Opinion
1:19-cv-05547 (LGS) (KHP)
10-05-2020
LAWRENCE PEREZ, Petitioner, v. SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY, [1] Respondent.
REPORT AND RECOMMENDATION
KATHARINE H. PARKER United States Magistrate Judge
TO: THE HONORABLE LORNA G. SCHOFIELD, United States District Judge
On August 5, 2008, Petitioner was convicted of Murder in the Second Degree under Penal Law § 125.25(1) after a second trial in the Supreme Court of the State of New York, Bronx County (“Supreme Court, Bronx County”) and sentenced to an indeterminate term of 25 years to life in prison. (ECF No. 20 ¶ 13 ("Weiss Decl.”).) (His first trial resulted in a mistrial because jurors had been subjected to intimidation.) Petitioner appealed his conviction, but his direct appeal was denied. He also pursued collateral relief under New York CPLR § 440, but those appeals also were denied. On June 13, 2019, Petitioner filed the instant petition for a writ of habeas corpus (the “Petition”) pursuant to 28 U.S.C. § 2254. (ECF No. 1 (the "Petition").) For the reasons set forth below, none of Petitioner's claims have merit, and thus, I recommend that the Petition be DENIED.
BACKGROUND
Petitioner is a member of the “Latin Kings Gang.” He was convicted for his role in the torture and murder of Dennis Rivera, which occurred over a 24-hour period on June 8-9, 2005. (See ECF No. 20-6 at 27, 46 (“Feb. 2016 Respondent Brief to Appellate Division”).) The indictment charged Petitioner with repeatedly striking Rivera with a baseball bat, electrocuting him, setting him on fire, and forcing him to drink toxic liquids, all of which caused his death. (ECF No. 20-1 at 2 (the “Indictment”).) Three other gang members participated in the torture and murder of Rivera: Virgilio Samo, the “First Crown” or leader of the Latin Kings in Bronx County; George Melendez, the “Third Crown” or enforcer; and Michael Gonzalez, the “Third Supreme Crown” of the statewide Latin Kings. (Weiss Decl. ¶ 5.) Petitioner was tried together with Samo and Melendez. Gonzalez, who testified for the prosecution, was tried separately. In connection with his cooperation, Gonzalez was transferred from Rikers Island Correctional Facility to a facility in Putnam County for his own safety. (ECF No. 20-12, Ex. A.)
I. Petitioner's First Trial that Ended in a Mistrial
The first joint trial of Petitioner, Samo, and Melendez began on March 11, 2008. (Weiss Decl. ¶ 10.) At the trial, the defense questioned Gonzalez as to whether he had been coerced into testifying against his fellow gang members. The relevant testimony was:
Q. Now, there came a point in time in February of 2006, that you changed your mind about pleading guilty, correct?
A. Yes.
Q. And you were before another Judge in the building across the street, correct?
A. Yes.
Q. And you indicated at that point in time you had changed your mind and now you wanted to go to trial, right?
A. Yes.
Q. And in open[] court, the district attorney threatened you, didn't she?
[Prosecutor]: Objection
A. No.
…
Q. Didn't the district attorney tell you on the record that she was going to take away separation orders from you and other people, correct?
A. No.
****
Q. Did she indicate that she was going to take you immediately to trial?
A. Yes.
Q. Do you remember that day [the prosecutor] asking ‘Mr. Gonzalez has decided he doesn't want to avail himself of the offer of murder in the second degree with a sentence of 15 to life, so the People are not going to make that offer again and the People are ready to try Mr. Gonzalez all by himself tomorrow?'
...
A. Yes.(ECF. No. 21 at 36-37 (“MOL in Opposition to Petition”).) Gonzalez also suggested in his testimony that Petitioner had put a “contract hit” on his life and, as a result, he had been moved to another corrections facility so that he would not be near Petitioner, Samo, and Melendez. (Id. at 20.)
The prosecution also called Jaime Hernandez as a witness. Hernandez was a cooperating witness, but, during cross-examination, defense counsel learned that certain changes to Hernandez's cooperation agreement had not been disclosed. (ECF No. 20-12 Ex. D. at 472-73.) Troubled by the failure to disclose, the trial court adjourned the trial to allow time for defense counsel to prepare additional cross-examination about the cooperation agreement. (Id. at 475, 477-78.)
Neither Petitioner nor Melendez testified in their own defense. But, their co-defendant Samo, did testify. Relevant to the instant Petition, Samo testified that Petitioner was a member of the Latin Kings but that he and Petitioner were not present for the actual torture and murder of Rivera; rather, he testified that he and Petitioner arrived on the scene just after Rivera had been killed. He also suggested that it was Gonzalez who was solely responsible for Rivera's death, not him, Petitioner, or Melendez. (See ECF No. 20-2 at 22 (“Petitioner's Aug. 2015 Brief to Appellate Division”).)
Ultimately, as noted above, the trial ended in a mistrial when one of the jurors refused to deliberate after juror intimidation by gang members was reported to the Court.
II. Petitioner's Second Trial
On May 14, 2008, the second trial commenced. (Weiss Decl. ¶ 12.) Samo did not testify at the second trial. Instead, portions of his testimony from the first trial were introduced as evidence on agreement of all three defense attorneys, including Petitioner's attorney, Lawrence Sheehan. (Feb. 2016 Respondent Brief to Appellate Division at 44.)
