id. at 97-98 (citing Pinkerton v. United States, 328 U.S. 640 (1946), Enmund v. Florida, 458 U.S. 782 (1982), and Harmelin v. Michigan, 501 U.S. 957 (1991)). Here, Justice Farber's sentence was the maximum sentence allowed by law (ECF 25 at 70), and thus does not violate the Eighth Amendment, even if Petitioner's only conviction had been on a single count of first or second-degree murder for shooting Catalan.
IV. Conclusion
For the foregoing reasons, Petitioner's habeas petition should be denied. Furthermore, because Petitioner has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
V. Objections
In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be filed with the Clerk of Court, Pro Se Intake Unit, United States Courthouse, 500 Pearl Street, Room 200, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Ramos.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. (See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983)).
The Clerk of Court is directed to mail a copy of this Report and Recommendation to Petitioner.