In the testimony that was admitted, Samo stated that he, Melendez, and Petitioner were all members of the Latin Kings. (Samo v. Keyser, No. 1:17-cv-05043 (RJS) (GWG), ECF No. 18-16 at 1454-55.) Samo testified that he lent his apartment to Gonzalez on the night of June 8, 2005 and that, when he returned on June 9 with Petitioner and Melendez, he saw Rivera dead and naked on his basement floor. (Id. at 1468-69.) Samo stated that Petitioner assisted with the disposal of Rivera's body. (Id. at 1470-71.) According to Samo, Hernandez (the other cooperating witness for the prosecution) retrieved a van, and that he and Gonzalez placed Rivera's dead body into the van. (Id. at 1478-79.) Samo testified that Gonzalez and Hernandez disposed of the body, but that, at his request, Petitioner and Melendez followed Hernandez and Gonzalez to make sure the body was in fact disposed of. (Id. at 1481-82.) Petitioner's attorney used Samo's testimony to argue in closing that Petitioner was not guilty of torturing and murdering Rivera.
Gonzalez also testified again at the second trial. This time, he testified that he was in a different correctional facility than Petitioner because of his affiliation with a certain branch of the Latin Kings gang - the Bad Boy Kings - which compromised his safety while at Rikers. (Samo v. Keyser, No. 1:17-cv-05043 (RJS) (GWG), ECF No. 18-13 at 706-07.) Petitioner's counsel objected to admitting evidence concerning this “threat, ” but the trial judge overruled that objection on the ground that testimony made clear that any threat to Gonzalez's safety while at Rikers was unrelated to and not made by Petitioner. (Samo v. Keyser, No. 1:17-cv-05043 (RJS) (GWG), ECF No. 18-14 at 985-87.)
Upon completion of the trial, the jury began to deliberate. During the multi-day deliberations, one juror requested that deliberations end early on a particular day so that she could attend her grandson's birthday party. (ECF. No. 20-7 at 3.) The judge questioned the juror in the robing room, with the parties' consent and in the presence of Petitioner's attorney, about whether she could continue to deliberate if she were not permitted to attend the family celebration. Id. The following is a transcript from the trial court's questioning of the Juror:
The Court: And what happens if you're here tomorrow, and you're not able to go to the party?
Juror: Well, I guess I'm going to have to do my duty, you know, because you know, I don't want to start something, you know, honestly, this is a very important case…
The Court: Excuse me[?]
Juror: I don't want to start something and just give up on it. You know what I'm saying?
The Court: I do know what you're saying. I appreciate the sentiment. So, if you need to be here, you'll be here[.] [D]o I understand that correctly?
Juror: Yes, sir.
The Court: If you miss that event, will that affect the way you deliberate?
Juror: It will break my heart.
. . . .
The Court: I certainly don't want to break your heart. My question is if you're here tomorrow, and you're unable to go [to the party, ] [w]ill you be able to do the job you have to do, deliberate, reach a decision based upon the evidence?
Juror: That has nothing to do with the evidence, of course.(Feb. 2016 Respondent Brief to Appellate Division at 32.) After questioning the juror, the trial judge decided that the deliberations would not end early to accommodate the juror's attendance at her grandson's birthday party. Id. After the jury was informed of the judge's decision, Melendez's counsel informed the Court that he heard the juror crying out that her heart was broken because she would be unable to attend her grandson's birthday. (Petitioner's Aug. 2015 Brief to Appellate Division at 10.) Nevertheless, the trial judge determined that no further inquiries of the juror were needed and that she was competent to continue deliberating. (Id.) Neither Petitioner's attorney, nor either of his codefendants' attorneys, requested that the juror be further questioned or sought her removal from deliberations. (Feb. 2016 Respondent Brief to Appellate Division at 32.) On July 1, 2008 the jury reached its verdict, resulting in convictions against all three defendants. (ECF No. 20-7 at 1, 4; Weiss Decl. ¶ 13 n.3.)
III. Procedural History
A. Petitioner's Direct Appeal and Petitioner's First NYCPL § 440.10 Motion
With the assistance of new appellate counsel, Steven A. Feldman, Petitioner filed a timely notice of appeal to the Appellate Division. (Weiss Decl. ¶¶ 14, 16.) On appeal to the Appellate Division, Petitioner raised three grounds for reversal. First, Petitioner argued that the trial court committed reversible error when it failed to re-confirm that the juror would be able to deliberate fairly and impartially after learning that she was crying and stating that she was “heartbroken” about not being allowed to attend her grandson's birthday. Second, Petitioner asserted that the trial court committed reversible error when it permitted Gonzalez to testify concerning the reason he was being held in a different correctional facility than Petitioner. And third, Petitioner argued that under Bruton v. United States, his right to confront witnesses against him was violated by virtue of the admission of Samo's testimony from the first trial into evidence at the second trial. (Petitioner's Aug. 2015 Brief to Appellate Division at 2.) Before the appeal was decided, however, Feldman withdrew the second ground for appeal. (ECF No. 20-4.)
In the meantime, while his direct appeal was pending, Petitioner, acting pro se, filed a separate motion in the Supreme Court, Bronx County to vacate his conviction pursuant to NYCPL § 440.10(1)(h) (the “First § 440.10 Motion”). (ECF No. 20-3 ("Petitioner's First § 440.10 Mot.").) Petitioner argued that his trial counsel was ineffective for failing to seek disqualification of the juror after she was heard crying about missing her grandson's party. (Id. at 10-11; see also ECF No. 20-5 ("Opposition to Petitioner's First § 440.10 Mot.").) The court denied this motion without a hearing. (ECF No. 20-7.) In its decision, the court rejected the motion, reasoning that the trial judge conducted a “probing and tactful inquiry” of the juror during which she “unequivocally stated” that she would be able to render an impartial verdict, and thus, Petitioner's counsel had no valid basis to request that the juror be disqualified from deliberating. (Id. at 5.)
Petitioner, still acting pro se, sought permission to appeal the denial of his First § 440.10 Motion to the Appellate Division. (Weiss Decl. ¶ 26-27.) The certificate granting Petitioner leave to appeal indicated that the appeal of the First § 440.10 Motion would be consolidated with Petitioner's direct appeal before the Appellate Division. (Id. ¶ 27.) However, notwithstanding the Appellate Division's stated intent to consolidate the two appeals, the Appellate Division rejected Petitioner's direct appeal before they were consolidated. (Id. ¶ 28.) Because Petitioner's appellate counsel had not objected to the crying juror continuing to deliberate, the Appellate Division held that the argument had been waived and was not preserved for appeal. Nevertheless, the Appellate Division also held, in the alternative, that the record showed that the “juror did not possess a state of mind that would have prevented her from rendering an impartial verdict.” People v. Perez, 142 A.D.3d 869, 870 (1st Dep't 2016). In addressing Petitioner's claim that the introduction of Samo's testimony violated his right of confrontation, the Appellate Division held that Petitioner had waived any objection to introduction of that testimony and thus failed to preserve this claim for appeal. The court held, in the alternative, that introduction of Samo's testimony from the first trial did not violate Petitioner's constitutional rights because it was helpful to Petitioner insofar as Samo testified that Petitioner did not engage in torture or murder. Id. The Appellate Division also stated that Petitioner's trial counsel pursued a “reasonable, nonprejudicial” strategy by consenting to the admission of Samo's prior testimony and leveraging it in his closing to argue that Petitioner was innocent. Therefore, the claim of ineffective assistance of counsel was not colorable based on this strategic decision. Id. (citing People v. Benevento, 91 N.Y.2d 708, 713-14 (1998); Strickland v. Washington, 466 U.S. 668 (1984)). Finally, although the argument had been withdrawn, the Appellate Division stated that Gonzalez's testimony was not prejudicial and there was no error in admitting it. Although the Court found that Petitioner waived this argument and that it was unpreserved for appeal because appellate counsel withdrew this ground for appeal, it nonetheless also concluded that nothing about Gonzalez's testimony in the second trial warranted overturning Petitioner's conviction because there was ample testimony making clear that any threats to Gonzalez's life were not linked to Petitioner and because the trial court gave a curative jury instruction on this point. Perez, 142 A.D.3d at 870.
Petitioner, with the aid of his appellate counsel, sought leave to appeal before the New York Court of Appeals. (ECF No. 20-8 ("Petitioner's First Leave Appl. to the Ct. of Appeals").) The only grounds raised as bases for appeal were Petitioner's arguments with respect to the trial court's failure to re-question the crying juror and the prosecution's alleged violation of Bruton v. United States when it read Samo's testimony from the first trial into evidence. (Petitioner's First Leave Appl. to the Ct. of Appeals; Petitioner's Aug. 2015 Brief to Appellate Division at 2.) The Court of Appeals denied Petitioner's leave application. People v. Perez, 28 N.Y.3d 1149 (2017); Petition ¶ 9.
Additionally, with the aid of his appellate counsel, Petitioner sought a ruling from the Appellate Division on his appeal with respect to his First § 440.10 Motion, since the court had decided Petitioner's direct appeal before his appeal of the 440.10 motion was consolidated into the direct appeal. (Weiss Decl. ¶ 31., ECF No. 20-9 at 4.) The Appellate Division rejected the appeal and affirmed the trial court's decision denying Petitioner's First § 440.10 Motion. People v. Perez, 154 A.D.3d 428 (1st Dep't 2017). It held that Petitioner's argument on this appeal was “identical” to the claim it had rejected on Petitioner's direct appeal. Id. Further, the Appellate Division held: “[t]o the extent defendant's CPL 440.10 motion alleged ineffective assistance of trial counsel, that claim has been abandoned on appeal. In the alternative, we find that defendant received effective assistance under the state and federal standards.” Id. (internal citations omitted).
Petitioner requested permission to appeal this decision to the New York Court of Appeals, but the Court denied the request. (ECF No. 20-11; ECF No. 20-9 at 2; Weiss Decl. ¶ 34; People v. Perez, 30 N.Y.3d 1063 (2017).)
B. Petitioner's Second NYCPL § 440.10 Motion
On May 3, 2018, Petitioner, proceeding pro se, filed a second NYCPL § 440.10 motion to vacate the judgment against him (the “Second § 440.10 Motion”), as well as a motion pursuant to NYCPL § 440.20 to set aside his sentence. (ECF. No. 20-12 at 1-2.) In the Second § 440.10 Motion, Petitioner alleged that newly discovered evidence showed that the prosecution coerced Gonzalez to testify against him and that the prosecution presented false testimony from Hernandez about his cooperation agreement at the first trial. (Id. ¶¶ 17, 19.) In his NYCPL § 440.20 Motion, Petitioner alleged that his counsel was ineffective for failing to properly review the presentence report, which contained inaccuracies. (Id. ¶¶ 38, 40.)
On January 16, 2019, the Supreme Court, Bronx County summarily denied Petitioner's Second § 440.10 Motion and § 440.20 Motion without a hearing. (ECF. No. 20-13 (“Jan. 2019 Decision Denying Second § 440.10 Motion”).) The trial judge reasoned that the violations alleged in both Motions appeared in the record and, thus, should have been raised on direct appeal. (Id. at 4.) The court explained that “no such appellate review occurred owing to [Petitioner's] unjustifiable failure . . . to raise such ground or issue upon an appeal actually perfected by him.” (Id. (citing NYCPL § 440.10(2)(c).) In the alternative, the court denied Petitioner's claims because Petitioner learned the facts underlying his Second § 440.10 Motion and his First § 440.20 Motion in 2008, at the latest, and thus, they could and should have been raised in his First § 440.10 Motion, which was filed in 2015. (Id. at 4 (citing NYCPL § 440.10(3)(c).)
On May 14, 2019, Petitioner moved, with the assistance of counsel, for leave to appeal the denial of his Second § 440.10 Motion to the Appellate Division. (ECF. No. 20-14; Weiss Decl. ¶ 37.) In his leave to appeal, Petitioner argued that the trial court abused its discretion when it denied the Second § 440.10 Motion and that the Second § 440.10 Motion raised questions of fact and law that entitled Petitioner to a hearing under NYCPL § 440.30(5). (ECF. No. 20-14.) But on September 17, 2019, Petitioner's application for a certificate granting leave to appeal was denied. (Weiss Decl. ¶ 38.)
C. Petitioner's Petition for Writ of Habeas Corpus
Now, represented by new counsel, Petitioner raises seven separate claims for habeas relief. First, Petitioner asserts that his trial attorney rendered ineffective assistance by failing to seek disqualification of the crying juror. Second, Petitioner asserts that Gonzalez's testimony introduced evidence of an uncharged crime against Petitioner (i.e., threatening to harm or kill a witness), thereby depriving Petitioner of a fair trial. Third, Petitioner asserts that his trial counsel rendered ineffective assistance by consenting to the admission of Samo's testimony from the first trial, violating Petitioner's Sixth Amendment right to confront the witness. Fourth, Petitioner claims that there is newly discovered evidence which shows that the prosecutor impermissibly coerced Gonzalez to testify against Petitioner at trial, which influenced the jury's verdict against him. Fifth, Petitioner asserts that it was prosecutorial misconduct for the prosecutor to coerce Gonzalez to testify against him. Sixth, Petitioner asserts that the prosecutor elicited false testimony from Hernandez about his cooperation deal, which put fraudulent evidence before the court. And Seventh, Petitioner asserts that his due process rights were violated when the trial court denied his First § 440.10 Motion without a hearing. (Petition ¶ 21.)
For the reasons that follow, none of Petitioner's arguments provide a basis for relief, and thus, I recommend that the Petition be dismissed in its entirety.
LEGAL STANDARDS FOR HABEAS REVIEW
I. Exhaustion and Procedural Default
Prior to seeking federal habeas review, a petitioner in state custody must exhaust all remedies available in state court. 28 U.S.C. § 2254(b)(1); see also Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). This means that a petitioner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Jackson, 763 F.3d at 133 (2d Cir. 2014) (explaining a “complete round” requires a petitioner to present the “essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it”) (internal citation omitted). In New York, a petitioner invokes “one complete round” of review by appealing an issue to the Appellate Division and then seeking leave to appeal to the New York Court of Appeals. Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005).
If a habeas petition presents unexhausted claims, the federal court must determine whether the petitioner would be able to return to state court to exhaust those claims. Jackson, 763 F.3d at 133. An unexhausted claim for which the petitioner cannot obtain further review in state court is procedurally defaulted and must be dismissed. Id. (“[I]f the state prisoner fails to exhaust his state remedies in a manner in which, were he to return to the state courts with his unexhausted claim, those courts would find the claim barred by the application of a state procedural rule, we must deem the claim procedurally defaulted.”) (internal citation and quotation marks omitted).
Where a habeas petition includes both exhausted and unexhausted claims, the federal district court may: “(1) stay the proceeding pending complete exhaustion of state remedies; (2) dismiss the petition, without prejudice, until the claims have been exhausted in state court, unless such review would be precluded pursuant to the AEDPA's one-year statute of limitations; (3) afford petitioner an opportunity to withdraw the unexhausted claim(s); or (4) deny the petition on the merits pursuant to 28 U.S.C. § 2254(b).” Williams v. Breslin, No. 06-cv- 2479 (SJF), 2008 WL 4179475, at *4 (E.D.N.Y. Sept. 9, 2008) (citing Gandarilla v. Artuz, 322 F.3d 182, 186 (2d Cir. 2003); Pratt v. Greiner, 306 F.3d 1190, 1196-97 (2d Cir. 2002)).
Finally, when an unexhausted claim is procedurally defaulted, meaning, the petitioner cannot raise the claim in state court, the petitioner is generally barred from raising it in a habeas petition. “The Second Circuit has made clear that ‘federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim.'” Martinez v. Colvin, No. 1:17-cv-00757 (PKC) (KHP), 2018 WL 7047148, at *5 (S.D.N.Y. Nov. 6, 2018) (quoting Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990)), adopted by 2018 WL 6649608 (S.D.N.Y. Dec. 19, 2018); see also Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). There are only two exceptions to this rule: when the petitioner establishes “cause and actual prejudice [for the default]. . . or that he is actually innocent.” Bousley v. United States, 523 U.S. 614, 662 (1998) (internal citations and quotation marks omitted).
II. Standard for Habeas Review
“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). A federal court may only grant habeas relief when a state prisoner shows that the state court's decision was either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court, ” or that the decision was based on an unreasonable determination of the facts before the state court. 28 U.S.C. § 2254(d)(1)-(2).
For a state court's decision to be contrary to clearly established law, the court must have reached a conclusion “antithetical to a conclusion of law by the Supreme Court, or decide a case differently than the Supreme Court has when the two cases have ‘materially indistinguishable facts.'” Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 2010) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring)). In the AEDPA context, “clearly established” law refers to “only the holdings, as opposed to the dicta, of th[e] [Supreme] Court's decisions.” Woods v. Donald, 575 U.S. 312, 316 (2015) (internal quotation marks and citation omitted). It is not enough that the facts of a case are “similar to” those at issue in the relevant Supreme Court case - the two cases must involve the same specific question. Id. at 317.
Once the clearly established Supreme Court holdings have been distilled, “an unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice.” Id. at 316 (internal quotation marks and citation omitted). To satisfy the high bar for habeas relief, a petitioner must establish 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, 562 U.S. at 103.
ANALYSIS OF PETITIONER'S CLAIMS
I. Trial Counsel's Failure to Challenge the Crying Juror on Grounds of Bias and/or Impartiality
Petitioner claims that his trial attorney rendered ineffective counsel when he neglected to challenge the partiality of the juror who cried after the judge denied her request to end deliberations early one day so she could attend a family event. Respondent argues that this claim is unexhausted because Petitioner failed to raise the claim in his application for leave to appeal to the New York Court of Appeals. (MOL in Opposition to Petition at 7.) In addition, Respondent argues that this claim is foreclosed because the determination by the Appellate Division rests on the independent and adequate state ground of abandonment. (Id. at 9.) Finally, Respondent argues the claim is without merit because the record demonstrates that there was no basis for the trial court to disqualify the juror and, thus, any failure to object to her continuing to deliberate was not prejudicial because the objection would have failed.
Petitioner argued on direct appeal that the trial court committed reversible error when it failed to re-confirm whether the juror would be able to deliberate fairly and impartially after learning that she was crying about its denial of her request to leave early to go to her grandson's party-not that his trial counsel was ineffective for failing to challenge the juror. Then, in his First § 440.10 Motion, Petitioner raised an ineffective assistance of counsel claim, acknowledging his trial counsel did not object to the juror continuing to deliberate and arguing the court should consider the issue in the interest of justice. (Petitioner's First § 440.10 Mot. ¶ 1; ECF No. 20-9 at 5-6, 7.) The Supreme Court, Bronx County denied Petitioner's 440 motion on April 14, 2016, and this decision was then affirmed by the Appellate Division on October 3, 2017. Petitioner's request for leave to appeal to the Court of Appeals did not articulate this claim. Rather, Petitioner's appellate counsel only referenced a single “leaveworthy” issue to be addressed by the Court of Appeals. (ECF No. 20-11.) Specifically, the October 15, 2017 letter requesting leave to appeal to the Court of Appeals was expressly grounded in the issue “set forth under ‘question presented' in [Petitioner's] brief.” (Id.) The “question presented” referenced in Petitioner's appellate brief presents one issue for appeal: “[d]id the Supreme Court, Bronx County err when it denied [Petitioner's] § 440 motion to vacate the judgment of conviction?” (ECF No. 20-9 at 2.) Accordingly, Petitioner did not exhaust his remedies as to this claim. Jackson, 763 F.3d at 133 (requiring that a prisoner submit his claim to the state court “in terms that are likely to alert the state courts to the claim's federal nature”) (internal citations omitted).
In addition to being unexhausted, this claim is procedurally barred. Federal habeas review is foreclosed when a state court resolves a question of federal law based on a procedural default under state law unless the petitioner demonstrates (1) cause for the default and actual prejudice; or (2) that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50. Abandonment of a claim is a well- established and commonly enforced procedural bar in New York. Bailey v. Ercole, No. 06 Civ. 5811 (PKC) (MHD), 2007 WL 4707738, at *8 (S.D.N.Y. Aug. 17, 2007) (denying habeas petition based on finding by Appellate Division that the petitioner abandoned his claim that the trial court should have given an adverse inference instruction concerning the State's failure to preserve a 911 tape and that such abandonment is a procedural bar under New York law). In this case, the Appellate Division denied Petitioner's First § 440.10 Motion on the ground that he had abandoned his ineffective assistance of counsel claim. People v. Perez, 154 A.D.3d at 428. Thus, even if Petitioner were permitted to return to state court to litigate this claim, the state courts would not consider the claim on procedural grounds. Further, Petitioner has not attempted to make a showing of cause or prejudice for the default or his actual innocence. Thus, this claim is unexhausted and procedurally barred. Clark v. Perez, 510 F.3d 382, 393 (2d Cir. 2008) (“[w]here a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent”) (internal citation omitted).
Further and in any event, the Appellate Division held in the alternative that Petitioner received effective assistance of trial counsel and properly applied federal law in so holding. The Appellate Division relied on Strickland v. Washington, 466 U.S. 668 (1984) in finding that Petitioner received effective assistance of counsel. Under Strickland, the critical inquiry is “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.” Id. at 686. This inquiry requires showing that counsel's errors fell below an objective standard of reasonableness and a reasonable probability that, but for counsel's errors, the result at trial would have been different. Id. at 687, 694.
The record evidence supports a conclusion that Petitioner was not prejudiced by trial counsel's failure to object to the juror continuing to deliberate. First, it was not objectively unreasonable for Petitioner's trial counsel not to challenge the juror's impartiality after she was heard crying because she had already confirmed, after questioning by the trial court, that she would be able to render an impartial verdict. New York Courts regularly find that a juror need not and should not be dismissed if the juror has confirmed he/she can deliberate fairly. See People v. Buford, 69 N.Y.2d 290, 299-30 (1987) (holding that trial court abused its discretion in dismissing jury forewoman, who questioned the propriety of two witnesses talking outside the courtroom and leaving the courthouse in the same car, after forewoman confirmed she could deliberate fairly); see also People v. Wright, 35 A.D.3d 172 (1st Dep't 2006) (determining the trial court properly exercised discretion in denying defendant's request for inquiry of a juror who locked herself in the bathroom during deliberations, presumably because the juror was upset, because there was no reason to believe that the juror's strong emotions rendered her unqualified to continue serving). Given that any objection to the crying juror would have been futile, Petitioner also has not demonstrated that the trial outcome would have changed. Thus, the Appellate Division's determination that trial counsel rendered effective assistance at trial was consistent with Strickland. See Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (“[t]he failure to include a meritless argument does not fall outside the ‘wide range of professionally competent assistance' to which Petitioner was entitled.”) (citing Jameson v. Coughlin, 22 F.3d 427, 429-30 (2d Cir. 1994); see Harrington, 562 U.S. at 105 (“[t]he standards created by Strickland and [AEDPA] are both ‘highly deferential,' . . . and when the two apply in tandem, review is ‘doubly' so”) (internal citations omitted).
In his reply brief, Petitioner apparently raises a new argument-that his appellate counsel also rendered ineffective assistance by failing to preserve the ineffective assistance of trial counsel claim for appeal and federal review. (Reply Mem. of Law in Supp. of Mot. ¶¶ 15, 18.) Petitioner relies on Murray v. Carrier, 477 U.S. 478 (1986), to support this argument. Putting aside that it is improper to raise a new argument in a reply, Murray does not help petitioner. In Murray, the Supreme Court confirmed that to obtain habeas review on a claim that is procedurally defaulted, the petitioner must show cause for the default and prejudice, and that this standard applies to claims that were abandoned or waived by either trial or appellate counsel. Id. at 490, 492. “Attorney error short of ineffective assistance of counsel does not constitute cause for a procedural default even when that default occurs on appeal rather than at trial. To the contrary, cause for a procedural default on appeal ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim.” Id. at 492. The Court reasoned that a defendant must bear the risk of attorney error that results in a procedural default. Id. at 488. And, while ineffective assistance of counsel constitutes cause for a procedural default, “the exhaustion doctrine . . . generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default” in federal habeas proceedings.” Id. at 488-89.
In this case, Petitioner has not met the cause and prejudice standard to avoid the procedural default rule with regard to his appellate counsel. There has been no showing of an external impediment preventing Petitioner's appellate counsel from raising an ineffective assistance of counsel claim. Further, there has been no showing of ineffective assistance of appellate counsel. That is, because it was not objectively unreasonable for Petitioner's trial counsel not to object to the juror continuing to deliberate, it also was not objectively unreasonable for Petitioner's appellate counsel not to claim that trial counsel was ineffective on this basis.
Accordingly, Petitioner's first ground for relief should be denied.
II. The Introduction of Gonzalez's Testimony
Petitioner claims that the testimony elicited from Gonzalez violated his right to a fair trial by introducing prejudicial evidence of an uncharged crime, citing Gonzalez's testimony from the first trial when Gonzalez stated that he was serving time in a different facility because Petitioner had put out a “contract hit” on Gonzalez's life. (Weiss Decl. ¶ 10.) Respondent argues that the claim is unexhausted and procedurally barred. (See Id. ¶ 21.) In addition, Respondent argues that this claim lacks merit because the challenged testimony was never introduced at the second trial. (Id.)
Petitioner initially raised this claim in his direct appeal, but then withdrew this claim. (Petitioner's Aug. 2015 Brief to Appellate Division at 16; ECF No. 20-4.) Because the claim was withdrawn, the Appellate Division held that Petitioner did not preserve it. People v. Perez, 142 A.D.3d 869, 870 (1st Dep't 2016). Further, Petitioner did not raise this claim in his application for leave to appeal to the Court of Appeals. (Petitioner's First Leave Appl. to the Ct. of Appeals.) Accordingly, this claim is unexhausted.
This claim also is procedurally barred because it was abandoned, and Petitioner cannot raise it in the state court since it had to be raised on direct appeal. Bailey, 2007 WL 4707738, at *8 (collecting abandonment cases); N.Y. Crim. Proc. Law § 460.15 (“Not more than one application may be made for” a certificate granting leave to appeal to the Appellate Division); N.Y. Ct. Rules § 500.20(a) (“only one application [for leave to appeal to the Court of Appeals] is available”); see also Haddock v. Second Appellate Court, No. 10 CV 3442 (VB), 2013 WL 3640150, at *5 (S.D.N.Y. July 15, 2013) (deeming the petitioner's claims exhausted due to prior request for leave to appeal and procedurally barred because he failed to raise them on direct appeal and in his leave application to the Court of Appeals).
Petitioner has not attempted to make a showing of cause or prejudice for the claim forfeiture or his actual innocence of the underlying crime. Further and in any event, the challenged testimony was not introduced at the second trial. Rather, it was made clear at Petitioner's second trial that Petitioner had nothing to do with Gonzalez being held at a different facility than Petitioner. Thus, this claim should be denied.
III. Trial Counsel's Consent to the Admission of Samo's Prior Testimony
Petitioner claims he was deprived his Sixth Amendment right to effective assistance of counsel when his trial counsel consented to the admission of co-defendant Samo's testimony from the first trial. Petitioner also asserts that the admission of that prior testimony deprived Petitioner of his Sixth Amendment right to confront the witnesses against him. Respondent argues that this claim is without merit.
The Appellate Division held that Petitioner “did not preserve his claim that certain testimony violated his right of confrontation . . .” Perez, 142 A.D.3d at 870. This is because Petitioner's counsel consented to the introduction of Samo's testimony and relied on it in his closing to argue that Petitioner was innocent of torturing and murdering Rivera.
To the extent Petitioner argues that trial counsel was ineffective for consenting to the admission of Samo's prior testimony, the claim is without merit. It was not objectively unreasonable for trial counsel to consent to the admission of Samo's prior testimony and Petitioner's right of confrontation was not violated by its admission. Strickland, 466 U.S. at 686-87. In short, Samo's testimony allowed Petitioner to argue to the jury that he played no part in the torture or murder of Rivera.
In Bruton, the Supreme Court held that the admission of a co-defendant's out-of-court confession of guilt, despite limiting instructions to the jury, violated the other co-defendant's Sixth Amendment right to cross-examination of that witness. 391 U.S. 123 (1968). Bruton is different from this case insofar as it involved admission of an oral confession from a co-defendant implicating both defendants. The Supreme Court found that the introduction of the out-of-court confession added substantial weight to the government's case “in a form not subject to cross-examination, since [the confessing defendant] did not take the stand.” Id. at 127-28. It therefore reversed the conviction because the petitioner did not have an opportunity to confront the witness against him at trial. Id. at 137.
In contrast, Petitioner had a chance to confront and cross-examine Samo at the first trial. Samo's prior trial testimony is therefore different in kind than the out-of-court confession in Bruton. See Nelson v. O'Neil, 402 U.S. 622, 627 (1971) (“[t]he Constitution as construed in Bruton . . . is violated only where the out-of-court hearsay statement is that of a declarant who is unavailable at the trial for ‘full and effective' cross-examination”) (emphasis in original); United States v. Shareef, 190 F.3d 71, 78 (2d Cir. 1999) (holding the admission of testimony from one codefendant at a joint trial to be consistent with Bruton because the codefendant was available for cross-examination). And, while it is true that Samo did not testify in the second trial, Petitioner's counsel reviewed and was able to seek redactions of Samo's prior testimony before it was introduced in the second trial and consented to its introduction because it was beneficial to Petitioner insofar as Samo testified that he and Petitioner were playing ball at the time of the torture and murder of Rivera and only came to the scene after Rivera was dead. (Samo v. Keyser, No. 1:17-cv-05043 (RJS) (GWG), ECF No. 18-16 at 1454-55; 1468-69; 1481-82.) Samo implicated Gonzalez in the murder and only admitted that Petitioner helped dispose of the body. Petitioner's trial counsel used this testimony in his closing to try to obtain an acquittal on the most serious charges against Petitioner. This was a strategic decision; it was not a basis for finding that trial counsel was ineffective or that Petitioner's Sixth Amendment right of confrontation was violated.
Petitioner also argues that by consenting to the admission of Samo's prior testimony, his trial counsel improperly admitted evidence of his guilt against his wishes in violation of McCoy v. Louisiana, 138 S.Ct. 1500 (2018). In McCoy, the Supreme Court held that a defendant has the right to insist that his counsel refrain from admitting guilt, even when the attorney believes that a confession would offer the best chance to avoid a death sentence. Id. at 1505. Unlike in McCoy, Petitioner has offered no evidence that he insisted that his counsel not consent to the admission of Samo's prior testimony. Rather, the record indicates that Petitioner and his co-defendants agreed with the strategy of admitting Samo's prior testimony.
For similar reasons, there is no basis for finding Petitioner's appellate counsel ineffective for failing to raise an ineffective assistance of counsel claim based on trial counsel's agreement to the admission of Samo's prior testimony. Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (“[t]he failure to include a meritless argument does not fall outside the ‘wide range of professionally competent assistance' to which Petitioner was entitled.”) (citing Jameson v. Coughlin, 22 F.3d 427, 429-30 (2d Cir. 1994); see Harrington, 562 U.S. at 105 (“[t]he standards created by Strickland and [AEDPA] are both ‘highly deferential,' . . . and when the two apply in tandem, review is ‘doubly' so.”) (internal citations omitted).
Accordingly, Petitioner's third claim for relief should be denied.
IV. Prosecutorial Misconduct
Petitioner also seeks habeas relief on grounds that the state prosecutor impermissibly coerced Gonzalez to testify against Petitioner at trial and elicited false testimony from Hernandez about his cooperation agreement. Petitioner asserts there is newly discovered evidence substantiating these claims. Respondent argues that all of these claims are unexhausted and procedurally barred. In the alternative, Respondent argues that they are meritless.
The first time Petitioner raised these claims was in his Second § 440.10 Motion. (See ECF No. 20-12 ¶ 1.) On January 16, 2019, the Supreme Court, Bronx County summarily denied petitioner's Second § 440.10 Motion. (Petition ¶ 18; Jan. 2019 Decision Denying Second § 440.10 Motion.) Petitioner then filed a certificate for leave to appeal that denial to the Appellate Division. (Weiss Decl. ¶ 37.) On September 17, 2019, the Appellate Division denied leave to appeal. (Id. ¶ 38.)
The Supreme Court's January 16, 2019 decision rejected these claims on various procedural grounds. (See Jan. 2019 Decision Denying Second § 440.10 Motion at 4 (citing CPL § 440.10(2)(c); People v. Cuadrado, 37 A.D.3d 218, 221 (1st Dep't 2007); CPL § 440.10(3)(c)).) First, the court held that the claims were record-based and should have been raised on direct appeal and had been forfeited. CPL § 440.10(2)(c) (requiring the state court to deny a motion to vacate when a claim was ripe for review but the petitioner unjustifiably failed to raise the claim on direct appeal). The court also found that even if Petitioner didn't raise these claims in his direct appeal, he could have raised them in his First 440.10 Motion but inexcusably failed to do so. CPL § 440.10(3)(c) (“the court may deny a motion to vacate a judgment when. . . [u]pon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so”). Third, the court held that there was no new evidence, explaining that the claims were based on statements made by the prosecutor at trial or discoverable prior to trial. (Jan. 2019 Decision Denying Second § 440.10 Motion at 4.) Any alleged coercion of Gonzalez was discussed at trial, and the updated terms of Hernandez's cooperation agreement were discussed in front of the jury at the first trial and brought up during the second trial as well. (Jan. 2019 Decision Denying Second § 440.10 Motion at 5; see ECF No. 20-12 Ex. D. at 472-73, 475, 477-78.)
In sum, the last court to issue a fully-reasoned opinion on Petitioner's claims of prosecutorial misconduct found them to be procedurally barred. This is an adequate and independent state procedural ground to find that these claims are procedurally barred. Clark v. Perez, 510 F.3d 382, 393 (2d Cir. 2008) (holding that a state court's application of § 440.10(2)(c) constitutes an adequate procedural bar to a federal habeas petition); Murden v. Artuz, 497 F.3d 178, 193 (2d Cir. 2007) (holding the same for a state court's application of § 440.10(3)(c) and collecting cases); see also Martinez, 2018 WL 7047148, at *8. Petitioner makes no meaningful attempt to show such cause for failing to raise the prosecutorial misconduct claims in his direct appeal or his First 440.10 Motion, prejudice, or actual innocence. Further, a claim based on newly discovered evidence is not one that concerns a deprivation of Constitutional rights and is therefore not appropriate for habeas review. See Herrera v. Collins, 506 U.S. 390, 400 (1993) (“[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding”). Thus, these claims (the fourth, fifth, and sixth grounds for habeas relief) also should be dismissed.
To the extent Petitioner suggests that his prosecutorial misconduct claims raise a claim that he was denied his Sixth Amendment right to a fair trial, he is mistaken. He did not raise this constitutional issue in his Second 440.10 Motion or his appeals of this motion. And, even if such claims inherently implicate Sixth Amendment considerations, the claims themselves are still procedurally barred under the state court's application of an adequate and independent state rule.
V. Petitioner's Due Process Claim
Petitioner's final claim for habeas relief reads as a catchall request for relief based on unfair proceedings, ineffective counsel, prosecutorial misconduct, and reversible error by the trial courts. To the extent these arguments mirror those addressed above, I do not re-address them here.
Though not entirely clear, Petitioner's last claim for relief appears to be that his due process rights were violated when the state courts denied both his § 440.10 motions without conducting a hearing. Plaintiff relies heavily on the Supreme Court's ruling in Wolff v. McDonnell, 418 U.S. 539, 558 (1974) to support this claim. Respondent argues that the claim is unexhausted and, regardless, should be denied as ineligible for habeas review.
Wolff assessed the extent of due process protections for inmates in Nebraska prison disciplinary proceedings. The respondent-petitioner alleged that the disciplinary proceedings taking place in the Nebraska facility ran afoul of the Fourteenth Amendment's due process clause because, among other reasons, he could not call witnesses in his defense. The Court found in favor of the respondent-petitioner in this regard, explaining that the minimum requirements of procedural due process were owed to the inmates and balancing the needs of the inmates with the needs of the institution. Id. at 558, 572. Wolff does not assist Petitioner as it involved a totally different situation: inmates facing discipline, not a defendant afforded two jury trials as well as direct and collateral appeals of his conviction.
Petitioner fails to cite any authority for the proposition that due process is violated if a state court denies a defendant a post-conviction hearing in a collateral attack on the conviction. Cf. Pennsylvania v. Finely, 481 U.S. 551, 556-57 (1987) (holding that postconviction relief is a defendant's collateral attack which typically occurs after a failed direct appeal and that state courts are not obligated to provide that avenue of relief); see also Diaz v. Greiner, 110 F.Supp.2d 225, 236 (S.D.N.Y. 2000) (“Petitioner's unsupported assertion that the trial court denied his (third) CPL § 440.10 motion without a hearing violated due process is not cognizable on federal habeas review.”) (citation omitted). To this Court's knowledge, no such authority exists. Contrary to Petitioner's contentions, the New York Supreme Court decisions denying both of Petitioner's § 440.10 motions without hearings were grounded in well-established procedural mechanisms as well as federal and state law. As such, those decisions were not arbitrary actions of government and did not violate Petitioner's due process rights.
Accordingly, this claim also should be denied.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Petition be denied and dismissed in its entirety.
NOTICE
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)).
Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lorna G. Schofield at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Schofield. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).